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Agenda 04/26/2011 Item #16E3 . . . 4/26/2011 Item 16.E.3. EXECUTIVE SUMMARY Recommendation to approve Request for Proposal (RFP) 10-5571 Environmental and Biological Studies and authorize the execution of contracts to Turell, Hall and Associates, Inc, Boylan Environmental Consultant Inc, W. Dexter Bender and Associates, Passarella & Associates in an estimated annual amount of $500,000. OBJECTIVE: To obtain approval from the Board of County Commissioners to contract with proposers identified in the selection process for RFP 10-5571 to facilitate the environmental and biological studies on an as-needed basis for Collier County departments. CONSIDERATIONS: In October and November 2010, the Purchasing Department met with a variety of County departments and the Pelican Bay Service Division to determine the scope of work requirements for biological and environmental monitoring professional . services. The scope of work and related services is not considered architectural, engineering, landscape architectural or surveying and mapping, and ther~fore, the solicitation process does not fall under the Competitive Consultant Negotiation Act (CCNA). The RFP was developed and contained two sections to meet the different needs between Pelican Bay and County Departments: · Pelican Bay Section A: The Clam Bay Mangrove Monitoring and Maintenance Program is a plan to analyze the ecological health of the mangrove system within the Clam Bay Estuary, which includes specific monitoring activities to monitor prior restoration activities within the Clam Bay ecosystem and the regeneration of dying mangroves. The Selection Committee recommends that the Section A scope of work should be coordinated by one firm. · County Departments Section B: The Consultants will review and coordinate with the permitting consultants and regulatory agencies in the areas of wetland delineation and quality, mitigation, threatened and endangered species surveys, and other requirements for obtaining permits from various agencies. The Selection Committee recommends that the Section B scope of work is diverse enough, and the dollars historically spent supports awarding to four firms. Future work on this contract will be quoted among all of the awarded firms. The RFP was publicly advertised on 11/23/2010. Email notices were sent to 625 firms with 173 vendors requesting full solicitation packages. Eight (8) responses were received by the due date of 12/10/10. A Selection Committee was held on 01/21/11 and after review and discussion, and by consensus of the members; the following four firms were shortlisted: Packet Page -1142- 4/26/2011 Item 16.E.3. . Pelican Bav Section A Rankinos 1 Turrell, Hall and Associates 2 W Dexter Bender and Associates 3.5 Hans Wilson and Associates 3.5 Paserella and Associates 5 The Ecology Group Staff recommends the firm ranked first (Turrell, Hall and Associates) for award of this contract by consensus of the Selection Committee. The Pelican Bay Service Division Board was informed of the Selection Committee's recommendation at their February 2, 2011 meeting (Item 5-D); no action was required. The contract is attached for review by members of the Board. County Departments Section B Rankinos . 1.5 Boylan Environmental Consultant Inc 1.5 W Dexter Bender and Associates 3 Turell, Hall and Associates Inc 4 Passarella & Associates 5 Hans Wilson & Associates I nc 6 Ecological Consulting Solution's Inc / ECS, 7 Ecology Services Associates Staff recommends the top four firms listed (Boylan Environmental Consultant Inc, W Dexter Bender and Associates, Turrell, Hall and Associates, and Passarella & Associates) are recommended for award of this contract by consensus of the Selection Committee for award in no particular order. The contracts are attached for review by the members of the Board. FISCAL IMPACT: Funds are available in various department budgets that use these a.greements. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney's Office, requires majority vote, and is legally sufficient for Board action. - CMG RECOMMENDATION: That the Board of County Commissioners (1) approves the Selection Committee's recommended selection of firm(s) under RFP 10-5571 and (2) authorizes the Chairman to execute the attached County Attorney approved contracts with Turrell, Hall and Associates; Boylan Environmental Consultant Inc.; W Dexter Bender and Associates and Passerella & Associates. . PREPARED BY: Jack Curran, Procurement Strategist, Purchasing Department Packet Page -1143- 4/26/2011 Item 16.E.3. 0 :;E 0 en m c )> -I ;;c . Ql ;:+ '0 2- 3 c Co ;:;: "T1 it ~ $if :J CD !!!, CD < CD "'C CD :J n C CD =It !- en CD ;::; a: ~ en 0- Dl Z Dl - C1l II! CD =:!: 0 ~~ 0- OJ 0 - CD CD t:T' ';0::; ::J (:;' 3 _CD () ';0::; C1l CD CD ru C1l ::J "'$. C - .s~ 0 0 en 0 ! "'C :e CD 2 .., ::J Dl < 0 ::J - - j;i: "C 0 CD g 0 Dl C1l c.. 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N N N ...... ...... N N CJ'\ W 0 ./l>. N CD co ~ CIl .., III 0) CJ'\ N N CQ N "'" w i-.> N CD CJ'\ CJ'\ CJ'\ CJ'\ C".) CJ'\ CJ'\ Packet Page -1147- C/) CD g. 0' ::J OJ o en 2- tI) m CD :s (ii' ~~. ~ 000 :s:::S e C')~;o~ o :::s "T1 '< 3;-"D"D 3-~E; ;:;:OJ....(") - -. O::l" ~~tn3l "T1 CQ ~ S' 5' 5' .... l.O !!t!!t c tI) "0 III ;:j.. 3 tI) :s - ;ow II) - :::s e ^8: _. CD c5 III . . . 4/26/2011 Item 16.E.3. COLLIER COUNTY Board of County Commissioners Item Number: 16.E.3. Item Summary: Recommendation to approve Request for Proposal (RFP) 10-5571 Environmental and Biological Studies and authorize the execution of contracts to Turrell, Hall and Associates, Inc, Boylan Environmental Consultants Inc, W. Dexter Bender and Associates, Passarella & Associates in an estimated annual amount of $500,000. Meeting Date: 4/26/2011 Prepared By Name: CurranJohn Title: Purchasing Agent,Purchasing & General Services 4/11/201110:17:02AM Approved By Name: SmithKristen Title: Administrative Secretary,Risk Management Date: 4/11/2011 10:29:27 AM Name: Markiewiczloanne Title: Manager - Purchasing Acquisition,Purchasing & General Services Date: 4/11/2011 12:50:23 PM Name: McCaughtryMary Date: 4/11/20114:01:19PM Name: CamellSteve Title: Director - Purchasing/General Services,Purchasing Date: 4/12/2011 1:08:24 PM Name: GreeneColleen Title: Assistant County Attomey,County Attorney Date: 4/13/2011 8:25:26 AM Packet Page -1148- . . . Name: PriceLen Title: Administrator - Administrative Services, Date: 4/14/2011 4:40:27 PM Name: K1atzkowJeff Title: County Attorney, Date: 4/15/2011 1:23:21 PM Name: StartleyTherese Title: ManagementlBudget Analyst, Senior,Office of Management & Budget Date: 4/15/20111:42:55 PM Name: KlatzkowJeff Title: County Attorney, Date: 4/18/2011 4:35:44 PM Name: OchsLeo Title: County Manager Date: 4/20/2011 9:50:15 AM Packet Page -1149- 4/26/2011 Item 16.E.3. 4/26/2011 Item 16.E.3. . Contract #10-5571 Fixed Term Environmental & Biological Studies - Section B FIXED TERM CONTRACT FOR SERVICES THIS AGREEMENT is made and entered into this _ day of 2011, by and between the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter referred to as the "COUNTY" or "OWNER") and W. Dexter Bender & Associates, Inc., authorized to do business in the State of Florida, whose business address is 4470 Camino Real Way, Suite 101, Fort Myers, FL, 33966, (hereinafter referred to as the "CONSULTANT"). WIT N E SSE T H: . WHEREAS, it is in the best interests of OWNER to be able to obtain CONSULTANT Environmental & Biological Studies - Section B services expeditiously when a need arises in connection with a Collier County project; and NOW, THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows: ARTICLE 1 CONSULTANT'S RESPONSIBILITY 1.1 From time to time upon the written request or direction of OWNER as hereinafter provided, CONSULTANT shall provide to OWNER Environmental & Biological Studies - Section B services . A-1 Packet Page -1150- 4/26/2011 Item 16.E.3. (hereinafter the "Services'',) as herein set forth. The term "Services" includes all Additional services. authorized by written Amendment or Change Order as hereafter provided. 1.2 All Services to be performed by CONSULTANT pursuant to this Agreement shall be in conformance with the scope of services, which shall be described in a Work Order issued pursuant to the procedures described herein. The form of the Work Order is set forth in attached Schedule A. Reference to the term 'Work Order" herein, with respect to authorization of Services, includes all written Amendments or Change Orders to any particular Work Order. CONSULTANT acknowledges and agrees that each individual Work Order shall not exceed $200,000 unless otherwise approved in writing by the Board of County Commissioners, and that the total initial compensation for all Work Orders issued under this Agreement shall not exceed $750,000 annually, unless otherwise approved in writing by the Board of County Commissioners of Collier County. 1.2.1 All Services must be authorized in writing by OWNER in the form of a Work Order. . CONSULTANT shall not provide any Services to OWNER unless and to the extent they are required in a written Work Order. Any Services provided by CONSULTANT without a written Work Order shall be at CONSULTANT'S own risk and OWNER shall have no liability for such Services. 1.2.2 As OWNER identifies certain Services it wishes CONSULTANT to provide pursuant to the terms of this Agreement, OWNER shall request a proposal from CONSULTANT for such Services, said proposal to be in compliance with the terms of this Agreement. If the parties reach an agreement with respect to such Services, including, but not limited to the scope, compensation and schedule for performance of those Services, a Work Order shall be prepared which incorporates the terms of the understanding reached by the parties with respect to such Services and if both parties are in agreement therewith, they shall jointly execute the Work Order. . A-2 Packet Page -1151- 4/26/2011 Item 16.E.3. . 1.2.3 Upon execution of a Work Order as aforesaid, CONSULTANT agrees to promptly provide the SeNices required thereby, in accordance with the terms of this Agreement and the subject Work Order. 1.2.4 It is mutually understood and agreed that the nature, amount and frequency of the SeNices shall be determined solely by OWNER and that OWNER does not represent or guarantee unto CONSULTANT that any' specific amount of SeNices will be requested or required of CONSULTANT pursuant to this Agreement. 1.2.5 CONSULTANT shall have no authority to act as the agent of OWNER under this Agreement or any Work Order, or to obligate OWNER in any manner or way. 1.2.6 All duly executed Work Orders (including all written Amendments or Change Orders .heretO) are hereby incorporated into and made a part of this Agreement by reference. 1.3 CONSULTANT hereby designates Paul Owen as its Principal in Charge (hereinafter referred. to as the "Principal in Charge") with full authority to bind and obligate CONSULTANT on all matters arising out of or relating to this Agreement. In each Work Order CONSULTANT will designate a qualified Environmental & Biological Studies - Section B professional to seNe as CONSULTANT'S project coordinator for the Services to be provided under that Work Order (hereinafter referred to as the "Project Coordinator"). The Project Coordinator is authorized and responsible to act on behalf of the CONSULTANT with respect to directing, coordinating and administering all aspects of the Services to be provided and performed under the Work Order. Further, the Project Coordinator has full authority to bind and obligate the CONSULTANT on all matters arising out of or relating to the Work Order. The CONSULTANT agrees that the Principal in Charge and the Project Coordinators . shall devote whatever time is required to satisfactorily manage the seNices to be provided and A-3 Packet Page -1152- 4/26/2011 Item 16.E.3. performed by the CONSULTANT under the Work Order. CONSULTANT further agrees that the. Principal in Charge and Project Coordinators shall not be removed by CONSULTANT without OWNER'S prior written approval, and if so removed must be immediately replaced with a person acceptable to OWNER. 1.4 CONSULTANT agrees, within fourteen (14) calendar days of receipt of a written request from OWNER to promptly remove and replace the Principal in Charge or any Project Coordinator, or any other personnel employed or retained by the CONSULTANT, or any subconsultants or subcontractors or any personnel of any such subconsultants or subcontractors engaged by the CONSULTANT to provide and perform any of the Services pursuant to the requirements of this Agreement or any applicable Work Order, said request may be made with or without cause. Any personnel so removed must be immediately replaced with a person acceptable to OWNER. 1.5 The CONSULTANT represents to the OWNER that it has expertise and experience in the type. of professional Environmental & Biological Studies - Section B services that will be required under this Agreement. The CONSULTANT agrees that all services to be provided by CONSULTANT pursuant to this Agreement shall be subject to the OWNER'S review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with all applicable laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies, including the Florida Building Code where applicable, which regulate or have jurisdiction over the Services to be provided and performed by CONSULTANT hereunder. In the event of any conflicts in these requirements, the CONSULTANT shall notify the OWNER of such conflict and utilize its best professional judgment to advise OWNER regarding resolution of each such conflict. . A-4 Packet Page -1153- 4/26/2011 Item 16.E.3. . 1.6 CONSULTANT agrees not to divulge, furnish or make available to any third person, firm or organization, without OWNER'S prior written consent, or unless incident to the proper performance of the CONSULTANT'S obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the Services to be rendered by CONSULTANT hereunder, and CONSULTANT shall require all of its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. CONSULTANT shall provide OWNER prompt written notice of any such subpoenas. 1.7 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements and/or codes and ordinances applicable to Consultant's performance of the work as related to the . project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance whether or not the County obtained substitute performance. ARTICLE 2 ADDITIONAL SERVICES OF CONSULTANT 2.1 If authorized in writing by Owner through an Amendment or Change Order to a Work Order, CONSULTANT shall furnish or obtain from others Additional Services beyond those Services originally authorized in the Work Order. The agreed upon scope, compensation and schedule for .Additional S~rvices shall be set forth in the Amendment or Change Order authorizing those Additional A-5 Packet Page -1154- 4/26/2011 Item 16.E.3. Services. With respect to the individuals with authority to authorize Additional Services under thiS. Agreement, such authority will be as established in OWNER'S Purchasing Policy and Administrative Procedures in effect at the time such services are authorized. Except in an emergency endangering life or property, any Additional Services must be approved in writing via an Amendment or Change Order to the subject Work Order prior to starting such services. OWNER will not be responsible for the costs of Additional Services commenced without such express prior written approval. Failure to obtain such prior written approval for Additional Services will be deemed: (i) a waiver of any claim by CONSULTANT for such Additional Services and (ii) an admission by CONSULTANT that such Work is not additional but rather a part of the Services originally required of CONSULTANT under the subject Work Order. If OWNER determines that a change in a Work Order is required because of the action taken by CONSULTANT in response to an emergency, an Amendment or Change Order shall be issued to document the consequences of the changes or variations, provided that CONSULTANT . has delivered written notice to OWNER of the emergency within forty-eight (48) hours from when CONSULTANT knew or should have known of its occurrence. Failure to provide the forty-eight (48) hour written notice noted above, waives CONSULTANT'S right it otherwise may have had to seek an adjustment to its compensation or time of performance under the subject Work Order. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 For each Work Order, OWNER shall designate in writing a project manager to act as OWNER'S representative with respect to the Services to be rendered under the Work Order (hereinafter referred to as the "Project Manager"). The Project Manager shall have authority to transmit instructions, receive information, interpret and define OWNER'S policies and decisions with respect to CONSULTANT'S Services under the Work Order. However, the Project Manager is not . A-6 Packet Page -1155- 4/26/2011 Item 16.E.3. . authorized to issue any verbal or written orders or instructions to the CONSULTANT that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatever: (a) The scope of Services to be provided and performed by the CONSULTANT as set forth in the Work Order; (b) The time the CONSULTANT is obligated to commence and complete all such Services as set forth in the Work Order; or (c) The amount of compensation the OWNER is obligated or committed to pay the CONSULTANT as set forth in the Work Order. 3.2 The Project Manager shall: (a) Review and make appropriate recommendations on all requests submitted by the . CONSULTANT for payment for services and work provided and performed in accordance with this Agreement; (b) Provide all criteria and information requested by CONSULTANT as to OWNER'S requirements for the Services specified in the Work Order, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; (c) Upon request from CONSULTANT, assist CONSULTANT by placing at CONSULTANT'S disposal all available information in the OWNER'S possession pertinent to the Services specified in the Work Order, including existing specifications, product literature, previous reports and any other data relative to the subject Work Order; . A-7 Packet Page -1156- 4/26/2011 Item 16.E.3. (d) Arrange for access to and make all provisions for CONSULTANT to enter the site. (if any) set forth in the Work Order to perform the Services to be provided by CONSULTANT under the subject Work Order; and (e) Provide notice to CONSULTANT of any deficiencies or defects discovered by the OWNER with respect to the Services to be rendered by CONSULTANT hereunder. ARTICLE 4 TIME 4.1 Services to be rendered by CONSULTANT shall be commenced, performed andcompleted in accordance with the Work Order and the Schedule. Time is of the essence with respect to the performance of the Services under each Work Order. 4.2 Should CONSULTANT be obstructed or delayed in the prosecution or completion of the. Services as a result of unforeseeable causes beyond the control of CONSULTANT, and not due to its own fault or neglect, including but not restricted to acts of nature or of public enemy, acts of government or of the OWNER, fires, floods, epidemics, quarantine regulations, strikes or lock-outs, then CONSULTANT shall notify OWNER in writing within five (5) working days after commencement of such delay, stating the specific cause or causes thereof, or be deemed to have waived any right which CONSULTANT may; have had to request a time extension for that specific delay. 4.3 Unless otherwise expressly provided in the Work Order, no interruption, interference, inefficiency, suspension or delay in the commencement or progress of CONSULTANT'S Services from any cause whatsoever, including those for which OWNER may be responsible in whole or in part, shall relieve CONSULTANT of its duty to perform or give rise to any right to damages or additional compensation from OWNER. CONSULTANT'S sole remedy against OWNER will be the . A-a Packet Page -1157- 4/26/2011 Item 16.E.3. . right to seek an extension of time to the Schedule; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as claims based on late completion. 4.4 Should the CONSULTANT fail to commence, provide, perform or complete any of the Services to be provided hereunder in a timely manner, in addition to any other rights or remedies available to the OWNER hereunder, the OWNER at its sole discretion and option may withhold any and all payments due and owing to the CONSULTANT under this Agreement (including any and all Work Orders) until such time as the CONSULTANT resumes performance of its obligations hereunder in such a manner so as to reasonably establish to the OWNER'S satisfaction that the CONSULTANT'S performance is or will shortly be back on schedule. .4.5 In no event shall any approval by OWNER authorizing CONSULTANT to continue performing Work under any particular Work Order or any payment issued by OWNER to CONSULTANT be deemed a waiver of any right or claim OWNER may have against CONSULTANT for delay or any other damages hereunder. 4.6 The period of service shall be from the date of execution of this Agreement through one (1) year from that date, or until such time as all outstanding Work Orders issued prior to the expiration of the Agreement period have been completed. This Agreement may be renewed for an additional three (3) one (1) year renewal options. Any such annual renewal shall be agreed to, in writing, by both parties. . A-9 Packet Page -1158- 4/26/2011 Item 16.E.3. ARTICLE 5 COMPENSATION . 5.1 Compensation and the manner of payment of such compensation by the OWNER for Services rendered hereunder by CONSULTANT shall be as prescribed in each Work Order. CONSULTANT agrees to furnish to OWNER, after the end of each calendar month, or as specified in the Work Order, a comprehensive and itemized statement of charges for the Services performed and rendered by CONSULTANT during that time period, and for any OWNER authorized reimbursable expenses as herein below defined, incurred and/or paid by CONSULTANT during that time period. The monthly statement shall be in such form and supported by such documentation as may be required by OWNER. All such statements shall be on CONSULTANT'S letterhead and shall indicate the Agreement Number, Work Order Number, Purchase Order Number and Project Site description (if any). . 5.2 The compensation (whether based upon a negotiated lump sum, time and materials, hourly with a cap or some other agreed to format) contained in each separate Work Order shall be based on the hourly rates as set forth and identified in Schedule B which is attached hereto, for the time reasonably expended by CONSULTANT'S personnel in performing the Services. The Rate Schedule may be updated by mutual agreement on an annual basis, in conjunction with the annual renewal of this Agreement provided for in paragraph 4.6 above, as directed by OWNER. 5.2.1 OWNER agrees to reimburse CONSULTANT for all necessary and reasonable reimbursable expenses in~urred or paid by CONSULTANT in connection with CONSULTANT'S performance of the Services, at its direct cost with no markup, to the extent such reimbursement is permitted in the Work Order and in accordance with Section 112.061, F.S., or as setforth below. . A-10 Packet Page -1159- 4/26/2011 Item 16.E.3. . 5.2.2 Reimbursable expenses shall be invoiced for the expenditures incurred by the CONSULTANT as follows: 5.2.2.1. Expenses of transportation and living when traveling in connection with each Work Order, except for local travel within Collier or Lee Counties, as provided in Section 112.061, F .S., and all Contract-related mileage for trips that are from/to destinations outside of Collier or Lee Counties approved by OWNER. 5.2.2.2 Expenses for reproducing documents that exceed the number of documents described in this Agreement and postage and handling of Drawings and Specifications, including duplicate sets at the completion of each Work Order for the OWNERiS review and approval. 5.2.2.3. Expense of overtime work requiring higher than regular rates approved in . advance and in writing by OWNER. 5.2.2.4. Expense of models for the OWNER'S use. 5.2.2.5 Fees paid for securing approval of authorities having jurisdiction over the Work Order required under the applicable Work Order. 5.2.2.6 Other items on request and approved in writing by the OWNER. 5.2.3 CONSULTANT shall obtain the prior written approval of OWNER before incurring any of the aforesaid reimbursable expenses, and absent such prior approval, no expenses incurred by CONSULTANT will be deemed to be a reimbursable expense. 5.3 CONSULTANT shall bear and pay all overhead and other expenses, except for authorized reimbursable expenses, incurred by CONSULTANT in the performance of the Services. . A-11 Packet Page -1160- 4/26/2011 Item 16.E.3. 5.4 Prior to issuing any Work Order pursuant to this Agreement, OWNER may request that. CONSULTANT in writing advise OWNER of (i) the estimated time of CONSULTANT'S personnel and the estimated fees thereof for the proposed work to be specified in the Work Order; and (ii) the estimated charge to OWNER for the reimbursable expenses applicable to the contemplated Services to be performed by CONSULTANT under the proposed Work Order. CONSULTANT shall promptly supply such estimate to OWNER based on CONSULTANT'S good faith analysis. 5.5 CONSULTANT agrees that, with respect to any subconsultant or subcontractor to be utilized by CONSULTANT on any particular Work Order, CONSULTANT shall be limited to a maximum markup of five percent (5.%) on the fees and expenses associated with such subconsultants and subcontractors. 5.6 Payments for BaSiC: Services and Additional Basic Services as set forth herein, or in the Work . Order shall be made upon presentation of the CONSULTANT'S itemized invoice approved by OWNER. 5.6.1 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of contract. Any untimely submission of invoices beyond the specified deadline period is subject to non- payment under the legal doctrine of "laches" as untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this agreement. 5.7 Records of Reimbursable Expenses shall be kept on a generally recognized accounting basis. 