TO: FROM: DATE: SUBJECT:

FLORIDA

CITY AUDITOR'S OFFICE

Mayor and Council Members ..... :AJ \/ / Margaret Krym, CIA, CGAP, City AUI.ir.'fVV'I-" October 1, 2012 Review of Proposed Tetra Tech Professional Engineering Services Contract - Southwest 6/7 Utility Extension Project (UEP)

Attached is a memorandum/report from Rich Townsend regarding the proposed Tetra Tech Professional Engineering Services Contract and Resolution 39-12. These items are on the agenda for consideration at tonight's Council Meeting.

If you should have any questions, Mr. Townsend will be available by phone this morning and for portions of this afternoon. He can be reached on his Cell phone at (972) 679-6762.

Attachment

C: John Szerlag, City Manager Dolores Menendez, City Attorney Rebecca van Deutekom, City Clerk Michaelllczyszyn, Business Manager Victoria Bateman, Financial Services Director Audit Committee

P 0 Box 150027 815 Nicholas Pkwy.

Cape Coral, FL 33915-0027 Phone 239-242-3383 Fax 239-242-3384

Special Report

Prepared for:

City of Cape Coral

RE: Southwest 6/7 Utility Extension Project (UEP)

Review of Proposed Tetra Tech Professional Engineering Services Contract

Submitted by:

R. L. Townsend & Associates, Inc. www.rltownsend.com

(972) 403-1829

Plano, Texas

October 1, 2012

Review of Proposed Tetra Tech Professional Engineering Services Contract

Southwest 6/7 Utility Extension Project (UEP) Special Report Prepared for the City of Cape Coral Report Date: October 1, 2012

R. L. Townsend & Associates, Inc. 1

Background Related to Consulting Services Provided by R. L. Townsend & Associates, Inc. The City Auditor’s office engaged R. L. Townsend & Associates, Inc. (“Townsend”) to provide pre-contract audit/consulting services to review the proposed professional engineering services agreement that the City anticipates using in connection with the Southwest 6/7 Utility Extension Project (UEP). The purpose of this review was to provide recommendations to improve and strengthen contract language and contractual relationship structures and to clearly define contractual language regarding compensation obligations to assist the City of Cape Coral (CCC) in controlling and safeguarding the use and disbursement of CCC assets. From July 1, 2012 through September 30, 2012, the City Auditor and Townsend reviewed various draft engineering services contracts and related proposal documents submitted by Tetra Tech, Inc. Observations and recommendations were provided by Townsend to the City Auditor’s office and other CCC management representatives as necessary via telephone calls and e-mails. The City Auditor and Townsend also conducted a pre-contract audit review of Tetra Tech’s payroll records for a representative sample of Tetra Tech employees to test the accuracy of the Tetra Tech employee wage rates listed in Schedule E. Our observations and related recommendations were addressed by CCC management in the following sections of the proposed Tetra Tech professional engineering services contract:

• Article 11.1 – Basic Compensation • Article 11.6 – Reimbursable Expenses • Article 11.8.8 – Compensation for Additional Professional Services • Article 21.6 – Business Ethics Expectations • Article 22 – Engineer’s Records • Article 23 – Right of Audit – Examination of Records • Schedule E – Tetra Tech Rate Schedule

o 3.17 multiplier on actual wages of Tetra Tech employees based in Tetra Tech Office o 2.75 multiplier on actual wages of Tetra Tech employees not based in Tetra Tech office

• Schedule J – Other Direct Reimbursable Costs

Conclusion We believe the commercial terms contained in the proposed Professional Engineering Services Agreement as reflected in the attached Resolution 39-12 define the compensation obligations in a manner that is consistent with generally accepted contracting practices that are typically used to procure professional engineering services and that the terms of the proposed contract contain sufficient provisions which will allow CCC representatives to adequately control and safeguard the use and disbursement of CCC assets for the scope of services covered by the agreement. Submitted by:

CEO – R. L. Townsend & Associates, Inc. E-mail: rltownsend@rltownsend.com Telephone: (972) 679-6762

CITY OF CAPE CORAL

AGREEMENT

BETWEEN CITY AND ENGINEER

UTILITIES EXTENSION PROJECT

SOUTHWEST 6 & 7

INDEX OF ARTICLES

ARTICLE PAGEArticle 1: Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Article 2: Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Article 3: Scope of Basic Professional Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Article 4: Contract Modifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Article 5: Additional Professional Services.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Article 6: Time for Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Article 7: Quality Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Article 8: Engineer's Personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Article 9: Subconsultants and Subcontractors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Article 10: Cooperation with Project Participants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Article 11: Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Article 12: Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Article 13: Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Article 14: Drafting Formats and Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Article 15: Copyrights and Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Article 16: Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Article 17: City's Responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Article 18: Engineer's Representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Article 19: Accuracy, Technical Sufficiency of Services Provided

by Engineer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Article 20: Termination or Suspension of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 20 Article 21: Special Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Article 22: Engineer's Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Article 23: Right of Audit - Examination of Records. . . . . . . . . . . . . . . . . . . . . . . . . 24 Article 24: Claims and Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Article 25: Damage to Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Article 26: Equal Employment Opportunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Article 27: Proprietary Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Article 28: Compliance with Immigration Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Article 29: Observance of Laws, rules, regulations, Codes and Ordinances.. . . . . . . 29 Article 30: Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Article 31: Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

City _______

Engineer _______-i-

PROFESSIONAL SERVICES AGREEMENT

THIS AGREEMENT is made and entered into this _____ day of ________________,2012, by and between the City of Cape Coral, Florida, a municipal corporation of the Stateof Florida, hereinafter referred to as the “City” and Tetra Tech, Inc., a Delaware corporation,hereinafter referred to as “Engineer.”

WITNESSETH:

WHEREAS, the City is a municipality providing to its citizens a comprehensive rangeof municipal services including general government, public safety, community development,public works, planning, utilities, and parks and recreation; and

WHEREAS, the City intends to extend transmission and distribution facilitiesassociated with potable water, conventional gravity waste water collection system, reclaimedwater, and associated roadway/storm water improvements to the Southwest 6 & 7 UtilitiesExtension Project area (“Project”) situated in that portion of the City more particularlydescribed in Schedule “A” attached hereto (“Project Area”); and

WHEREAS, the Project Area encompasses approximately four (4) square miles andincludes approximately 6,147 undeveloped and developed properties that will benefit whenthe Project is completed; and

WHEREAS, the Project was designed and permitted under a previous contract withMontgomery Watson Harza Americas, Inc. in 2008 (“Existing Design”); and

WHEREAS, the City desires to contract with the Engineer to provide professionalengineering services to deliver to the City a constructible and functioning Project. Suchprofessional engineering services shall consist of the evaluation, modification, partial redesign and adoption of the Existing Design to facilitate the implementation andconstruction of the Project. The Engineer shall prepare any engineering design and/orredesign, additional survey, subsurface utility exploration services, permit modifications,develop construction bid specifications, technical documentation, permit applications,construction engineering services and as built/record drawings needed for the completion ofthe Project. The Engineer shall also be responsible for preparing and submitting all permitapplications for the Project and providing instruction, bid specifications and bidding servicesfor the Project. Finally, the Engineer shall provide all FDEP-required equipmentmaintenance and operations manuals and will oversee and implement operation staff trainingin all aspects of operating the new facilities; and

City _______

Engineer _______

WHEREAS, it is anticipated that the Project Area is to be divided in up to seven (7)separate construction areas and that individual general contracts will be awarded in each, ormultiples, of these areas for the construction of the Project. The Engineer shall provideconstruction and bidding services to the City in connection with the implementation of itsdesign by the various contractors; and

WHEREAS, the Engineer hereby certifies that it has been granted and possesses valid,current licenses to do business in the State of Florida, Lee County, Florida and the City ofCape Coral, issued by the respective agencies responsible for regulating and licensing theprofessional services to be provided and performed by the Engineer pursuant to thisAgreement; and

WHEREAS, Engineer has reviewed the professional services required pursuant to thisAgreement and is qualified, willing and able to provide and perform all such services inaccordance with the provisions, conditions and terms hereinafter set forth; and

WHEREAS, the selection and engagement of the Engineer has been made by the Cityin accordance with the provisions of the Consultant’s Competitive Negotiation Act, Chapter287.055, Florida Statutes and in accordance with the provisions of all City procurementstandards.

