3-Appendix 2 Agreement.pdf

REV.01.02.2024

RFQu- 26-001

RFQu- 26-001

SOLICITATION DOCUMENTS

Appendix 2: Draft Agreement Documents

COVERSHEET

The RFQu Engineering or Surveying Draft Agreement Documents are attached to this coversheet.

RFQu-26-001

PROFESSIONAL SERVICES CONTRACT

between

TOHOPEKALIGA WATER AUTHORITY

and Consultant Entity Name regarding

SOUTHSIDE WATER RECLAMATION FACILITY EXPANSION TO 9.0

MGD

TABLE OF TERMS AND PROVISIONS

Project-Specific Provisions

1.1. Definitions

1.2. Documents

1.3. Scope of Services

1.4. Contract Term

1.5. Contract Amount; Method of Payment

1.6. Project Managers

1.7. Notices

Work Commencement; Progress Schedule; Additional Services

2.1. Work Commencement

2.2. Progress Schedule

2.3. Coordination of Contractors

2.4. Additional Services

Representations, Warranties, and Obligations

3.1. CONSULTANT’s Representations and Warranties

3.2. TOHO’s Obligations

Employees of CONSULTANT

4.1. Sufficient and Competent Staffing

4.2. Non-Discrimination

4.3. Key Personnel

4.4. Removal of Personnel

Payment Terms

5.1. Compensation Method

5.2. Lump-Sum Method

5.3. Direct Labor Costs Method

5.4. Invoice Processing

5.5. Certification

5.6. Adjustment of Compensation for Changes in Scope of Service

Ownership of Documents

6.1. Document Ownership

6.2. Use of Documents

6.3. Non-Publication

Termination

7.1. Termination for Convenience

7.2. Termination for Cause

7.3. In the Event of Termination

7.4. Transfer of Services Upon Termination

7.5. Force Majeure

Suspension

8.1. Suspension by Toho

8.2. Resumption

8.3. Performance Required

8.4. Change to Compensation

Dispute Resolution

9.1. Claims and Disputes

9.2. Dispute Resolution Procedures

Insurance and Indemnification

10.1. Insurance

10.2. Indemnification

10.3. Liability

Records Retention; Audits

11.1. Records Management

11.2. Public Records

Florida Vendor Eligibility Provisions

12.1. E-Verification

12.2. Public Entity Crimes

12.3. Scrutinized Companies

12.4. Discriminatory Vendors

12.5. Anti-Trust Violators

12.6. Countries of Foreign Concern

12.7. Common Carrier

12.8. Incorporation of Certification Forms

General Provisions

13.1. Administrative Provisions

13.2. Assignment and Successors

13.3. Attorneys’ Fees and Costs

13.4. Binding Effect; Conflicts

13.5. Construction and Representations

13.6. Counterparts and Electronic Transmission of Signatures

13.7. Electronic Signatures

13.8. Governing Law

13.9. Headings

13.10. Jury Waiver

13.11. Modification

13.12. Remedies

13.13. Severability

13.14. Signatory

13.15. Survivorship

13.16. Venue

13.17. Waiver

State and/or Federal Financial Assistance

Entire Agreement

RFQu-24-####

PROFESSIONAL SERVICES CONTRACT

between

TOHOPEKALIGA WATER AUTHORITY

and Consultant Entity Name regarding

SOUTHSIDE WATER RECLAMATION FACILITY EXPANSION TO 9.0

MGD

THIS Professional Services Agreement (the “Agreement”) is made and entered into between TOHOPEKALIGA WATER AUTHORITY, an independent special district established pursuant to Chapter 189, Florida Statutes, by special act of the Florida Legislature, with its principal place of business located at 951 Martin Luther King Boulevard, Kissimmee, Florida 34741 (“TOHO”), and Consultant Entity Name, a Type of Organization of the State of Florida that is authorized to do business in the State of Florida, Consultant Entity Type, with its principal place of business located at Consultant Principal Address (“CONSULTANT”), in consideration of the mutual covenants contained herein and for other good and valuable considerations, the receipt and sufficiency of which are hereby mutually acknowledged. TOHO and CONSULTANT may be herein referred to individually as the “Party” or collectively as the “Parties”.

Project-Specific Provisions

1.1. Definitions

For the purposes of this Contract (as defined in Paragraph B of this Section), the capitalized terms are as to be understood as they are first defined, either by use of bold parenthetical reference or as found within bold quotation marks, throughout this Contract.

In addition to the aforementioned capitalized terms, the following terms are hereby defined as follows:

1. “Additional Services” shall mean any services that are authorized in writing by TOHO subsequent to the execution of this Contract by written amendment to this Contract.

2. “Contract” shall mean this agreement including all exhibits, appendices, schedules, and attachments hereto, as may be amended from time to time.

The terms “Contract” and “Agreement” may be used interchangeably.

3. “Day” shall mean one calendar day, unless otherwise specifically referred to as a “business day”. A business day is any day that is an official working day of TOHO and excludes Saturdays, Sundays, and official public holidays designated by TOHO. When pluralized, “days” and “business days” shall mean consecutive calendar or business days respectively.

4. “Herein”, “hereby”, “hereinafter”, “hereto”, “hereof”, and other equivalent words shall refer to this Contract as a whole, including any documents incorporated into this Contract whether by attachment or reference.