5.8 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, . A-12 Packet Page -1161- 4/26/2011 Item 16.E.3. . incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements and/or codes and ordinances applicable to Consultant's performance of the work as related to the project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance. ARTICLE 6 OWNERSHIP OF DOCUMENTS 6.1 Upon the completion or termination of each Work Order, as directed by OWNER, CONSULTANT shall deliver to OWNER copies or originals of all records, documents, drawings, . notes, tracings, plans, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for CONSULTANT under the applicable Work Order ("Project Documents"). OWNER shall specify whether the originals or copies of such Project Documents are to be delivered by CONSULTANT. CONSULTANT shall be solely responsible for all costs associated with delivering to OWNER the Project Documents. CONSULTANT, at its own expense, may retain copies of the Project Documents for its files and internal use. 6.2 Notwithstanding anything in this Agreement to the contrary and without requiring OWNER to pay any additional compensation, CONSULTANT hereby grants to OWNER a nonexclusive, irrevocable license in all of the Project Documents for OWNER'S use with respect to the applicable authorized project or task. CONSULTANT warrants to OWNER that it has full right and authority to . grant this license to OWNER. Further, CONSULTANT consents to OWNER'S use of the Project A-13 Packet Page -1162- 4/26/2011 Item 16.E.3. Documents to complete the subject project or task following CONSULTANT'S termination for any. reason or task. CONSULTANT also acknowledges OWNER may be making Project Documents available for review and information to various third parties and hereby consents to such use by OWNER. ARTICLE 7 MAINTENANCE OF RECORDS 7.1 CONSULTANT will i keep adequate records and supporting documentation which concern or reflect the Services hereunder. The records and documentation will be retained by CONSULTANT for a minimum of five (5) years from (a) the date of termination of this Agreement or (b) the date the Work Order is completed, whichever is later, or such later date as may be required by law. OWNER, or any duly authorized agents or representatives of OWNER, shall, free of charge, have the right to audit, inspect and copy all such records and documentation as often as they deem necessary during . the period of this Agreement and during the five (5) year period noted above, or such later date as may be required by law; provided, however, such activity shall be conducted only during normal business hours. 7.2 The records specified above in paragraph 7.1 include accurate time records, which CONSULTANT agrees to keep and maintain, from day to day, showing the time expended by each principal and employee of CONSULTANT in performing the Services and therein specifying the services performed by each, with all such time records to be kept within one-half of an hour. At the request of OWNER, or as specified in the Work Order, CONSULTANT shall furnish to OWNER any of the aforesaid time records, as well as invoices or proofs showing CONSULTANT'S incurrence and/or payment of any reimbursable expenses. . A-14 Packet Page -1163- 4/26/2011 Item 16.E.3. . ARTICLE 8 INDEMNIFICATION 8.1 To the maximum extent permitted by law, CONSULTANT shall indemnify and hold harmless OWNER, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys" fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of CONSULTANT or anyone employed or utilized by the CONSULTANT in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph 8.1. ARTICLE 9 INSURANCE . 9.1 CONSULTANT shall obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts described herein and further set forth in Schedule C to this Agreement. 9.2 All insurance shall be from responsible companies duly authorized to do business in the State of Florida. 9.3 All insurance policies required by this Agreement shall include the following provisions and conditions by endorsement to the policies: 9.3.1 All insurance policies, other than the Business Automobile policy, Professional Liability policy, and the Workers Compensation policy, provided by CONSULTANT to meet the requirements of .hiS Agreement shall name Collier County Board of County Commissioners, Collier County, Florida, as A-15 Packet Page -1164- 4/26/2011 Item 16.E.3. an additional insured as to the operations of CONSULTANT under this Agreement and shall contain a . severability of interests pro~isions. 9.3.2 Companies issuing the insurance policy or policies shall have no recourse against OWNER for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of CONSULTANT. 9.3.3 All insurance coverages of CONSULTANT shall be primary to any insurance or self- insurance program carried by OWNER, and the "Other Insurance" provisions of any policies obtained by CONSULTANT shall not apply to any insurance or self-insurance program carried by OWNER. 9.3.4 The Certificates of Insurance, which are to be provided in an Occurrence Form patterned after the current I.S.O. form with no limiting endorsements, must reference and identify this Agreement. . 9.3.5 All insurance. policies shall be fully performable in Collier County, Florida, and shall be construed in accordance with the laws of the State of Florida. 9.4 CONSULTANT, its subconsultants and OWNER shall waive all rights against each other for damages covered by insurance to the extent insurance proceeds are paid and received by OWNER, except such rights as they may have to the proceeds of such insurance held by any of them. 9.5 All insurance companies from whom CONSULTANT obtains the insurance policies required hereunder must meet the following minimum requirements: 9.5.1 The insurance company must be duly licensed and authorized by the Department of Insurance of the State of Florida to transact the appropriate insurance business in the State of Florida. . A-16 Packet Page -1165- 4/26/2011 Item 16.E.3. . 9.5.2 The insurance company must have a current A. M. Best financial rating of "Class VI" or higher. ARTICLE 10 SERVICES BY CONSULTANT'S OWN STAFF 10.1 The Services to be performed hereunder shall be performed by CONSULTANT'S own staff, unless otherwise authorized in writing by the OWNER. The employment of, contract with, or use of the services of any other person or firm by CONSULTANT, as independent consultant or otherwise, shall be subject to the prior written approval of the OWNER. No provision of this Agreement shall, however, be construed as constituting an agreement between the OWNER and any such other person or firm. Nor shall anything in this Agreement be deemed to give any such party or any third party any claim or right of action against the OWNER beyond such as may then otherwise exist . without regard to this Agreement. ' 10.2 Attached to each Work Order shall be a Schedule that lists all of the key personnel CONSULTANT intends to assign to perform the Services required under that Work Order. Such personnel shall be committed to the project or task specified in the Work Order in accordance with the percentages noted in the attached Schedule. CONSULTANT shall also identify in that Schedule each subconsultant and subcontractor it intends to utilize with respect to the subject Work Order. All personnel, subconsultants and subcontractors identified in the Schedule shall not be removed or replaced without OWNER'S prior written consent. 10.3 CONSULTANT is liable for all the acts or omissions of its subconsultants or subcontractors. By appropriate written agreement, the CONSULTANT shall require each subconsultant or .subcontractor, to the extent of the Services to be performed by the subconsultant or subcontractor, to A-17 Packet Page -1166- 4/26/2011 Item 16.E.3. be bound to the CONSULTANT by the terms of this Agreement and any subsequently issued work. Order, and to assume toward the CONSULTANT all the obligations and responsibilities which the CONSULTANT, by this Agreement and any subsequently issued Work Order, assumes toward the OWNER. Each subconsultant or subcontract agreement shall preserve and protect the rights of the OWNER under this Agreement, and any subsequently issued Work Order, with respect to the Services to be performed by the subconsultant or subcontractor so that the subconsulting or subcontracting thereof will not prejudice such rights. Where appropriate, the CONSULTANT shall require each subconsultant or subcontractor to enter into similar agreements with its sub- subconsultants or sub-subcontractors. 1 0.4 CONSULTANT acknowledges and agrees that OWNER is a third party beneficiary of each contract entered into between CONSULTANT and each subconsultant or subcontractor, however nothing in this Agreement shall be construed to create any contractual relationship between OWNER . and any subconsultant or subcontractor. ARTICLE 11 WAIVER OF CLAIMS 11.1 CONSULTANT'S acceptance of final payment for Services provide under any Work Order shall constitute a full waiver of any and all claims, except for insurance company subrogation claims, by it against OWNER arising out of the Work Order or otherwise related to those Services, and except those previously made in writing in accordance with the terms of this Agreement and identified by CONSULTANT in its final invoice for the subject Work Order as unsettled. Neither the acceptance of CONSULTANT'S Services nor payment by OWNER shall be deemed to be a waiver of any of OWNER'S rights against CONSULTANT. . A-18 Packet Page -1167- 4/26/2011 Item 16.E.3. . ARTICLE 12 TERMINATION OR SUSPENSION 12.1 This Agreement is a fixed term contract for the professional services of CONSULTANT. It is agreed that either party hereto shall at any and all times have the right and option to terminate this Agreement by giving to the other party not less than thirty (30) days prior written notice of such termination. Upon this Agreement being so terminated by either party hereto, neither party hereto shall have any further rights or obligations under this Agreement subsequent to the date of termination, except that Services specified to be performed under a previously issued Work Order, shall proceed to completion under the terms of this Agreement. 12.2 CONSULTANT shall be considered in material default of this Agreement and such default will be considered cause for OWNER to terminate this Agreement and any Work Orders in effect, in . whole or in part, as further set forth in this section, for any of the following reasons: (a) CONSULTANT'S failure to begin Services under any particular Work Order within the times specified under that Work Order, or (b) CONSULTANT'S failure to properly and timely perform the Services to be provided hereunder or as directed by OWNER, or (c) the bankruptcy or insolvency or a general assignment for the benefit of creditors by CONSULTANT or by any of CONSULTANT'S principals, officers or directors, or (d) CONSULTANT'S failure to obey any laws, ordinances, regulations or other codes of conduct, or (e) CONSULTANT'S failure to perform or abide by the terms and conditions of this Agreement and any Work Orders in effect, or (f) for any other just cause. The OWNER may so terminate this Agreement and any Work Orders in effect, in whole or in part, by giving the CONSULTANT seven (7) calendar days written notice of the material default. . A-19 Packet Page -1168- 4/26/2011 Item 16.E.3. 12.3 If, after notice of termination of this Agreement as provided for in paragraph 12.1 above, it is . determined for any reason that CONSULTANT was not in default, or that its default was excusable, or that OWNER otherwise was not entitled to the remedy against CONSULTANT provided for in paragraph 12.2, then the notice of termination given pursuant to paragraph 12.2 shall be deemed to be the notice of termination provided for in paragraph 12.4, below, and CONSULTANT'S remedies against OWNER shall be the same as and be limited to those afforded CONSULTANT under paragraph 12.4 below. 12.4 Notwithstanding anything herein to the contrary (including the provisions of paragraph 12.1 above), OWNER shall have the right to terminate this Agreement and any Work Orders in effect, in whole or in part, without cause upon seven (7) calendar days written notice to CONSULTANT. In the event of such termination for convenience, CONSULTANT'S recovery against OWNER shall be limited to that portion of the fee earned through the date of termination, for any Work Orders so . cancelled, together with any retainage withheld and any costs reasonably incurred by CONSULTANT that are directly attributable to the termination, but CONSULTANT shall not be entitled to any other or further recovery against OWNER, including, but not limited to, anticipated fees or profits on Services not required to be performed. CONSULTANT must mitigate all such costs to the greatest extent reasonably possible. 12.5 Upon termination and as directed by OWNER, the CONSULTANT shall deliver to the OWNER all original papers, records, documents, drawings, models, and other material set forth and described in this Agreement, including those described in Section 6, that are in CONSULTANT'S possession or under its control arising out of or relating to this Agreement or any Work Orders. . A-20 Packet Page -1169- 4/26/2011 Item 16.E.3. . 12.6 The OWNER shall have the power to suspend all or any portions of the Services to be provided by CONSULTANT hereunder upon giving CONSULTANT two (2) calendar days prior written notice of such suspension. If all or any portion of the Services to be rendered hereunder are so suspended, the CONSULTANT'S sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in Article Four herein. 12.7 In the event (i) OWNER fails to make any undisputed payment to CONSULTANT within forty- five (45) days after such payment is due as set forth in the Work Order or such other time as required by Florida's Prompt Payment Act or (ii) OWNER otherwise persistently fails to fulfill some material obligation owed by OWNER to CONSULTANT under this Agreement or subsequently issued Work Order, and (ii) OWNER has failed to cure such default within fourteen (14) days of receiving written notice of same from CONSULTANT, then CONSULTANT may stop its performance under the subject . Work Order until such default is cured, after giving OWNER a second fourteen (14) days written notice of CONSULTANT'S intention to stop performance under the applicable Work Order. If the Services are so stopped for a period of one hundred and twenty (120) consecutive days through no act or fault of the CONSULTANT or its subconsultant or subcontractor or their agents or employees or any other persons performing portions of the Services under contract with the CONSULTANT, the CONSULTANT may terminate the subject Work Order by giving written notice to OWNER of CONSULTANT'S intent to terminate that Work Order. If OWNER does not cure its default within fourteen (14) days after receipt of CONSULTANT'S written notice, CONSULTANT may, upon fourteen (14) additional days' written notice to the OWNER, terminate the subject Work Order and recover from the Owner payment for Services performed through the termination date, but in no event shall CONSULTANT be entitled to payment for Services not performed or any other damages from . Owner. A-21 Packet Page -1170- 4/26/2011 Item 16.E.3. ARTICLE 13 . CONFLICT OF INTEREST 13.1 CONSULTANT represents that it presently has no interest and shall acquire no interest, either direct or indirect, which "'You1d conflict in any manner with the performance of Services required hereunder. CONSULTANT further represents that no persons having any such interest shall be employed to perform those Services. ARTICLE 14 MODI FICA TION 14.1 No modification or qhange in this Agreement shall be valid or binding upon either party unless in writing and executed by the party or parties intended to be bound by it. ARTICLE 15 . NOTICES AND ADDRESS OF RECORD 15.1 All notices required or made pursuant to this Agreement to be given by the CONSULTANT to the OWNER shall be in writing and shall be delivered by hand, by fax, or by United States Postal Service Department, first class mail service, postage prepaid, addressed to the following OWNER'S address of record: Board of County Commissioners, Collier County Florida Purchasing Department, Purchasing Building 3327 Tamiami Trail East Naples, FI. 34112 Attention: Stephen Y. Carnell, Purchasing/GS Director Telephone: 239-252-8407 Fax: 239-252-6584 . A-22 Packet Page -1171- 4/26/2011 Item 16.E.3. . 15.2 All notices required or made pursuant to this Agreement to be given by the OWNER to the CONSULTANT shall be made in writing and shall be delivered by hand, by fax or by the United States Postal Service Department, first class mail service, postage prepaid, addressed to the following CONSULTANT'S address of record: W. Dexter Bender & Associates, Inc. 4470 Camino Real Way, Suite 101 Ft. Myers, FL. 33966 Telephone: 239/334-3680 Fax: 239/334-8714 Attention: Paul Owen Either party may change its address of record by written notice to the other party given in accordance with requirements of this Article. . ARTICLE 16 MISCELLANEOUS 16.1 CONSULTANT, in representing OWNER, shall promote the best interests of OWNER and , assume towards OWNER a duty of the highest trust, confidence, and fair dealing. 16.2 No modification, waiver, suspension or termination of the Agreement or of any terms thereof shall impair the rights or liabilities of either party. 16.3 This Agreement is not assignable, or otherwise transferable in whole or in part, by CONSULTANT without the prior written consent of OWNER. 16.4 Waivers by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this .Agreement. A-23 Packet Page -1172- 4/26/2011 Item 16.E.3. 16.5 The headings of the Articles, Schedules, Parts and Attachments as contained in this . Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions in such Articles, Schedules, Parts and Attachments. 16.6 This Agreement, including the referenced Schedules and Attachments hereto, constitutes the entire agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matter set forth herein, and any such prior agreements or understanding shall have no force or effect whatever on this Agreement. 16.7 Unless otherwise expressly noted herein, all representations and covenants of the parties shall survive the expiration or termination of this Agreement. 16.8 This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. . 16.9 This Contract consists of the attached component parts, all of which are as fully a part of the contract as if herein set out verbatim: Contractor's Proposal, Insurance Certificate, RFP #10-5571 Specifications/Scope of Services, Schedule A - Work Order, Schedule 8 - Fee Schedule and Schedule C -Insurance Coverage. ARTICLE 17 APPLICABLE LAW . A-24 Packet Page -1173- 4/26/2011 Item 16.E.3. . or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on'all such matters. ARTICLE 18 DISPUTE RESOLUTION 18.1 Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of CONSULTANT with full decision-making authority and by OWNER'S staff person who would make the presentation of any settlement reached during negotiations to OWNER for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court . Mediator certified by the State of Florida. The mediation shall be attended by representatives of CONSULTANT with full decision-making authority and by OWNER'S staff person who would make the presentation of any settlement reached at mediation to OWNER'S board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.102, Fla. Stat. 18.2 Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. . A-25 Packet Page -1174- 4/26/2011 Item 16.E.3. ARTICLE 19 . IMMIGRATION LAW COMPLIANCE 19.1 By executing and entering into this agreement, the Consultant is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et sea. and regulations relating thereto, as either may be amended. Failure by the Consultant to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immediately. IN WITNESS WHEREOF, the parties hereto have executed this Professional Services Agreement for Environmental & Biological Studies - Section B the day and year first written above. ATTEST: BOARD OF COUNTY COMMISSIONERS FOR COLLIER COUNTY, FLORIDA, Dwight E. Brock, Clerk By: . Date: By: Fred W. Coyle, Chairman Approved as to form and legal sufficiency: Deputy County Attorney W. DEXTER BENDER & ASSOCIATES, INC. By: Witness Typed Name and Title Typed Name and Title Witness Typed Name and Title . A-26 Packet Page -1175- 4/26/2011 Item 16.E.3. . SCHEDULE A WORK ORDER # Agreement for , Dated: ,2011 (RFP 10-5571) This Work Order is for professional services for work known as: Project Name: Project No: The work is specified in the proposal dated , 200 which is attached hereto and made a part of this Work Order. In accordance with Terms and Conditions of the Agreement referenced above, Work Order # is assigned to: name of firm. Scope of Work: As detailed in the attached proposal and the following: * Task I * Task II * Task III Schedule of Work: Complete work within _days from receipt of the Notice to Proceed which is accompanying this Work Order. Compensation: In accordance with Article Five of the Agreement, the County will compensate the Firm in accordance with the following method(s): _Negotiated Lump Sum~Lump Sum Plus Reimbursable Costs _Time & Material (established hourly rate - Schedule A) _Cost Plus Fixed Fee, as provided in the attached proposal. (Define which method will be used for which tasks) . Task I Task II Task III $ $ $ TOTAL FEE $ Any change made subsequent to final department approval will be considered an additional service and charged according to Schedule "A" of the original Contract Agreement. PREPARED BY: name and title Date APPROVED BY: Department Director, Department Name Date APPROVED BY: Division Administrator, Division Date ACCEPTED BY: Company name Signature of Authorized Company Officer Date . Type or Print Name and Title A-27 Packet Page -1176- 4/26/2011 Item 16.E.3. SCHEDULE B . Collier County Fee Schedule RFP 10-5571 "Environmental & Biological Studies - Section B" W. DEXTER BENDER & ASSOCIATES, INC. FEE SCHEDULE Principal $13D.DD/hour Project Principal $13D.DD/hour Ecologist $1DD.DD/hour Environmental Technician $7D.DD/hour GIS Analysis ' $9D.DD/hour AutoCad Expert Witness $65.DD/hour $2DD,DD/hour Clerical/ Admin Assistant $35,DO/hour . This list is not intended to be all-inclusive. Hourly rate fees for other categories of professional, suppqrt and other services shall be mutually negotiated by the County and firm on a project by project basis as needed, . B-1 Packet Page -1177- . . . 4/26/2011 Item 16.E.3. SCHEDULE C INSURANCE COVERAGE (1 ) The amounts and types of insurance coverage shall conform to the following minimum requirements with the use of Insurance Services Office (ISO) forms and endorsements or their equivalents. If CONSULTANT has any self-insured retentions or deductibles under any of the below listed minimum required coverages, CONSULTANT must identify on the Certificate of Insurance the nature and amount of such self-insured retentions or deductibles and provide satisfactory evidence of financial respons.ibility for such obligations. All self-insured retentions or deductibles will be CONSULTANT'S sole responsibility. (2) The insurance required by this Agreement shall be written for not less than the limits specified herein or required by law, whichever is greater. (3) Coverages shall be maintained without interruption from the date of commencement of the Services until the date of completion of all Services required hereunder or as specified in this Agreement, whichever is longer. (4) Simultaneously with the execution and delivery of this Agreement by CONSULTANT, CONSULTANT has delivered properly executed Certificates of insurance (3 copies) acceptable to the OWNER evidencing the fact that CONSULTANT has acquired and put in place the insurance coverages and limits required hereunder. In addition, certified, true and exact copies of all insurance policies required shall be provided to OWNER, on a timely basis, if requested by OWNER. Such certificates shall contain a provision that coverages afforded under the policies will not be canceled or C-1 Packet Page -1178- 4/26/2011 Item 16.E.3. allowed to expire until at least thirty (30) days prior written notice has been given to the . OWNER. CONSULTANT shall also notify OWNER, in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, non-renewal or material change in coverages or limits received by CONSULTANT from its insurer, and nothing contained herein shall relieve CONSULTANT of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by CONSULTANT hereunder, CONSULTANT shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy. (5) . All insurance coverages of the CONSULTANT shall be primary to any insurance or self insurance program carried by the OWNER applicable to this Agreement. (6) The acceptance by OWNER of any Certificate of Insurance pursuant to the terms of this Agreement does not constitute approval or agreement by the OWNER . that the insurance requirements have been satisfied or that the insurance policy shown on the Certificate of Insurance is in compliance with the requirements of this Agreement. (7) CONSULTANT shall require each of its subconsultants to procure and maintain, until the completion of the subconsultant's services, insurance of the types and to the limits specified in this Section except to the extent such insurance requirements for the subconsultant are expressly waived in writing by the OWNER. (8) Should at any time the CONSULTANT not maintain the insurance coverages required herein, the OWNER may terminate the Agreement and any Work Orders issued pursuant to the Agreement or at its sole discretion shall be authorized to . C-2 Packet Page -1179- 4/26/2011 Item 16.E.3. . purchase such coverages and charge the CONSULTANT for such coverages purchased. If CONSULTANT fails to reimburse OWNER for such costs within thirty (30) days after demand, OWNER has the right to offset these costs from any amount due CONSULTANT under this Agreement or any other agreement between OWNER and CONSULTANT. The OWNER shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverages purchased or the insurance company or companies used. The decision of the OWNER to purchase such insurance coverages shall in no way be construed to be a waiver of any of its rights under the Agreement. (9) If the initial, or any subsequently issued Certificate of Insurance expires prior to the completion of the Services required hereunder or termination of the Agreement or any Work Order, the CONSULTANT shall furnish to the OWNER, in . triplicate, renewal or replacement Certificate(s) of Insurance not later than three (3) business days after the renewal of the policy(ies). Failure of the Contractor to provide the OWNER with such renewal certificate(s) shall be deemed a material breach by CONSULTANT and OWNER may terminate the Agreement or any subsequently issued Work Order for cause. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY Required by this Agreement? X Yes No (1) Workers' Compensation and Employers' Liability Insurance shall be maintained by the CONSULTANT during the term of this Agreement for all employees engaged in the work under this Agreement in accordance with the laws of the State of . Florida. The amounts of such insurance shall not be less than: C-3 Packet Page -1180- 4/26/2011 Item 16.E.3. a. Worker's Compensation - Florida Statutory Requirements b. Employers' Liability $100,000 Each Accident $500,000 Disease Aggregate $100,000 Disease Each Employee . _X_$1,OOO,OOO Each Accident $1,000,000 Disease Aggregate $1,000,000 Disease Each Employee (2) The insurance company shall waive all claims rights against the OWNER I and the policy shall be so endorsed. (3) United States Longshoreman's and Harborworker's Act coverage shall be maintained where applicable to the completion of the work. . _ Applicable _X_ Not Applicable (4) Maritime Coverage (Jones Act) shall be maintained where applicable to the completion of the work. _ Applicable _X_ Not Applicable COMMERCIAL GENERAL LIABILITY Required by this Agreement? _X_ Yes _ No (1) Commercial General Liability Insurance, written on an "occurrence" basis, shall be maintained by the CONSULTANT. Coverage will include, but not be limited to, Bodily Injury, Property Damage, Personal Injury, Contractual Liability for this Agreement, Independent Contractors, Broad Form Property Damage including . C-4 Packet Page -1181- 4/26/2011 Item 16.E.3. . Completed Operations and Products and Completed Operations Coverage. Products and Completed Operations coverage shall be maintained for a period of not less than five (5) years following the completion and acceptance by the OWNER of the work under this Agreement. Limits of Liability shall not be less than the following: _ General Aggregate Products/Completed Operations Aggregate Personal and Advertising Injury Each Occurrence Fire Damage _ General Aggregate Products/Completed Operations Aggregate, Personal and Advertising Injury Each Occurrence Fire Damage _X_General Aggregate Each Occurrence . $300,000 $300,000 $300,000 $300,000 $ 50,000 $500,000 $500,000 $500,000 $500,000 $ 50,000 $1,000,000 $1,000,000 (2) The General Aggregate Limit shall apply separately to this Project and the policy shall be endorsed using the following endorsement wording. "This endorsement modifies insurance provided under the following: Commercial General Liability Coverage Part. The General Aggregate Limit under LIMITS OF INSURANCE applies separately to each of your projects away from premises owned by or rented to you." Applicable deductibles or self-insured retentions shall be the sole responsibility of CONSULTANT. Deductibles or self-insured retentions carried by the CONSULTANT shall be subject to the approval of the Risk Management Director or his designee. (3) The OWNER, Collier County Government, shall be named as an Additional Insured and the policy shall be endorsed that such coverage shall be primary . to any similar coverage carried by the OWNER. C-5 Packet Page -1182- 4/26/2011 Item 16.E.3. (4) Coverage shall be included for explosion, collapse or underground . property damage claims. (5) Watercraft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL T ANT in limits of not less than the Commercial General Liability limit shown in subparag~aph (1) above if applicable to the completion of the SeNices under this Agreement. _ Applicable _X_ Not Applicable (6) Aircraft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL TANT in limits of not less than $5,000,000 each occurrence if applicable to the completion of the SeNices under this Agreement. _ Applicable _X_ Not Applicable . AUTOMOBILE LIABILITY INSURANCE Required by this Agreement? _X_ Yes _ No (1) Automobile Liability Insurance shall be maintained by the CONSULTANT for the ownership, n;1aintenance or use of any owned, non-owned or hired vehicle with limits of not less than: _X_ Bodily Injury & Property Damage - $ 500,000 Bodily Injury & Property Damage - $1,000,000 . C-6 Packet Page -1183- 4/26/2011 Item 16.E.3. . UMBRELLA LIABILITY (1) Umbrella Liability may be maintained as part of the liability insurance of the CONSULTANT and, if so, such policy shall be excess of the Employers' Liability, Commercial General Liability, and Automobile Liability coverages required herein and shall include all coverages on a "following form" basis. (2) The policy shall contain wording to the effect that, in the event of the exhaustion of any underlying limit due to the payment of claims, the Umbrella policy will "drop down" to apply as primary insurance. . . C-7 Packet Page -1184- 4/26/2011 Item 16.E.3. Contract #10-5571 . Fixed Term Environmental & Biological Studies - Section B FIXED TERM CONTRACT FOR SERVICES THIS AGREEMENT is made and entered into this _ day of 2011, by and between the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter referred to as the "COUNTY" or "OWNER") and Boylan Environmental Consultants, Inc., authorized to do business in the State of Florida, whose business address is 3584 Exchange Avenue, Naples FL. 34103, (hereinafter referred to as the "CONSULTANT"). WIT N E SSE T H: . WHEREAS, it is in the best interests of OWNER to be able to obtain CONSULTANT Environmental & Biological Studies - Section B services expeditiously when a need arises in connection with a Collier County project; and NOW, THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows: ARTICLE 1 CONSULTANT'S RESPONSIBILITY 1.1 From time to time upon the written request or direction of OWNER as hereinafter provided, CONSULTANT shall provide to OWNER Environmental & Biological Studies - Section B services . A-1 Packet Page -1185- 4/26/2011 Item 16.E.3. . (hereinafter the "Services") as herein set forth. The term. "Services" includes all Additional Services authorized by written Amendment or Change Order as hereafter provided. 1.2 All Services to be performed by CONSULTANT pursuant to this Agreement shall be in conformance with the scope of services, which shall be described in a Work Order issued pursuant to the procedures described herein. The form of the Work Order is set forth in attached Schedule A. Reference to the term "Work Order" herein, with respect to authorization of Services, includes all written Amendments or Change Orders to any particular Work Order. CONSULTANT acknowledges and agrees that each individual Work Order shall not exceed $200,000 unless otherwise approved in writing by the Board of County Commissioners, and that the total initial compensation for all Work Orders issued under this Agreement shall not exceed $750,000 annually, unless otherwise approved in writing by the Board of County Commissioners of Collier County. . 1.2.1 All Services must be authorized in writing by OWNER in the form of a Work Order. CONSULTANT shall not provide any Services to OWNER unless and to the extent they are required in a written Work Order. Any Services provided by CONSULTANT without a written Work Order shall be at CONSULTANT'S own risk and OWNER shall have no liability for such Services. 1.2.2 As OWNER identifies certain Services it wishes CONSULTANT to provide pursuant to the terms of this Agreement, OWNER shall request a proposal from CONSULTANT for such Services, said proposal to be in compliance with the terms of this Agreement. If the parties reach an agreement with respect to such Services, including, but not limited to the scope, compensation and schedule for performance of those Services, a Work Order shall be prepared which incorporates the terms of the understanding reached by the parties with respect to such Services and if both parties are in Packet Page -1186- 4/26/2011 Item 16.E.3. 1.2.3 Upon execu'tion of a Work Order as aforesaid, CONSULTANT agrees to promptlY. provide the Services requiryd thereby, in accordance with the terms of this Agreement and the subject Work Order. 1.2.4 It is mutually understood and agreed that the nature, amount and frequency of the Services shall be determined solely by OWNER and that OWNER does not represent or guarantee unto CONSULTANT that any specific amount of Services will be requested or required of CONSULTANT pursuant to ,this Agreement. 1.2.5 . CONSULTANT shall have no authority to act as the agent of OWNER under this Agreement or any Work Order, or to obligate OWNER in any manner or way. 1.2.6 All duly executed Work Orders (including all written Amendments or Change Orders thereto) are hereby incorporated into and made a part of this Agreement by reference. . 1.3 CONSULTANT hereby designates Rae Ann Boylan as its Principal in Charge (hereinafter referred to as the "Principal in Charge") with full authority to bind and obligate CONSULTANT on all matters arising out of or relating to this Agreement. In each Work Order CONSULTANT will designate a qualified Environmental & Biological Studies - Section B professional to serve as CONSULTANT'S project coordinator for the Services to be provided under that Work Order (hereinafter referred to as the "Project Coordinator"). The Project Coordinator is authorized and responsible to act on behalf of the CONSULTANT with respect to directing, coordinating and administering all aspects of the Services to be provided and performed under the Work Order. Further, the Project Coordinator has full authority to bind and obligate the CONSULTANT on all matters arising out of or relating to the Work Order. The CONSULTANT agrees that the Principal in Charge and the Project Coordinators shall devote whatever time is required to satisfactorily manage. A-3 Packet Page -1187- 4/26/2011 Item 16.E.3. . the services to be provided and performed by the CONSULTANT under the Work Order. CONSULTANT further agrees that the Principal in Charge and Project Coordinators shall not be removed by CONSULTANT without OWNER'S prior written approval, and if so removed must be immediately replaced with a person acceptable to OWNER. 1.4 CONSULTANT agrees, within fourteen (14) calendar days of receipt of a written request from OWNER to promptly remove and replace the Principal in Charge or any Project Coordinator, or any other personnel employed or retained by the CONSULTANT, or any subconsultants or subcontractors or any personnel of any such subconsultants or subcontractors engaged by the CONSULTANT to provide and perform any of the Services pursuant to the requirements of this Agreement or any applicable Work Order, said request may be made with or without cause. Any personnel so removed must be immediately replaced with a person acceptable to OWNER. .1.5 The CONSULTANT represents to the OWNER that it has expertise and experience in the type of professional Environmental & Biological Studies - Section B services that will be required under this Agreement. The CONSULTANT agrees that all services to be provided by CONSULTANT pursuant to this Agreement shall be subject to the OWNER'S review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with all applicable laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies, including the Florida Building Code where applicable, which regulate or have jurisdiction over the Services to be provided and performed by CONSULTANT hereunder. In the event of any conflicts in these requirements, the CONSULTANT shall notify the OWNER of such conflict and utilize its best professional judgment to advise OWNER regarding resolution of each such conflict. . A-4 Packet Page -1188- 4/26/2011 Item 16.E.3. 1.6 CONSULTANT agrees not to divulge, furnish or make available to any third person, firm or . organization, without OWNER'S prior written consent, or unless incident to the proper performance of the CONSULTANT'S obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the Services to be rendered by CONSULTANT hereunder, and CONSULTANT shall require all of its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. CONSULTANT shall provide OWNER prompt written notice of any such subpoenas. 1.7 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements and/or codes and ordinances applicable to Consultant's performance of the work as related to the project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole . determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance whether or not the County obtained substitute performance. ARTICLE 2 ADDITIONAL SERVICES OF CONSULTANT 2.1 If authorized in writing by Owner through an Amendment or Change Order to a Work Order, CONSULTANT shall furnish or obtain from others Additional Services beyond those Services originally authorized in the Work Order. The agreed upon scope, compensation and schedule for Additional Services shall be set forth in the Amendment or Change Order authorizing those Additional . A-5 Packet Page -1189- 4/26/2011 Item 16.E.3. . Services. With respect to the individuals with authority to authorize Additional Services under this Agreement, such authority will be as established in OWNER'S Purchasing Policy and Administrative Procedures in effect at the time such services are authorized. Except in an emergency endangering life or property, any Additional Services must be approved in writing via an Amendment or Change Order to the subject Work Order prior to starting such services. OWNER will not be responsible for the costs of Additional Services commenced without such express prior written approval. Failure to obtain such prior written approval for Additional Services will be deemed: (i) a waiver of any claim by CONSULTANT for such Additional Services and (ii) an admission by CONSULTANT that such Work is not additional but rather a part of the Services. originally required of CONSULTANT under the subject Work Order. If OWNER determines that a change in a Work Order is required because of the action taken by CONSULTANT in response to an emergency, an Amendment or Change Order shall . be issued to document the consequences of the changes or variations, provided that CONSULTANT has delivered written notice to OWNER of the emergency within forty-eight (48) hours from when. CONSULTANT knew or should have known of its occurrence. Failure to provide the forty-eight (48) hour written notice noted above, waives CONSULTANT'S right it otherwise may have had to seek an adjustment to its compensation or time of performance under the subject Work Order. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 For each Work Order, OWNER shall designate in writing a project manager to act as OWNER'S representative with respect to the Services to be rendered under the Work Order (hereinafter referred to as the "Project Manager"). The Project Manager shall have authority to transmit instructions, receive information, interpret and define OWNER'S policies and decisions with . respect to CONSULTANT'S Services under the Work Order. However, the Project Manager is not A-6 Packet Page -1190- 4/26/2011 Item 16.E.3. authorized to issue any verbal or written orders or instructions to the CONSULTANT that would have. the effect, or be interpreted to have the effect, of modifying or changing in any way whatever: (a) The scope of Services to be provided and performed by the CONSULTANT as set forth in the Work Order; (b) The time the CONSULTANT is obligated to commence and complete all such Services as set forth in the Work Order; or (c) The amount of compensation the OWNER is obligated or committed to pay the CONSULTANT as set forth in the Work Order. 3.2 The Project Manager shall: (a) Review and make appropriate recommendations on all requests submitted by the CONSULTANT for payment for selVices and work provided and performed in . accordance with this Agreement; (b) Provide all criteria and information requested by CONSULTANT as to OWNER'S requirements for the Services specified in the Work Order, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; (c) Upon request from CONSULTANT, assist CONSULTANT by placing at CONSULTANT'S disposal all available information in the OWNER'S possession pertin~nt to the Services specified in the Work Order, including existing specifications, product literature, previous reports and any other data relative to the subject Work Order; . A-7 Packet Page -1191- 4/26/2011 Item 16.E.3. . (d) Arrange for access to and make all provisions for CONSULTANT to enter the site (if any) set forth in the Work Order to perform the Services to be provided by CONSULTANT under the subject Work Order; and (e) Provide notice to CONSULTANT of any deficiencies or defects discovered by the OWNER with respect to the Services to be rendered by CONSULTANT hereunder. ARTICLE 4 TIME 4.1 Services to be rendered by CONSULTANT shall be commenced, performed and completed in accordance with the Work Order and the Schedule. Time is of the essence with respect to the performance of the Services under each Work Order. 4.2 Should CONSULTANT be obstructed or delayed in the prosecution or completion of the . Services as a result of unforeseeable causes beyond the control of CONSULTANT, and not due to its own fault or neglect, including but not restricted to acts of nature or of public enemy, acts of government or of the OWNER, fires, floods, epidemics, quarantine regulations, strikes or lock-outs, then CONSULTANT shall notify OWNER in writing within five (5) working days after commencement of such delay, stating the specific cause or causes thereof, or be deemed to have waived any right which CONSULTANT may have had to request a time extension for that specific delay. 4.3 Unless otherwise expressly provided in the Work Order, no interruption, interference, inefficiency, suspension or delay in the commencement or progress of CONSULTANT'S Services from any cause whatsoever, including those for which OWNER may be responsible in whole or in part, shall relieve CONSULTANT of its duty to perform or give rise to any right to damages or . additional compensation from OWNER. CONSULTANT'S sole remedy against OWNER will be the A-8 Packet Page -1192- 4/26/2011 Item 16.E.3. right to seek an extension of time to the Schedule; provided, however, the granting of any such time. extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as claims based on late completion. 4.4 Should the CONSULTANT fail to commence, provide, perform or complete any of the Services to be provided hereunder in a timely manner, in addition to any other rights or remedies available to the OWNER hereunder, the OWNER at its sole discretion and option may withhold any and all payments due and owing to the CONSULTANT under this Agreement (including any and all Work Orders) until such time as the CONSULTANT resumes performance of its obligations hereunder in such a manner so as to reasonably establish to the OWNER'S satisfaction that the CONSULTANT'S performance is or will shortly be back on schedule. 4.5 in no event shall any approval by OWNER authorizing CONSULTANT to continue perfOrming. Work under any particular Work Order or any payment issued by OWNER to CONSULTANT be deemed a waiver of any right or claim OWNER may have against CONSULTANT for delay or any other damages hereunder. 4.6 The period of service shall be from the date of execution of this Agreement through one (1) year from that date, or until such time as all outstanding Work Orders issued prior to the expiration of the Agreement period have been completed. This Agreement may be renewed for an additional three (3) one (1) year renewal options. Any such annual renewal shall be agreed to, in writing, by both parties. . A-9 Packet Page -1193- 4/26/2011 Item 16.E.3. . ARTICLE 5 COMPENSATION 5.1 Compensation and the manner of payment of such compensation by the OWNER for Services rendered hereunder by CONSULTANT shall be as prescribed in each Work Order. CONSULTANT agrees to furnish to OWNER, after the end of each calendar month, or as specified in the Work Order, a comprehensive and itemized statement of charges for the Services performed and rendered by CONSULTANT during that time period, and for any OWNER authorized reimbursable expenses as herein below defined, incurred and/or paid by CONSULTANT during that time period. The monthly statement shall be in such form and supported by such documentation as may be required by OWNER. All such statements shall be on CONSULTANT'S letterhead and shall indicate the Agreement Number, Work Order Number, Purchase Order Number and Project Site description (if . any). 5.2 The compensation (whether based upon a negotiated lump sum, time and materials, hourly with a cap or some other agreed to format) contained in each separate Work Order shall be based on the hourly rates as set forth and identified in Schedule B which is attached hereto, for the time reasonably expended by CONSULTANT'S personnel in performing the Services. The Rate Schedule may be updated by mutual agreement on an annual basis, in conjunction with the annual renewal of this Agreement provided for in paragraph 4.6 above, as directed by OWNER. 5.2.1 OWNER agrees to reimburse CONSULTANT for all necessary and reasonable reimbursable expenses incurred or paid by CONSULTANT in connection with CONSULTANT'S performance of the Services, at its direct cost with no markup, to the extent such reimbursement is .ermitted in the Work Order and in accordance with Section 112.061, F.S., or as set forth below. A-10 Packet Page -1194- 4/26/2011 Item 16.E.3. 5.2.2 Reimbursable expenses shall be invoiced for the expenditures incurred by the. CONSULTANT as follows: I 5.2.2.1. . Expenses of transportation and living when traveling in connection with each Work Order, except for local travel within Collier or Lee Counties, as provided in Section 112.061, F.S., and all Contract-related mileage for trips that are from/to destinations outside of Collier or Lee Counties approved by OWNER. 5.2.2.2 Expenses for reproducing documents that exceed the number of documents described in this Agreement and postage and handling of Drawings and Specifications, including duplicate sets at the completion of each Work Order for the OWNER'S review and approval. 5.2.2.3. Expense of overtime work requiring higher than regular rates approved in advance and in writing by OWNER. . 5.2.2.4. Expense of models for the OWNER'S use. 5.2.2.5 Fees paid for securing approval of authorities having jurisdiction over the Work Order required under the applicable Work Order. 5.2.2.6 Other items on request and approved in writing by the OWNER. 5.2.3 CONSULTANT shall obtain the prior written approval of OWNER before incurring any of the aforesaid reimbursable expenses, and absent such prior approval, no expenses incurred by CONSULTANT will be deemed to be a reimbursable expense. 5.3 CONSULTANT shall bear and pay all overhead and other expenses, except for authorized reimbursable expenses, incurred by CONSULTANT in the performance of the Services. . A-11 Packet Page -1195- 4/26/2011 Item 16.E.3. . 5.4 Prior to issuing any Work Order pursuant to this Agreement, OWNER may request that CONSULTANT in writing advise OWNER of (i) the estimated time of CONSULTANT'S personnel and the estimated fees thereof for the proposed work to be specified in the Work Order; and (ii) the estimated charge to OWNER for the reimbursable expenses applicable to the contemplated Services to be performed by CONSULTANT under the proposed Work Order. CONSULTANT shall promptly supply such estimate to OWNER based on CONSULTANT'S good faith analysis. 5.5 CONSULTANT agrees that, with respect to any subconsultant or subcontractor to be utilized by CONSULTANT on any particular Work Order, CONSULTANT shall be limited to a maximum markup of five percent (5%) on the fees and expenses associated with such subconsultants and subcontractors. 5.6 Payments for Basic Services and Additional Basic Services as set forth herein, or in the Work . Order shall be made upon presentation of the CONSULTANT'S itemized invoice approved by OWNER. 5.6.1 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of contract. Any untimely submission of invoices beyond the specified deadline period is subject to non- payment under the legal doctrine of "laches" as untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this agreement. 5.7 Records of Reimbursable Expenses shall be kept on a generally recognized accounting basis. 5.8 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, . A-12 Packet Page -1196- 4/26/2011 Item 16.E.3. incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements . and/or codes and ordinances applicable to Consultant's performance of the work as related to the project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance. ARTICLE 6 OWNERSHIP OF DOCUMENTS 6.1 Upon the completion or termination of each Work Order, as directed by OWNER, CONSULTANT shall deliver to OWNER copies or originals of all records, documents, drawings, notes, tracings, plans, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for CONSULTANT under the applicable Work Order ("Project Documents"). OWNER shall specify whether the originals or copies of such Project Documents are to be delivered by CONSULTANT. CONSULTANT shall be solely responsible for all costs associated with delivering to OWNER the Project Documents. CONSULTANT, at its own expense, may retain copies of the Project Documents for its files and internal use. . 6.2 Notwithstanding anything in this Agreement to the contrary and without requiring OWNER to pay any additional compensation, CONSULTANT hereby grants to OWNER a nonexclusive, irrevocable license in all of the Project Documents for OWNER'S use with respect to the applicable authorized project or task. CONSULTANT warrants to OWNER that it has full right and authority to grant this license to OWNER. Further, CONSULTANT consents to OWNER'S use of the project. A-13 Packet Page -1197- 4/26/2011 Item 16.E.3. . Documents to complete the subject project or task following CONSULTANT'S termination for any reason or task. CONSULTANT also acknowledges OWNER may be making Project Documents available for review and information to various third parties and hereby consents to such use by OWNER. ARTICLE 7 MAINTENANCE OF RECORDS 7.1 CONSULTANT will keep adequate records and supporting documentation which concern or reflect the Services hereunder. The records and documentation will be retained by CONSULTANT for a minimum of five (5) years from (a) the date of termination of this Agreement or (b) the date the Work Order is completed, whichever is later, or such later date as may be required by law. OWNER, or any duly authorized agents or representatives of OWNER, shall, free of charge, have the right to . audit, inspect and copy all such records and documentation as often as ~hey deem necessary during the period of this Agreement and during the five (5) year period noted above, or such later date as may be required by law; provided, however, such activity shall be conducted only during normal business hours. 