NOW, THEREFORE, for and in consideration of the mutual covenants andagreements set forth herein and for other good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged, the City and Engineer, intending to be legallybound, covenant and agree as follows:

ARTICLE 1RECITALS

The recitals set forth above are true and correct and are incorporated herein byreference.

ARTICLE 2DEFINITIONS

2.1 City: The term “City” shall mean the City of Cape Coral

2.2 Engineer: The term “Engineer” shall mean Tetra Tech, Inc., a Delaware Corporation.

City _______

Engineer _______2

2.3 Contract Documents: The term “Contract Documents” shall mean this Agreement, the City’s Request for Proposal for the Project (“RFP”), the Engineer’s responses andsubmissions to the RFP, and all drawings and specifications prepared and/or adoptedby Engineer and its subconsultants.

2.4 Work: The term “Work” shall mean everything expressly or implicitly required to befurnished or done for the design and construction administration of a fully operationaland functioning Project, including but not limited to, that work described in Schedule“B” attached hereto.

2.5 Construction. The term “Construction” shall mean everything expressly or implicitlyrequired to construct a fully operational and functioning Project.

2.6 Project: The term “Project” shall mean the extension of transmission and distributionfacilities associated with potable water, conventional gravity waste water collectionsystem, reclaimed water and associated roadway/storm water improvements to theSouthwest 6 & 7 Utilities Extension Project Area more particularly described inSchedule “A” attached hereto.

2.7 Project Area: The term “Project Area” shall mean that portion of the City moreparticularly described in Schedule “A” attached hereto.

2.8 Existing Design: The term “Existing Design” shall mean that design for the Projectpreviously prepared and permitted under a contract with Montgomery Watson HarzaAmericas, Inc. in 2008.

ARTICLE 3SCOPE OF PROFESSIONAL SERVICES

Engineer hereby agrees to provide and perform the professional services required andnecessary to complete the services and Work as set forth in Schedule “B,” entitled Scope ofProfessional Services as indicated in said schedule which is attached hereto and made a partof this Agreement (“Professional Services”). Engineer shall be responsible for providing andperforming whatever services, work, equipment, material, personnel, supplies, facilities,transportation and administrative support that are necessary and required to complete all ofthe tasks and work set forth in the Scope of Professional Services attached hereto as Schedule“B.”

City _______

Engineer _______3

ARTICLE 4CONTRACT MODIFICATIONS

The City reserves the right to make any contract modifications it so desires. Allcontract modifications shall be performed in accordance with the terms and conditions of thisAgreement. No extra Work shall be performed unless ordered in writing by the City priorto the installation of such Work and upon the terms agreed to in advance by the City.

ARTICLE 5ADDITIONAL PROFESSIONAL SERVICES

The City may, without invalidating this Agreement, require that Engineer performprofessional services (“Additional Professional Services”) in addition to those identified asProfessional Services in this Agreement. If the Engineer believes a professional service tobe beyond those included in the Professional Services, Engineer shall notify the City inwriting, and obtain the City’s written authorization to proceed with such service as anAdditional Professional Service for such service to be considered an Additional ProfessionalService. These Additional Professional Services shall be provided by the Engineer ifdirected and authorized in advance, in writing, by the City and if Engineer is reasonablyqualified to provide the services. Additional Professional Services shall be performed underand governed by the terms and provisions of this Agreement. The City shall pay Engineerfor all Additional Professional Services directed and authorized in writing and in advance bythe City, except that the City shall not be obligated to pay for any such AdditionalProfessional Services or any other services which result from or are caused by Engineer’sbreach of its obligations under this Agreement.

ARTICLE 6TIME FOR PERFORMANCE

6.1 Following the execution of this Agreement by both parties and after Engineer hascomplied with the insurance requirements set forth herein, the City shall issue toEngineer a written notice to proceed. Following the issuance of such a written noticeto proceed, Engineer shall be authorized to commence Work and Engineer thereaftershall commence Work promptly and shall carry on all such services and Work within14 calendar days in a timely and diligent manner to completion.

6.2 Should Engineer be obstructed or delayed in the prosecution or completion of its obligations under this Agreement as a result of causes beyond the control of Engineer,or its subconsultants and/or subcontractors and not due to their fault or neglect,Engineer shall notify the City, in writing, within five (5) calendar days after thecommencement of such delay stating the cause(s) thereof and requesting an extension

City _______

Engineer _______4

of Engineer’s time of performance. Upon receipt of Engineer’s request for anextension of time, the City shall grant the extension if the City, in its sole discretion,determines that the delay(s) encountered by Engineer or its subconsultant(s) and/orsubcontractor(s), is due to unforseen causes and not attributable to their fault orneglect.

6.3 Engineer shall be required as a condition of this Agreement to prepare and submit tothe City Engineer’s Work schedule which is attached hereto as Schedule “C”. TheEngineer’s Work schedule shall set forth in an understandable fashion the schedulefor all of the various phases and/or tasks required to perform and complete all of theservices set forth or described in Schedule “B.” The Engineer’s Work schedule ofplanned and actual Work progress shall be updated and submitted by Engineer to theCity no later than the 10 day of each month, commencing with the issuance of theth

notice to proceed. 6.4 Engineer’s services shall be performed as expeditiously as is consistent with

professional skill and care in the orderly progress of the Project. Engineer representsto the City that it shall deliver its services in accordance with the schedule establishedfor the Project which is attached hereto as Schedule “C” and shall appropriately adjustthe delivery of its services if necessary and approved by the City, as the Projectproceeds. Engineer acknowledges that time is of the essence with respect to thedelivery of its services hereunder and that the time limits set forth in the City’sschedule shall not, except for a written determination by the City that reasonablecause exists for the schedule to be exceeded by Engineer.

6.5 NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THECONTRARY ENGINEER SHALL NOT BE ENTITLED TO RECOVER ANYMONETARY DAMAGES IT MAY SUSTAIN AS A RESULT OF ANY DELAYCAUSED BY THE CITY, ANY SEPARATE DESIGN PROFESSIONALEMPLOYED BY THE CITY, CONTRACTOR OR ANY OTHER CAUSESWHATSOEVER. ENGINEER FURTHER AGREES THAT IT SHALL MAKENO CLAIM FOR COMPENSATION FOR SUCH DELAYS AND WILLACCEPT IN FULL SATISFACTION FOR SUCH DELAYS ANYEXTENSIONS OF TIME WHICH ARE GRANTED TO IT BY THE CITY.

6.6 Unless sooner terminated as provided in Article 19 of this Agreement, this Agreementshall remain in force:

6.6.1 For the period required for the design, award of construction contracts andconstruction of the Project, including extra work and any required extension;or

City _______

Engineer _______5

6.6.2 If construction is not commenced, for a period of eighty-four (84) months aftercompletion of all design work to be furnished hereunder by Engineer.

ARTICLE 7QUALITY CONTROL

7.1 Engineer shall develop and employ a comprehensive quality control program designedto protect the City from patent or latent defects in any Work related to the Project orin Construction Work performed at the Project by third parties. At a minimum,Engineer will follow guidelines listed in the Tetra Tech Quality Practices Manual,Rev 1, July 2011, and any subsequent revisions or updates, provided such guidelinesto not conflict with any of the Contract Documents.

7.2 Engineer shall make those periodic visits to the Project and inspections of the Workand Construction related to the Project as more particularly described in Schedule “B”to be familiar with the progress and quality of the Work and Construction and todetermine in general if the Work is proceeding in accordance with the ContractDocuments. On the basis of its inspections and observations, Engineer shall keep theCity informed of the progress and quality of the Work and Construction, and shallendeavor to guard the City against defects and deficiencies in the Work andConstruction.

7.3 Engineer shall at all times have access to the Work and Construction whether it is inpreparation or progress.

7.4 Engineer has authority to reject Construction that does not conform to the ContractDocuments. Whenever Engineer considers it necessary or advisable, Engineer shallhave the authority to require inspection or testing of the Construction in accordancewith the provisions of the Contract Documents, whether or not such Construction isfabricated, installed or completed.