5. “Project” shall mean Southside Water Reclamation Facility Expansion to 9.0 MGD, as solicited pursuant to the above-numbered RFQu, and as further detailed in attached Exhibit A: Scope of Services.

6. “Law” and “laws” shall mean any and all laws, statutes, rules, regulations, ordinances, codes, and orders applicable to the Project and Services.

7. “Services” shall mean the services provided for in attached Exhibit A: Scope of Services, as well as any and all obligations, duties, and responsibilities required of CONSULTANT pursuant to this Contract. The term “Services” shall also include all “Additional Services”, as defined above.

8. “Subconsultant” shall mean all contractors, subcontractors, consultants, subconsultants, suppliers, experts, and other persons or entities retained, engaged, or otherwise utilized by CONSULTANT to perform any portion of its obligations, covenants, or duties under this Contract.

9. The words “must”, “will”, and “shall” are always mandatory and not discretionary; the word “may” is permissive.

10. Unless the context clearly indicates the contrary, where a clause herein involves two or more items, conditions, provisions, or events connected by the conjunctions “and”, “or”, “either ... or”, or “and/or” such conjunctions shall be interpreted as follows:

a. “And” indicates that all the connected terms, conditions, provisions or events shall apply.

b. “Or” indicates that the connected items, conditions, provisions or events may apply singly or in any combination.

c. “Either … or” indicates that the connected items, conditions, provisions or events shall apply singly but not in combination.

d. “And/or” indicates that the connected items, conditions, provisions or events shall apply either singly or in combination.

11. The word "includes" shall not limit a term to the specific example but is intended to extend its meaning to all other instances or circumstances of like kind or character.

1.2. Documents

The following attachments, exhibits, schedules, or other documents are hereby incorporated into this Contract, whether by reference or attachment, and serve a material part hereto:

By reference:

1. RFQu-26-001 and all documents incorporated and attached thereto, including any addenda issued; and

2. CONSULTANT’s Proposal.

By attachment:

1. EXHIBIT A – Scope of Services

2. EXHIBIT B – Fee/Hourly Rate Schedule

3. EXHIBIT C – Progress Schedule

4. EXHIBIT D – Key Personnel List

5. EXHIBIT E – Toho Travel and Subsistence Policy and Allowances

6. EXHIBIT F – Miscellaneous Forms

a. FORM TOH-200 – Confidential Record Release Acknowledgement

b. FORM TOH-300 – Affidavit of Non-Collusion and of Non-Interest of Toho Employees

1.3. Scope of Services

CONSULTANT shall provide the Services described in the Scope of Services attached to this Contract as Exhibit A: Scope of Services, and herein incorporated by reference, in a manner compliant with the terms and conditions of this Contract.

1.4. Contract Term

This Contract shall commence on the date of execution, which shall be when the last party signs the contract (“Effective Date”) and shall expire on Expiration Date. Notwithstanding the foregoing, to the extent CONSULTANT has not completed the Services at the time of this Contract’s expiration, this Contract shall continue in full force and effect until CONSULTANT has fully performed and completed all Services to TOHO’s satisfaction, or until this Contract is sooner terminated in accordance with the terms and conditions of this Contract.

1.5. Contract Amount; Method of Payment

Contract Amount

For the timely and proper performance of the Services, TOHO shall pay CONSULTANT an amount not to exceed Contract Amount (“Contract Amount”).

Method of Payment TOHO shall use the Select Payment Method method of payment, as further detailed in this Contract and as attached Exhibit B: Fee/Hourly Rate Schedule, and such payment shall be provided in a manner consistent with the Local Government

Prompt Payment Act, Section 218.70, et. seq., Florida Statutes, and the terms and conditions of this Contract.

Wage Certification CONSULTANT hereby certifies, covenants, and warrants that wage rates and other cost data supporting the compensation provided for in this Contract are accurate, complete, and current as of the Effective Date. In the event TOHO determines CONSULTANT increased its compensation amount due to inaccurate or incomplete wage rates or other factual unit costs, TOHO reserves the right, in its sole discretion to adjust CONSULTANT’s compensation accordingly. Records of cost incurred under the terms of this Contract shall be maintained and made available to TOHO for review, auditing and copying by TOHO in accordance with Article 11: Records Retention; Audits of this Contract. Further, CONSULTANT hereby acknowledges and agrees that any such adjustment to compensation made under this provision may be made by TOHO any time prior to one year after the expiration or termination of this Contract.

1.6. Project Managers

The Parties have designated the individuals listed below as Project Managers who shall serve as each Party’s single representative with which the other Party shall coordinate. Each such individual shall have the authority to transmit instructions, receive information, interpret, and deliver their respective Party’s policy and decisions pertinent to the Services with respect to matters arising out of or relating to this Contract. Such individuals may collectively be referred to as the “Contract PMs”.

1. For TOHO:

Name: TOHO PM Name (“TOHO PM”) Title: TOHO PM Title Phone: TOHO PM Phone Email: TOHO PM Email

2. For CONSULTANT:

Name: CONSULTANT PM Name (“CONSULTANT PM”) Title: CONSULTANT PM Title Phone: CONSULTANT PM Phone Email: CONSULTANT PM Email

Each Party shall be entitled to rely on decisions and determinations made by, and communications given to or received from, the other Party’s designated Project Manager, to the extent such decisions, determinations, or communications do not amend or modify the terms and conditions of this Contract, including without limitation authorizing any Additional Services or modifying the Contract Amount.

