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Agmt-WH Keller-RFP 2004-17 Impact Fee StudyBoard of County Commissioners Okeechobee County 304 N.W. 2nd Street, Room 106 OKEECHOBEE, FLORIDA 34972 863-763-6441 FAX 863-763-9529 April 15, 2005 John R. Cook, Interim Manager City of Okeechobee 55 SE 3rd Avenue Okeechobee, FL 34974 RE: Impact Few Study Dear r o o k Enclosed please find an executed copy of the contract with Walter H. Keller, Inc. to conduct an Impact Fee Study. A Notice to Proceed has been executed with a commence work date on or before April 18, 2005. We will forward an invoice to you as work progresses. If you have any questions, please call me. Sincerely, ~-iSmith' icki enc. Ray Domer Gene Woods Clif Betts, Jr. John W. Abney, Sr. Elvie Posey George A. Long District 1 District 2 District 3 District 4 District 5 County Administrator [Walter H. Keller, Inc.]' INDEPENDENT CONTRACTOR'S AGREEMENT . Q e~ THIS AGREEMENT made and entered into this ankh day of February, 2005, by and between OKEECHOBEE COUNTY, a political subdivision of the State of Florida, hereinafter referred to as "COUNTY" and WALTER H. KELLER, INC., a corporation licensed to do business in the State of Florida, hereinafter referred to as "CONTRACTOR". WITNESSETH WHEREAS, the COUNTY is a political subdivision of the State of Florida, having a responsibility to provide certain services to benefit the citizens of Okeechobee County; and WHEREAS, CONTRACTOR is in the business of planning and technical services in the areas of Impact Fees and the techniques necessary for successful implementation in Okeechobee County and elsewhere in the State of Florida; and WHEREAS, CONTRACTOR was the successful bidder of a project identified as City/County Impact Fee Study, RFP 2004-17, and does hereby agree to provide such goods and services as more particularly hereinafter described and under the terms and conditions set forth in this Agreement as well as that certain bid package issued August 18, 2004. NOW THEREFORE in consideration of the premises, and in consideration of the mutual conditions, covenants, and obligations hereafter expressed, it is agreed as follows: 1. Recitals. THAT the foregoing recitals are true and correct and constitute a material inducement to the parties to enter into this Agreement. 2. Specific Provisions. THAT the parties hereby agree to the following specific provisions: a. Description of Work. The CONTRACTOR shall be responsible for providing the services described in the Scope of Services, which is attached hereto as Exhibit "A" and incorporated herein by reference. Unless specifically excluded, the CONTRACTOR shall provide all permits, labor, materials, equipment and supervision necessary for the completion of the work described herein. Any conflict between the terms and conditions in the body of this Agreement and the terms and conditions set forth in Exhibit "A" shall be resolved in favor of the body of this Agreement. b. Payment. In consideration of the performance of this Agreement, the COUNTY agrees to pay CONTRACTOR for all work actually performed, at the rate or basis described in Exhibit "A", which is attached hereto and incorporated herein by reference. Progress payments, if any, will be made as set forth in said exhibit. The COUNTY reserves the right to ratably withhold amounts in the event of the nonperformance of all or part of the CONTRACTOR's obligations. CONTRACTOR shall, without additional compensation, correct and revise any errors, omissions, or other deficiencies in his work product, services, or materials arising from the error or omission or negligent act of CONTRACTOR. [7000-605 1 i. WPD] [Walter H. Keller, [nc] ' C. Commencement and completion. The CONTRACTOR will be required to commence work under this Agreement immediately upon receipt by the CONTRACTOR of the Notice to Proceed, and to complete the work not later than The CONTRACTOR shall be assessed liquidated damages in the amount of $ per day, for each day after that the work contemplated by this Agreement is incomplete. d. Termination. i. Termination at Will: This Agreement may be terminated by the COUNTY at any time without cause by the COUNTY giving written notice to the CONTRACTOR not less than 30 days prior to the date of termination; provided, that this provision shall not be construed to relieve either parry from its rights or obligations of this Agreement through the date of the actual termination. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery. ii. Termination for Cause: This Agreement may be terminated by either parry for cause by the COUNTY or the CONTRACTOR giving written notice to the other party not less than 10 days prior to the date of termination; provided, that this provision shall not be construed to relieve either parry from its rights or obligations of this Agreement through the date of the actual termination. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery. e. Project management. The Project Manager for the CONTRACTOR shall be: W. KELLER. The Project Manager for the COUNTY shall be: GEORGE A. LONG. £ Notices. All notices to the parties under this Agreement shall be in writing and sent certified mail to : i. COUNTY: OKEECHOBEE COUNTY BOARD OF COUNTY COMMISSIONERS Attention: George A. Long, County Administrator 304 Northwest Second Street, Room 106 Okeechobee, Florida 34972. ii. CONTRACTOR: WALTER H. KELLER, INC. Attention: Walter H. Keller 1890 University Drive Suite 304 Coral Springs, Florida 33071 g. Insurance. i. The CONTRACTOR agrees to maintain such insurance as will fully protect both the CONTRACTOR and the COUNTY from any and all claims under any Workers Compensation Act or Employers Liability Laws, and from any and all other claims of whatsoever kind or nature to the damage or property, or for personal injury, including death, made by anyone whomsoever, that may arise from operations carried [7000-60515.WPD] Page 2 of 8 [Walter H. Keller, Inc.] on under this Agreement, either by the CONTRACTOR, any subcontractor, or by anyone directly or indirectly engaged or employed by either of them. ii. The insurance required by the terms of this Agreement shall in no event be less than: (a) Workers' Compensation (unless exempt) with Employers' Liability with a limit of $100,000.00 each accident, $100,000.00 each employee, $500,000.00 policy limit for disease; (b) Commercial General Liability (CGL) insurance with a limit of not less then $1,000,000.00 each occurrence; if such CGL insurance contains a general aggregate limit, it shall apply separately to this project in the amount of $600,000.00; CGL insurance shall be written on an occurrence form and shall include bodily injury and property damage liability for premises, operations, independent contractors, products and completed operations, contractual liability, broad form property damage and property damage resulting from explosion, collapse or underground (x,c u) exposures, personal injury and advertising injury; fire damage liability shall be included at $100,000.00. CONTRACTOR shall also provide Business Auto Liability Insurance which includes coverage for all owned, non-owned and rented vehicles with a $1,000,000.00 combined single limit for each occurrence. iii. The CONTRACTOR shall furnish the COUNTY with Certificates of Insurance, which are to be signed by a person authorized by that insurer to bind coverage on its behalf. The COUNTY is to be specifically included as an additional insured or loss payee on all policies except Workers' Compensation. In the event the insurance coverage expires prior to the completion of the project, a renewal certificate shall be issued 30 days prior to said expiration date. The policy shall provide a 30 day notification clause in the event of cancellation or modification to the policy. All certificates of insurance must be on file with and approved by the COUNTY before commencement of any work activities. h. Bond. If a surety bond has been required by the bid documents for CONTRACTOR's faithful performance and payment, and if at any time the surety is no longer acceptable to the COUNTY, the CONTRACTOR shall, at its expense, within five (5) days after the receipt of notice from the COUNTY to do so, furnish an additional bond or bonds in such form and with such Surety or Sureties as shall be satisfactory to the COUNTY. In such event, no further payment to the CONTRACTOR shall be deemed to be due under this Agreement until such new or additional security for the faithful performance of the work shall be furnished in manner and form satisfactory to the COUNTY. 3. General Provisions. THAT the parties hereby agree to the following general provisions: a. Representations of the Contractor. The CONTRACTOR represents that it has sufficient manpower and technical expertise to perform the services contemplated by this Agreement in a timely and professional manner consistent with the standards of the industry in which the CONTRACTOR operates. b. Representations of The County. The COUNTY represents that it is duly organized and existing as a political subdivision of the State of Florida. Further, the COUNTY has the full power and authority to enter into the transactions contemplated by this Agreement and has [7000-60515.WPD] Page') of 8 [Walter H. Kelier, Inc] the ownership and/or control over the property which is the subject of this Agreement or which shall be serviced thereby. Personal nature of Agreement. The CONTRACTOR hereby warrants that it has the necessary technical expertise and training to perform its duties as outlined in this Agreement. The parties acknowledge that the COUNTY places great reliance and emphasis upon the knowledge, expertise and personal abilities of the CONTRACTOR. Accordingly, this Agreement is personal and the CONTRACTOR shall not assign or delegate any rights or duties hereunder without