ARTICLE 8ENGINEER’S PERSONNEL

8.1 Licensing. Engineer agrees to obtain and maintain throughout the period thisAgreement is in effect, all such licenses as are required to do business in the State ofFlorida, Lee County, Florida and the City of Cape Coral, including but not limited to,licenses required by the respective state boards and other governmental agencies

City _______

Engineer _______6

responsible for regulating and licensing the professional services provided andperformed by Engineer pursuant to this Agreement. Engineer is required to notifyCity within 5 calendar days of any pending, or newly initiated, disciplinary or otheractions imposed on Engineer or its subconsultants by any regulatory or licensingauthority.

8.2 Qualified Personnel. Engineer agrees when the services to be provided andperformed relate to a professional service(s) which, under Florida Statutes, requiresa license, certificate of authorization or other form of legal entitlement to practicesuch services, to employ and/or retain only qualified personnel to be in responsiblecharge of all Basic Professional Services and Additional Professional Services to beprovided pursuant to this Agreement. Personnel performing services under thisAgreement, whether personnel of Engineer or Engineer’s subconsultants orsubcontractors, shall have achieved the minimum qualifications as set forth onSchedule “D” attached hereto for the respective position being performed by thepersonnel.

8.3 Engineer’s Project Manager. Engineer agrees to employ and designate in writing, aqualified, and if required by law, a licensed professional to serve as the Engineer’sProject Manager. Engineer’s Project Manager shall be authorized and responsible toact on behalf of Engineer with respect to directing, coordinating and administering allaspects of the services to be provided and performed under this Agreement. Engineer’s Project Manager shall have full authority to bind and obligate Engineer onany matters arising under this Agreement unless substitute arrangements have beenfurnished and agreed to with the City in writing. Engineer agrees that the ProjectManager shall devote whatever time is required to satisfactorily direct, supervise andmanage the services provided and performed by Engineer throughout the entire periodthis Agreement is in effect. The person selected to serve as Engineer’s ProjectManager shall be subject to the prior approval and acceptance of the City.

8.4 Removal of Personnel. Engineer agrees, within ten (10) calendar days of receipt ofa written request from the City, to promptly remove and replace the Engineer’sProject Manager or any other personnel employed or retained by Engineer or anypersonnel of a subconsultant or subcontractor engaged by Engineer to provide and/orperform services and or Work pursuant to the requirements of this Agreement, whothe City shall request in writing to be removed, which request may be made by theCity with or without cause.

City _______

Engineer _______7

ARTICLE 9SUBCONSULTANTS AND SUBCONTRACTORS

9.1 Definition. A subconsultant or subcontractor is a person or organization who has adirect contract with Engineer to perform any part of the Work associated with theProject. Nothing contained in this Agreement shall create any type of contractualrelationship between the City and any subcontractor and/or subconsultant.

9.2 Engineer’s Selection of Subconsultants and Subcontractors. Engineer, within 14calendar days after execution of this Agreement, shall furnish, in writing to the City,the names of persons or entities proposed to be subconsultants and/or subcontractorson the Project (referred to in this paragraph as “subconsultants”), along with copiesof proposals and contracts between Engineer an such subconsultant(s). The City shallpromptly reply to Engineer in writing whether or not the City, after due investigation,has reasonable objections to any such proposed person or entity. Failure of the Cityto reply within fourteen (14) days after its receipt of such information shall constitutenotice of no reasonable objection. All subconsultants shall be duly licensed pursuantto any applicable requirements and regulations of the State of Florida. Engineer shalluse its best efforts to propose and retain subconsultants appropriately qualified,locally based (Cape Coral - Fort Myers-Lee County, Florida) and/or minority ownedand operated firms with experience in the Lee County area. Engineer shall not,without reasonable cause and after obtaining the approval of the City (which approvalshall not be unreasonably withheld) change a subconsultant or its role which has beenpreviously selected and approved by the City. Engineer shall be responsible to theCity for the damages to the extent caused by the negligent acts or omissions of, orservices provided by or through its subconsultants. The City’s review, approval orrejection of proposed subconsultants or their respective proposals or contracts will notrelieve Engineer of its responsibilities under this Agreement, or for the actions oromissions of such subconsultants.

9.3 Subcontractual Relations. By an appropriate written agreement, Engineer shallrequire each subcontractor or subconsultant, to the extent of the Work to be performedby the subcontractor or subconsultant, to be bound to Engineer by the terms of thisAgreement and to assume toward Engineer all obligations and responsibilities whichEngineer, by this Agreement, assumes towards the City. Engineer shall makeavailable to each proposed subcontractor or subconsultant prior to the execution ofany such agreement, a copy of this Agreement.

City _______

Engineer _______8

9.4 Responsibilities for Acts and Omissions. Engineer shall be responsible to the City forthe acts and omissions of its employees and agents and its subcontractors and/orsubconsultants, their agents and employees, and all other persons performing anyWork or supplying any service under a contract with Engineer.

ARTICLE 10COOPERATION WITH PROJECT PARTICIPANTS

10.1 Engineer shall cooperate with the City, the City’s consultants, the City’s contractorsand others working on the Project in order to avoid interference, inconvenience ordamage. To aid in avoiding conflicts, Engineer, without additional charge orcompensation, shall make all reasonable modifications in its services or thescheduling of its services as may be directed by the City. Engineer agrees that it hasbecome familiar with the Project Area, the Existing Design and accepts responsibilityfor all necessary coordination of its services with the work of other parties workingon the Project or any adjacent projects affected thereby.

10.2 Engineer will assume primary coordination of its Work with the work of other Cityconsultants and contractors. As part of said service, Engineer shall be primarilyresponsible for the coordination and compilation of all design documents pertainingto the Project.

10.3 In the event of a dispute between Engineer and the City’s separate consultants orcontractors, Engineer and the City’s separate consultants or contractors shall presenttheir dispute to the City, who shall make a decision with respect to the matter indispute. Engineer agrees to proceed with the furnishing of its services in accordancewith any decision which is rendered by the City.

ARTICLE 11COMPENSATION

11.1 Basic Compensation. Subject to the Not to Exceed Price and the satisfaction of theconditions precedent set forth in paragraph 11.5 below, and in exchange for the properperformance of the Basic Professional Services, Engineer shall be compensated onan hourly basis in conformity with that rate schedule attached hereto as Schedule “E”for the performance of the Professional Services contemplated hereunder and whereinsuch rates are fixed for the duration of this contract. Schedule “E” shall set forth thename of the identity of each individual, whether personnel of Engineer or Engineer’ssubconsultants and subcontractors, performing services on the Project for which

City _______

Engineer _______9

compensation shall be paid to Engineer by the City together with the correspondingbillable rate for each individual. The City shall not be liable to Engineer for paymentof services performed by any individual not identified on Schedule “E” absent writtenapproval by the City prior to the individual performing services. The billable rate foreach individual who is an employee of Engineer is based upon actual hourly rate ofcompensation paid by Engineer to the employee as set forth on Schedule “E” timesthe agreed upon multiplier, subject to the annual increases in the billable rateestablished on Schedule “E.”

11.2 Not to Exceed Price. In no event shall the professional fees associated with theperformance of the Professional Services, reimbursable costs and expenses, and anythird party or other expenditures made or to be made by Engineer in connection withthe performance of Professional Services exceed the Not to Exceed Price of SevenMillion Six Hundred Seventy-Nine Thousand Three Hundred Thirty-Seven andNo/100 Dollars ($7,679,337.00.) (“NTE”). Engineer shall not be entitled tocompensation or reimbursement for any cost or expense which exceeds the Not toExceed Price. Engineer and Engineer alone shall be financially responsible for anysums in excess of the Not to Exceed Price should the professional fees to be paidEngineer in connection with the Professional Services, the reimbursable costs andexpenses associated with the Professional Services and/or any third party or otherexpenditure made or to be made by Engineer in connection with the performance ofProfessional Services exceed the Not to Exceed Price, as adjusted by any Cityapproved change orders.