Unless otherwise specifically required to be sent in accordance with Section 1.7:

Notices below, any communications sent to either of the Contract PMs by email to the addresses provided above shall be considered received on the first full business day following the date it was sent by the sending Party. Each Party acknowledges its responsibility to advise the other Party in the event of any change in the respective Party’s Project Manager’s contact information as soon as practicable.

CONSULTANT PM shall be made available during regular business hours to communicate and meet with TOHO PM, including any additional relevant TOHO staff, in order to assess, discuss, and review CONSULTANT’s performance under to this Contract.

TOHO and CONSULTANT may unilaterally re-designate their respective Contract PMs by providing notice to the other Party in accordance with Section 1.7: Notices with no formal amendment to this Contract being required.

TOHO reserves the right, in its sole discretion require that CONSULTANT replace the CONSULTANT PM should TOHO determine doing so would best serve TOHO’s interests or TOHO’s objectives for this Contract. No claims for an increase in compensation or Contract term based on TOHO’s use of this provision will be valid.

1.7. Notices

Notices specifically provided for in this Contract shall be in writing and shall be deemed to have been duly given when received, if delivered personally or by nationally recognized courier, or on the date receipt is acknowledged, if delivered by certified mail, postage prepaid, return receipt requested, to the following addresses:

To TOHO:

Tohopekalgia Water Authority Attn: Director of Procurement 951 Martin Luther King Blvd Kissimmee, Florida 34741

COPY TO:

To CONSULTANT:

Consultant Entity Name Attn: Consultant Notice Individual/Position Consultant Notice Address

Work Commencement; Progress Schedule; Additional Services

2.1. Work Commencement

CONSULTANT will commence performance of Services and work promptly after receipt of a fully executed copy of this Contract. Receipt by CONSULTANT shall constitute written notice to proceed with performance of Services and work under this Contract.

2.2. Progress Schedule

CONSULTANT shall perform the Services in Exhibit A: Scope of Services in accordance with the “Progress Schedule” set forth in Exhibit C: Progress Schedule.

Time is of the essence with respect to performance of the Services and work under this Contract.

The Services shall be provided by CONSULTANT in a professional and timely manner and in accordance with the Standard of Care (as defined in Paragraph D.

of Section 3.1: CONSULTANT’s Representations and Warranties below), and CONSULTANT shall commence, perform, and complete the Services in accordance with the terms and conditions of this Contract, applicable laws, permits, and other governmental authorizations, and good professional and industry practice. In the event of any conflict in the requirements, standards, or criteria of the foregoing, CONSULTANT shall comply with the more stringent requirement.

In the event CONSULTANT’s performance of the Services is interrupted and such interruption is not in any part the result of CONSULTANT’s negligence, fault, error or omission, or breech of this Contract and such interruption results in a delay in the completion of Services, CONSULTANT may seek an extension of the time to complete the Services equal to the number of days such interruptions occurred as its sole remedy. The foregoing notwithstanding, if the interruption is caused by “Force Majeure”, the provisions of Section 7.5: Force Majeure of this Contract shall apply.

2.3. Coordination of Contractors

CONSULTANT acknowledges that TOHO has retained and/or may later retain other contractors, vendors, and consultants to perform or provide engineering, construction, equipment, supplies, and other work, services, and items in connection with TOHO’s system and the facilities and improvements related to CONSULTANT’s Services hereunder. CONSULTANT hereby affirms that it shall, as necessary or otherwise directed by TOHO, coordinate with such other contractors, vendors, and consultants for the successful provision of the Services and completion and commencement of operation of any related facilities and improvements.

2.4. Additional Services

If CONSULTANT is of the opinion that any services TOHO directs it to perform are beyond the scope of the Services under this Contract, CONSULTANT shall, within 7 days of such direction, notify TOHO in writing of this opinion. TOHO shall, within 10 business days after receipt of such notification, determine whether or not such service is in fact beyond the scope of this Contract and constitutes Additional Services. If TOHO determines that such service constitutes Additional Services, TOHO shall either revoke its request for such Additional Services, or – by written amendment to this Contract – provide extra compensation to CONSULTANT for an amount negotiated by the Parties.

If, in the opinion of TOHO, the progress of the Services during any period is substantially less than the amount which is necessary to meet the Progress Schedule, TOHO may require CONSULTANT to take whatever action is necessary, in the opinion of TOHO, to put the Services back on schedule. Such action shall not constitute Additional Services unless the delays were caused by circumstances beyond the control and fault of CONSULTANT, its agents, employees, and Subconsultants.

In the event of claims by others against TOHO in connection with the Project or Services, CONSULTANT shall provide to TOHO such technical assistance that TOHO may request, which may include without limitation engaging in any and all legal proceedings related to such claims. Such technical assistance shall constitute Additional Services unless such claims are related to or otherwise allege failure of CONSULTANT, its agents, employees, or Subconsultants to adequately perform their duties under this Contract.

Subject to the provision of this Contract, CONSULTANT shall not make any charges or claims for damages for any delays or hindrances of less than 30 days from any cause whatsoever during the progress of any portion of the Services. Such delays or hindrances of less than 30 days may be compensated for by an extension of time as TOHO may decide. However, any such extension shall not operate as a waiver of any other rights of TOHO. This paragraph shall not apply to suspensions of the Project or Services by TOHO, which shall instead be governed by Article 8:

Suspension of this Contract.