the specific written consent of the COUNTY. In the event the CONTRACTOR requires the services of any subcontractor or professional associate in connection with the work to be performed under this Agreement, the CONTRACTOR shall obtain the written approval of the COUNTY Project Manager prior to engaging such subcontractor or professional associate. d. Independent contractor. i. It is specifically agreed that the CONTRACTOR is deemed to be an independent contractor and not a servant, employee, joint adventurer or partner of the COUNTY. It is further agreed that no agent, employee, or servant of the CONTRACTOR shall be deemed to be the agent, employee, or servant of the COUNTY. None of the benefits, if any, provided by the COUNTY to its employees, including but not limited to, compensation insurance and unemployment insurance, are available from the COUNTY to the employees, agents, or servants of the CONTRACTOR. The CONTRACTOR will be solely and entirely responsible for its acts and for the acts of its agents, employees, servants, and subcontractors during the performance of this Agreement. Although the CONTRACTOR is an independent contractor, the work contemplated herein must meet the approval of the COUNTY and shall be subject to the COUNTY's general right of inspection to secure the satisfactory completion thereof. The CONTRACTOR agrees to comply with all Federal, State and municipal laws, rules and regulations that are now or may in the future become applicable to the CONTRACTOR, the CONTRACTOR's business, equipment, or personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. The COUNTY will not be held responsible for the collection of or the payment of taxes or contributions of any nature on behalf of the CONTRACTOR. ii. The CONTRACTOR shall bear all losses resulting to it on account of the amount or character of the work, or because of bad weather, or because of errors or omissions in its contract price. ill. The CONTRACTOR agrees that it shall bear the responsibility for verifying the employment status, under the Immigration Reform and Control Act of 1986, of all persons it employs in the performance of this Agreement. Indemnification. Irrespective of any insurance carried by the CONTRACTOR, pursuant to this Agreement or otherwise, the CONTRACTOR shall indemnify and hold the [7000-60515.WPD] Page 4 of 8 [Walter H. Keller, Inc.] COUNTY harmless against and from the loss, cost, damage, or expense, including reasonable attorney's fees and court costs, arising out of any accident, casualty, or other occurrence causing injury to any person or property arising from the CONTRACTOR's performance under this Agreement, whether by the CONTRACTOR, its agents, employees, or subcontractors, and whether caused by or arising from any act or omission of the CONTRACTOR, its agents, employees, or subcontractors. The CONTRACTOR shall further indemnify the COUNTY against any claim that any product purchased or licensed by the COUNTY from the CONTRACTOR under this Agreement infringes a Unites States patent, trademark, or copyright. ii. That in the event that any claim in writing is asserted by a third party which may entitle the COUNTY to indemnification, the COUNTY shall give notice thereof to the CONTRACTOR which notice shall be accompanied by a copy of statement of the claim. Following the notice, the CONTRACTOR shall have the right, but not the obligation, to participate at its sole expense, in the defense, compromise or settlement of such claim with counsel of its choice. If the CONTRACTOR shall fail timely to defend, contest or otherwise protect against any suit, action or other proceeding arising from such claim, or in the event the COUNTY decides to participate in the proceeding or defense, the COUNTY shall have the right to defend, contest, or otherwise protect itself against same and be reimbursed for expenses and reasonable attorney's fees and, upon not less than ten (10) days notice to the CONTRACTOR, to make any reasonable compromise or settlement thereof. In connection with any claim as aforesaid, the parties hereto shall cooperate fully with each other and make available all pertinent information necessary or advisable for the defense, compromise or settlement of such claim. iii. That the indemnification provisions of this paragraph shall survive the termination of this Agreement. f. Bid documents. Any request for proposals (RFP), request for qualifications (RFQ), bid specifications, engineering plans, shop drawings, material lists, or other similar documents issued for this project by the COUNTY, together with any addenda, are considered the "Bid Documents" and are hereby incorporated into this contract by reference. The CONTRACTOR agrees to abide by all of the terms, conditions and requirements of the bid documents which are declared to be material part of this Agreement. g. Acceptance of work product, payment, and warranty. Upon receipt of a