11.3 Schedule of Values. Engineer’s billing shall be based on that Schedule of Valuesestablishing a separate and distinct not to exceed amount for each Task of theEngineer’s Work contemplated in Schedule “F” of this Agreement. In no event shallEngineer be entitled to receive compensation in excess of the amount ascribed to anyparticular Task. The Schedule of Values to be used for the Project establishing thenot to exceed amounts for each Task is attached hereto as Schedule “F.” The not toexceed amounts set forth on Schedule “F” include not only the fees to be Engineer forits services to be performed in that particular Task but also any third party costsassociated with a particular Task. Reimbursable expenses incurred by Engineer in theperformance of the Professional Services, as defined in paragraph 11.6 below,constitute a separate and distinct Task set forth on Schedule “F” with a correspondingnot to exceed amount.

11.4 Monthly Billings. Engineer shall submit a monthly application for payment to theCity on or before the tenth (10 ) day of each month. Provided all conditionsth

City _______

Engineer _______10

precedent are satisfied, the City shall pay said application on or before the thirtieth (30 ) day of the following month. Engineer’s monthly application for payment shallth

itemize all fees, costs and expenses incurred by Engineer, including back-up copiesof any charges during the preceding month unless, within a fifteen (15) day period,City notifies Contractor in writing of its objection to the amount of such invoice,together with City’s determination of the proper amount of such invoice. City shallpay any undisputed portion of such invoice on or before the 30 day of the followingth

month. If City shall give such notice to the Contractor within such fifteen (15) dayperiod, such dispute over the proper amount of such invoice shall be resolved, andafter final resolution of such dispute, City shall promptly pay the Contractor theamount so determined, less any amounts previously paid by City with respect to suchinvoice. In the event it is determined that City has overpaid such invoice, theContractor shall promptly refund to the City the amount of such overpayment.

11.5 Conditions Precedent to Payment. As express conditions precedent to the making ofany payments hereunder, Engineer shall furnish to the City the following items:

11.5.1 An itemized, sworn application for payment by Engineer for all services

rendered and expenses incurred. In said statement, Engineer shallaffirmatively and unconditionally represent to the City that it has completed allWork associated with the Task of the Project for which it is seeking payment. An exemplar of the sworn application for payment to be utilized by theEngineer for each Task of the Project is attached hereto as Schedule “G.”

11.5.2 A partial release of claims for the payment is sought by Engineer. The formof the partial release of claims to be furnished by Engineer is attached heretoas Schedule “H.” With respect to the final payment, Engineer shall furnish afinal release of claims in that form attached hereto as Schedule “I.”

11.5.3 Any documents or electronic data that the City may reasonably requirepertaining to the particular Task for which Engineer is making application forpayment or for any prior Tasks.

11.6 Reimbursable Expenses. Allowable reimbursable expenses are set forth on Schedule“J” attached hereto. Engineer shall not be entitled to recover any reimbursableexpenses other than those set forth on Schedule “J”.

City _______

Engineer _______11

11.7 Payment Without Approval. The payment of any sums hereunder by the City,including the final payment, does not constitute approval or acceptance of that partof the Project to which such payment relates nor does it relieve engineer of any of itsobligations hereunder, nor shall such payment constitute a waiver of any claim whichthe City may then have or thereafter discover.

11.8 Payments Withheld. The City may decline to pay an application for paymentsubmitted by Engineer, in whole or in part, to the extent reasonably necessary toprotect the City if:

11.8.1 Engineer is not entitled to payment in the amount specified in the applicationfor payment;

11.8.2 Engineer is in default of its obligations hereunder;

11.8.3 Appropriate backup data and documentation required by the City is notsubmitted with the application for payment;

11.8.4 The application for payment is not otherwise appropriately substantiated;

11.8.5 Any known or alleged, willful, wanton or negligent act, error or omission ofEngineer which gives rise to a claim by the City or by some other party againstthe City; or

11.8.6 Any other reason the City is permitted to withhold payment under any otherprovision of this Agreement.

11.8.7 Interest. In the event of a bona fide dispute by the City for any sums for whichpayment has been requested, no interest shall be due on such disputed sumsuntil the dispute is resolved, provided that all undisputed sums shall have beenpaid in due course. Uncontested amounts owed Engineer shall bear interest ata rate of three percent (3%) per annum commencing sixty (60) days afterissuance of Engineer’s application for payment.

11.8.8 Compensation for Additional Professional Services. For AdditionalProfessional Services of Engineer directed and authorized in writing and inadvance by the City, as described in Article 3, the City shall pay to Engineerthe Not To Exceed Amount, as mutually agreed upon in writing by the partieswhich shall be the sole and exclusive compensation payable to Engineer in

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connection with the performance of such Additional Professional Services. Inthe event of the parties, after good faith negotiations, are unable to agree on anNTE Amount for particular Additional Professional Services directed andauthorized in writing in advance by the City, then the City shall compensateEngineer for such Additional Professional Services based on the timereasonably spent by Engineer’s principals or employees, at those hourly ratesset forth in Schedule “E” hereto. The hourly rates reflected on Schedule “E”shall remain fixed, without modification, for the term of this Agreement.

ARTICLE 12INSURANCE

Engineer shall, at all times during the performance of this Agreement, provide andmaintain the following types of insurance protecting the interests of the City and Engineerwith coverages and limits of liability not less than those set forth below:

12.1 Workers Compensation Insurance. Engineer shall maintain workers compensationinsurance, insuring its liability under the Workers Compensation and OccupationalDisease Laws of the State of Florida, with limits of liability not less than the minimumstatutory limits imposed by applicable State and Federal laws. The workerscompensation insurance policy must include employer’s liability with a minimumlimit of $2,000,000.00 for each accident.

12.2 Comprehensive General Liability Insurance. Engineer shall maintain comprehensivegeneral liability insurance which shall be written on an “occurrence” basis and affordthe following coverages:

12.2.1 Premises - operation

12.2.2 Explosion, collapse and underground property damage (XCU).

12.2.3 Products/completed operations

12.2.4 Blanket contractual liability

12.2.5 Personal injury

12.2.6 Advertising injury

12.2.7 Premises medical payments

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12.2.8 Blog form property damage

12.2.9 Additional insureds - employees and voluntary workers

12.2.10 Newly acquired organizations

12.2.11 Property damage liability

12.2.12 Independent contractors

12.2.13 The commercial general liability insurance to be maintained by Engineermust be endorsed with a broad form property damage endorsement(including completed operations). The City shall be named as an additional,named insured on the comprehensive general liability policy. The limits ofliability associated with Engineer’s comprehensive general liability policyshall not be less than the following:

$2,000,000.00 each occurrence

$4,000,000.00 aggregate

12.2.14 Notwithstanding anything contained herein to the contrary, the coveragesunder the comprehensive general liability policy to be furnished by Engineermust be afforded on a policy form no more restrictive than the last editionof the commercial general liability policy filed by the Insurance ServicesOffice.

12.3 Vehicular Liability Insurance. Engineer shall maintain business vehicular liability insurance covering all owned, non-owned, and hired vehicles used in connection withthe Work to be provided hereunder with combined minimum limits of$2,000,000.00 single limit for bodily injury and property damage per occurrence/aggregate.

12.4 Excess Liability Insurance. Engineer shall maintain excess liability insurance in anamount not less than $5,000,000.00 combined single limit bodily injury/propertydamage, in excess of the general liability insurance described above.

12.5 Professional Liability Insurance. Engineer shall maintain professional liabilityinsurance with a minimum level of liability coverage of not less than $2,000,000.00per occurrence/$4,000,000.00 in aggregate insuring the City against losses arising outof the delivery of professional services by Engineer and its subconsultants. Engineer

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shall also ensure that each of its subconsultants shall maintain professional liabilityinsurance with minimum limits of liability coverage not less than $1,000,000.00 peroccurrence/$2,000,000.00 in aggregate insuring the City against losses arising out ofthe provision of professional services by each in connection with the Project. Thedeductibles associated with the professional liability insurance policies to be furnishedby Engineer and its subconsultants shall not exceed $100,000.00 per claim. Engineershall provide to the City certificates reflecting the City as a certificate holder withrespect to the professional liability insurance policies maintained by Engineer andEngineer’s subconsultants.

12.6 Property Insurance. It is Engineer’s responsibility to carry its own property insuranceincluding insurance on equipment that will not become an integral part of the Project.