If TOHO requires CONSULTANT to provide it with an audit of its Project costs, such audit shall be done at CONSULTANT’s sole expense and shall not be considered Additional Services.

Representations, Warranties, and Obligations

3.1. CONSULTANT’s Representations and Warranties

CONSULTANT hereby makes the following material representations and warranties to TOHO:

1. CONSULTANT is duly organized and existing under the laws of the state of its organization and is legally authorized to conduct business in the State of Florida and will continue to be so authorized for the full duration of this Contract’s term.

2. CONSULTANT has special expertise in the type of professional services to be provided pursuant to this Contract and CONSULTANT hereby acknowledges that such representations were a material inducement to TOHO to enter into this Contract with CONSULTANT.

3. CONSULTANT shall promote the best interest of TOHO and shall at all times assume towards TOHO a fiduciary relationship of the highest trust, confidence, and fair dealing.

4. CONSULTANT shall be responsible, to the level of competency presently maintained by practicing engineering professionals in the water, wastewater, and reclaimed water utility industry in the United States (“Standard of Care”), for the professional and technical soundness, accuracy, and adequacy of all design, drawings, specifications, and other work and materials furnished under this Contract.

5. CONSULTANT has, or will secure at its own expense, all personnel, facilities, financial resources, technical resources, equipment, tools, systems, software, applications, intellectual property rights and interests, authorizations, consents, approvals, and any other items or services necessary to perform and complete the Services in a manner consistent with the Standard of Care and in accordance with the requirements of this Contract.

6. CONSULTANT shall implement quality assurance and quality control programs, consistent with the Standard of Care, to monitor and assurance performance of the Services in accordance with the requirements of this Contract.

7. At all times performing under this CONTRACT, CONSULTANT shall possess and require that all employees and Subconsultants performing under this Contract possess all licenses, certifications, registrations, permits, and other regulatory authorizations necessary to conduct business and provide the Services. Moreover, CONSULTANT shall comply with all laws in effect at the time of the execution of this Contract and the time of performance of the Services.

8. CONSULTANT shall comply with the requirements for sealing all plans, reports, and documents caused to be prepared, or prepared by, CONSULTANT for TOHO in the performance of the Services, in accordance with applicable laws, rules, regulations, and orders of the State of Florida, and the requirements of any regulatory agency, administrative agency, or other governmental authority having jurisdiction over TOHO and TOHO’s facilities and systems, to the extent required.

9. CONSULTANT shall be responsible for the acts and omissions of each of its principals, managers, employees (professional or otherwise), and all other servants, agents, representatives, advisors, and Subconsultants.

10. CONSULTANT has familiarized itself with the nature and extent of this Contract, the Project, the Services, the site, locality, and all local conditions and law that may affect CONSULTANT’s performance of this Contract.

11. CONSULTANT has reviewed this Contract and all available information and data shown or indicated in this Contract and has given TOHO written notice of all conflicts, errors, ambiguities, or discrepancies that it has discovered in this

Contract or information or data, and the written resolution thereof by TOHO is acceptable to CONSULTANT.

12. CONSULTANT shall obtain and review all information and data which relates to the Services or which CONSULTANT may reasonably anticipate may affect cost, scheduling, progress, performance, or furnishing of the Services, including without limitation information and data related to the work of others under separate contracts. Should CONSULTANT identify any information or data that may impact or in any manner interfere with the Project or Services, CONSULTNAT shall, no later than 5 business days from when such information or data was identified by CONSULTANT, report such information to TOHO in writing.

13. CONSULTANT shall immediately notify TOHO if it becomes aware of any facts or circumstances which may reasonably give rise to any claim against TOHO for Services performed under or related to the Services performed under this Contract.

14. To the extent the performance of Services hereunder involves construction, CONSULTANT acknowledges that it has reviewed or will review TOHO’s applicable construction contract form that will be utilized with respect to and prior to any construction of the Project, and CONSULTANT agrees that all services to be provided under said construction contract are expressly included and incorporated into the Scope of Services set forth in Exhibit A: Scope of Services and shall not be considered Additional Services.

15. CONSULTANT has the full power and authority to execute and deliver this Contract and to incur and perform the obligations provided for herein, all of which have been duly authorized by all proper and necessary actions of the governing entity of CONSULTANT.

16. This Contract is a valid, binding and enforceable obligation of CONSULTANT, and does not violate any law, rule, regulation, contract or agreement otherwise enforceable by or against CONSULTANT, except as same may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the rights of creditors generally.

17. CONSULTANT shall be responsible for being aware of all federal, state, and local laws, rules, regulations, and policies relevant to its performance under this Contract. CONSULTANT shall comply in all respects with all applicable legal requirements governing the duties, obligations, and business practices, and shall obtain any permits or licenses necessary for its operations.

CONSULTANT shall take no action in violation of any applicable legal requirement that could result in liability being imposed on TOHO.

3.2. TOHO’s Obligations

CONSULTANT shall submit all reports, sketches, drawings, cost opinion proposals, and other documents to TOHO for review and approval. TOHO shall complete its review and render its decision, in writing, within a reasonable time after receipt.

CONSULTANT shall transmit and deliver such documents to TOHO in an orderly manner and in a format and level of detail consistent with TOHO’s requirements.

CONSULTANT shall promptly respond to any comments and questions received from TOHO. TOHO’s review and approval of any such items, or its non-review thereof, will not modify, discharge, or otherwise affect the nature and extent of CONSULTANT’s obligations, duties, and covenants under this Contract.