7.2 The records specified above in paragraph 7.1 include accurate time records, which CONSULTANT agrees to keep and maintain, from day to day, showing the time expended by each principal and employee of CONSULTANT in performing the Services and therein specifying the services performed by each, with all such time records to be kept within one-half of an hour. At the request of OWNER, or as specified in the Work Order, CONSULTANT shall furnish to OWNER any of the aforesaid time records, as well as invoices or proofs showing CONSULTANT'S incurrence and/or . payment of any reimbursable expenses. A-14 Packet Page -1198- 4/26/2011 Item 16.E.3. ARTICLE 8 INDEMNIFICATION . 8.1 To the maximum extent permitted by law, CONSULTANT shall indemnify and hold harmless OWNER, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of CONSULTANT or anyone employed or utilized by the CONSULTANT in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph 8.1. ARTICLE 9 INSURANCE . 9.1 CONSULTANT shall obtain and carry, at all times during its performance under the Contract Documents, insurance of 'the types and in the amounts described herein and further set forth in Schedule C to this Agreement. 9.2 All insurance shall be from responsible companies duly authorized to do business in the State of Florida. 9.3 All insurance policies required by this Agreement shall include the following provisions and conditions by endorsement to the policies: 9.3.1 All insurance policies, other than the Business Automobile policy, Professional Liability policy, and the Workers Compensation policy, provided by CONSULTANT to meet the requirements of this Agreement shall name Collier County Board of County Commissioners, Collier County, Florida, as . A-i5 Packet Page -1199- 4/26/2011 Item 16.E.3. .n additional insured as to the operations of CONSULTANT under this Agreement and shall contain a severability of interests provisions. 9.3.2 Companies issuing the insurance policy or policies shall have no recourse against OWNER for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of CONSULTANT. 9.3.3 All insurance coverages of CONSULTANT shall be primary to any insurance or self- insurance program carried by OWNER, and the "Other Insurance" provisions of any policies obtained by CONSULTANT shall not apply to any insurance or self-insurance program carried by OWNER. 9.3.4 The Certificates of Insurance, which are to be provided in an Occurrence Form patterned after the current I.S.O. form with no limiting endorsements, must reference and identify this .greement. 9.3.5 All insurance policies shall be fully performable in Collier County, Florida, and shall be construed in accordance with the laws of the State of Florida. 9.4 CONSULTANT, its subconsultants and OWNER shall waive all rights against each other for damages covered by insurance to the extent insurance proceeds are paid and received by OWNER, except such rights as they may have to the proceeds of such insurance held by any of them. 9.5 All insurance companies from whom CONSULTANT obtains the insurance policies required hereunder must meet the following minimum requirements: 9.5.1 The insurance company must be duly licensed and authorized by the Department of Insurance of the State of Florida to transact the appropriate insurance business in the State of Florida. . A-iS Packet Page -1200- 4/26/2011 Item 16.E.3. 9.5.2 The insurance company must have a current A. M. Best financial rating of "Class VI" . or higher. ARTICLE 10 SERVICES BY CONSULTANT'S OWN STAFF 10.1 The Services to be performed hereunder shall be performed by CONSULTANT'S own staff, unless otherwise authorized in writing by the OWNER. The employment of, contract with, or use of the services of any other person or firm by CONSULTANT, as independent consultant or otherwise, shall be subject to the prior written approval of the OWNER. No provision of this Agreement shall, however, be construed as constituting an agreement between the OWNER and any such other person or firm. Nor shall anything in this Agreement be deemed to give any such party or any third party any claim or right of action against the OWNER beyond such as may then otherwise eXist. without regard to this Agreement. 10.2 Attached to each Work Order shall be a Schedule that lists all of the key personnel CONSULTANT intends to assign to perform the Services required under that Work Order. Such personnel shall be committed to the project or task specified in the Work Order in accordance with the percentages noted in the attached Schedule. CONSULTANT shall also identify in that Schedule each subconsultant and subcontractor it intends to utilize with respect to the subject Work Order. All personnel, subconsultants and subcontractors identified in the Schedule shall not be removed or replaced without OWNER'S prior written consent. 1 0.3 CONSULTANT is liable for all the acts or omissions of its subconsultants or subcontractors. By appropriate written agreement, the CONSULTANT shall require each subconsultant or subcontractor, to the extent of the Services to be performed by the subconsultant or subcontractor, to . A-i7 Packet Page -1201- 4/26/2011 Item 16.E.3. . be bound to the CONSUL T~NT by the terms of this Agreement and any subsequently issued Work Order, and to assume toward the CONSULTANT all the obligations and responsibilities which the CONSULTANT, by this Agreement and any subsequently issued Work Order, assumes toward the OWNER. Each subconsultant or subcontract agreement shall preserve and protect the rights of the OWNER under this Agreement, and any subsequently issued Work Order, with respect to the Services to be performed by the subconsultant or subcontractor so that the subconsulting or subcontracting thereof will not prejudice such rights. Where appropriate, the CONSULTANT shall require each subconsultant or subcontractor to enter into similar agreements with its sub- subconsultants or sub-subcontractors. 1 0.4 CONSULTANT acknowledges and agrees that OWNER is a third party beneficiary of each contract entered into between CONSULTANT and each subconsultant or subcontractor, however . nothing in this Agreement shall be construed to create any contractual relationship between OWNER and any subconsultant or subcontractor. ARTICLE 11 WAIVER OF CLAIMS 11.1 CONSULTANT'S acceptance of final payment for Services provide under any Work Order shall constitute a full waiver of any and all claims, except for insurance company subrogation claims, by it against OWNER arising out of the Work Order or otherwise related to those Services, and except those previously made in writing in accordance with the terms of this Agreement and identified by CONSULTANT in its final invoice for the subject Work Order as unsettled. Neither the acceptance of CONSULTANT'S Services nor payment by OWNER shall be deemed to be a waiver of any of . OWNER'S rights against CONSULTANT. A-i8 Packet Page -1202- 4/26/2011 Item 16.E.3. ARTICLE 12 . TERMINATION OR SUSPENSION 12.1 This Agreement is a fixed term contract for the professional services of CONSULTANT. It is agreed that either party hereto shall at any and all times have the right and option to terminate this Agreement by giving to the other party not less than thirty (30) days prior written notice of such termination. Upon this Agreement being so terminated by either party hereto, neither party hereto shall have any further rights or obligations under this Agreement subsequent to the date of termination, except that Services specified to be performed under a previously issued Work Order, shall proceed to completion under the terms of this Agreement. 12.2 CONSULTANT shall be considered in material default of this Agreement and such default will be considered cause for OWNER to terminate this Agreement and any Work Orders in effect, in . whole or in part, as further set forth in this section, for any of the following reasons: (a) CONSULTANT'S failure to begin Services under any particular Work Order within the times specified under that Work Order, or (b) CONSULTANT'S failure to properly and timely perform the Services to be provided hereunder or as directed by OWNER, or (c) the bankruptcy or insolvency or a general assignment for the benefit of creditors by CONSULTANT or by any of CONSULTANT'S principals, officers or directors, or (d) CONSULTANT'S failure to obey any laws, ordinances, regulations or other codes of conduct, or (e) CONSULTANT'S failure to perform or abide by the terms and conditions of this Agreement and any Work Orders in effect, or (f) for any other just cause. The OWNER may so terminate this Agreement and any Work Orders in effect, in whole or in part, by giving the CONSULTANT seven (7) calendar days written notice of the material default. . A-i9 Packet Page -1203- 4/26/2011 Item 16.E.3. . 12.3 If, after notice of termination of this Agreement as provided for in paragraph 12.1 above, it is determined for any reason that CONSULTANT was not in default, or that its default was excusable, or that OWNER otherwise was not entitled to the remedy against CONSULTANT provided for in paragraph 12.2, then the notice of termination given pursuant to paragraph 12.2 shall be deemed to be the notice of termination provided for in paragraph 12.4, below, and CONSULTANT'S remedies against OWNER shall be the same as and be limited to those afforded CONSULTANT under paragraph 12.4 below. 12.4 Notwithstanding anything herein to the contrary (including the provisions of paragraph 12.1 above), OWNER shall have the right to terminate this Agreement and any Work Orders in effect, in . whole or in part, without cause upon seven (7) calendar days written notice to CONSULTANT. In the event of such termination for convenience, CONSULTANT'S recovery against OWNER shall be .limited to that portion of the fee earned through the date of termination, for any Work Orders so cancelled, together with any retainage withheld and any costs reasonably incurred by CONSULTANT that are directly attributable to the termination, but CONSULTANT shall not be entitled to any other or further recovery against OWNER, including, but not limited to, anticipated fees or profits on Services not required to be performed. CONSULTANT must mitigate all such costs to the greatest extent reasonably possible. 12.5 Upon termination and as directed by OWNER, the CONSULTANT shall deliver to the OWNER all original papers, records, documents, drawings, models, and other material set forth and described in this Agreement, including those described in Section 6, that are in CONSULTANT'S possession or under its control arising out of or relating to this Agreement or any Work Orders. . A-20 Packet Page -1204- 4/26/2011 Item 16.E.3. 12.6 The OWNER shall have the power to suspend all or any portions of the Services to be. provided by CONSULTANT hereunder upon giving CONSULTANT two (2) calendar days prior written notice of such suspension. If all or any portion of the Services to be rendered hereunder are so suspended, the CONSULTANT'S sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in Article Four herein. 12.7 In the event (i) OWNER fails to make any undisputed payment to CONSULTANT within forty- five (45) days after such payment is due as set forth in the Work Order or such other time as required by Florida's Prompt P~yment Act or (ii) OWNER otherwise persistently fails to fulfill some material obligation owed by OWNER to CONSULTANT under this Agreement or subsequently issued Work Order, and (ii) OWNER has failed to cure such default within fourteen (14) days of receiving written notice of same from CONSULTANT, then CONSULTANT may stop its performance under the subject Work Order until such default is cured, after giving OWNER a second fourteen (14) days written. notice of CONSULTANT'S intention to stop performance under the applicable Work Order. If the Services are so stopped for a period of one hundred and twenty (120) consecutive days through no act or fault of the CONSULTANT or its subconsultant or subcontractor or their agents or employees or any other persons performing portions of the Services under contract with the CONSULTANT, the CONSULTANT may terminate the subject Work Order by giving written notice to OWNER of CONSULTANT'S intent to terminate that Work Order. If OWNER does not cure its default within fourteen (14) days after receipt of CONSULTANT'S written notice, CONSULTANT may, upon fourteen (14) additional days' written notice to the OWNER, terminate the subject Work Order and recover from the Owner payment for Services performed through the termination date, but in no event shall CONSULTANT be entitled to payment for Services not performed or any other damages from Owner. . A-2i Packet Page -1205- 4/26/2011 Item 16.E.3. . ARTICLE 13 CONFLICT OF INTEREST 13.1 CONSULTANT represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of Services required hereunder. CONSULTANT further represents that no persons having any such interest shall be employed to perform those Services. ARTICLE 14 MODI FICA TION 14.1 No modification or change in this Agreement shall be valid or binding upon either party unless in writing and executed by the party or parties intended to be bound by it. . ARTICLE 15 NOTICES AND ADDRESS OF RECORD 15.1 All notices required or made pursuant to this Agreement to be given by the CONSULTANT to the OWNER shall be in writing and shall be delivered by hand, by fax, or by United States Postal Service Department, first class mail service, postage prepaid, addressed to the following OWNER'S address of record: Board of County Commissioners, Collier County Florida Purchasing Department, Purchasing Building 3327 Tamiami Trail East Naples, FI. 34112 Attention: Stephen Y. Carnell, Purchasing/GS Director Telephone: 239-252-8407 Fax: 239-252-6584 . A-22 Packet Page -1206- 4/26/2011 Item 16.E.3. 15.2 All notices required' or made pursuant to this Agreement to be given by the OWNER to the . CONSULTANT shall be made in writing and shall be delivered by hand, by fax or by the United States Postal Service Department,. first class mail service, postage prepaid, addressed to the following CONSULTANT'S address of record: Boylan Environmental Consultants, Inc. 11000 Metro Parkway, Suite 4 Ft. Myers, FL. 33966 Telephone: 239/418-0671 Fax: 239/418-0672 Attention: Rae Ann Boylan Either party may change its address of record by written notice to the other party given in accordance with requirements of this Article. ARTICLE 16 . MISCELLANEOUS 16.1 CONSULTANT, in representing OWNER, shall promote the best interests of OWNER and assume towards OWNER a duty of the highest trust, confidence, and fair dealing. 16.2 No modification, waiver, suspension or termination of the Agreement or of any terms thereof shall impair the rights or liabilities of either party. 16.3 This Agreement is not assignable, or otherwise transferable in whole or in part, by CONSULTANT without the prior written consent of OWNER. 16.4 Waivers by either p~rty of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement. . A-23 Packet Page -1207- 4/26/2011 Item 16.E.3. . 16.5 The headings of the Articles, Schedules, Parts and Attachments as contained in this Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions in such Articles, Schedules, Parts and Attachments. 16.6 This Agreement, including the referenced Schedules and Attachments hereto, constitutes the entire agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matter set forth herein, and any such prior agreements or understanding shall have no force or effect whatever on this Agreement. 16.7 Unless otherwise expressly noted herein, all representations and covenants of the parties shall survive the expiration or termination of this Agreement. 16.8 This Agreement may be simultaneously executed in several counterparts, each of which shall . be an original and all of which shall constitute but one and the same instrument. 16.9 This Contract consists of the attached component parts, all of which are as fully a part of the contract as if herein set out verbatim: Contractor's Proposal, Insurance Certificate, RFP #10-5571 Specifications/Scope of Services, Schedule A - Work Order, Schedule B - Fee Schedule and Schedule C - Insurance Coverage. ARTICLE 17 APPLICABLE LAW 17.1 This Agreement shall be governed by the laws, rules, and regulations of the State of Florida, and by such laws, rules and regulations of the United States as made applicable to Services funded by the United States government. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal . A-24 Packet Page -1208- 4/26/2011 Item 16. E.3. or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such . matters. ARTICLE 18 DISPUTE RESOLUTION 18.1 Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of CONSULTANT with full decision-making authority and by OWNER'S staff person who would make the presentation of any settlement reached during negotiations to OWNER for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court Mediator certified by the State of Florida. The mediation shall be attended by representatives of . CONSULTANT with full decision-making authority and by OWNER'S staff person who would make the presentation of any settlement reached at mediation to OWNER'S board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.102, Fla. Stat. 18.2 Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. . A-25 Packet Page -1209- 4/26/2011 Item 16.E.3. . ARTICLE 19 IMMIGRATION LAW COMPLIANCE 19.1 By executing and entering into this agreement, the Consultant is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et sea. and regulations relating thereto, as either may be amended. Failure by the Consultant to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immediately. IN WITNESS WHEREOF, the parties hereto have executed this Professional Services Agreement for Environmental & Biological Studies - Section B the day and year first written above. ATTEST: BOARD OF COUNTY COMMISSIONERS FOR COLLIER COUNTY, FLORIDA, Dwight E. Brock, Clerk . By: Date: By: Fred W. Coyle, Chairman Approved as to form and legal sufficiency: Deputy County Attorney BOYLAN ENVIRONMENTAL CONSULTANTS, INC. By: Witness Typed Name and Title Typed Name and Title Witness . Typed Name and Title A-26 Packet Page -1210- 4/26/2011 Item 16.E.3. SCHEDULE A . WORK ORDER # Agreement for , Dated: , 2011 (RFP 10-5571) This Work Order is for professio~al services for work known as: Project Name: Project No: The work is specified in the proposal dated , 200 which is attached hereto and made a part of this Work Order. In accordance with Terms and Conditions of the Agreement referenced above, Work Order # is assigned to: name of firm. Scope of Work: As detailed in the attached proposal and the following: * Task I * Task II * Task III Schedule of Work: Complete work within _days from receipt of the Notice to Proceed which is accompanying this Work Order. Compensation: In accordance with Article Five of the Agreement, the County will compensate the Firm in accordance with the following method(s): _Negotiated Lump Sum_Lump Sum Plus Reimbursable Costs _Time & Material (established hourly rate - Schedule A) _Cost Plus Fixed Fee, as provided in the attached proposal. (Define which method will be used for which tasks) TOTAL FEE $ $ $ $ . Task I Task II Task III Any change made subsequent to final department approval will be considered an additional service and charged according to Schedule "A" of the original Contract Agreement. PREPARED BY: name and title Date APPROVED BY: Department Director, Department Name Date APPROVED BY: Division Administrator, Division Date ACCEPTED BY: Company name Signature of Authorized Company Officer Date Type or Print Name and Title . A-27 Packet Page -1211- 4/26/2011 Item 16.E.3. . SCHEDULE B Collier County Fee Schedule RFP 10-5571 "Environmental & Biological Studies - Section B" BOYLAN ENVIRONMENTAL CONSULTANTS, INC. FEE SCHEDULE Principal $122/hour Project Principal $122/hour Project Manager $112/hour Ecologist $112/hour Permitting $112/hour Senior Scientist $112/hour Specialist $112/hour . Scientist $107/hour Ecologist $107/hour Environmental Technician $ 87/hour GIS Analyst $107/hour AutoCad $107/hour Expert Witness $125/hour Administrative Assistant/Clerical $ 57/hour This list is not intended to be all-inclusive. Hourly rate fees for other categories of professional, support and other services shall be mutually negotiated by the County and firm on a project by project basis as needed. . B-1 Packet Page -1212- 4/26/2011 Item 16.E.3. SCHEDULE C INSURANCE COVERAGE (1) The amounts and types of insurance coverage shall conform to the following minimum requirements with the use of Insurance Services Office (ISO) forms and endorsement$ or their equivalents. If CONSULTANT has any self-insured retentions or deductibles under any of the below listed minimum required coverages, CONSULTANT must identify on the Certificate of Insurance the nature and amount of such self-insured retentions or deductibles and provide satisfactory evidence of financial responsibility for such obligations. All self-insured retentions or deductibles will be CONSULTANT'S sole responsibility. (2) The insurance required by this Agreement shall be written for not less than the limits specified herein or required by law, whichever is greater. (3) Coverages shall be maintained without interruption from. the date of commencement of the Services until the date of completion of all Services required hereunder or as specified in this Agreement, whichever is longer. (4) Simult,aneously with the execution and delivery of this Agreement by CONSULTANT, CONSULTANT has delivered properly executed Certificates of insurance (3 copies) acceptable to the OWNER evidencing the fact that CONSULTANT has acquired and put in place the insurance coverages and limits required hereunder. In addition, certified, true and exact copies of all insurance policies required shall be provided to OWNER, on a timely basis, if requested by OWNER. Such certificates shall contain a provision that coverages afforded under the policies will not be canceled or C-1 Packet Page -1213- . . . 4/26/2011 Item 16.E.3. . allowed to expire until at least thirty (30) days prior written notice has been given to the OWNER. CONSULTANT shall also notify OWNER, in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, non-renewal or material change in coverages or limits received by CONSULTANT from its insurer, and nothing contained herein shall relieve CONSULTANT of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by CONSULTANT hereunder, CONSULTANT shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy. (5) All insurance coverages of the CONSULTANT shall be primary to any insurance or self insurance program carried by the OWNER applicable to this Agreement. . (6) The acceptance by OWNER of any Certificate of Insurance pursuant to the terms of this Agreement does not constitute approval or agreement by the OWNER that the insurance requirements have been satisfied or that the insurance policy shown on the Certificate of Insurance is in compliance with the requirements of this Agreement. (7) CONSULTANT shall require each of its subconsultants to procure and maintain, until the completion of the subconsultant's services, insurance of the types and to the limits specified in this Section except to the extent such insurance requirements for the subconsultant are expressly waived in writing by the OWNER. (8) Should at any time the CONSULTANT not maintain the insurance coverages required herein, the OWNER may terminate the Agreement and any Work . Orders issued pursuant to the Agreement or at its sole discretion shall be authorized to C-2 Packet Page -1214- 4/26/2011 Item 16.E.3. purchase such coverages and charge the CONSULTANT for such coverages . purchased. If CONSULTANT fails to reimburse OWNER for such costs within thirty (30) days after demand, OWNER has the right to offset these costs from any amount due CONSULTANT under this Agreement or any other agreement between OWNER and CONSULTANT. The OWNER shall be under no obligation to purchase such insurance, nor shall it be resppnsible for the coverages purchased or the insurance company or companies used. The decision of the OWNER to purchase such insurance coverages shall in no way be construed to be a waiver of any of its rights under the Agreement. (9) If the initial, or any subsequently issued Certificate of Insurance expires prior to the completion of the Services required hereunder or termination of the Agreement or any Work Order, the CONSULTANT shall furnish to the OWNER, in triplicate, renewal or replacement Certificate(s) of Insurance not later than three (3) . business days after the renewal of the policy(ies). Failure of the Contractor to provide the OWNER with such renewal certificate(s) shall be deemed a material breach by CONSULTANT and OWNER may terminate the Agreement or any subsequently issued Work Order for cause. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY Required by this Agreement? X Yes No (1) Workers' Compensation and Employers' Liability Insurance shall be I maintained by the CONSULTANT during the term of this Agreement for all employees engaged in the work under this Agreement in accordance with the laws of the State of Florida. The amounts of such insurance shall not be less than: . C-3 Packet Page -1215- . . . 4/26/2011 Item 16.E.3. a. Worker's Compensation - Florida Statutory Requirements b. Employers' Liability $100,000 Each Accident $500,000 Disease Aggregate $100,000 Disease Each Employee _X_ $1,000,000 Each Accident $1,000,000 Disease Aggregate $1,000,000 Disease Each Employee (2) The insurance company shall waive all claims rights against the OWNER and the policy shall be so endorsed.. (3) United States Longshoreman's and Harborworker's Act coverage shall be maintained where applicable to the completion of the work. _ Applicable _X_ Not Applicable (4) Maritime Coverage (Jones Act) shall be maintained where applicable to the completion of the work. _ Applicable _X_ Not Applicable COMMERCIAL GENERAL LIABILITY Required by this Agreement? _X_ Yes _ No (1) Commercial General Liability Insurance, written on an "occurrence" basis, shall be maintained by the CONSULTANT. Coverage will include, but not be limited to, Bodily Injury, Property Damage, Personal Injury, Contractual Liability for this Agreement, Independent Contractors, Broad Form Property Damage including C-4 Packet Page -1216- 4/26/2011 Item 16.E.3. Completed Operations and Products and Completed Operations Coverage. Products . and Completed Operations coverage shall be maintained for a period of not less than five (5) years following the completion and acceptance by the OWNER of the work under this Agreement. Limits of Liability shall not be less than the following: _ General Aggregate Products/Completed Operations Aggregate Personal and Advertising Injury Each Occurrence Fire Damage _ General Aggregate Products/Completed Operations Aggregate Personal and Advertising Injury Each Occurrence Fire Damage _X_General Aggregate Each Occurrence $300,000 $300,000 $300,000 $300,000 $ 50,000 $500,000 $500,000 $500,000 $500,000 $ 50,000 $1,000,000 $1,000,000 . (2) The General Aggregate Limit shall apply separately to this Project and the policy shall be endorsed using the following endorsement wording. "This endorsement modifies insurance provided under the following: Commercial General Liability Coverage Part. The General Aggregate Limit under LIMITS OF INSURANCE applies separately to each ,of your projects away from premises owned by or rented to you." Applicable deductibles or self-insured retentions shall be the sole responsibility of CONSULTANT. Deductibles or self-insured retentions carried by the CONSULTANT shall be subject to the approval of the Risk Management Director or his designee. (3) The OWNER, Collier County Government, shall be named as an Additional Insured and the policy shall be endorsed that such coverage shall be primary to any similar coverage carried by the OWNER. C-5 Packet Page -1217- . . . . 