12.7 Certificate of Insurance. Prior to performing any services hereunder, Engineer shallfile with the City a certificate of insurance in a form acceptable to the City. Thecertificate of insurance shall reflect the City as an additional named insured onEngineer’s comprehensive general liability, excess liability, and business vehicularliability policies. In addition, the City shall be reflected as the certificate holder withrespect to Engineer’s professional liability and workers compensation insurance. Thecertificate of insurance furnished by Engineer shall contain a provision that thecoverages afforded under the policy described thereon will not be cancelled until atleast thirty (30) days prior written notice has been given to the City.

12.8 Ratings of Companies. All companies issuing the policies provided for herein shallbe licensed or approved by the Department of Insurance, State of Florida, and shallhave a financial rating no lower than II and a policy holder surplus rating no lowerthan (A) as listed in A.M. Best TK Rating Guide, current edition or interim report. Companies with ratings lower than those specified herein will be acceptable onlyupon the written consent of the City.

12.9 Primary Coverage. The insurance required hereunder is primary and direct and shallapply to any loss prior to any insurance coverage carried by the City or any otherparty.

12.10 Extent of Coverages. The insurance coverages referred to above are set forth in fullin their respective policy forms. The foregoing descriptions of such policies are notintended to be complete or to limit any provision of the actual policies and should saiddescription be narrower than the coverages afforded under the actual policies ofinsurance, the provisions of the actual policies of insurance shall govern.

12.11 Waiver of Subrogation. Engineer’s insurance policies shall be endorsed to provide

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that the insurers waive their rights of subrogation against the City and also to providethat the policies afford primary coverage over any other applicable insurancecoverages.

12.12 Subconsultant/Subcontractor Insurance Requirements. Except as otherwise specifiedherein, Engineer shall require that all subcontractors an subconsultants performingWork on the Project to maintain the same coverages and policy limits as Engineer isrequired to furnish hereunder. An insurance provision, including waivers ofsubrogation, identical to the provisions of paragraph 12.11 of this Agreement shall beincluded by Engineer in each written subcontract or subconsultant agreement issuedby it in conjunction with the Project.

ARTICLE 13INDEMNIFICATION

In consideration of the first One Hundred and No/100 Dollars ($100.00) to be paidhereunder and to the fullest extent permitted by law, Engineer agrees to indemnify, holdharmless and defend the City and its agents, servants and employees, from and against anyand all claims, costs, expenses, damages, or liability (including reasonable attorneys’ fees andcosts of defense) caused by, attributable to, arising out of, or resulting from Engineer’snegligent acts, errors, or omissions in the performance of professional services under thisAgreement and those of its subconsultants, subcontractors, agents, servants and employees. Engineer is not obligated to indemnify the City in any manner whatsoever for the City’s ownnegligence. Engineer’s monetary limitation under this indemnity provision shall be limitedto the sum of Five Million and No/100 Dollars ($5,000,000.00). The parties agree that theforegoing sum bears a reasonable relationship to this Agreement. This indemnity provisionshall be considered a material part of the specifications governing Engineer’s performanceunder this Agreement. This indemnity provision is intended to comply with Florida laws onindemnity and, specifically, to comply with Sections 725.06 and 725.08, Florida Statutes, andis to be interpreted in such a manner as to be enforceable.

ARTICLE 14DRAFTING FORMATS AND STANDARDS

In performing professional services hereunder, Engineer shall review and incorporatethe City’s drafting formats and office drafting standards into any drawings and specificationsgenerated in connection with the provisions of this Agreement.

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ARTICLE 15COPYRIGHTS AND LICENSES

All drawings, sepias, electronic media and specifications prepared in connection withthe Project shall remain the property of the City and Engineer shall not be entitled to a repeatdesign fee or any other compensation should the City elect to utilize said drawings, sepias,electronic media and specifications in connection with additional alterations or remodelingor additions to the Project to which said design documents originally pertain. Engineerhereby assigns to the City any and all right, title, and interest it may possess in the designdocuments and materials produced in connection with this Agreement, including but notlimited to, all statutory and common law copyrights it possesses in said documents andmaterials. The future use of said materials shall be at the sole discretion of the City. TheCity agrees to hold Engineer harmless from any claims based upon the future use of saidmaterials in connection with any purpose other than the Project or future maintenance or support of the Project.

ARTICLE 16PERMITS

Engineer will be responsible for preparing and submitting all required applicationsand other supportive information necessary to assist the City in obtaining all reviews,approvals and permits, with respect to the Engineer’s design, the Existing Design, drawingsand specifications required by any governmental body having authority over the Project. Anyfees required for such reviews, approvals or permits will be covered by a check issued by theCity and made payable to the respective governmental entity upon Engineer furnishing theCity with satisfactory documentation of such fees. Engineer will be similarly responsible forpreparing and submitting all required specifications and other supportive informationnecessary to assist the City in obtaining any renewals and/or extensions of reviews, approvalsor permits that may be required while this Agreement is in effect. The City shall, atEngineer’s request, assist in obtaining required signatures and provide Engineer with allinformation known to be available to the City so as to assist the Engineer in the preparationand submittal of any original, renewal or extension of required reviews, approvals or permits.

ARTICLE 17CITY’S RESPONSIBILITIES

17.1 The City’s Representative. The City shall designate a Project Representative whoshall be fully acquainted with the Project and shall define the lines of City authorityto approve changes in the Project. He or she shall render decisions promptly and

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furnish information expeditiously.

17.2 Lines of Authority. The City shall establish and maintain lines of authority for itspersonnel and shall provide this definition to the Engineer and all other affectedparties.

17.3 Existing Design. The City shall provide to Engineer all design documentation in itspossession pertaining to the Existing Design.

17.4 Funding. The City shall furnish reasonable evidence satisfactory to Engineer thatsufficient funds will be available and committed for the cost of the Project.

17.5 Project Fault or Defect. If the City becomes aware of any fault or defect in theProject, or in the specifications or drawings for the Project, it shall give promptwritten notice thereof to Engineer.

ARTICLE 18ENGINEER’S REPRESENTATIONS

In order to induce the City to enter into this Agreement, Engineer makes the followingexpress representations:

18.1 Engineer has reviewed and confirmed that the basis and approach taken by the Cityin its Project planning represents sound programming and provides an adequate basisfor the performance of Engineer’s services hereunder.

18.2 Engineer has familiarized itself with the Existing Design and the nature and extent ofthe Work to be performed, local conditions, and federal, state and local laws,ordinances, rules and regulations that in any manner affect costs, progress orperformance of the work.

18.3 Engineer represents that the Project can be constructed within the time framescontemplated in the Engineer’s Work schedule, a copy of which is attached hereto asSchedule “C.”

18.4 Engineer has reviewed the Existing Design and has provided the City with writtennotice of all conflicts, errors or discrepancies it has discovered in the Existing Designand the cost to the City of addressing such conflicts, errors or discrepancies.

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18.5 Engineer has familiarized itself with the nature and the extent of the Constructioncontemplated under the City’s program and local field conditions and affirmativelyrepresents that no field conditions are known to exist which would have a cost orscheduling impact on the Project.

ARTICLE 19ACCURACY, TECHNICAL SUFFICIENCYOF SERVICES PROVIDED BY ENGINEER

19.1 Notwithstanding anything contained herein to the contrary, it is understood and agreedbetween the parties that the City is not examining any Contract Documents foraccuracy and technical sufficiency, and is not under any obligation to inspect theProject. Furthermore, it is understood and agreed between the parties that neither thereview, approval, nor acceptance by the City of data, surveys, studies, designs,specifications, calculations, plans, drawings, or any other documents furnishedhereunder by Engineer shall in any way relieve Engineer of responsibility for theadequacy, completeness, and accuracy of its work, and in no event shall the City’sreview, approval, acceptance of or payment for such services be construed to operateas a waiver of any of the City’s rights under this Agreement or of any cause of actionit may have, arising out of the performance of this Agreement.