Upon reasonable request, TOHO will make available, to CONSULTANT, existing data, records, maps, plans specifications, reports, fiscal data, and other engineering information in TOHO’s files, which may be necessary or useful to CONSULTANT for its performance under this Contract. CONSULTANT acknowledges requested data, documents, information, and other materials provided by TOHO may have been prepared by third parties, or otherwise unverified for accuracy, completeness, or sufficiency. TOHO shall provide the requested documents without representation, warranty, promise, or guarantee of any kind with regard to the accuracy, completeness, or sufficiency of such documents, information, data, and other material. All such documents, information, and data shall remain TOHO property and shall be returned to TOHO upon completion of the Services or termination of this Contract, whichever first occurs.

TOHO shall provide CONSULTANT with copies of TOHO’s policies, procedures, and requirements, as needed or requested.

TOHO shall provide CONSULTANT with relevant information and decisions with respect to design, materials, and other matters necessary for CONSULTANT’s performance of the Services and work under this Contract.

TOHO shall provide CONSULTANT with assistance, where possible, in obtaining rights of access to enter upon public lands and private lands necessary for CONSULTANT to perform surveys, observations, and other services and work under this Contract.

TOHO shall cooperate with CONSULTANT in the preparation and filing of any necessary applications, notices, or filings to governmental authorities for any permits necessary for the performance of the Services contemplated under this Contract.

TOHO will furnish CONSULTANT with copies of approvals and permits from all governmental authorities having jurisdiction over the particular project, improvement or work, subject to this Contract, which are otherwise not the responsibility of CONSULTANT to obtain, and such approvals and consents from others, as may be necessary for completion of the Services not otherwise covered under this Contract.

CONSULTANT shall promptly notify TOHO of any such approval, permit, or consent necessary for completion of the Services. CONSULTANT shall obtain, or provide information, data, and documents, and any other support and assistance reasonably requested by TOHO related thereto, and prepare any necessary application, notices, or filings for TOHO to submit, or cause to be submitted, to such governmental authority or others.

TOHO personnel shall be available on a time-permitting basis, where required and necessary to assist CONSULTANT. The availability and necessity of said personnel to assist CONSULTANT shall be at the discretion of TOHO.

TOHO shall perform the obligations enumerated in this Section 3.2: TOHO’s Obligations at no cost to CONSULTANT.

Employees of CONSULTANT

4.1. Sufficient and Competent Staffing

CONSULTANT shall maintain an adequate and competent staff of professionals licensed and located within the State of Florida throughout its performance under this Contract.

CONSULTANT shall be responsible for the management, supervision, administration, and scheduling of the work necessary to complete the Services, and for assigning a sufficient number of competent and qualified personnel to complete performance of all of its obligations, covenants, and duties hereunder on a timely basis.

4.2. Non-Discrimination

CONSULTANT shall comply with all Federal, State, and local laws and ordinances and shall not discriminate against any individual in securing or holding employment in a field of work or labor, for which the person is qualified, on the grounds of race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status in the performance of Services or work under this Contract.

4.3. Key Personnel

“Key Personnel” shall include, without being limited to, principals in charge, project managers, persons possessing professional licenses, certifications, or registrations, and other non-administrative personnel whose education, training, and experience qualifies them to perform material elements of the Services provided under this Contract. The provisions of this Section shall not apply to personnel temporarily assigned to perform Services under this Contract for durations of one week or less.

As a condition precedent to TOHO’s entering into this Contract with CONSULTANT, CONSULTANT submitted to TOHO a detailed curriculum vitae for each of its Key Personnel, including any Subconsultants that will be involved in performing the Services, as more specifically identified in Exhibit D: Key Personnel.

The Parties hereby agree that by providing the Key Personnel list attached to this Contract, CONSULTANT has made a material representation to TOHO upon which TOHO has reasonably relied when deciding to award this Contract to

CONSULTANT.

Services being performed by someone other than the Key Personnel designated to provide such Services shall constitute a breach of this Contract. CONSULTANT shall not change Key Personnel, or in any manner alter the scope or role of any such Key

Personnel, without prior written consent from TOHO, which shall be granted at its sole discretion.

TOHO shall not unreasonably reject a change in Key Personnel where CONSULTANT demonstrates such change: is not the fault of CONSULTANT; is unavoidable, and where such change results in TOHO receiving the Services from individuals that have the same or greater experience and expertise in the specific roles or tasks as the Key Personnel they would be replacing. TOHO is in no way obligated to accept changes to Key Personnel that would result in TOHO receiving the Services from individuals with lesser experience in such roles or tasks than the Key Personnel they would be replacing.

The Parties hereby agree that TOHO’s consent and approval of any such Key Personnel shall not be deemed as TOHO’s endorsement of the expertise, competence, or ability of the Key Personnel, and shall in no way release or discharge CONSULTANT from its obligations, covenants, and duties to perform the Services contemplated under this Contract.

4.4. Removal of Personnel

TOHO hereby reserves the right to demand removal and replacement of any Key Personnel, employee, or representative of CONSULTANT or any Subconsultant deemed by TOHO, in its sole discretion, to be failing to effectively perform or provide the Services required under this Contract, or who is otherwise demonstrating improper conduct.