4/26/2011 Item 16.E.3. (4) Coverage shall be included for explosion, collapse or underground property damage claims. (5) Watercraft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL TANT in limits of not less than the Commercial General Liability limit shown in subparagraph (1) above if applicable to the completion of the Services under this Agreement. _ Applicable _X_ Not Applicable (6) Aircraft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL TANT in limits of not less than $5,000,000 each occurrence if applicable to the completion of the Services under this Agreement. _ Applicable _X_ Not Applicable AUTOMOBILE LIABILITY INSURANCE Required by this Agreement? X Yes No (1) Automobile Liability Insurance shall be maintained by the CONSULTANT for the ownership, maintenance or use of any owned, non-owned or hired vehicle with limits of not less than: _X_ Bodily Injury & Property Damage - $ 500,000 Bodily Injury & Property Damage - $1,000,000 C-6 Packet Page -1218- 4/26/2011 Item 16.E.3. UMBRELLA LIABILITY . (1) Umbrella Liability may be maintained as part of the liability insurance of the CONSULTANT and, if so, such policy shall be excess of the Employers' Liability, Commercial General Liability, and Automobile Liability coverages required herein and shall include all coverages on a "following form" basis. (2) The policy shall contain wording to the effect that, in the event of the exhaustion of any underlying limit due to the payment of claims, the Umbrella policy will "drop down" to apply as primary insurance. . . C-7 Packet Page -1219- 4/26/2011 Item 16.E.3. . Contract #10-5571 Fixed Term Environmental & Biological Studies - Section B FIXED TERM CONTRACT FOR SERVICES THIS AGREEMENT is made and entered into this _ day of 2011, by and between the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter referred to as the "COUNTY" or "OWNER") and Passarella & Associates, Inc., authorized to do business in the State of Florida, whose business address is 3584 Exchange Avenue, Naples FL. 34103, (hereinafter referred to as the "CONSULTANT"). WIT N E SSE T H: . Environmental & Biological Studies - Section B - Section B services expeditiously when a need arises in connection with a Collier County project; and WHEREAS, it is in the best interests of OWNER to be able to obtain CONSULTANT NOW, THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows: ARTICLE 1 CONSULTANT'S RESPONSIBILITY 1.1 From time to time upon the written request or direction of OWNER as herein~fter provided, CONSULTANT shall provide to OWNER Environmental & Biological Studies - Section B services (hereinafter the "Services") as herein set forth. The term "Services" includes all Additional Services . authorized by written Amendment or Change Order as hereafter provided. A-1 Packet Page -1220- 4/26/2011 Item 16.E.3. 1.2 All Services to be performed by CONSULTANT pursuant to this Agreement shall be in . conformance with the scope of services, which shall be described in a Work Order issued pursuant to the procedures described herein. The form of the Work Order is set forth in attached Schedule A. Reference to the term 'Work Order" herein, with respect to authorization of Services, includes all written Amendments or Change Orders to any particular Work Order. CONSULTANT acknowledges and agrees that each individual Work Order shall not exceed $200,000 unless otherwise approved in writing by the Board of County Commissioners, and that the total initial compensation for all Work Orders issued under this Agreement shall not exceed $750,000 annually, unless otherwise approved in writing by fhe Board of County Commissioners of Collier County. 1.2.1 All Services must be authorized in writing by OWNER in the form of a Work Order. CONSULTANT shall not provide any Services to OWNER unless and to the extent they are required in a written Work Order. Any Services provided by CONSULTANT without a writte~ Work Order shall be . at CONSULTANT'S own risk and OWNER shall have no liability for such Services. 1.2.2 As OWNER identifies certain Services it wishes CONSULTANT to provide pursuant to the terms of this Agreement, OWNER shall request a proposal from CONSULTANT for such Services, said proposal to be in compliance with the terms of this Agreement. If the parties reach an agreement with respect to such Services, including, but not limited to the scope, compensation and schedule for performance of those Services, a Work Order shall be prepared which incorporates the terms of the understanding reached by the parties with respect to such Services and if both parties are in agreement therewith, they shall jointly execute the Work Order. . A-2 Packet Page -1221- 4/26/2011 Item 16.E.3. . 1.2.3 Upon execution of a Work Order as aforesaid, CONSULTANT agrees to promptly provide the Services required thereby, in accordance with the terms of this Agreement and the subject Work Order. 1.2.4 It is mutually understood and agreed that the nature, amount and frequency of the Services shall be determined solely by OWNER and that OWNER does not represent or guarantee .unto CONSULTANT that any specific amount of Services will be requested or required of CONSULTANT pursuant to this Agreement. 1.2.5 CONSULTANT shall have no authority to act as the agent of OWNER under this Agreement or any Work Order, or to obligate OWNER in any manner or way. 1.2.6 All duly executed Work Orders (including all written Amendments or Change Orders .heretO) are hereby incorporated into and made a part of this Agreement by reference. 1.3 CONSULTANT hereby designates Kenneth C. Passarella as its Principal in Charge (hereinafter referred to as the "Principal in Charge") with full authority to bind and obligate CONSULTANT on all matters arising out of or relating to this Agreement. In each Work Order CONSULTANT will designate a qualified Environmental & Biological Studies - Section B professional to serve as CONSULTANT'S project coordinator for the Services to be provided under that Work Order (hereinafter referred to as the "Project Coordinator"). The Project Coordinator is authorized and responsible to act on behalf of the CONSULTANT with respect to directing, coordinating and administering all aspects of the Services to be provided and performed under the Work Order. Further, the Project Coordinator has full authority to bind and obligate the CONSULTANT on all matters arising out of or relating to the Work Order. The CONSULTANT agrees that the Principal in .Charge and the Project Coordinators shall devote whatever time is required to satisfactorily manage A-3 Packet Page -1222- 4/26/2011 Item 16.E.3. the services to be provided and performed by the CONSULTANT under the Work order.. CONSULTANT further agrees that the Principal in Charge and Project Coordinators shall not be removed by CONSULTANT without OWNER'S prior written approval, and if so removed must be immediately replaced with a person acceptable to OWNER. 1.4 CONSULTANT agrees, within fourteen (14) calendar days of receipt of a written request from OWNER to promptly remove and replace the Principal in Charge or any Project Coordinator, or any other personnel employed or retained by the CONSULTANT, or any subconsultants or subcontractors or any personnel of any such subconsultants or subcontractors engaged by the CONSULTANT to provide and perform any of the Services pursuant to the requirements of this Agreement or any applicable Work Order, said request may be made with or without cause. Any personnel so removed must be immediately replaced with a person acceptable to OWNER. 1.5 The CONSULTANT represents to the OWNER that it has expertise and experience in the type . of professional Environmental & Biological Studies - Section B services that will be required under this Agreement. The CONSULTANT agrees that all services to be provided by CONSULTANT pursuant to this Agreement shall be subject to the OWNER'S review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with all applicable laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies, including the Florida Building Code where applicable, which regulate or have jurisdiction over the Services to be provided and performed by CONSULTANT hereunder. In the event of any conflicts in these requirements, the CONSULTANT shall notify the OWNER of such conflict .and utilize its best professional judgment to advise OWNER regarding resolution of each such conflict. . A-4 Packet Page -1223- 4/26/2011 Item 16.E.3. .1.6 CONSULTANT agrees not to divulge, furnish or make available to any third person, firm or organization, without OWNER'S prior written consent, or unless incident to the proper performance of the CONSULTANT'S obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the Services to be rendered by CONSULTANT hereunder, and CONSULTANT shall require all of its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. CONSULTANT shall provide OWNER prompt written notice of any such subpoenas. 1.7 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements and/or codes and ordinances applicable to Consultant's performance of the work as related to the . project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance whether or not the County obtained substitute performance. ARTICLE 2 ADDITIONAL SERVICES OF CONSULTANT 2.1 If authorized in writing by Owner through an Amendmentor Change Order to a Work Order, CONSULTANT shall furnish or obtain from others Additional Services beyond those Services originally authorized in t.he Work Order. The agreed upon scope, compensation and schedule for .Additional Services shall be set forth in the Amendment or Change Order authorizing those Additional A-5 Packet Page -1224- 4/26/2011 Item 16.E.3. Services. With respect to the individuals with authority to authorize Additional Services under thiS. Agreement, such authority will be as established in OWNER'S Purchasing Policy and Administrative Procedures in effect at the time such services are authorized. Except in an emergency endangering life or property, any Additional Services must be approved in writing via an Amendment or Change Order to the subject Work Order prior to starting such services. OWNER will not be responsible for the costs of Additional Services commenced without such express prior written approval. Failure to obtain such prior written approval for Additional Services will be deemed: (i) a waiver of any claim by CONSULTANT for such Additional Services and (ii) an admission by CONSULTANT that such Work is not additional but rather a part of the Services originally required of CONSULTANT under the subject Work Order. If OWNER determines that a change in a Work Order is required because of the action taken by CONSULTANT in response to an emergency, an Amendment or Change Order shall be issued to document the consequences of the changes or variations, provided that CONSULTANT . has delivered written notice to OWNER of the emergency within forty-eight (48) hours from when CONSULTANT knew or should have known of its occurrence. Failure to provide the forty-eight (48) hour written notice noted above, waives CONSULTANT'S right it otherwise may have had to seek an adjustment to its compensation or time of performance under the subject Work Order. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 For each Work Order, OWNER shall designate in writing a project manager to act as OWNER'S representative with respect to the Services to be rendered under the Work Order (hereinafter referred to as the "Project Manager"). The Project Manager shall have authority to transmit instructions, receive information, interpret and define OWNER'S policies and decisions with respect to CONSULTANT'S Services under the Work Order. However, the Project Manager !S not . A-6 Packet Page -1225- 4/26/2011 Item 16.E.3. . authorized to issue any verbal or written orders or instructions to the CONSULTANT that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatever: (a) The scope of Services to be provided and performed by the CONSULTANT as set forth in the Work Order; (b) The time the CONSUL TANTis obligated to commence and complete all such Services as set forth in the Work Order; or (c) The amount of compensation the OWNER is obligated or committed to pay the CONSULTANT as set forth in the Work Order. 3.2 The Project Manager shall: (a) Review and make appropriate recommendations on all requests submitted by the . CONSULTANT for payment for services and work provided and performed in accordance with this Agreement; (b) Provide all criteria and information requested by CONSULTANT as to OWNER'S requirements for the Services specified in the Work Order, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; (c) Upon request from CONSULTANT, assist CONSULTANT by placing at CONSULTANT'S disposal all available information in the OWNER'S possession pertinent to the Services specified in the Work Order, including existing specifications, product literature, previous reports and any other data relative to the subject Work Order; . A-7 Packet Page -1226- 4/26/2011 Item 16.E.3. (d) Arrange for access to and make all provisions for CONSULTANT to enter the site. (if any) set forth in the Work Order to perform the Services to be provided by CONSULTANT under the subject Work Order; and (e) Provide notice to CONSULTANT of any deficiencies or defects discovered by the OWNER with respect to the Services to be rendered by CONSULTANT hereunder. ARTICLE 4 TIME 4.1 Services to be rendered by CONSULTANT shall be commenc~d, performed and completed in accordance with the Work Order and the Schedule. Time is of the essence with respect to the performance of the Services under each Work Order. 4.2 Should CONSUL T1'NT be obstructed or delayed in the prosecution or completion of the. Services as a result of unforeseeable causes beyond the control of CONSULTANT, and not due to its own fault or neglect, including but not restricted to acts of nature or of public enemy, acts of government or of the OWNER, fires, floods, epidemics, quarantine regulations, strikes or lock-outs, then CONSULTANT shall notify OWNER in writing within five (5) working days after commencement of such delay, stating the specific cause or causes thereof, or be deemed to have waived any right which CONSULTANT maY' have had to request a time extension for that specific delay. 4.3 Unless otherwise expressly provided in the Work Order, no interruption, interference, inefficiency, suspension or delay in the commencement or progress of CONSULTANT'S Services from any cause whatsoever, including those for which OWNER may be responsible in whole or in part, shall relieve CONSULTANT of its duty to perform or give rise to any right to damages or additional compensation from OWNER. CONSULTANT'S sole remedy against OWNER will be the . A-8 Packet Page -1227- 4/26/2011 Item 16.E.3. . right to seek an extension of time to the Schedule; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as claims based on late completion. 4.4 Should the CONSULTANT fail to commence, provide, perform or complete any of the Services to be provided hereunder in a timely manner, in addition to any other rights or remedies available to the OWNER hereunder, the OWNER at its sole discretion and option may withhold any and all payments due and owing to the CONSULTANT under this Agreement (including any and all Work Orders) until such time as the CONSULTANT resumes performance of its obligations hereunder in such a manner so as to reasonably establish to the OWNER'S satisfaction that the CONSULTANT'S performance is or will shortly be back on schedule. .4.5 In no event shall any approval by OWNER authorizing CONSULTANT to continue performing Work under any particular Work Order or any payment issued by OWNER to CONSULTANT be deemed a waiver of any right or claim OWNER may have against CONSULTANT for delay or any other damages hereunder. 4.6 The period of service shall be from the date of execution of this Agreement through one (1) year from that date, or until such time as all outstanding Work Orders issued prior to the expiration of the Agreement period have been completed. This Agreement may be renewed for an additional three (3) one (1) year renewal options. Any such annual renewal shall be agreed to, in writing, by both parties. . A-9 Packet Page -1228- 4/26/2011 Item 16.E.3. ARTICLE 5 COMPENSATION . 5.1 Compensation and the manner of payment of such compensation by the OWNER for Services rendered hereunder by CONSULTANT shall be as prescribed in each Work Order. CONSULTANT agrees to furnish to OWNER, after the end of each calendar month, or as specified in the Work Order, a comprehensive and itemized statement of charges for the Services performed and rendered by CONSULTANT during that time period, and for any OWNER authorized reimbursable expenses as herein below defined, incurred and/or paid by CONSULTANT during that time period. The monthly statement shall be in such form and supported by such documentation as may be required by OWNER. All such statements shall be on CONSULTANT'S letterhead and shall indicate the Agreement Number, Work Order Number, Purchase Order Number and Project Site description (if any). . 5.2 The compensation (whether based upon a negotiated lump sum, time and materials, hourly with a cap or some other agreed to format) contained in each separate Work Order shall be based on the hourly rates as set forth and identified in Schedule B which is attached hereto, for the time reasonably expended by CONSULTANT'S personnel in performing the Services. The Rate Schedule may be updated by mutual agreement on an annual basis, in conjunction with the annual renewal of this Agreement provided for in paragraph 4.6 above, as directed by OWNER. 5.2.1 OWNER agrees to reimburse CONSULTANT for all necessary and reasonable reimbursable expenses incurred or p~id by CONSULTANT in connection with CONSULTANT'S performance of the Servic~s, at its direct cost with no markup, to the extent such reimbursement is permitted in the Work Order and in accordance with Section 112.061, F.S., or as set forth below. . A-10 Packet Page -1229- 4/26/2011 Item 16.E.3. . 5.2.2 Reimbursable expenses shall be invoiced for the expenditures incurred by the CONSULTANT as follows: 5.2.2.1. Expenses of transportation and living when traveling in connection with each Work Order, except for local travel within Collier or Lee Counties, as provided in Section 112.061, F.S., and all Contract-related mileage for trips that are from/to destinations outside of Collier or Lee Counties approved by OWNER. 5.2.2.2 Expenses for reproducing documents that exceed the number of documents described in this Agreement and postage and handling of Drawings and Specifications, including duplicate sets at the completion of each Work Order for the OWNER'S review and approval. 5.2.2.3. Expense of overtime work requiring higher than regular rates approved in . advance and in writing by OWNER. 5.2.2.4. Expense of models for the OWNER'S use. 5.2.2.5 Fees paid for securing approval of authorities having jurisdiction over the Work Order required under the applicable Work Order. 5.2.2.6 Other items on request and approved in writing by the OWNER. 5.2.3 CONSULTANT shall obtain the prior written approval of OWNER before incurring any of the aforesaid reimbursable expenses, and absent such prior approval, no expenses incurred by CONSULTANT wilt be deemed to be a reimbursable expense. 5.3 . CONSULTANT shall bear and pay all overhead and other expenses, except for authorized reimbursable expenses, incurred by CONSULTANT in the performance of the Services. . A-11 Packet Page -1230- 4/26/2011 Item 16.E.3. 5.4 Prior to issuing any Work Order pursuant to this Agreement, OWNER may request that . CONSULTANT in writing advise OWNER of (i) the estimated time of CONSULTANT'S personnel and the estimated fees thereof for the proposed work to be specified in the Work Order; and (ii) the estimated charge to OWNER for the reimbursable expenses applicable to the contemplated Services to be performed by CONqUL TANT under the proposed Work Order. CONSULTANT shall promptly supply such estimate to OWNER based on CONSULTANT'S good faith analysis. 5.5 CONSULTANT agrees that, with respect to any subconsultant or subcontractor to be utilized by CONSULTANT on any particular Work Order, CONSULTANT shall be limited to a maximum markup of five percent (5%) on the fees and expenses associated with such subconsultants and subcontractors. 5.6 Payments for Basic Services and Additional Basic Services as set forth herein, or in the Work Order shall be made upon presentation of the CONSULTANT'S itemized invoice approved by . OWNER. 5.6.1 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of contract. Any untimely submission of invoices beyond the specified deadline period is subject to non- payment under the legal doctrine of "laches" as untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this agreement. 5.7 Records of Reimbursable Expenses shall be kept on a generally recognized accounting basis. 5.8 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, . A-12 Packet Page -1231- 4/26/2011 Item 16.E.3. . incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements and/or codes and ordinances applicable to Consultant's performance of the work as related to the project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole . determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance. ARTICLE 6 OWNERSHIP OF DOCUMENTS 6.1 Upon the completion or termination of each Work Order, as directed by OWNER, CONSULTANT shall deliver to OWNER copies or originals of all records, documents, drawings, . notes, tracings, plans, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for CONSULTANT under the applicable Work Order ("Project Documents"). OWNER shall specify whether the originals or copies of such Project Documents are to be delivered by CONSULTANT. CONSULTANT shall be solely responsible for all costs associated with delivering to OWNER the Project Documents. CONSULTANT, at its own expense, may retain copies of the Project Documents for its files and internal use. 6.2 Notwithstanding anything in this Agreement to the contrary and without requiring OWNER to pay any additional compensation, CONSULTANT hereby grants to OWNER a nonexclusive, irrevocable license in all of the Project Documents for OWNER'S use with respect to the applicable authorized project or task. CONSULTANT warrants to OWNER that it has full right and authority to . grant this license to OWNER. Further, CONSULTANT consents to OWNER'S use of the Project A-13 Packet Page -1232- 4/26/2011 Item 16.E.3. Documents to complete the subject project or task following CONSULTANT'S termination for any. reason or task. CONSULTANT also acknowledges OWNER may be making Project Documents available for review and information to various third parties and hereby consents to such use by OWNER. ARTICLE 7 MAINTENANCE OF RECORDS 7 .1 CONSULTANT will keep adequate records and supporting documentation which concern or reflect the Services hereunder. The records and documentation will be retained by CONSULTANT for a minimum of five (5) years from (a) the date of termination of this Agreement or (b) the date the Work Order is completed, whichever is later, or such later date as may be required by law. OWNER, or any duly authorized agents or representatives of OWNER, shall, free of charge, have the right to audit, inspect and copy all. such records and documentation as often as they deem necessary during . the period of this Agreement and during the five (5) year period noted above, or such later date as may be required by law; provided, however, such activity shall be conducted only during normal business hours. 7.2 The records specified above in paragraph 7.1 include accurate time records, which CONSULTANT agrees to keep and maintain, from day to day, showing the time expended by each principal and employee of CONSULTANT in performing the Services and therein specifying the services performed by each, with all such time records to be kept within one-half of an hour. At the request of OWNER, or as specified in the Work Order, CONSULTANT shall furnish to OWNER any of the aforesaid time records, as well as invoices or proofs showing CONSULTANT'S incurrence and/or payment of any reimbursable expenses. . A-14 Packet Page -1233- 4/26/2011 Item 16.E.3. . ARTICLE 8 INDEMNIFICATION 8.1 To the maximum extent permitted by law, CONSULTANT shall indemnify and hold harmless OWNER, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of CONSULTANT or anyone employed or utilized by the CONSULTANT in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph 8.1. ARTICLE 9 INSURANCE . 9.1 CONSULTANT shall obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts described herein and further set forth in Schedule C to this Agreement. 9.2 All insurance shall be from responsible companies duly authorized to do business in the State of Florida. 9.3 All insurance policies required by this Agreement shall include the following provisions and conditions by endorsement to the policies: 9.3.1 All insurance policies, other than the Business Automobile policy, Professional Liability policy, and the Workers Compensation policy, provided by CONSULTANT to meet the requirements of .is Agreement shall name Collier County Board of County Commissioners, Collier County, Florida, as A-iS Packet Page -1234- 4/26/2011 Item 16.E.3. an additional insured as to the operations of CONSULTANT under this Agreement and shall contain a . severability of interests provisions. 