19.2 Engineer hereby acknowledges that the City does not make any representations orwarranties to Engineer by virtue of the information contained in the Request forProposals, Existing Design, or program descriptions. Engineer further acknowledgesthat it, alone, is responsible for the accuracy, completeness, and technical sufficiencyof all Work performed under this Agreement, and that the information contained inthe City’s Request for Proposals, Existing Design, and program descriptions does notrelieve, release, or in any way whatsoever diminish the Engineer’s ultimateresponsibility for the accuracy, completeness, and technical sufficiency of the Projectand any work performed hereunder.

19.3 Engineer agrees to be responsible for the professional quality, technical adequacy andaccuracy, timely completion, adoption and coordination of all data, surveys, designs,specifications, calculations, estimates, plans, drawings, construction documents,photographs, reports, memoranda, other documents and instruments and otherservices, work and materials performed, provided and/or furnished by Engineer or byany subconsultant and/or subcontractor retained or engaged by Engineer pursuant tothis Agreement. Engineer shall, without additional compensation, correct or reviseany errors, omissions or other deficiencies in such data, studies, surveys, designs,

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specifications, calculations, estimates, plans, drawings, construction documents andinstruments, and other services or materials resulting from the negligent act, errors oromissions or any intentional misconduct of Engineer or any subconsultants and/orsubcontractors engaged by Engineer.

ARTICLE 20TERMINATION OR SUSPENSION OF AGREEMENT

20.1 The City reserves the right to terminate this Agreement without cause and withoutregard to fault or breach upon ten (10) calendar days written notice to Engineer,effective immediately, unless otherwise provided in said notice. In the event of atermination for the City’s convenience, the Engineer shall only be due those sumswhich are due for Work performed as of the date of termination. Upon Engineer’sreceipt of such payment, the parties shall have no further obligation hereunder. It isunderstood and agreed that no fee or other compensation or payment shall be due andpayable to Engineer for unperformed Work associated with this Agreement.

20.2 If the City fails to make payment on conforming or non-disputed invoices when duefor Engineer’s services and expenses, Engineer may, upon ten (10) calendar dayswritten notice to the City, suspend performance of services under this Agreement. Unless payment in full is received by Engineer within ten (10) calendar days from thedate of the notice, the suspension shall take effect without further notice. In the eventof a suspension of services, Engineer shall have no liability to the City for delay ordamages caused the City because of such suspension of services. Should the City failto satisfy the payment due Engineer within sixty (60) calendar days from the date thepayment was originally due, Engineer shall be entitled to terminate this Agreementfor cause.

20.3 If Engineer fails to perform the services described herein or fails to respond withresponsible promptness to the City, the City, without waiving the City’s right toterminate as a result thereof, may suspend performance of the City’s obligations underthis Agreement (including, but not limited to, the City’s obligation to make payment)on ten (10) calendar days written notice to Engineer.

20.4 Notwithstanding anything contained herein to the contrary, the City shall be entitledto terminate this Agreement for cause should Engineer fail to perform the servicescontemplated herein, perform any of its obligations hereunder, or otherwise fail torespond with reasonable promptness to the requests of the City. In the event of sucha termination for cause, the City shall be entitled to recover from Engineer such

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additional costs as it incurs in procuring performance of Engineer’s remainingobligations hereunder.

ARTICLE 21SPECIAL PROVISIONS

21.1 Engineer accepts the relationship of trust and confidence established between it andthe City by this Agreement. Engineer covenants with the City to furnish its best skilland judgment and to cooperate with the City, City’s contractors, and other Cityconsultants in furthering the interests of the City.

21.2 Engineer warrants that it has not employed or retained any company or person, otherthan an employee working solely for Engineer, to solicit or secure this Agreement andthat it has not paid any person, company, corporation, individual or firm, other thana bona fide employee working solely for Engineer any fee, commission, percentage,gift, or other consideration contingent upon or resulting from the award or making ofthis Agreement.

21.3 Any person or affiliate who has been placed on the Convicted Vendor List followinga conviction for a public entity crime may not submit a bid on a contract to provideany goods or services to a public entity, may not submit a bid on a contract orsubcontract with a public entity, for construction or repair of a public building orpublic work, may not submit bids or leases of real property to a public entity, may notbe awarded or perform any Work a contractor, supplier, subcontractor, or engineerunder a contract with any public entity, and may not transact business with any publicentity in excess of the threshold amount provided in Section 287.017, forCATEGORY 2 for a period of thirty-six (36) months from the date of being placedon the Convicted Vendors List. Engineer agrees not to use any subconsultants orsubcontractors whose names appear on the Convicted Vendors List.

21.4 Engineer affirmatively represents to the City that it is experienced in civil engineeringdesign and contract administration and that it will perform its services under thisAgreement in a skillful and competent manner in accordance with good and sound civil engineering practices.

21.5 Engineer represents that it presently has no interest and shall acquire no interest eitherdirect or indirect, which would conflict in any manner with the performance ofservices required hereunder. Engineer further agrees that no person having any suchinterest shall be employed or engaged by Engineer for said performance. If Engineer,

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for itself or on behalf of its subconsultants, is about to engage in representing anotherclient, which it in good faith believes would result in a conflict of interest with theWork being performed by Engineer or such subconsultant under this Agreement, thenit will promptly bring such potential conflict of interest to the City’s attention, inwriting. The City will advise Engineer in writing, within ten (10) calendar days as tothe period of time required by the City to determine if such a conflict of interestexists. If the City determines there is a conflict of interest, Engineer or suchsubconsultant shall decline the representation upon written notice by the City. If theCity determines that there is not such a conflict of interest, then the City shall give itswritten consent to such representation. If Engineer or subconsultant accepts such arepresentation without obtaining the City’s prior written consent, and if the Citysubsequently determines that there is a conflict of interest between such representationand the Work being performed by Engineer or such subconsultant under thisAgreement, then Engineer or such subconsultant agrees to promptly terminate suchrepresentation. Engineer shall require each of its subconsultants to comply with theprovisions of this section. Should Engineer fail to advise or notify the City asprovided herein above, of representation which could, or does, result in a conflict ofinterest, or should Engineer fail to discontinue such representation, the City mayconsider such failure a justifiable cause to terminate this Agreement.

21.6 Engineer agrees to maintain the business ethics expected by the City. In that regard,Engineer shall:

21.6.1 Take reasonable actions to prevent any conditions which could result in aconflict with the City’s best interests. These obligations shall apply to theactivities of Engineer’s employees, agents, subconsultants, subconsultantemployees, etc. Engineer employees, agents, subcontractors, materialsuppliers (or their representatives) should not make or cause to be made anycash payments, commissions, employment, gifts, entertainment, free travel,loans, free work, substantially discounted work, or any other considerationsto the City’s representatives, employees or their relatives. Engineer’semployees, agents, or subcontractors (or their relatives) should not receiveany cash payments, commissions, employment, gifts entertainment, freetravel, loans, free work, or substantially discounted Work or any otherconsiderations from contractors, representatives of contractors,subcontractors, representatives of subcontractors, or material suppliers orany other individuals, organizations, or businesses receiving funds inconnection with the Project.

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21.6.2 Engineer agrees to notify a designated City representative within forty-eight(48) hours of any instance where the Engineer becomes aware of a failureto comply with the provisions of this article.

21.6.3 Upon request by the City, Engineer agrees to provide a certifiedManagement Representation Letter executed by selected Engineerrepresentatives in a form agreeable to the City stating that they are notaware of any situations violating the business ethics expectations outlinedin this article or any similar potential conflict of interest situations thatwould adversely affect the City’s best interests.

21.6.4 Engineer agrees to include this article in all contracts with subconsultants,subcontractors, etc. with more than Ten Thousand and No/100 Dollars($10,000.00) in funds in connection with the City Project.

21.6.5 Engineer, subconsultants, subcontractors, and other entities connected withthis Project shall permit interviews of employees, reviews and audits ofaccounting or other records by authorized City representative(s) to evaluatecompliance with the business ethics expectations stated in this article. Suchreviews and audits will encompass all dealings and activities of Engineer’semployees, agents, representatives, vendors, subconsultants, subcontractors,and other third parties paid by Engineer in their relations with the City’scurrent or former employees or employee relatives.