periodic work product, or notice that work has progressed to a point of payment in accordance with Exhibit A attached or the Bid documents, if any, together with an invoice sufficiently itemized to permit audit, the COUNTY will diligently review same. When it finds the work acceptable under this Agreement the installment payment, found to be due the CONTRACTOR, will be paid to the CONTRACTOR within thirty (30) days after the date of receipt of the invoice, unless another payment schedule is provided in Exhibit A. The CONTRACTOR warrants that the data utilized by the CONTRACTOR (other than as provided by the COUNTY) is from a source, and collected using methodologies, which are generally recognized in the CONTRACTOR's industry or profession to be a reliable basis and foundation for the [7000-605I5.WPD] Page 5 of 8 [Walter H. Keller, loc.l CONTRACTOR's work product. The CONTRACTOR shall notify the COUNTY in writing should it appear, in the CONTRACTOR's professional judgement that the data or information provided by the COUNTY for use in the CONTRACTOR's work product is incomplete, defective or unreliable. The CONTRACTOR guarantees to amend, revise or correct to the satisfaction of the COUNTY any error appearing in the work as a result of the CONTRACTOR's failure to comply with the warranties and representations contained herein. Neither inspection nor payment, including final payment, by the COUNTY shall relieve the CONTRACTOR from its obligations to do and complete the work product in accordance with this Agreement. h. Public records. All monthly operating reports and records required to be prepared or maintained by the CONTRACTOR in accordance with the Scope of Services (Exhibit "A"), shall be deemed to be public records. The CONTRACTOR shall allow public access to such documents and materials in accordance with the provisions of Chapter 119, Florida Statutes. Should the CONTRACTOR assert any exemptions to the requirements of Chapter 119 and related statutes, the burden of establishing such exemption, by way of injunctive or other relief as provided by law, shall be upon the CONTRACTOR. The COUNTY reserves the right to unilaterally cancel this Agreement for refusal by the CONTRACTOR to allow public access to all such documents, subject to the provisions of chapter 119, Florida Statutes, and made or received by the CONTRACTOR in conjunction with this Agreement. 4. Miscellaneous Provisions. THAT the parties hereby agree to the following miscellaneous provisions: a. Discrimination. That the CONTRACTOR shall assure that no person shall be excluded, on the grounds of race, color, creed, national origin, handicap, age or sex, from participation in, denied the benefits of, or be otherwise subjected to discrimination in any activity under, this Agreement. The CONTRACTOR shall take all measures necessary to effectuate these assurances. b. Severability. That, should any term or provision of this Agreement be held, to any extent, invalid or unenforceable, as against any person, entity or circumstance during the term hereof, by force of any statute, law, or ruling of any forum of competent jurisdiction, such invalidity shall not affect any other term or provision of this Agreement, to the extent that the Agreement shall remain operable, enforceable and in full force and effect to the extent permitted by law. C. Entire Agreement. That this Agreement states the entire understanding between the parties and supersedes any written or oral representations, statements, negotiations, or agreements to the contrary. CONTRACTOR recognizes that any representations, statements or negotiations made by the County staff do not suffice to legally bind the COUNTY in a contractual relationship unless they have been reduced to writing, authorized, and signed by the authorized County representatives. d. Construction. Should any provision of this Agreement be subject to judicial interpretation, it is agreed that the court interpreting or considering such provision will not apply the [7000-60-5515.WPD] Page 6 of 8 [Walter H. Keller, Inc.] presumption or rule of construction that the terms of this Agreement be more strictly construed against the party which itself or through its counsel or other agent prepared the same, as all parties hereto have participated in the preparation of the final form of this Agreement through review by their respective counsel, if any, and/or the negotiation of specific language, and, therefore, the application of such presumption or rule of construction would be inappropriate and contrary to the intent of the parties. Attorney's Fees. In the event of any litigation to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs which are directly attributed to such litigation both at the trial and appellate level. f. Waiver. The indulgence of either party with regard to any breach or failure to perform any provision of this Agreement shall not be deemed to constitute