9.3.2 Companies issuing the insurance policy or policies shall have no recourse against OWNER for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of CONSULTANT. 9.3.3 All insurance coverages of CONSULTANT shall be primary to any insurance or self- insurance program carried by OWNER, and the "Other Insurance" provisions of any policies obtained by CONSULTANT shall not apply to any insurance or self-.insurance program carried by OWNER. 9.3.4 The Certificates of Insurance, which are to be provided in an Occurrence Form patterned after the current I.S.0. form with no limiting endorsements, must reference and identify this Agreement. . 9.3.5 All insurance policies shall be fully performable in Collier County, Florida, and shall be construed in accordance with the laws of the State of Florida. 9.4 CONSULTANT, its subconsultants and OWNER shall waive all rights against each other for damages covered by insu~ance to the extent insurance proceeds are paid and received by OWNER, except such rights as they may have to the proceeds of such insurance held by any of them. 9.5 All insurance companies from whom CONSULTANT obtains the insurance policies required hereunder must meet the following minimum requirements: 9.5.1 The insurance company must be duly licensed and authorized by the Department of Insurance of the State of Florida to transact the appropriate insurance business in the State of Florida. . A-16 Packet Page -1235- 4/26/2011 Item 16.E.3. . 9.5.2 The insurance company must have a current A. M. Best financial rating of "Class VI" or higher. ARTICLE 10 SERVICES BY CONSULTANT'S OWN STAFF 10.1 The Services to be performed hereunder shall be performed by CONSULTANT'S own staff, unless otherwise authorized in writing by the OWNER. The employment of, contract with, or use of the services of any other person or firm by CONSULTANT, as independent consultant or otherwise, shall be subject to the prior written approval of the OWNER. No provision of this Agreement shall, however, be construed as constituting an agreement between the OWNER and any such other person or firm. Nor shall anything in this Agreement be deemed to give any such party or any third party any claim or right of action against the OWNER beyond such as may then otherwise exist . without regard to this Agreement. 10.2 Attached to each Work Order shall be a Schedule that lists all of the key personnel CONSULTANT intends to assign to perform the Services required under that Work Order. Such personnel shall be committed to the project or task specified in the Work Order in accordance with the percentages noted in the attached Schedule. CONSULTANT shall also identify in that Schedule each subconsultant and subcontractor it intends to utilize with respect to the subject Work Order. All personnel, subconsultants and subcontractors identified in the Schedule shall not be removed or replaced without OWNER'S prior written consent. 10.3 CONSULTANT is liable for all the acts or omissions of its subconsultants or subcontractors. By appropriate written agreement, the CONSULTANT shall require each subconsultant or .subcontractor, to the extent of the Services to be performed by the subconsultant or subcontractor, to A-17 Packet Page -1236- 4/26/2011 Item 16.E.3. be bound to the CONSULTANT by the terms of this Agreement and any subsequently issued work. Order, and to assume toward the CONSULTANT all the obligations and responsibilities which the CONSULTANT, by this Agreement and any subsequently issued Work Order, assumes toward the OWNER. Each subconsultant or subcontract agreement shall preserve and protect the rights of the OWNER under this Agreement, and any subsequently issued Work Order, with respect to the Services to be performed by the subconsultant or subcontractor so that the subconsulting or subcontracting thereof will not prejudice such rights. Where appropriate, the CONSULTANT shall require each subconsult~:mt or subcontractor to enter into similar agreements with its sub- subconsultants or sub-subcontractors. 1 0.4 CONSULTANT acknowledges and agrees that OWNER is a third party beneficiary of each contract entered into between CONSULTANT and each subconsultant or subcontractor, however nothing in this Agreement shall be construed to create any contractual relationship between OWNER . and any subconsultant or subcontractor. ARTICLE 11 WAIVER OF CLAIMS 11.1 CONSULTANT'S aqceptance of final payment for Services provide under any Work Order shall constitute a full waiver of any and all claims, except for insurance company subrogation claims, by it against OWNER arising out of the Work Order or otherwise related to those Services, and except those previously made in writing in accordance with the terms of this Agreement and identified by CONSULTANT in its final invoice for the subject Work Order as unsettled. Neither the acceptance of CONSULTANT'S Services nor payment by OWNER shall be deemed to be a waiver of any of OWNER'S rights against CpNSUL TANT. . A-18 Packet Page -1237- 4/26/2011 Item 16.E.3. . ARTICLE 12 TERMINATION OR SUSPENSION 12.1 This Agreement is a fixed term contract for the professional services of CONSULTANT. It is agreed that either party hereto shan at any and all times have the right and option to terminate this Agreement by giving to the other party not less than thirty (30) days prior written notice of such termination. Upon this Agreement being so terminated by either party hereto, neither party hereto shall have any further rights or obligations under this Agreement subsequent to the date of termination, except that Services specified to be performed under a previously issued Work Order, shall proceed to completion under the terms of this Agreement. 12.2 CONSULTANT shall be considered in material default of this Agreement and such default will be considered cause for OWNER to terminate this Agreement and any Work Orders in effect, in . whole or in part, as further set forth in this section, for any of the following reasons: (a) CONSULTANT'S failure to begin Services under any particular Work Order within the times specified under that Work Order, or (b) CONSULTANT'S failure to properly and timely perform the Services to be provided hereunder or as directed by OWNER, or (c) the bankruptcy or insolvency or a general assignment for the benefit of creditors by CONSULTANT or by any of CONSULTANT'S principals, officers or directors, or (d) CONSULTANT'S failure to obey any laws, ordinances, regulations or othe~ codes of conduct, or (e) CONSULTANT'S failure to perform or abide by the terms and conditions of this Agreement and any Work Orders in effect, or (f) for any other just cause. The OWNER may so terminate this Agreement and any Work Orders in effect, in whole or in part, by giving the CONSULTANT seven (7) calendar days written notice of the material default. . A-19 Packet Page -1238- 4/26/2011 Item 16.E.3. 12.3 If, after notice of termination of this Agreement as provided for in paragraph 12.1 above, it is . determined for any reason that CONSULTANT was not in default, or that its default was excusable, or that OWNER otherwise was not entitled to the remedy against CONSULTANT provided for in paragraph 12.2, then the hotice of termination given pursuant to paragraph 12.2 shall be deemed to be the notice of termination provided for in paragraph 12.4, below, and CONSULTANT'S remedies against OWNER shall be the same as and be limited to those afforded CONSULTANT under paragraph 12.4 below. 12.4 Notwithstanding anYthing herein to the contrary (including the provisions of paragraph 12.1 above), OWNER shall ha~e the right to terminate this Agreement and any Work Orders in effect, in whole or in part, without cause upon seven (7) calendar days written notice to CONSULTANT. In the event of such termination for convenience, CONSULTANT'S recovery against OWNER shall be limited to that portion of the fee earned through the date of termination, for any Work Orders so . cancelled, together with any retainage withheld and any costs reasonably incurred by CONSULTANT that are directly attributable to the termination, but CONSULTANT shall not be entitled to any other or further recovery against OWNER, including, but not limited to, anticipated fees or profits on Services , not required to be performed. CONSULTANT must mitigate all such costs to the greatest extent reasonably possible. 12.5 Upon termination a~d as directed by OWNER, the CONSULTANT shall deliver to the OWNER all original papers, records:, documents, drawings, models, and other material set forth and described in this Agreement, including those described in Section 6, that are in CONSULTANT'S possession or under its control arising out of or relating to this Agreement or any Work Orders. . A-20 Packet Page -1239- 4/26/2011 Item 16.E.3. . 12.6 The OWNER shall have the power to suspend all or any portions of the Services to be provided by CONSULTANT hereunder upon giving CONSULTANT two (2) calendar days prior written notice of such suspension. If all or any portion of the Services to be rendered hereunder are so suspended, the CONSULTANT'S sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in Article Four herein. 12.7 In the event (i) OWNER fails to make any undisputed payment to CONSULTANT within forty- five (45) days after such payment is due as set forth in the Work Order or such other time as required by Florida's Prompt Payment Act or (ii) OWNER otherwise persistently fails to fulfill some material obligation owed by OWNER to CONSULTANT under this Agreement or subsequently issued Work Order, and (ii) OWNER has failed to cure such default within fourteen (14) days of receiving written notice of same from CONSULTANT, then CONSULTANT may stop its performance under the subject . Work Order until such default is cured, after giving OWNER a second fourteen (14) days written notice of CONSULTANT'S intention to stop performance under the applicable Work Order. If the Services are so stopped for a period of one hundred and twenty (120) consecutive days through no act or fault of the CONSULTANT or its subconsultant or subcontractor or their agents or employees or any other persons performing portions of the Services under contract with the CONSULTANT, the CONSULTANT may terminate the subject Work Order by giving written notice to OWNER of CONSULTANT'S intent to terminate that Work Order. If OWNER does not cure its default within fourteen (14) days after receipt of CONSULTANT'S written notice, CONSULTANT may, upon fourteen (14) additional days' written notice to the OWNER, terminate the subject Work Order and recover from the Owner payment for Services performed through the termination date, but in no event shall CONSULTANT be entitled to payment for Services not performed or any other damages from . Owner. A-21 Packet Page -1240- 4/26/2011 Item 16.E.3. ARTICLE 13 . CONFLICT OF INTEREST 13.1 CONSULTANT represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of Services required hereunder. CONSULTANT further represents that no persons having any such interest shall be employed to perform those Services. ARTICLE 14 MODI FICA TION 14.1 No modification or change in this Agreement shall be valid or binding upon either party unless in writing and executed by the party or parties intended to be bound by it. ARTICLE 15 . NOTICES AND ADDRESS OF RECORD 15.1 All notices required or made pursuant to this Agreement to be given by the CONSULTANT to the OWNER shall be in writing and shall be delivered by hand, by fax, or by United States Postal Service Department, first c;:lass mail service, postage prepaid, addressed to the following OWNER'S address of record: Board of County Commissioners, Collier County Florida Purchasing Department, Purchasing Building 3327 Tamiami Trail East Naples, FI. 34112 Attention: Stephen Y. Carnell, Purchasing/GS Director _ Telephone: 239-252-8407 Fax: 239-252-6584 . A-22 Packet Page -1241- 4/26/2011 Item 16.E.3. . 15.2 All notices required or made pursuant to this Agreement to be given by the OWNER to the CONSULTANT shall be made in writing and shall be delivered by hand, by fax or by the United States Postal Service Department, first class mail service, postage prepaid, addressed to the following CONSULTANT'S address of record: Passarella & Associates, Inc. 13620 Metropolis Avenue, Suite 200 Ft. Myers, FL. 33912 Telephone: 239/274-0067 Fax: 239/274-0069 Attention: Kenneth C. Passarella Either party may change its address of record by written notice to the other party given in accordance with requirements of this Article. . ARTICLE 16 MISCELLANEOUS 16.1 CONSULTANT, in representing OWNER, shall promote the best interests of OWNER and assume towards OWNER a duty of the highest trust, confidence, and fair dealing. 16.2 No modification, waiver, suspension or termination of the Agreement or of any terms thereof shall impair the rights or liabilities of either party. 16.3 This Agreement is not assignable, or otherwise transferable in whole or in part, by CONSULTANT without the prior written consent of OWNER. 16.4 Waivers by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this . Agreement. A-23 Packet Page -1242- 4/26/2011 Item 16.E.3. 16.5 The headings of the Articles, Schedules, Parts and Attachments as contained in this . Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions in such Articles, Schedules, Parts and Attachments. 16.6 This Agreement, including the referenced Schedules and Attachments hereto, constitutes the entire agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matter set forth herein, and any such prior agreements or understanding shall have no force or effect whatever on this Agreement. 16.7 Unless otherwise e~pressly noted herein, all representations and covenants of the parties shall survive the expiration or termination of this Agreement. 16.8 This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of w~ich shall constitute but one and the same instrument. . 16.9 This Contract consists of the attached component parts, all of which are as fully a part of the contract as if herein set o'ut verbatim: Contractor's Proposal, Insurance Certificate, RFP #10-5571 Specifications/Scope of Services, Schedule A - Work Order, Schedule B - Fee Schedule and Schedule C - Insurance C~verage. ARTICLE 17 APPLICABLE LAW 17.1 This Agreement shall be governed by the laws, rules, and regulations of the State of Florida, and by such laws, rules and regulations of the United States as made applicable to Services funded by the United States government. Any suit or action brought by either party to this Agreement against the other party relating to 9r arising out of this Agreement must be brought in the appropriate federal . A-24 Packet Page -1243- 4/26/2011 Item 16.E.3. . or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. ARTICLE 18 DISPUTE RESOLUTION 18.1 Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of CONSULTANT with full decision-making authority and by OWNER'S staff pe~son who would make the presentation of any settlement reached during negotiations to OWNER for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court . Mediator certified by the State of Florida. The mediation shall be attended by representatives of CONSULTANT with full decision-"making authority and by OWNER'S staff person who would make the presentation of any settlement reached at mediation to OWNER'S board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.102, Fla. Stat. 18.2 Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. . A-25 Packet Page -1244- 4/26/2011 Item 16.E.3. ARTICLE 19 . IMMIGRATION LAW COMPLIANCE 19.1 By executing and entering into this agreement, the Consultant is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et sea. and regulations relating thereto, as either may be amended. Failure by the Consultant to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immediately. IN WITNESS WHEREOF,the parties hereto have executed this Professional Services Agreement for Environmental & Biological Studies - Section B the day and year first written above. ATTEST: BOARD OF COUNTY COMMISSIONERS FOR COLLIER COUNTY, FLORIDA, Dwight E. Brock, Clerk By: . Date: By: Fred W. Coyle, Chairman Approved as to form and legal sufficiency: Deputy County Attorney PASSARELLA & ASSOCIATES, INC. By: Witness Typed Name and Title Typed Name and Title Witness Typed Name and Title . A-26 Packet Page -1245- 4/26/2011 Item 16.E.3. . SCHEDULE A WORK ORDER # Agreement for , Dated: I 2011 (RFP 10-5571) This Work Order is for professional services for work knoll'lLn as: Project Name: Project No: The work is specified in the proposal dated , 200 which is attached hereto and made a part of this Work Order. In accordance with Terms and Conditions of the Agreement referenced above, Work Order # is assigned to: name of firm. Scope of Work: As detailed in the attached proposal and the following: * Task I * Task II * Task III Schedule of Work: Complete work within _days from receipt of the Notice to Proceed which is accompanying this Work Order. Compensation: In accordance with Article Five of the Agreement, the County will compensate the Firm in accordance with the following method(s): _Negotiated Lump Sum_Lump Sum Plus Reimbursable Costs _Time & Material. (established hourly rate - Schedule A) _Cost Plus Fixed Fee, as provided in the attached proposal. (Define which method will be used for which tasks) . Task I Task II Task III $ $ $ TOTAL FEE $ Any change made subsequent to final department approval will be considered an additional service and charged according to Schedule "A" of the original Contract Agreement. PREPARED BY: name and title Date APPROVED BY: Department Director, Department Name Date APPROVED BY: Division Administrator, Division Date ACCEPTED BY: Company name Signature of Authorized Company Officer Date . Type or Print Name and Title A-27 Packet Page -1246- 4/26/2011 Item 16.E.3. SCHEDULE B . Collier County Fee Schedule RFP 10-5571 "Environmental & Biological Studies - Section B" PASSARELLA & ASSOCIATES, INC. FEE SCHEDULE Principal $170.00 I hr Project Principal $140.00 I hr $110.00 I hr $110.00 I hr $ 85.00 I hr $110.00 I hr $105.00 I hr . Project Manager GIS Specialist Ecologist Permitting Senior Scientist Specialist $105.00 I hr Scientist $ 85.00 I hr Ecologist $ 85.00 I hr Environmental Technician $ 65.00 I hr GIS Analyst AutoCAD $ 70.00 I hr $ 65.00 I hr Expert Witness $160.00 I hr Administrative Assistant Clerical $ 40.00 I hr This list is not intended to be all-inclusive. Hourly rate fees for other categories of professional, support and other services shall be mutually negotiated by the County and firm on a project by project basis as needed. . B-1 Packet Page -1247- . . . 4/26/2011 Item 16.E.3. SCHEDULE C INSURANCE COVERAGE (1 ) The amounts and types of insurance coverage shall conform to the following minimum requirements with the use of Insurance Services Office (ISO) forms and endorsements or their equivalents. If CONSULTANT has any self-insured retentions or deductibles under any of the below listed minimum required coverages, CONSULTANT must identify on the Certificate of Insurance the nature and amount of such self-insured retentions or deductibles and provide satisfactory evidence of financial responsibility for such obligations. All self-insured retentions or deductibles will be CONSULTANT'S sole responsibility. (2) The insurance required by this Agreement shall be written for not less than the limits specified herein or required by law, whichever is greater. (3) Coverages shall be maintained without interruption from the date of commencement of the Services until the date of completion of all Services required hereunder or as specified in this Agreement, whichever is longer. (4) Simultaneously with the execution and delivery of this Agreement by CONSULTANT , CONSULTANT has delivered properly executed Certificates of insurance (3 copies) acceptable to the OWNER evidencing the fact that CONSULTANT has acquired and put in place the insurance coverages and limits required hereunder. In addition, certified, true and exact copies of all insurance policies required shall be provided to OWNER, on a timely basis, if requested by OWNER. Such certificates shall contain a provision t~at coverages afforded under the policies will not be canceled or C-1 Packet Page -1248- 4/26/2011 Item 16.E.3. allowed to expire until at least thirty (30) days prior written notice has been given to the . OWNER. CONSUL~ANT shall also notify OWNER, in a like manner, within twenty-four (24) hours after r~ceipt, of any notices of expiration, cancellation, non-renewal or material change in coverages or limits received by CONSULTANT from its insurer, and , I nothing contained herein shall relieve CONSULTANT of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by CONSULTANT hereunder, CONSULTANT shall immediately take steps to have the aggregate limit rein~tated to the full extent permitted under such policy. (5) All insurance coverages of the CONSULTANT shall be primary to any insurance or self insurance program carried by the OWNER applicable to this Agreement. (6) The acceptance by OWNER of any Certificate of Insurance pursuant to . the terms of this Agreement does not constitute approval or agreement by the OWNER that the insurance requirements have been satisfied or that the insurance policy shown on the Certificate of Insurance is in compliance with the requirements of this Agreement. (7) CONSULTANT shall require each of its subconsultants to procure and maintain, until the completion of the subconsultant's services, insurance of the types and to the limits specified in this Section except to the extent such insurance requirements for the subconsultant are expressly waived in writing by the OWNER. (8) Should at any time the CONSULTANT not maintain the insurance coverages required herein, the OWNER may terminate the Agreement and any Work Orders issued pursuant to the Agreement or at its sole discretion shall be authorized to . C-2 Packet Page -1249- 4/26/2011 Item 16.E.3. . purchase such coverages and charge the CONSULTANT for such coverages purchased. If CONSULTANT fails to reimburse OWNER for such costs within thirty (30) days after demand, OWNER has the right to offset these costs from any amount due CONSULTANT under this Agreement or any other agreement between OWNER and CONSULTANT. The OWNER shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverages purchased or the insurance company or companies used. The decision of the OWNER to purchase such insurance coverages shall in no way be construed to be a waiver of any of its rights under the Agreement. (9) If the initial, or any subsequently issued Certificate of Insurance expires prior to the completion of the Services required hereunder or termination of the Agreement or any Work Order, the CONSULTANT shall furnish to the OWNER, in . triplicate, renewal or replacement Certificate(s) of Insurance not later than three (3) business days after the renewal of the policy(ies). Failure of the Contractor to provide the OWNER with such renewal certificate(s) shall be deemed a material breach by CONSULTANT and OWNER may terminate the Agreement or any subsequently issued Work Order for cause. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY Required by this Agreement? X Yes No (1) Workers' Compensation and Employers' Liability Insurance shall be maintained by the CONSULTANT during the term of this Agreement for all employees engaged in the work under this Agreement in accordance with the laws of the State of . Florida. The amounts of such insurance shall not be less than: C-3 Packet Page -1250- 4/26/2011 Item 16.E.3. a. Worker's Compensation - Florida Statutory Requirements b. Employers' Liability $100,000 Each Accident $500,000 Disease Aggregate . $100,000 Disease Each Employee . _X_ $1,000,000 Each Accident $1,000,000 Disease Aggregate $1,000,000 Disease Each Employee (2) The insurance company shall waive all claims rights against the OWNER and the policy shall be so endorsed. (3) United States Longshoreman's and Harborworker's Act coverage shall be maintained where applicable to the completion of the work. . _ Applicable _X_ Not Applicable (4) Maritime Coverage (Jones Act) shall be maintained where applicable to the completion of the work. _ Applicable _X_ Not Applicable COMMERCIAL GENERAL LIABILITY Required by this Agreement? _X_ Yes _ No (1) Commercial General Liability Insurance, written on an "occurrence" basis, shall be maintainedfby the CONSULTANT. Coverage will include, but not be limited to, Bodily Injury, Property Damage, Personal Injury, Contractual Liability for this Agreement, Independent Contractors, Broad Form Property Damage including . C-4 Packet Page -1251- 4/26/2011 Item 16.E.3. . Completed Operations and Products and Completed Operations Coverage. Products and Completed Operations coverage shall be maintained for a period of not less than five (5) years following the completion and acceptance by the OWNER of the work under this Agreement. Limits of Liability shall not be less than the following: _ General Aggregate Products/Completed Operations Aggregate Personal and Advertising Injury Each Occurrence Fire Damage _ General Aggregate Products/Completed Operations Aggregate Personal and Advertising Injury Each Occurrence Fire Damage _X_General Aggregate Each Occurrence . $300,000 $300,000 $300,000 $300,000 $ 50,000 $500,000 $500,000 $500,000 $500,000 $ 50,000 $1,000,000 $1,000,000 (2) The General Aggregate Limit shall apply separately to this Project and the policy shall be endorsed using the following endorsement wording. "This endorsement modifies insurance provided under the following: Commercial General Liability Coverage Part. The General Aggregate Limit under LIMITS OF INSURANCE applies separately to each of your projects away from premises owned by or rented to you." Applicable deductibles or self-insured retentions shall be the sole responsibility of CONSULTANT. Deductibles or self-insured retentions carried by the CONSULTANT shall be subject to the approval of the Risk Management Director or his designee. (3) The OWNER, Collier County Government, shall be named as. an Additional Insured and the policy shall be endorsed that such coverage shall be primary . to any similar coverage carried by the OWNER. C-5 Packet Page -1252- 4/26/2011 Item 16.E.3. (4) Coverage shall be included for explosion, collapse or underground . property damage claims. (5) Watercraft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL TANT in limits of not less than the Commercial General Liability limit shown in subparagraph (1) above if applicable to the completion of the Services under this Agreement. , _ Applicable _X_ Not Applicable (6) Aircraft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL TANl' in limits of not less than $5,000,000 each occurrence if applicable to the completion of the Services under this Agreement. _ Applicable _X_ Not Applicable . AUTOMOBILE LIABILITY INSURANCE Required by this Agreement? _X_ Yes ~ No (1) Automobile Liability Insurance shall be maintained by the CONSULTANT for the ownership, maintenance or use of any owned, non-owned or hired vehicle with limits of not less thah: _X_ Bodily Injury & Property Damage - $ 500,000 Bodily'lnjury & Property Damage - $1,000,000 . C-6 Packet Page -1253- 4/26/2011 Item 16.E.3. . UMBRELLA LIABILITY (1) Umbrella Liability may be maintained as part of the liability insurance of the CONSULTANT and, if so, such policy shall be excess of the Employers' Liability, Commercial General Liability, and Automobile Liability coverages required herein and shall include all coverages on a "following form" basis. (2) The policy shall contain wording to the effect that, in the event of the exhaustion of any underlying limit due to the payment of claims, the Umbrella policy will "drop down" to apply as primary insurance. . . C-7 Packet Page -1254- 4/26/2011 Item 16.E.3. Contract #10-5571 . Fixed Term Environmental & Biological Studies - Section A and B FIXED TERM CONTRACT FOR SERVICES THIS AGREEMENT is made and entered into this _ day of 2011, by and between the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter referred to as the "COUNTY" or "OWNER") and Turrell, Hall & Associates, Inc., authorized to do business in the State of Florida, whose business address is 3584 Exchange Avenue, Naples FL. 34103, (hereinafter referred to as the "CONSULTANT"). WIT N E SSE T H: WHEREAS, it is in the best interests of OWNER to be able to obtain CONSULTANT . Environmental & Biological Studies - Section A and B services expeditiously when a need arises in connection with a Collie~ County project; and NOW, THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows: ARTICLE 1 CONSULTANT'S RESPONSIBILITY 1.1 From time to time upon the written request or direction of OWNER as hereinafter provided, CONSULTANT shall provide to OWNER Environmental & Biological Studies - Section A and B services (hereinafter the "Services") as herein set forth. The term "Services" includes all Additional Services authorized by written Amendment or Change Order as hereafter provided. . A-1 Packet Page -1255- 4/26/2011 Item 16.E.3. .1.2 All Services to be performed by CONSULTANT pursuant to this Agreement shall be in conformance with the scope of services, which shall be described in a Work Order issued pursuant to the procedures described herein. The form of the Work Order is set forth in attached Schedule A. Reference to the term "Work Order" herein, with respect to authorization of Services, includes all written Amendments or Change Orders to any particular Work Order. . CONSULTANT acknowledges and agrees that each individual Work Order shall not exceed $200,000 unless otherwise approved in writing by the Board of County Commissioners, and that the total initial compensation for all Work Orders issued under this Agreement shall not exceed $750,000 annually, unless otherwise approved in writing by the Board of County Commissioners of Collier County. 