21.6.6 Engineer, subconsultants, subcontractors and other entities connected withthis Project agree to implement a program requiring their key employees inany connection with this Project sign acknowledgments that they have readand understand the City’s Business Ethics Expectations and relatedobligations outlined in this article.

21.7 Engineer, by execution of this Agreement, represents that it possesses that degree ofcare, learning, skill, ability and is properly licensed and qualified to perform the BasicProfessional Services and any Additional Professional Services (as directed andapproved in Article 3 hereof and that it and its subconsultants and/or subcontractorswill undertake to use the degree of skill and care of performance of obligations underthis Agreement, which are utilized by professionals in the same field performing thesame or similar services under the same or similar circumstances for similarinfrastructure projects. Engineer acknowledges that all professional services providedunder this Agreement will meet or exceed the requirements of this Agreement,

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including without limitation, the standard of care required by this Agreement; that anydesign documents prepared by Engineer with respect to the Project will meet orexceed the City’s Project requirements as specified in this Agreement or otherwiseprovided by the City to Engineer. Engineer agrees to use the services of competent,qualified personnel, and, when required by law, properly licensed subconsultants andother professionals for the execution of its services. Engineer will use commerciallyreasonable efforts and skill to endeavor to protect the interests of the City and theCity’s residents at all times.

ARTICLE 22ENGINEER’S RECORDS

22.1 Records of the Engineer’s personnel, subconsultants, and the costs pertaining to theProject shall be kept in accordance with generally accepted accounting practices.

22.2 Engineer shall keep full and detailed accounts and financial records pertaining to theprovision of services for the City. Prior to commencing work, Engineer shall reviewwith and obtain the City’s approval of the accounting procedures and records to beutilized by the Engineer on the Project. Engineer shall preserve the aforementionedProject records for a period of ten (10) years after final payment, or for such longerperiod as may be required by law.

ARTICLE 23RIGHT OF AUDIT - EXAMINATION OF RECORDS

23.1 Records for all contracts, specifically including but not limited to Not to Exceed subcontracts (i.e. fixed price or stipulated sum contracts, unit price, costs plus or time& material contracts with or without a guaranteed maximum (or not-to-exceedamounts) shall upon seven (7) calendar days written notice from the City shall beopen to inspection and subject to audit, scanning, and/or reproduction during normalbusiness working hours. Such audits may be performed by any City representative orany outside representative engaged by the City for the purpose of examining suchrecords. Such records must be complete and made available at Engineer’s officeslocated in Lee County, Florida. The City or its designee may conduct such audits orinspections throughout the term of this Agreement and for a period of four (4) yearsafter final payment or longer if required by law. The City’s representatives may(without limitation) conduct verifications such as counting employees at theconstruction site, witnessing the distribution of payroll, verifying information andamounts through interviews and written confirmations with Engineer’s employees,

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field and agency labor, subcontractors and vendors.

23.2 Engineer’s “records” as referred to in this Agreement shall include any and allinformation, materials, and data of every kind and character, including withoutlimitation, records, books, papers, documents, subscriptions, recordings, agreements,purchase orders, leases, contracts, commitments, arrangements, notes, daily diaries,superintendent reports, drawings, receipts, vouchers and memoranda, and any and allother agreements, sources of information and matters that may in the City’s judgmenthave any bearing on or pertain to any matters, rights, duties or obligations under orcovered by any contract document. Such records shall include (hard copy, as well ascomputer readable data if it can be made available), written policies and procedures;time sheets, payroll registers, payroll records; cancelled payroll checks, subcontractfiles (including proposals of successful and unsuccessful bidders, bid recaps,negotiation notes, etc.); original bid estimates; estimating worksheets;correspondence; change order files (including documentation covering negotiatedsettlements); backcharge logs and supporting documentation; invoices and relatedpayment documentation; general edger, information detailing cash and trade discountsearned, insurance rebates and dividends; and any other Engineer records which mayhave a bearing on matters of interest to the City in connection with the Engineer’sdealings with the City (all foregoing hereinafter referred to as “records”) to the extentnecessary to adequately permit evaluation and verification of any and all of thefollowing:

23.2.1 Compliance with contract requirements for deliverables;

23.2.2 Compliance with approved plans and specifications;

23.2.3 Compliance with the City’s business ethics expectations;

23.2.4 Compliance with contract provisions regarding the pricing of change orders;

23.2.5 Accuracy of Engineer’ representations regarding the pricing of invoices;and

23.2.6 Accuracy of Engineer representations related to claims submitted byEngineer or any of its payees.

23.3 Engineer shall require all payees (examples of payees include subconsultants,subcontractors, material suppliers, insurance carriers, etc.) to comply with the

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provisions of this article by including the requirements hereof in a written contractagreement between Engineer and payee. Engineer will ensure that all payees(including those entering into lump sum contracts) have the same right to auditprovisions contained in this Agreement.

23.4 Owner authorized representative(s) shall have reasonable access to Engineer’sfacilities, shall be allowed to interview all current or former employees to discussmatters pertinent to the performance of this Agreement and shall be providedadequate and appropriate workspace, in order to conduct audits in compliance withthis article.

23.5 If an audit inspection or examination in accordance with this article disclosesoverpricing or overcharges to the City (of any nature) by Engineer and/or Engineer’ssubcontractors and/or subconsultants the City shall be entitled to adjustment andreimbursement or recovery in the amount of such overpricing or overcharging. If theamount of the overpricing or overcharging is determined to be in excess of OneHundred Thousand and No/100 Dollars ($100,000.00), in addition to makingadjustments for the overcharges, the reasonable actual cost of the City’s audit shallbe reimbursed to the City by Engineer. Any adjustments and/or payments which mustbe made as a result of any such audit or inspection of Engineer’s invoices and/orrecord shall be made within a reasonable amount of time (not to exceed forty- five(45) calendar days) from presentation of the City’s findings to Engineer.

23.6 In addition to the normal paperwork documentation Engineer typically furnishes tothe City, in order to facilitate efficient use of the City’s resources when reviewingand/or auditing Engineer’s billings and related reimbursable cost records, Engineeragrees to furnish (upon request) the following types of information in the specifiedcomputer (PC) readable file format(s):

Type of Record PC Readable File Format

Monthly Job Cost Detail .pdf and Excel

Detailed Job Cost History to Date .pdf and Excel

Monthly Labor Distribution detail (if not alreadyseparately detailed in the Job Cost Detail) .pdf and Excel

Total Job to date Labor Distribution detail (if notalready included in the detailed Job Cost History todate) .pdf and Excel

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Type of Record PC Readable File Format

Employee Time sheets documenting time worked byall individuals who charge reimbursable time to theProject .pdf

Daily Foreman Reports listing names and hours andtasks of personnel who worked on the Project .pdf

Daily Superintendent Reports .pdf

Detailed subcontract/subconsultant status reports(showing original subcontract value, approvedsubcontract/subconsultant change orders,subcontractor/subconsultant invoices, payment tosubcontractors/subconsultants/ etc. .pdf and Excel

Copies of executed subcontracts with allsubcontractors/subconsultants .pdf

Copies of all executed change orders issued tosubcontractors/subconsultants .pdf

Copies of all documentation supporting allreimbursable job costs (subcontractor/subconsultant payment applications, vendorinvoices, internal cost charges, etc. .pdf

ARTICLE 24CLAIMS AND DISPUTES

24.1 Prior to the filing of any litigation by the City or Engineer against the other (and,except as described below, as a precondition to any such filing), the City and Engineershall engage in pre-suit non-binding mediation. Such mediation may be requested byeither party, at any time, and shall be conducted the same as if such mediation wereordered by a Florida Circuit Court (i.e., in accordance with, and subject to, all of thelaws and rules applicable to court-ordered mediation). Such mediation shall beconducted within a reasonable period of time after the same is requested in writing byeither party. If the parties are unable to agree upon the selection of a mediator, eitherparty may petition or request that the Circuit Court in Lee County, Florida (or theMediation Coordinator for the Courts of Lee County, Florida) appoint a mediator. Amediator who is so appointed may only be challenged for cause, and notpreemptorally. While the request for and the conducting of such a mediation may bea precondition to the filing of a civil action, in the event either party is in jeopardy of

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losing its right to sue (e.g., the statute of limitations is about to expire), then suit maybe filed before a mediation is conducted provided that mediation is requested before,or simultaneously with the filing of such suit, and is conducted before the nameddefendant in the suit is required to respond to the complaint. If the scheduling of themediation requires, the plaintiff in the suit shall grant the defendant an appropriateextension of time to respond to the complaint so as to permit the mediation to beconducted before the defendant must so respond. The mediation contemplatedhereunder shall be conducted, unless otherwise agreed by the parties, in Lee County,Florida. The parties shall bear the mediator’s fee and any filing fees associated withthe mediation equally.