The foregoing notwithstanding, any failure by TOHO to demand such removal shall not relieve the CONSULTANT of its obligation to ensure such Key Personnel, employees, and representatives of CONSULTANT provide the Services in a manner that meets the Standard of Care and complies with the terms and conditions of this Contract. No claims for an increase in compensation or Contract term based on TOHO’s use of this provision will be valid.

Payment Terms

5.1. Compensation Method

Compensation payable to CONSULTANT for those Services performed in accordance with this Contract shall be calculated and paid in accordance with one of the following methods of compensation: (a) the Lump Sum Method, or (b) the Direct Labor Costs Method. The specific method selected for this Contract is found in Paragraph B of Section 1.5: Contract Amount; Method of Payment above.

5.2. Lump-Sum Method

Lump Sum Amount

1. Compensation for Services using the Lump Sum Method shall be based on the total, lump sum, fixed price amount, agreed upon by the Parties, which includes, without limitation, all payroll costs, overhead costs, other direct and indirect costs, fees, sub-consultants' and specialist costs, for Services provided, in accordance with the terms of this Contract.

2. Any change or modification to a lump sum, fixed price amount shall be as set forth in an amendment to this Contract executed by both Parties. Such Amendment shall be pursuant to a request by TOHO, or the occurrence of events or circumstances, beyond the control of CONSULTANT, and not caused by, or resulting from, the breach, non-performance, error, omission, fault, or negligence of CONSULTANT.

Lump-Sum Invoices

1. CONSULTANT shall submit invoices on a monthly basis for Services performed during the billing period under this Contract. Invoice amounts shall be the lump sum, fixed amount multiplied by the percentage of the overall Services and work completed by CONSULTANT during the applicable billing period, less any amounts in dispute, Setoffs, or credits.

2. Each invoice submitted by CONSULTANT shall include a summary description of the progress made during the period covered by the invoice, detailing the Services performed and deliverables submitted to TOHO, and the basis of the computation of the percentage of Services performed during that specific billing period. CONSULTANT shall complete all invoices, in their entirety, and include any supporting documentation required by TOHO.

3. TOHO shall provide payment to CONSULTANT for the Services provided in accordance with the Florida Prompt Payment Act, Section 218.70, et. seq., Florida Statutes.

5.3. Direct Labor Costs Method

Calculation of Compensation Compensation for Services performed under the Direct Labor Costs Method shall be an amount equal to the sum of CONSULTANT's: (a) Direct Labor Costs; (b) Overhead Costs; and (c) and other Reimbursable Costs, as applicable, subject to the Cost Limitation as set forth in Paragraph D of this Section.

Reimbursable Costs “Reimbursable Costs” are comprised of “Direct Labor Costs”, “Overhead Costs”, and “Other Direct Costs”, each as defined in the following provisions.

1. “Direct Labor Costs” shall be the actual wages and salaries paid to professional, technical, and other personnel of CONSULTANT for Services performed by such personnel while engaged directly in the performance of CONSULTANT’s Services under the terms of this Contract. CONSULTANT shall provide TOHO with an hourly rate schedule listing all of the job classifications providing Services or work under this Contract, with a range of hourly rates for each job classification paid to its employees or sub-consultants, a copy of which is attached and incorporated by reference as Exhibit B:

Fee/Hourly Rate Schedule. Any revision to Hourly Rate Schedule shall be

Cristina Berrios This is problematic for federal funding without a cap that the Consultant exceeds at their own risk being established. See: 2 CFR 200.318(j):

(1) The non-Federal entity may use a time-and-materials type contract only after a determination that no other contract is suitable and if the contract includes a ceiling price that the contractor exceeds at its own risk. Time-and-materials type contract means a contract whose cost to a non-Federal entity is the sum of:

(i) The actual cost of materials; and

(ii) Direct labor hours charged at fixed hourly rates that reflect wages, general and administrative expenses, and profit.

(2) Since this formula generates an open-ended contract price, a time-and-materials contract provides no positive profit incentive to the contractor for cost control or labor efficiency. Therefore, each contract must set a ceiling price that the contractor exceeds at its own risk. Further, the non-Federal entity awarding such a contract must assert a high degree of oversight in order to obtain reasonable assurance that the contractor is using efficient methods and effective cost controls.

subject to TOHO approval and by amendment to this Contract, executed by both Parties.

2. “Overhead Costs” shall be cost allowances for Fringe Benefits and General and Administrative Overhead, as normally recorded and accounted for by CONSULTANT in the conduct of its business, as generally defined subsections

a. an b. below. Overhead Costs shall be calculated by multiplying Raw Labor Cost by a specified multiplier factor, which for this Contract shall be set at 3.0 (“Raw Labor Cost Multiplier”), and shall include all operating profit.

a. Fringe Benefits. Fringe Benefits shall be as normally recorded and accounted for by CONSULTANT in its conduction of business and shall include, but not be limited to, the following:

(1). Worker's compensation insurance.

(2). State and Federal unemployment insurance.

(3). Employer contributions to Social Security.

(4). Other payroll taxes.

(5). Salary continuation insurance.

(6). Life, medical, and dental insurance.

(7). Vacation, sick leave, and holiday pay.

(8). Incentive compensation.

(9). Retirement benefits.

b. General and Administrative Overhead. General and Administrative Overhead includes the following indirect costs, which are not identifiable as directly allocable to the Assignment and not otherwise included as a portion of other Reimbursable Costs and expenses:

(1). Provisions for office, light, heat, and similar items for working space, depreciation allowances or rental of furniture, equipment and engineering instruments, automobile expenses, and office and drafting supplies.