1.2.1 All Services must be authorized in writing by OWNER in the form of a Work Order. CONSULTANT shall not provide any Services to OWNER unless and to the extent they are required in . written Work Order. Any Services provided by CONSULTANT without a written Work Order shall be at CONSULTANT'S own risk and OWNER shall have no liability for such Services. 1.2.2 As OWNER identifies certain Services it wishes CONSULTANT to provide pursuant to the terms of this Agreement, OWNER shall request a proposal from CONSULTANT for such Services, said proposal to be in compliance with the terms of this Agreement. If the parties reach an agreement with respect to such Services, including, but not limited to the scope, compensation and schedule for performance of those Services, a Work Order shall be prepared which incorporates the terms of the understanding reached by the parties with respect to such Services and if both parties are in agreement therewith, they shall jointly execute the Work Order. . A-2 Packet Page -1256- 4/26/2011 Item 16.E.3. 1.2.3 Upon execution of a Work Order as aforesaid, CONSULTANT agrees to promptlY. I provide the Services requir~d thereby, in accordance with the terms of this Agreement and the subject Work Order. 1.2.4 It is mutually understood and agreed that the nature, amount and frequency of the Services shall be determined solely by OWNER and that OWNER does not represent or guarantee unto CONSULTANT that r any specific amount of Services will be requested or required of CONSULTANT pursuant tOrthis Agreement. 1.2.5 CONSULTANT shall have no authority to act as the agent of OWNER under this Agreement or any Work Order, or to obligate OWNER in any manner or way. 1.2.6 All duly executed Work Orders (including all written Amendments or Change Orders thereto) are hereby incorporated into and made a part of this Agreement by reference. . 1.3 CONSULTANT hereby designates Timothy C. Hall as its Principal in Charge (hereinafter referred to as the "Principal in Charge") with full authority to bind and obligate CONSULTANT on all matters arising out of or relating to this Agreement. In each Work Order CONSULTANT will designate a qualified Environmental & Biological Studies - Section A and B professional to serve as CONSULTANT'S project 'coordinator for the Services to be provided under that Work Order (hereinafter referred to as the "Project Coordinator"). The Project Coordinator is authorized and responsible to act on b~half of the CONSULTANT with respect to directing, coordinating and administering all aspects of the Services to be provided and performed under the Work Order. Further, the Project Coordinator has full authority to bind and obligate the CONSULTANT on all matters arising out of or relating to the Work Order. The CONSULTANT agrees that the Principal in Charge and' the Project C90rdinators shall devote whatever time is required to satisfactorily manage . A-3 Packet Page -1257- 4/26/2011 Item 16.E.3. . the services to be provided and performed by the CONSULTANT under the Work Order. CONSULTANT further agrees that the Principal in Charge and Project Coordinators shall not be removed by CONSULTANT without OWNER'S prior written approval, and if so removed must be immediately replaced with a person acceptable to OWNER. 1.4 CONSULTANT agrees, within fourteen (14) calendar days of receipt of a written request from OWNER to promptly remove and replace the Principal in Charge or any Project Coordinator, or any other personnel employed or retained by the CONSULTANT, or any subconsultants or subcontractors or any personnel of any such subconsultants or subcontractors engaged by the CONSULTANT to provide and perform any of the Services pursuant to the requirements of this Agreement or any applicable Work Order, said request may be made with or without cause. Any personnel so removed must be immediately replaced with a person acceptable to OWNER. .1.5 The CONSULTANT represents to the OWNER that it has expertise and experience in the type of professional Environmental & Biological Studies - Section A and B services that will be required under this Agreement. The CONSULTANT agrees that all services to be provided by CONSULTANT pursuant to this Agreement shall be subject to the OWNER'S review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with all applicable laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies, including the Florida Building Code where applicable, which regulate or have jurisdiction over the Services to be provided and performed by CONSULTANT hereunder. In the event of any conflicts in these requirements, the CONSULTANT shall notify the OWNER of such conflict "and utilize its best professional judgment to advise OWNER regarding resolution of each such conflict. . A-4 Packet Page -1258- 4/26/2011 Item 16.E.3. 1.6 CONSULTANT agrees not to divulge, furnish or make available to any third person, firm or . organization, without OWNER'S prior written consent, or unless incident to the proper performance of the CONSULTANT'S obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the Services to be rendered by CONSULTANT hereunder, and CONSULTANT shall require all of its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. CONSULTANT shall provide OWNER prompt written notice of any such subpoenas. 1.7 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements and/or codes and ordinanqes applicable to Consultant's performance of the work as related to the project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole . determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance whether or not the County obtained Sl.!bstitute performance. ARTICLE 2 ADDITIONAL SERVICES OF CONSULTANT 2.1 If authorized in writing by Owner through an Amendment or Change Order to a Work Order, CONSULTANT shall furnish or obtain from others Additional Services beyond those Services originally authorized in the Work Order. The agreed upon scope, compensation and schedule for Additional Services shall be set forth in the Amendment or Change Order authorizing those Additional . A-5 Packet Page -1259- 4/26/2011 Item 16.E.3. . Services. With respect to the individuals with authority to authorize Additional Services under this Agreement, such authority will be as established in OWNER'S Purchasing Policy and Administrative Procedures in effect at the time such services are authorized. Except in an emergency endangering life or property, any Additional Services must be approved in writing via an Amendment or Change Order to the subject Work Order prior to starting such services. OWNER will not be responsible for the costs of Additional Services commenced without such express prior written approval. Failure to obtain such prior written approval for Additional Services will be deemed: (i) a waiver of any claim by CONSULTANT for such. Additional Services and (ii) an admission by CONSULTANT that such Work is not additional but rather a part of the Services originally required of CONSULTANT under the subject Work Order. If OWNER determines that a change in a Work Order is required because of the action taken by CONSULTANT in response to an emergency, an Amendment or Change Order shall be issued to document the consequences of the changes or variations, provided that CONSULTANT . has delivered written notice to OWNER of the emergency within forty-eight (48) hours from when CONSULTANT knew or should have known of its occurrence. Failure to provide the forty-eight (48) hour written notice noted above, waives CONSULTANT'S right it otherwise may have had to seek an adjustment to its compensation or time of performance under the subject Work Order. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 For each Work Order, OWNER shall designate in writing a project manager to act as OWNER'S representative with respect to the Services to be rendered under the Work Order (hereinafter referred to as the "Project Manager"). The Project Manager shall have authority to transmit instructions, receive information, interpret and define OWNER'S policies and decisions with . respect to CONSULTANT'S Services under the Work Order. However, the Project Manager is not A-6 Packet Page -1260- 4/26/2011 Item 16.E.3. authorized to issue any verbal or written orders or instructions to the CONSULTANT that would have. the effect, or be interpreted to have the effect, of modifying or changing in any way whatever: (a) The scope of Services to be provided and performed by the CONSULTANT as set forth in the Work Order; (b) The tih1e the CONSULTANT is obligated to commence and complete all such Serviqes as set forth in the Work Order; or (c) The afTlount of compensation the OWNER is obligated or committed to pay the CONSULTANT as set forth in the Work Order. '3.2 The Project Manager shall: (a) Review and make appropriate recommendations on all requests submitted by the CONSULTANT for payment for services and work provided and performed in accordance with this Agreement; , . (b) Provide all criteria and information requested by CONSULTANT as to OWNER'S requirements for the Services specified in the Work Order, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; (c) Upon request from CONSULTANT, assist CONSULTANT by placing at CONS,UL T ANT'S disposal all available information in the OWNER'S possession pertinent to the Services specified in the Work Order, including existing specifi,cations, product literature, previous reports and any other data relative to the subject Work Order; . A-7 Packet Page -1261- 4/26/2011 Item 16.E.3. . (d) Arrange for access to and make all provisions for CONSULTANT to enter the site (if any) set forth in the Work Order to perform the Services to be provided by .CONSUL T ANT under the subject Work Order; and (e) Provide notice to CONSULTANT of any deficiencies or defects discovered by the OWNER with respect to the Services to be rendered by CONSULTANT hereunder. ARTICLE 4 TIME 4.1 .services to be rendered by CONSULTANT shall be commenced, performed and completed in accordance with the Work Order and the Schedule. Time is of the essence with respect to the performance of the Services under each Work Order. 4.2 Should CONSULTANT be obstructed or delayed in the prosecution or completion of the . Services as a result of unforeseeable causes beyond the control of CONSULTANT, and not due to its own fault or neglect, including but not restricted to acts of nature or of public enemy, acts of government or of the OWNER, fires, floods, epidemics, quarantine regulations, strikes or lock-outs, then CONSULTANT shall notify OWNER in writing within five (5) working days after commencement of such delay, stating the specific cause or causes thereof, or be deemed to have waived any right which CONSULTANT may have had to request a time extension for that specific delay. 4.3 Unless otherwise expressly provided in the Work Order, no interruption, interference, inefficiency, suspension or delay in the commencement or progress of CONSULTANT'S Services from any cause whatsoever, including those for which OWNER may be responsible in whole or in part, shall relieve CONSULTANT of its duty to perform or give rise to any right to damages or . additional compensation from OWNER. CONSULTANT'S sole remedy against OWNER will be the A-8 Packet Page -1262- 4/26/2011 Item 16.E.3. right to seek an extension' of time to the Schedule; provided, however, the granting of any such time . extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as claims based on late completion. 4.4 Should the CONSULTANT fail to commence, provide, perform or complete any of the Services to be provided hereunder.in a timely manner, in addition to any other rights or remedies available to the OWNER hereunder, the OWNER at its sole discretion and option may withhold any and all payments due and owing to the CONSULTANT under this Agreement (including any and all Work Orders) until such time as the CONSULTANT resumes performance of its obligations hereunder in such a manner so as to reasonably establish to the OWNER'S satisfaction that the CONSULTANT'S performance is or will shortly be back on schedule. In no event shall allY approval by OWNER authorizing CONSULTANT to continue perfOrming. 4.5 Work under any particular Work Order or any payment issued by OWNER to CONSULTANT be deemed a waiver of any right or claim OWNER may have against CONSULTANT for delay or any other damages hereunder. 4.6 The period of service shall be from the date of execution of this Agreement through one (1) year from that date, or until such time as all outstanding Work Orders issued prior to the expiration of the Agreement period have been completed. This Agreement may be renewed for an additional three (3) one (1) year renewal options. Any such annual renewal shall be agreed to, in writing, by both . I parties. . A-9 Packet Page -1263- 4/26/2011 Item 16.E.3. . ARTICLE 5 COMPENSATION 5.1 Compensation and the manner of payment of such compensation by the OWNER for Services rendered hereunder by CONSULTANT shall be as prescribed in each Work Order. CONSULTANT agrees to furnish to OWNER, after the end of each calendar month, or as specified in the Work Order, a comprehensive and itemized statement of charges for the Services performed and rendered by CONSULTANT during that time period, and for any OWNER authorized reimbursable expenses as herein below defined, incurred and/or paid by CONSULTANT during that time period. The monthly statement shall be in such form and supported by such documentation as may be required by OWNER. All such statements shall be on CONSULTANT'S letterhead and shall indicate the Agreement Number, Work Order Number, Purchase Order Number and Project Site description (if . any). 5.2 The compensation (whether based. upon a negotiated lump sum, time and materials, hourly with a cap or some other agreed to format) contained in each separate Work Order shall be based on the hourly rates as set forth and identified in Schedule B which is attached hereto, for the time reasonably expended by CONSULTANT'S personnel in performing the Services. The Rate Schedule may be updated by mutual agreement on an annual basis, in conjunction with the annual renewal of this Agreement provided for in paragraph 4.6 above, as directed by OWNER. 5.2.1 OWNER agrees to reimburse CONSULTANT for all necessary and reasonable reimbursable expenses incurred or paid by CONSULTANT in connection with CONSULTANT'S performance of the Services, at its direct cost with no markup, to the extent such reimbursement is .ermilled in the Work Order and in accordance with Section 112.061, F.S., or as set forth below. A-10 Packet Page -1264- 4/26/2011 Item 16.E.3. 5.2.2 Reimbursable expenses shall be invoiced for the expenditures incurred by the. CONSULTANT as follows: 5.2.2.1. ,Expenses of transportation and living when traveling in connection with each Work Order, except for local travel within Collier or Lee Counties, as provided in Section 112.061, F.S., and all Contract-related mileage for trips that are from/to destinations outside of Collier or Lee Counties approved by OWNER. 5.2.2.2 'Expenses for reproducing documents that exceed the number of documents described in this Agreement and postage and handling of Drawings and Specifications, including' duplicate sets at the completion of each Work Order for the OWNER'S re;view and approval. 5.2.2.3. Expense of overtime work requiring higher than regular rates approved in advance and ,in writing by OWNER. . 5.2.2.4. . Expense of models for the OWNER'S use. 5.2.2.5 Fees paid for securing approval of authorities having jurisdiction over the Work Order required under the applicable Work Order. 5.2.2.6 Other items on request and approved in writing by the OWNER. 5.2.3 CONSULTANT shall obtain the prior written approval of OWNER before incurring any of the aforesaid reimbursable. expenses, and absent such prior approval, no expenses incurred by CONSULTANT will be deemed to be a reimbursable expense. 5.3 CONSULTANT shall bear and pay all overhead and other expenses, except for authorized reimbursable expenses, incurred by CONSULTANT in the performance of the Services. . A-11 Packet Page -1265- 4/26/2011 Item 16.E.3. . 5.4 Prior to issuing any Work Order pursuant to this Agreement, OWNER may request that CONSULTANT in writing advise OWNER of (i) the estimated time of CONSULTANT'S personnel and the estimated fees thereof for the proposed work to be specified in the Work Order; and (ii) the estimated charge to OWNER for the reimbursable expenses applicable to the contemplated Services to be performed by CONSULTANT under the proposed Work Order. CONSULTANT shall promptly supply such estimate to OWNER based on CONSULTANT'S good faith analysis. 5.5 CONSULTANT agrees that, with respect to any subconsultant or subcontractor to be utilized by CONSULTANT on any particular Work Order, CONSULTANT shall be limited to a maximum markup of five percent (5%) on the fees and expenses associated with such subconsultants and subcontractors. 5.6 Payments for Basic Services and Additional Basic Services as set forth herein, or in the Work . Order shall be made upon presentation of the CONSULTANT'S itemized invoice approved by OWNER. 5.6.1 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of contract. Any untimely submission of invoices beyond the specified deadline period is subject to non- payment under the legal doctrine of "laches" as untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this agreement. 5.7 Records of Reimbursable Expenses shall be kept on a generally recognized accounting basis. 5.8 The County reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, . . A-12 Packet Page -1266- 4/26/2011 Item 16.E.3. incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements . and/or codes and ordinances applicable to Consultant's performance of the work as related to the project. This list is not deemed to be all-inclusive, and the County reserves the right to make sole determination regarding deductions. After notification of deficiency, if the Consultant fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the Consultant. The County may also deduct or charge the Consultant for services and/or items necessary to correct the deficiencies directly related to the Consultant's non-performance. ARTICLE 6 OWNERSHIP OF DOCUMENTS I 6.1 Upon the completion or termination of each Work Order, as directed by OWNER, CONSULTANT shall deliver to OWNER copies or originals of all records, documents, drawings, notes, tracings, Plans,' specifications, maps, evaluations, reports and other technical data, other than . working papers, prepared' or developed by or for CONSULTANT under the applicable Work Order ("Prpject Documents"). OWNER shall specify whether the originals or copies of such Project Documents are to be deliv~red by CONSULTANT. CONSULTANT shall be solely responsible for all costs associated with delivering to OWNER the Project Documents. CONSULTANT, at its own expense, may retain copies of the Project Documents for its files and internal use. 6.2 Notwithstanding anything in this Agreement to the contrary and without requiring OWNER to pay any additional compensation, CONSULTANT hereby grants to OWNER a nonexclusive, irrevocable license in all of the Project Documents for OWNER'S use with respect to the applicable authorized project or task.: CONSULTANT warrants to OWNER that it has full right and authority to grant this license to OWNER. Further, CONSULTANT consents to OWNER'S use of the Project . A-13 Packet Page -1267- 4/26/2011 Item 16.E.3. . Documents to complete the subject project or task following CONSULTANT'S termination for any reason or task. CONSULTANT also acknowledges OWNER may be making Project Documents available for review and information to various third parties and hereby consents to such use by OWNER. ARTICLE 7 MAINTENANCE OF RECORDS 7.1 CONSULTANT will keep adequate records and supporting documentation which concern or reflect the Services hereunder. The records and documentation will be retained by CONSULTANT for a minimum of five (5) years from (a) the date of termination of this Agreement or (b) the date the Work Order is completed, whichever is later, or such later date as may be required by law. OWNER, or any duly authorized agents or representatives of OWNER, shall, free of charge, have the right to . audit, inspect and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the five (5) year period noted above, or such later date as may be required by law; provided, however, such activity shall be conducted only during normal business hours. 7.2 The records specified above in paragraph 7.1 include accurate time records, which CONSULTANT agrees to keep and maintain, from day to day, showing the time expended by each principal and employee of CONSULTANT in performing the Services and therein specifying the services performed by each, with all such time records to be kept within one-half of an hour. At the request of OWNER, or as specified in the Work Order, CONSULTANT shall furnish to OWNER any of the aforesaid time records, as well as invoices or proofs showing CONSULTANT'S incurrence and/or . payment of any reimbursable expenses. A-14 Packet Page -1268- 4/26/2011 Item 16.E.3. ARTICLE 8 . INDEMNIFICATION 8.1 To the maximum e~ent permitted by law, CONSULTANT shall indemnify and hold harmless OWNER, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of CONSULTANT or anyone employed or utilized by the CONSULTANT in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnired party or person described in this paragraph 8.1. ARTICLE 9 INSURANCE . 9.1 CONSULTANT sha,1I obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts described herein and further set forth in Schedule C to this Agreenient. 9.2 All insurance shall be from responsible companies duly authorized to do business in the State of Florida. 9.3 All insurance policies required by this Agreement shall include the following provisions and conditions by endorsement to the policies: 9.3.1 All insurance policies, other than the Business Automobile policy, Professional Liability policy, and the Workers Compensation policy, provided by CONSULTANT to meet the requirements of I this Agreement shall name Collier County Board of County Commissioners, Collier County, Florida, as . A-15 Packet Page -1269- 4/26/2011 Item 16.E.3. en additional insured as to the operations of CONSULTANT under this Agreement and shall contain a severability of interests provisions. 9.3.2 Companies issuing the insurance policy or policies shall have no recourse against OWNER for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of CONSULTANT. 9.3.3 All insurance coverages of CONSULTANT shall be primary to any insurance or self- insurance program carried by OWNER, and the "Other Insurance" provisions of any policies obtained by CONSULTANT shall not apply to any insurance or self-insurance program carried by OWNER. 9.3.4 The Certificates of Insurance, which are to be provided in an Occurrence Form patterned after the current I.S.0. form with no limiting endorsements, must reference and identify this .greement. 9.3.5 All insurance policies shall be fully performable in Collier County, Florida, and shall be construed in accordance with the laws of the State of Florida. 