24.2 The City and Engineer agree that any litigation between them arising out of, resultingfrom, or relating to this Agreement or the Project shall be venued in a state court ofcompetent jurisdiction in Lee County, Florida.

24.3 In connection with any litigation arising out of this Agreement, the prevailing partyshall be entitled to recover all costs incurred, including a reasonable attorney’s fee.

ARTICLE 25DAMAGE TO PROPERTY

Engineer shall be responsible for all claims filed for damage to private property ownedby third parties as well as all damage to public property relating in any fashion whatsoeverto Engineer’s performance of Work hereunder. The Engineer will work cooperatively withthe City in establishing a damage claim program acceptable to the City for processing andsatisfying property damage which arises during the course of the Project.

ARTICLE 26EQUAL EMPLOYMENT OPPORTUNITY

During the term of the Agreement, Engineer agrees it will not discriminate against anyemployee or applicant for employment because of race, color, religion, sex, age, or nationalorigin. Engineer will take affirmative action to ensure that applicants are employed, and thatemployees are treated during employment, without regard to their race, color, religion, sex,age or national origin. Engineer shall comply with all aspects of the Americans withDisabilities Act (“ADA”) during the performance of this Agreement.

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ARTICLE 27PROPRIETARY INFORMATION

Except as otherwise provided in this Agreement, Engineer agrees not to divulge,furnish, or make available to any third parties, firm or organization, without the City’s priorwritten consent, or unless instant to the proper performance of Engineer’s obligationshereunder, or in the course of any judicial or legislative proceeding where such informationhas been properly subpoenaed, any nonpublic information concerning services to be renderedby Engineer or any of its subconsultants or subcontractors under this Agreement.

ARTICLE 28COMPLIANCE WITH IMMIGRATION LAWS

The City will not intentionally award contracts to any party who knowingly employsunauthorized alien workers, constituting a violation of the employment provisions containedin 8 U.S.C. Section 1324 A(e) Section 274 A(e) of the Immigration and Nationality Act(“INA”). The City may consider the employment by Engineer of unauthorized aliens to bea violation of Section 274 A(e) of the INA. Such violation by Engineer of the employmentprovisions contained in Section 274 A(e) of the INA shall be grounds for unilateraltermination of this Agreement by the City. Engineer affirmatively represents to the City thatit is fully compliant with all applicable immigration laws, including but not limited to, the1986 Immigration Act and subsequent amendments.

ARTICLE 29OBSERVANCE OF LAWS, RULES,

REGULATIONS, CODES AND ORDINANCES

Engineer shall observe and at all times fully comply with any and all applicable laws,rules, regulations, codes and ordinances of any federal, state or local government agency orregulatory body which in any manner affect or apply to the Work or Engineer’s performancehereunder. Engineer shall require all of its agents, representatives, employees andsubconsultants to observe and comply with the said laws, rules, regulations, codes andordinances.

ARTICLE 30PUBLICITY

Publicity and public announcements pertaining to the Project shall be approved by theCity in writing prior to release.

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ARTICLE 31MISCELLANEOUS

31.1 This Agreement shall be governed by and construed in accordance with the laws ofthe State of Florida.

31.2 No modification, waiver, amendment, discharge, or change of this Agreement shallbe valid unless the same is in writing, signed by the parties against whom theenforcement of such modification, waiver, amendment, discharge, or change issought.

31.3 Nothing contained in this Agreement shall create a contractual relationship or causeof action in favor of a third party against either the City or Engineer.

31.4 This Agreement and the schedules attached hereto constitute the entire Agreementbetween the parties relating to the transactions contemplated hereby and all prior orcontemporaneous agreements, understandings, representations, and statements, oralor written, are merged herein.

31.5 This Agreement shall be executed in any number of counterparts, each of which shallbe deemed an original, but all of which together shall constitute a single instrument.

31.6 All pronouns and any variations thereof shall be deemed to refer to the masculine,feminine, neuter, singular, or plural as the identity of the person(s) or entity mayrequire.

31.7 In the event of any conflict between the terms of this Agreement and any otherContract Documents including Specifications for the Project, the provisions of thisAgreement shall govern and control.

31.8 If any provision or any portion of any provision of this Agreement or the applicationof any such provision or portion thereof to any person or circumstance shall be heldinvalid or unenforceable, the remaining portion of such provision and the remainingprovisions of this Agreement, or the application of such provision held invalid, orunenforceable to persons or circumstances other than those to which it has beeninvalid or unenforceable, shall not be affected thereby.

31.9 In the event of any dispute as to the precise meaning of any term contained herein, theprinciples of construction and interpretations that written instruments be construedagainst the drafter shall not apply.

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31.10 Engineer shall not assign, subcontract or transfer any interest in this Agreementwithout the prior written consent of the City.

31.11 The rights and remedies of the City provided for under this Agreement are in additionto any other rights and remedies provided by law.

31.12 All articles, titles, or captions contained in this Agreement are for convenience onlyand shall not be deemed a part of this Agreement and shall not affect the meaning orinterpretation of this Agreement.

31.13 If Engineer is comprised of more than one (1) entity, each such entity shall be jointlyand severally liable hereunder.

31.14 All notices, demands, or other communications made pursuant to this Agreement shallbe in writing and copies thereof shall be simultaneously directed to the parties listedbelow. Further, all notices, demands, or other communications shall be deemed tohave been duly given by mailing, unless otherwise specified, by United Statesregistered or Certified Mail, Return Receipt Requested, with proper postage prepaidat the following address:

If to the City: Michael IlczyszynBusiness Manager, City of Cape CoralPO Box 150027Cape Coral, FL 33915

With a copy to: Dolores D. Menendez, Esq.Attorney for the City of Cape CoralPO Box 150027Cape Coral, FL 33915

If to Engineer: Danny M. Nelson, PE / Vice PresidentTetra Tech_______________10600 Chevrolet Way, Suite 300Estero, Florida 33928

With a copy to: Mark Rynning, PE / Executive Vice PresidentTetra Tech201 East Pine Street, Suite 1000Orlando, Florida 32801

or to such other address or to such other persons as any party may designate to the

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other for such purpose in the manner herein above set forth.

31.15 The parties hereto shall, at any time and from time to time following the executionhereof, execute and deliver all such further instruments and take all such furtheraction as may be reasonably necessary or appropriate in order to carry out moreeffectively the purposes of this Agreement.

31.16 Every covenant, term, and provision of this Agreement shall be construed simplyaccording to its fair meaning and shall not be strictly construed for or against anyparty.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be dulyexecuted and delivered as of the day and year first above written.

Signed, sealed, and deliveredin the presence of:

_______________________________Witness SignaturePrint Name:_____________________

_______________________________Witness SignaturePrint Name:_____________________

City of Cape Coral, Florida

By:__________________________________ Typed Name: John SzerlagTitle: City ManagerDate_________________________________

City Legal Review

______________________________________Dolores Menendez, Esq. DateCity Attorney

_______________________________Witness SignaturePrint Name:_____________________

_______________________________Witness SignaturePrint Name:_____________________

Tetra Tech, Inc., a Delaware Corporation

By:__________________________________Printed Name: Mark RynningTitle: Executive Vice PresidentDate:_________________________________

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ATTACHED SCHEDULES

Schedule “A” Project AreaSchedule “B” Scope of Professional ServicesSchedule “C” Engineer’s Work ScheduleSchedule “D” Personnel QualificationsSchedule “E” Personnel Hourly RatesSchedule “F” Schedule of Values Schedule “G” Sworn Application for PaymentSchedule “H” Partial Release of ClaimsSchedule “I” Final Release of ClaimsSchedule “J” Reimbursable Expenses

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