(2). Taxes and insurance, other than those included as Fringe Benefits, but excluding State and Federal income taxes and applicable sales taxes.

(3). Library and periodical expense and other means of keeping abreast of advances in engineering, such as attendance at technical and professional meetings.

(4). Executive, administrative, accounting, legal, stenographic, and clerical salaries and expenses, (excluding Assignment identifiable salaries included in salary related costs and Assignment related expenses included in reimbursable non-salary expenses).

Cristina Berrios Where is this defined?

Cristina Berrios Only certain expenses are allowable under federal grants see: 2 CFR Subpart E.

Also, profit needs to be negotiated as a separate item with federal funds per 2 CFR 200.324(b).

Also cost plus a percentage of cost methods of contracting may not be used in federally funded contracts.

Other Direct Costs

1. Other Direct and Unit Costs are the actual costs to CONSULTANT of project related expenses required to complete the Assignment, as defined as follows:

a. Equipment, Materials, and Supplies. This will include any specific equipment, materials, and supplies not otherwise used by CONSULTANT and required as part of the Services performed under this Contract. Any such items, with a value in excess of $25.00, shall be deemed TOHO property, at the time of purchase, and promptly delivered to TOHO upon termination of this Contract.

b. Reproductions. This will include the identifiable costs of copying, reproducing, and printing of plans, specifications, sketches, drawings, reports, photographs and correspondence.

c. Communications and Shipping. This will include identifiable long-distance communications, postage, and express charges.

d. Travel and Subsistence. This will include local and long-distance travel, subsistence, and transportation expenses of personnel for performance of the Services under the terms of this Contract, not to exceed rates and limits, as established by TOHO. TOHO limits shall be as described in TOHO’s Travel and Subsistence Policy and Allowances policy, attached and incorporated by reference as Exhibit E: Toho Travel and Subsistence Policy and Allowances.

e. Miscellaneous. This will include any other identifiable project related costs and expenses incurred by CONSULTANT, in connection with the Services performed under the terms of this Contract, which are not applicable to general overhead or other categories of Reimbursable Costs including, but not limited to: special equipment rental costs; costs for temporary personnel; and CADD services. Any such costs and expenses shall be subject to TOHO prior approval. CONSULTANT’s failure to obtain the required prior approval may result in TOHO’s denial of such costs and expenses.

f. Subconsultants. With prior written approval of TOHO, this will include the fee for services of subconsultants used by CONSULTANT with a 10% mark-up.

Cost Limitation

1. Limitation. CONSULTANT will not request or receive payment of Reimbursable Costs, as defined in Paragraph B of this Section, in an amount exceeding the Cost Limitation, as set forth in this Contract, without a written amendment to this Contract that is executed by both Parties.

2. Cost Forecast

a. Prior to completion of 80% of the Services rendered under this Contract, CONSULTANT shall review its cost forecast to determine if the estimated

Must be “at own risk” if federal funds used.

total Reimbursable Costs for performance of Services will likely exceed the established Cost Limitation. If so, TOHO and CONSULTANT shall meet, subject to notice and written request by CONSULTANT to TOHO, to review the forecast. TOHO will not increase the Cost Limitation for this Contract if the necessary increase is a result of, or attributable to, the breach, fault, error, omission, or failure of CONSULTANT to perform the Services, in accordance with the terms of this Contract.

b. If the need for the increase is not for any of the reasons identified herein, the Parties may:

(1). Increase the Cost Limitation to provide additional cost recovery to CONSULTANT; or

(2). Renegotiate the Cost Limitation.

c. Any required modification to this Contract resulting from such review shall be by a written amendment executed by both Parties.

3. TOHO Approval Required. TOHO is not obligated to reimburse

CONSULTANT for any costs incurred in excess of the Cost Limitation set forth in this Contract. CONSULTANT shall be solely responsible for any obligations, liabilities, commitments, costs or expenditures incurred in excess of the Cost Limitation as set forth in in this Contract without TOHO’s prior written approval.

Direct Labor Costs Invoices

If this Contract is performed under the Direct Labor Costs method of compensation, CONSULTANT shall submit an invoice at the end of each month identifying Reimbursable Costs incurred during the monthly billing period. Each invoice shall include the Overhead Rate (as set forth herein). All invoices for Reimbursable Costs shall be in an invoice format, and itemized with a level of detail acceptable to TOHO.

Each invoice submitted by CONSULTANT shall include a summary description of the progress made and items of Services completed during the invoice period. All Reimbursable Costs included in the invoices shall be from books of accounts and records kept by CONSULTANT, in accordance with good engineering practice and generally accepted accounting principles, and supported by CONSULTANT's monthly Billing Cost Detail Report. CONSULTANT shall provide TOHO documenting such costs, upon request.

5.4. Invoice Processing

CONSULTANT shall submit completed invoices, with supporting documents, as applicable, to TOHO for review and processing. Invoices received by TOHO will be processed for payment in accordance with the Florida Prompt Payment Act, Section 218.70, et. seq., Florida Statutes.

CONSULTANT shall forward its invoices directly to the following:

Accounts Payable Tohopekaliga Water Authority 951 Martin Luther King Blvd.