9.4 CONSULTANT, its subconsultants and OWNER shall waive all rights against each other for damages covered by insurance to the extent insurance proceeds are paid and received by OWNER, except such rights as they may have to the proceeds of such insurance held by any of them. 9.5 All insurance companies from whom CONSULTANT obtains the insurance policies required hereunder must meet the following minimum requirements: 9.5.1 The insurance company must be duly licensed and authorized by the Department of Insurance of the State of Florida to transact the appropriate insurance business in the State of Florida. . A-16 Packet Page -1270- 4/26/2011 Item 16.E.3. 9.5.2 The insurance company must have a current A. M. Best financial rating of "Class VI" . or higher. ARTICLE 10 ,SERVICES BY CONSULTANT'S OWN STAFF 10.1 The Services to be! performed hereunder shall be performed by CONSULTANT'S own staff, unless otherwise authorized in writing by the OWNER. The employment of, contract with, or use of the services of any other ~erson or firm by CONSULTANT, as independent consultant or otherwise, shall be subject to the prior written approval of the OWNER. No provision of this Agreement shall, however, be construed as constituting an agreement between the OWNER and any such other person or firm. Nor shall ~:mything in this Agreement be deemed to give any such party or any third party any claim or right of action against the OWNER beyond such as may then otherwise exist without regard to this Agre~ment. . 10.2 Attached to each Work Order shall be a Schedule that lists all of the key personnel CONSULTANT intends to assign to perform the Services required under that Work Order. Such personnel shall be committed to the project or task specified in the Work Order in accordance with the I percentages noted in the attached Schedule. CONSULTANT shall also identify in that Schedule each subconsultant and subcontractor it intends to utilize with respect to the subject Work Order. All personnel, subconsultants: and subcontractors identified in the Schedule shall not be removed or replaced without OWNER'S prior written consent. 1 0.3 CONSULTANT is liable for all the acts or omissions of its subconsultants or subcontractors. By appropriate written agreement, the CONSULTANT shall require each subconsultant or subcontractor, to the extent of the Services to be performed by the subconsultant or subcontractor, to . A-17 Packet Page -1271- 4/26/2011 Item 16.E.3. . be bound to the CONSULTANT by the terms of this Agreement and any subsequently issued Work Order, and to assume toward the CONSULTANT all the obligations and responsibilities which the CONSULTANT, by this Agreement and any subsequently issued Work Order, assumes toward the OWNER. Each subconsultant or subcontract agreement shall preserve and protect the rights of the OWNER under this Agreement, and any subsequently issued Work Order, with respect to the Services to be performed by the subconsultant or subcontractor so that the subconsulting or subcontracting thereof will not prejudice such rights. Where appropriate, the CONSULTANT shall require each subconsultant or subcontractor to enter into similar agreements with its sub- subconsultants or sub-subcontractors. 1 0.4 CONSULTANT acknowledges and agrees that OWNER is a third party beneficiary of each contract entered into between CONSULTANT and each subconsultant or subcontractor, however . nothing in this Agreement shall be construed to create-any contractual relationship between OWNER and any subconsultant or subcontractor. ARTICLE 11 WAIVER OF CLAIMS 11.1 CONSULTANT'S acceptance of final payment for Services provide under any Work Order shall constitute a full waiver of any and all claims, except for insurance company subrogation claims, by it against OWNER arising out of the Work Order or otherwise related to those Services, and except those previously made in writing in accordance with the terms of this Agreement and identified by CONSULTANT in its final invoice for the subject Work Order as unsettled. Neither the acceptance of CONSULTANT'S Services nor payment by OWNER shall be deemed to be a waiver of any of OWNER'S rights against CONSULTANT. . A-18 Packet Page -1272- 4/26/2011 Item 16.E.3. ARTICLE 12 . TERMINATION OR SUSPENSION 12.1 This Agreement is a fixed term contract for the professional services of CONSU L T ANT. It is agreed that either party hereto shall at any and all times have the right and option to terminate this Agreement by giving to the other party not less than thirty (30) days prior written notice of such termination. Upon this Agreement being so terminated by either party hereto, neither party hereto shall have any further rights or obligations under this Agreement subsequent to the date of termination, except that Services specified to be performed under a previously issued Work Order, shall proceed to completio!1 under the terms of this Agreement. 12.2 CONSULTANT sha'lI be considered in material default of this Agreement and such default will be considered cause for OWNER to terminate this Agreement and any Work Orders in effect, in whole or in part, as further set forth in this section, for any of the following reasons: (a). CONSULTANT'S failure to begin Services under any particular Work Order within the times specified under that Work Order, or(b) CONSULTANT'S failure to properly and timely perform the Services to be provided hereunder or as directed by OWNER, or (c) the bankruptcy or insolvency or a general assignment for the benefit of creditors by CONSULTANT or by any of CONSULTANT'S principals, officers or directors, or (d) :CONSUL TANT'S failure to obey any laws, ordinances, regulations or other codes of conduct, or (e) CONSULTANT'S failure to perform or abide by the terms and conditions of this Agreement and any Work Orders in effect, or (f) for any other just cause. The OWNER may so terminate this Agreemen~ and any Work Orders in effect, in whole or in part, by giving the CONSULTANT seven (7) calendar days written notice of the material default. . A-19 Packet Page -1273- 4/26/2011 Item 16.E.3. . 12.3 If, after notice of termination of this Agreement as provided for in paragraph 12.1 above, it is determined for any reason that CONSULTANT was not in default, or that its default was excusable, or that OWNER otherwise was not entitled to the remedy against CONSULTANT provided for in paragraph 12.2, then the notice of termination given pursuant to paragraph 12.2 shall be deemed to be the notice of termination provided for in paragraph 12.4, below, and CONSULTANT'S remedies against OWNER shall be the same as and be limited to those afforded CONSULTANT under paragraph 12.4 below. 12.4 Notwithstanding anything herein to the contrary (including the provisions of paragraph 12.1 above), OWNER shall have the right to terminate this Agreement and any Work Orders in effect, in whole or in part, without cause upon seven (7) calendar days written notice to CONSULTANT. In the event of such termination for convenience, CONSULTANT'S recovery against OWNER shall be .limited to that portion of the fee earned through the date of termination, for any Work Orders so cancelled, together with any retainage withheld and any costs reasonably incurred by CONSULTANT that are directly attributable to the termination, but CONSULTANT shall not be entitled to any other or further recovery against OWNER, including, but not limited to, anticipated fees or profits on Services not required to be performed. CONSULTANT must mitigate all such costs to the greatest extent reasonably possible. 12.5 Upon termination and as directed by OWNER, the CONSULTANT shall deliver to the OWNER all original papers, records, documents, drawings, models, and other material set forth and described in this Agreement, including those described in Section 6, that are in CONSULTANT'S possession or under its control arising out of or relating to this Agreement or any Work Orders. . A-20 Packet Page -1274- 4/26/2011 Item 16.E.3. 12.6 The OWNER shall have the power to suspend all or any portions of the Services to be . provided by CONSUL T ANff hereunder upon giving CONSULTANT two (2) calendar days prior written notice of such suspension. If all or any portion of the Services to be rendered hereunder are so suspended, the CONSULTANT'S sole and exclusive remedy shall be to seek an extension of time to its schedule in accordanc~ with the procedures set forth in Article Four herein. 12.7 In the event (i) OWNER fails to make any undisputed payment to CONSULTANT within forty- five (45) days after such payment is due as set forth in the Work Order or such other time as required by Florida's Prompt PaYll1ent Act or (ii) OWNER otherwise persistently fails to fulfill some material obligation owed by OWNER to CONSULTANT under this Agreement or subsequently issued Work Order, and (ii) OWNER has failed to cure such default within fourteen (14) days of receiving written notice of same from CONSULTANT, then CONSULTANT may stop its performance under the subject Work Order until such default is cured, after giving OWNER a second fourteen (14) days written. notice of CONSULTANT'S intention to stop performance under the applicable Work Order. If the Services are so stopped for a period of one hundred and twenty (120) consecutive days through no I act or fault of the CONSULTANT or its subconsultant or subcontractor or their agents or employees or any other persons performing portions of the Services under contract with the CONSULTANT, the CONSULTANT may terminate the subject Work Order by giving written notice to OWNER of CONSULTANT'S intent to, terminate that Work Order. If OWNER does not cure its default within fourteen (14) days after i receipt of CONSULTANT'S written notice, CONSULTANT may, upon fourteen (14) additional days' written notice to the OWNER, terminate the subject Work Order and recover from the Owner payment for Services performed through the termination date, but in no event shall CONSULTANT be entitled to payment for Services not performed or any other damages from Owner. . A-21 Packet Page -1275- 4/26/2011 Item, 16.E.3. . ARTICLE 13 CONFLICT OF INTEREST 13.1 CONSULTANT represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would .conflict in any manner with the performance of Services required hereunder. CONSULTANT further represents that no persons having any such interest shall be employed to perform those Services. ARTICLE 14 MODI FICA TION 14.1 No modification or change in this Agreement shall be valid or binding upon either party unless in writing and executed by the party or parties intended to be bound by it. . ARTICLE 15 NOTICES AND ADDRESS OF RECORD 15.1 All notices required or made pursuant to this Agreement to be given by the CONSULTANT to the OWNER shall be in writing and shall be delivered by hand, by fax, or by United States Postal Service Department, first class mail service, postage prepaid, addressed to the following OWNER'S address of record: Board of County Commissioners, Collier County Florida Purchasing Department, Purchasing Building 3327Tamiami Trail East Naples, FI. 34112 Attention: Stephen Y. Carnell, Purchasing/GS Director Telephone: 239-252-8407 Fax: 239-252-6584 . A-22 Packet Page -1276- 4/26/2011 Item 16.E.3. 15.2 All notices required or made pursuant to this Agreement to be given by the OWNER to the . CONSULTANT shall be l11ade in writing and shall be delivered by hand, by fax or by the United States Postal Service Department, first class mail service, postage prepaid, addressed to the following CONSULTANT'S address of record: Turrell, Hall & Associates, Inc. 3584 Exchange Avenue Naples, FL. 34103 Telephone: 239/643-0166 Fax: 239/643-6632 Attention: Timothy C. Hall Either party may change its address of record by written notice to the other party given in accordance with requirements of this A'rticle. ARTICLE 16 . MISCELLANEOUS 16.1 CONSULTANT, in representing OWNER, shall promote the best interests of OWNER and assume towards OWNER a duty of the highest trust, confidence, and fair dealing. 16.2 No modification, waiver, suspension or termination of the Agreement or of any terms thereof shall impair the rights or li~bilities of either party. 16.3 This Agreement is not assignable, or otherwise transferable in whole or in part, by CONSULTANT without the prior written consent of OWNER. 16.4 Waivers by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement. . A-23 Packet Page -1277- 4/26/2011 Item 16.E.3. . 16.5 The headings of the Articles, Schedules, Parts and Attachments as contained in this Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions in such Articles, Schedules, Parts and Attachments. 16.6 This Agreement, including the referenced Schedules and Attachments hereto, constitutes the entire agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matter set forth herein, and any such prior agreements or understanding shall have no force or effect whatever on this Agreement. 16.7 Unless otherwise expressly noted herein, all representations and covenants of the parties shall survive the expiration or termination of this Agreement. .16.8 This Agreement may be simultaneously executed in several counterparts, each of which shall . be an original and all of which shall constitute but one and the same instrument. 16.9 This Contract consists of the attached component parts, all of which are as fully a part of the contract as if herein set out verbatim: Contractor's Proposal, Insurance Certificate, RFP #10-5571 Specifications/Scope of Services, Schedule A - Work Order, Schedule B - Fee Schedule and Schedule C -Insurance Coverage. ARTICLE 17 APPLICABLE LAW 17.1 This Agreement shall be governed by the laws, rules, and regulations of the State of Florida, and by such laws, rules and regulations of the United States as made applicable to Services funded by the United States government. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal . A-24 Packet Page -1278- 4/26/2011 Item 16.E.3. or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such . matters. ARTICLE 18 DISPUTE RESOLUTION 18.1 Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of CONSULTANT with full decision-making authority 'and by OWNER'S staff person who would make the presentation of any settlement reached during' negotiations to OWNER for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court Mediator certified by the State of Florida. The mediation shall be attended by representatives of . CONSULTANT with full decision-making authority and by OWNER'S staff person who would make the presentation of any settlement reached at mediation to OWNER'S board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.102, Fla. Stat. 18.2 Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which coun:s have sole and exclusive jurisdiction on all such matters. . A-25 Packet Page -1279- 4/26/2011 Item 16.E.3. . ARTICLE 19 IMMIGRATION LAW COMPLIANCE 19.1 By executing and entering into this agreement, the Consultant is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et sea. and regulations relating thereto, as either may be amended. Failure by the Consultant to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immediately. IN WITNESS WHEREOF, the parties hereto have executed this Professional Services Agreement for Environmental & Biological Studies - Section.A and B the day and year first written above. ATTEST: BOARD OF COUNTY COMMISSIONERS FOR COLLIER COUNTY, FLORIDA, Dwight E. Brock, Clerk . By: Date: By: Fred W.Coyle, Chairman Approved as to form and legal sufficiency: Deputy County Attorney TURRELL, HALL & ASSOCIATES, INC.:. Witness By: Typed Name and Title Typed Name and Title Witness .Typed Name and Title A-26 Packet Page -1280- 4/26/2011 Item 16.E.3. SCHEDULE A . WORK ORDER # Agreement for , Dated: ,2011 (RFP 10-5571) This Work Order is for professional services for work known as: Project Name: Project No: The work is specified in the proposal dated I 200 which is attached hereto and made a part of this Work Order. In accordance with Terms and Conditions of the Agreement referenced above, Work Order # is assigned to: name of firm. Scope of Work: As detailed in the attached proposal and the following: * Task I * Task I( * Task III Schedule of Work: Complete work within _days from receipt of the Notice to Proceed which is accompanying this Work: Order. Compensation: In accordance with Article Five of the Agreement, the County will compensate the Firm in accordance with the following method(s): _Negotiated Lump Sum_Lump Sum Plus Reimbursable Costs _Time & Material (established hourly rate - Schedule A) _Cost Plus Fixed Fee, as provided in the attached proposal. (Define which method will be used for which tasks) TOTAL FEE $ $ $ $ . Task I Task I( Task III Any change made subsequent to final department approval will be considered an additional service and charged according to Schedule "An of the original Contract Agreement. PREPARED BY: name and title Date APPROVED BY: Departmentr Director, Department Name Date APPROVED BY: Division Administrator, Division Date ACCEPTED BY: Company name Signature of Authorized Company Officer Date Type or Print Name and Title . A-27 Packet Page -1281- . . . 4/26/2011 Item 16.E.3. SCHEDULE B Collier County Fee Schedule RFP 10-5571 "Environmental & Biological Studies - Section A and B" TURRELL, HALL & ASSOCIATES, INC FEE SCHEDULE Principal Senior Ecologist Senior Marine Biologist Staff Biologist AutoCAD Technician Field Technician Project Coordinator Administrative Assistant Boat Aircraft Gheenoe Hypack $175.001 hr. . $150.00 1 hr. $150.00 1 hr. $ 90.001 hr. $ 75.001 hr. $ 65.001 hr. $ 70.001 hr. $ 55.001 hr. $45.00 1 hr. $250.001 hr. $20.001 hr. $45.001 hr. This list is not intended to be all-inclusive. Hourly rate fees for other categories of professional, support and other services shall be mutually negotiated by the County and firm on a project by project basis as needed. B-1 Packet Page -1282- 4/26/2011 Item 16.E.3. SCHEDULE C INSURANCE COVERAGE (1) The amounts and types of insurance coverage shall conform to the following minimum requirements with the use of Insurance Services Office (ISO) forms and endorsements or their equivalents. If CONSULTANT has any self-insured retentions or dedu~tibles under any of the below listed minimum required coverages, CONSULTANT mu$t identify on the Certificate of Insurance the nature and amount of such self-insured re~entions or deductibles and provide satisfactory evidence of financial responsibility for such obligations. All self-insured retentions or deductibles will be CONSULTANT'S sole responsibility. (2) The insurance required by this Agreement shall be written for not less than the limits specified herein or required by law, whichever is greater. (3) Coverages shall be maintained without interruption from the date of commencement of 'the Services until the date of completion of all Services required hereunder or as sp~cified in this Agreement, whichever is longer. (4) Simult~neously with the execution and delivery of this Agreement by CONSULTANT, CONSULTANT has delivered properly executed Certificates of insurance (3 copies) acceptable to the OWNER evidencing the fact that CONSULTANT has acquired and put in place the insurance coverages and limits required hereunder. In addition, certified, true and exact copies of all insurance policies required shall be provided to OWNER, on a timely basis, if requested by OWNER. Such certificates shall contain a provision that coverages afforded under the policies will not be canceled or C-1 Packet Page -1283- . . . 4/26/2011 Item 16.E.3. . allowed to expire until at least thirty (30) days prior written notice has been given to the OWNER. CONSULTANT shall also notify OWNER, in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, non-renewal or material change in coverages or limits received by CONSULTANT from its insurer, and nothing contained herein shall relieve CONSULTANT of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by CONSULTANT hereunder, CONSULTANT shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy. (5) All insurance coverages of the CONSULTANT shall be primary to any insurance or self insurance program carried by the OWNER applicable to this Agreement. . (6) The acceptance by OWNER of any Certificate of Insurance pursuant to the terms of this Agreement does not constitute approval or agreement by the OWNER that the insurance requirements have been satisfied or that the insurance policy shown on the Certificate of Insurance is in compliance with the requirements of this Agreement. (7) CONSULTANT shall require each of its subconsultants to procure and maintain, until the completion of the subconsultant's services, insurance of the types and to the limits specified in this Section except to the extent such insurance requirements for the subconsultant are expressly waived in writing by the OWNER. (8) Should at any time the CONSULTANT not maintain the insurance coverages required herein, the OWNER may terminate the Agreement and any Work . Orders issued pursuant to the Agreement or at its sole discretion shall be authorized to C-2 Packet Page -1284- 4/26/2011 Item 16.E.3. purchase such coverages and charge the CONSULTANT for such coverages . purchased. If CONSULTANT fails to reimburse OWNER for such costs within thirty (30) days after demand, OWNER has the right to offset these costs from any amount due CONSULTANT under this Agreement or any other agreement between OWNER and CONSULTANT. The OWNER shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverages purchased or the insurance company or companies used. The decision of the OWNER to purchase such insurance coverages shall in no way be construed to be a waiver of any of its rights under the Agreement. (9) If the initial, or any subsequently issued Certificate of Insurance expires prior to the completion of the Services required hereunder or termination of the Agreement or any ,Work Order, the CONSULTANT shall furnish to the OWNER, in triplicate, renewal or replacement Certificate(s) of Insurance not later than three (3) . business days after: the renewal of the policy(ies). Failure of the Contractor to provide the OWNER with such renewal certificate(s) shall be deemed a material breach by CONSULTANT and OWNER may terminate the Agreement or any subsequently issued Work Order for cause. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY Required by this Agreement? X Yes No (1) Workers' Compensation and Employers' Liability Insurance shall be maintained by the CONSULTANT during the term of this Agreement for all employees engaged in the work under this Agreement in accordance with the laws of the State of Florida. The amounts of such insurance shall not be less than: . C-3 Packet Page -1285- . . . 4/26/2011 Item 16.E.3. a. Worker's Compensation - Florida Statutory Requirements b. Employers' Liability $100,000 Each Accident $500,000 Disease Aggregate $100,000 Disease Each Employee _X_ $1,000,000 Each Accident $1,000,000 Disease Aggregate . $1,000,000 Disease Each Employee (2) The insurance company shall waive all claims rights against the OWNER and the policy shall be so endorsed. (3) United States Longshoreman's and Harborworker's Act coverage shall be maintained where applicable to the completion of the work. _ Applicable _X_ Not Applicable (4) Maritime Coverage (Jones Act) shall be maintained where applicable to the completion of the work. _ Applicable _X_ Not Applicable COMMERCIAL GENERAL LIABILITY Required by this Agreement? _X_ Yes ~ No (1) Commercial General Liability Insurance, written on an "occurrence" basis, shall be maintained by the CONSULTANT. Coverage will include, but not be limited to, Bodily Injury, Property Damage, Personal Injury, Contractual Liability for this Agreement, Independent Contractors, Broad Form Property Damage including C-4 Packet Page -1286- 4/26/2011 Item 16.E.3. Completed Operations and Products and Completed Operations Coverage. Products . and Completed Operations coverage shall be maintained for a period of not less than five (5) years following the completion and acceptance by the OWNER of the work under this Agreement. Limits of Liability shall not be less than the following: _ General Aggregate Products/Completed Operations Aggregate Personal and Advertising Injury Each Occurrence Fire Damage: _ General Aggregate Products/Completed Operations Aggregate Personal and Advertising Injury Each Occurrence Fire Damage , _X_General Aggregate Each Occurrence $300,000 $300,000 $300,000 $300,000 $ 50,000 $500,000 $500,000 $500,000 $500,000 $ 50,000 $1,000,000 $1,000,000 . (2) The General Aggregate Limit shall apply separately to this Project and the policy shall be endqrsed using the following endorsement wording. "This endorsement modifies insurance, provided under the following: Commercial General Liability Coverage Part. Th13 General Aggregate Limit under LIMITS OF INSURANCE applies , separately to each of your projects away from premises owned by or rented to you." Applicable deductibles or self-insured retentions shall be the sole responsibility of CONSULTANT. Deductibles or self-insured retentions carried by the CONSULTANT shall be subject to the approval of the Risk Management Director or his designee. (3) The OWNER, Collier County Government, shall be named as an Additional Insured and the policy shall be endorsed that such coverage shall be primary to any similar coverage carried by the OWNER. C-5 Packet Page -1287- . . . . 4/26/2011 Item 16.E.3. (4) Coverage shall be included for explosion, collapse or underground property damage claims. (5) Watercraft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL TANT in limits of not less than the Commercial General Liability limit shown in subparagraph (1) above if applicable to the completion of the Services under this Agreement. _ Applicable _X_ Not Applicable (6) Airctaft Liability coverage shall be carried by the CONSULTANT or the SUBCONSUL TANT in limits of not less than $5,000,000 each occurrence if applicable to the completion of the Services under this Agreement. _ Applicable _X_ Not Applicable AUTOMOBILE LIABILITY INSURANCE Required by this Agreement? _ Yes _X_ No (1) Automobile Liability Insurance shall be maintained by the CONSULTANT for the ownership, maintenance or use of any owned, non-owned or hired vehicle with limits of not less than: Bodily Injury & Property Damage - $ 500,000 Bodily Injury & Property Damage - $1,000,000 C-6 Packet Page -1288- 4/26/2011 Item 16.E.3. UMBRELLA LIABILITY (1) Umbrella Liability may be maintained as part of the liability insurance of the CONSULTANT and, if so, such policy shall be excess of the Employers' Liability, Commercial Gener~1 Liability, and Automobile Liability coverages required herein and shall include all coverages on a "following form" basis. (2) The policy shall contain wording to the effect that, in the event of the i exhaustion of any underlying limit due to the payment of claims, the Umbrella policy will "drop down" to apply as primary insurance. C-7 Packet Page -1289- . . .