a waiver of the provision or any portion of this Agreement, either at the time the breach or failure occurs or at any time throughout the term of this Agreement. The review of, approval of, or payment for any of CONTRACTOR's work product, services, or materials shall not be construed to operate as a waiver of any of the COUNTY's rights under this Agreement, or of any cause of action the COUNTY may have arising out of the performance of this Agreement. g. Force Majeure. Notwithstanding any provisions of this Agreement to the contrary, the parties shall not be held liable if failure or delay in the performance of this Agreement arises from fires, floods, strikes, embargos, acts of the public enemy, unusually severe weather, out break of war, restraint of government, riots, civil commotion, force majeure, act of God, or for any other cause of the same character which is unavoidable through the exercise of due care and beyond the control of the parties. This provision shall not apply if the "Scope of Work" of this Agreement specifies that performance by the CONTRACTOR is specifically required during the occurrence of any of the events herein mentioned. h. Headings. All headings are for clarification only and are not to be used in any judicial construction of this Agreement or any paragraph. Binding Nature of Agreement. This Agreement shall be binding upon the successors and assigns of the parties hereto. Law; Venue. This Agreement is being executed in Okeechobee County, Florida and shall be governed in accordance with the laws of the State of Florida. Okeechobee County, Florida, shall be the venue of any action thereon. 5. Special Provisions. The Water and Sewer component shall be deleted from the Scope of Services together with a corresponding deduction of $12,895.00 [7000-605 1 5. WPD] Page 7 of 8 [Walter H. Keller. Inca IN WITNESS WHEREOF, the parties hereto have signed and sealed this agreement on the day and date first written above. By: ATTEST: .C, -"N Sharon Robertson, Clerk BOARD OF COUNTY COMMISSIONERS WITNESS ATTEST: IL Secretary (Revised 3/2004) OKEECHOBEE COUNTY BOARD OE-C-QUINTY-.COMMISSIONERS . ABNEY, WALTxl~ LLER, INC. b . Y WALTER H. KELLER, President (CORPORATE SEAL) [7000-605 1 5. W PD] Page 8 of 8 Task/Subtasks per RFP Scope of Services This portion of the proposal repeats the RFP Task/Subtasks. The estimated manhours and Consultant Fee to perform both the County and City assignments follows. Note, the fee is based on providing all service fees and removal of a service fee assignment will require a revised fee amount. The estimated time for completing County and City efforts is 9 months Provisions to encumber impact tees during the study process will be provided. Task 1.0 - Data Collection and Analysis Subtask 1.1-Data Inventory Subtask 1.2 - Population/Service Unit Estimation Subtask 1.3 - Existing Level of Service (LOS) Identification Subtask 1.4 - Adopted LOS Identification Subtask 1.5 - Population/Service Unit Estimation Subtask 1.6 - Cost/Revenue Identification Subtask 1.7 - Level of Service Analysis Subtask 1.8 - Future Demand Analysis Subtask 1.9 - Future Capital Cost Projections Subtask 1.10 - Data Collection and Analysis Report Task 2.0 -Policy Analysis Subtask 2.1- Legal Requirements for Imposing Impact Fees Subtask 2.2 - Adopted Level of Service. Review Subtask 2.3 - Funding Source Review Subtask 2.4 - Policy Analysis Report and Presentation Subtask 2.5 - Policy Revisions Task 3.0 Methodology Development Subtask 3.1 - Formula Development Subtask 3.2 - Fee Schedule Preparation Subtask 3.3 - Impact Fee Formula Report and Presentation Task 4.0 -Implementation and Administration Process Subtask 4.1 - Ordinance and Agreement Preparation Subtask 4.2 - Administration Procedures Subtask 4.3 - Update Process Development Subtask 4.4 - Implementation and Administration Process Development Report Task 5.0 - Final Report Subtask 5.1 - Public Hearings Subtask 5.2 - Document Preparation Subtask 5.3 - Electronic Document Preparation Task 6.0 - Study Requirements and Provisions of Work Subtask 5.1 - Project Schedule Subtask 5.2 - Meetings and Presentations Subtask 5.3 - Progress Reporting and Invoicing EXHIBIT "A" Okeechobee City/County Impact Fee Manhour and Fee Estimate Manhour Estimate for Okeechobee County and City Total Manhour Estimate for Okeechobee County 504 Hours Total Manhour Estimate for City of Okeechobee 208 Hours Fee Estimate for Okeechobee County and City ce County * Fee Amoui city t Fee Arno Transportation Law Enforcement Corrections Fire EMS Park and Recreation Schools Storm Water Management Total $12,380.00 $ 9,295.00 $ 9,295.00 tt $12,895.00 $12,895.00 $ 6,195.00 $ 6,815.00 $ 6,815.00 $ 6,815.00 $ 6,815.00 X $Si,5ggX $27,260.00 $62,955,00 * - County Fee is Total Amount Not by Individual Service Fee Cost * - City Fee is Total Amount Not by Individual Service Fee Cost - Included in Law Enforcement tt - Included in Fire