Kissimmee, Florida 34741-4929 accountspayable@tohowater.com

In the event of a dispute between the Parties, arising out of or relating to this Contract, each Party shall be responsible for its costs and expenses incurred in connection with the resolution of the dispute, including attorney's fees.

5.5. Certification

CONSULTANT shall include, with each invoice submitted for payment under this Contract, a statement certifying that the invoice is only for those Services and work performed by CONSULTANT during the invoice period, in accordance with Scope of Services and the terms of this Contract.

5.6. Adjustment of Compensation for Changes in Scope of Service

In the event any action or combination of actions taken results in a change to the Scope of Service, with the written concurrence of TOHO, resulting in a material increase or decrease in the Scope of Services, an equitable adjustment to the Contract Price shall be negotiated by the Parties. Any request by CONSULTANT for such adjustment must be asserted by CONSULTANT, in writing, within the 45 days after the earlier of the following:

(a) the occurrence of any such action or combination of actions taken resulting in Scope of Services change; or (b) TOHO's notice of changed work. TOHO, in its sole discretion, may grant CONSULTANT additional time to submit their request to extend the time period within which to submit its request for adjustment as a result of TOHO’s notice of changed work. CONSULTANT shall not receive additional compensation if such change or revision is a result of CONSULTANT’S breach of its obligations, duties and covenants hereunder, or any error, omission, negligence or violation of applicable law.

Ownership of Documents

6.1. Document Ownership

The Parties acknowledge and agree that all documents including, without limitation, detailed reports, plans, original drawings, survey field notebooks, and all other items and data (other than working papers), prepared or obtained by CONSULTANT, in connection with or relating to the Services and work hereunder, shall be delivered to and become property of TOHO prior to final payment to CONSULTANT. CONSULTANT may retain reproducible copies of all documents for its files, at its cost. CONSULTANT and its subcontractors shall not make such documents available to any individuals or organizations without the prior written approval of TOHO, which may be withheld at TOHO’s absolute and sole discretion.

6.2. Use of Documents

TOHO acknowledges that any reuse of documents prepared by CONSULTANT for this Assignment, without written verification or adaptation by CONSULTANT for the specific purpose intended, will be at TOHO’s sole risk. Any such verification or adaptation requested by TOHO and performed by CONSULTANT will entitle CONSULTANT to further compensation at rates mutually agreed upon by TOHO and CONSULTANT.

6.3. Non-Publication

CONSULTANT shall not publish or release to the media any documents or information concerning, or otherwise relating to, this Contract, any Addenda or the Assignment without prior written approval of TOHO.

Termination

7.1. Termination for Convenience

Toho may terminate this Contract for convenience by providing written notice to CONSULTANT no fewer than 30 days prior to such termination. In the event of such a termination for convenience by Toho, CONSULTANT shall be paid for all authorized Services provided before the effective date of termination. No other damages, fees, or costs may be assessed against Toho for its termination of this Contract for convenience.

7.2. Termination for Cause

Immediate Termination Toho reserves the right to “Immediate Termination” of this Contract, with such termination to be effectuated as of CONSULTANT’s receipt of written notice, for any number of the following causes all of which shall constitute a material breach of this Contract by the CONSULTANT:

1. CONSULTANT becomes insolvent, is unable to pay its creditors, or becomes involved in either voluntary or involuntary bankruptcy proceedings, or makes an assignment for the benefit of creditors;

2. A receiver of the property of the CONSULTANT is appointed in any proceeding brought by or against the CONSULTANT;

3. CONSULTANT or any employee, agent, subcontractor or sub-consultant of CONSULTANT is indicted, or has a direct charge issued against it, for any crime arising out of or in conjunction with any Services or work performed under, or relating to, this Contract;

4. CONSULTANT is determined to be ineligible to do business in the State of Florida;

5. If CONSULTANT is a non-profit agency, loss of its non-profit status; or

6. As otherwise expressly provided for in this Contract.

Standard Termination for Cause

For breaches of this Contract for which Immediate Termination does not apply, Toho may terminate this Contract for cause upon providing written notice to CONSULTANT no fewer than 5 business days prior to such termination. Such termination for cause may be for any material breach of this Contract, or if Toho, using its sole discretion, determines that CONSULTANT is unable to adequately perform under this Contract.

Opportunity to Cure

Without creating an obligation to provide an opportunity to cure or to accept any proposed cure by CONSULTANT, Toho reserves the right to provide CONSULTANT with the opportunity to cure a stated breach of this Contract. If Toho decides to provide such an opportunity to cure to CONSULTANT, it shall: (1) include such opportunity to cure as part of either its notice of termination or notice to show cause;

and (2) provide a deadline deemed appropriate by Toho by which CONSULTANT must cure or, only if expressly permitted by Toho, submit its proposed cure to Toho.

Toho has no obligation whatsoever to accept any proposed cures submitted by

CONSULTANT.

Payment in the Event of Termination for Cause In the event of termination of this Contract due to the fault of CONSULTANT, at the written request of CONSULTANT, Toho shall compensate CONSULTANT for all authorized Services completed, before the effective date of termination, which has resulted in a usable product or otherwise tangible benefit to Toho. All such payments shall be subject to an offset for any damages incurred by Toho resulting from CONSULTANT’s breach of this Contract and any delay occasioned by early termination. No damages, fees, or costs may be assessed against Toho for its termination of this Contract for cause.

In the Event of Wrongful Termination for Cause If a court of competent…