HomeMy WebLinkAbout2009 08 24 Consent 200 Approval of Staff's Recommended Consultants Architectural Continuing Services RFQ#011-09-KLCOMMISSION AGENDA
ITEM 200
August 24, 2009
Meeting
CONSENT X
INFORMATIONAL
PUBLIC HEARING
REGULAR
MGR /DEPT ,~i~~~
Authorization
REQUEST: Public Works Department requesting the City Commission's approval of
Staffs recommended consultants for Architectural Continuing Services,
RFQ #011-09-KL
PURPOSE: The purpose of this agenda item is to request the City Commission's approval of
Staff's recommended consultants for Architectural Continuing Services, RFQ
#011-09-KL
CONSIDERATIONS:
The City currently has a Continuing Services Agreement with Starmer Ranaldi
Planning & Architecture for Architectural Services that was awarded by the City
Commission on March 22, 1999 in response to RPQ #008-99 KL. In order to expand the
pool of architectural expertise available to the City and distribute the workload, it became
prudent to solicit proposals via an RFQ at this time.
On May 17, 2009 the Public Works Department issued a Request for
Qualifications (RFQ #011-09-KL) for professional architectural consultants to provide
architectural services to the City under a Continuing Services agreement. The purpose of
the RFQ was to select several consultants who would be available to perform a variety of
scopes of service including but not limited to:
1) Building Remodeling/Expansion
2) New Building Construction
3) Construction Administration Services
4) Technical Assistance Reviewing New Building Architecture
5) Energy Efficiency Reviews including Building Recommissioning
6) Assistance Implementing Green Building Standards into the City Code
7) Building evaluations
August 24, 2009
Consent Agenda Ttem #200
Page 2 of 3
CONSULTANT SELECTION PROCESS:
• A Request for Qualifications (RFQ) was advertised on May 17, 2009. The RFQ outlined
the services requested, submittal requirements, and evaluation criteria.
• A total of six (6) submittals were received by the June 19, 2009 deadline. The following
firms submitted their qualifications:
o Bentley Architects & Engineers, Inc. of Longwood
o Bessolo Design Group of St. Petersburg
o CPH Engineers, Inc. of Sanford
o GLE Associates, Inc. of Orlando
o Starmer Ranaldi Planning & Architecture, Inc. of Oviedo
o Zyscovich Architects of Orlando
• Staffs selection committee consisted o£ Randy Stevenson, RLA, Community
Development Director; Eloise Sahlstrom, RLA, Senior Planner; Chuck Pula, Parks and
Recreation Director; and Kip Lockcuff, P.E., Utility /Public Works Director.
• Firms were evaluated based on the following criteria established by the selection
committee:
o Experience of the firm and proposed project team - 20%
o Work within Project Schedule and Budget Constraints - 20%
o Florida Friendly, Water Wise and Green Building Familiarity - 20%
o Creative Solutions to Challenges -15%
o Office Location - 15%
o Familiarity with Winter Springs - 10%
• Based on the selection committee's review of the submittal packages, the following three
firms are recommended to be retained for Architectural Continuing Services:
o Bentley Architects & Engineers of Longwood
o CPH Engineers, Inc. of Sanford
o Starmer Ranaldi Planning & Architecture, Inc. of Oviedo
ARCHIT ECTU RAL SERV ICES
Firm
Stevenson
Pula
Sahlstrom
Lockcuff Total Points
(Least is Best)
BENTLEY 1 3 2 1 7
CPH 2 1 1 3 7
SRI 4 2 2 2 10
GLE 3 5 5 3 16
ZYSCOVICH 6 4 4 5 19
BESSOLO 5 6 6 6 23
August 24, 2009
Consent Agenda Item #200
Page 3 of 3
• With the City Commission's approval of the selected firms, the attached Continuing
Services Agreement will be executed for each firm. The duration is expected to be for
five years with a five year renewal option.
FUNDING:
No funding is required at this time.
RECOMMENDATION:
Staff recommends the City Commission approve the following recommended
consultants for Architectural Continuing Services in response to RFQ #011-09-KL:
o Bentley Architects & Engineers of Longwood
o CPH Engineers, Inc. of Sanford
o Starmer Ranaldi Planning & Architecture, Inc. of Oviedo
ATTACHMENTS:
1. Architect Continuing Services Agreement
COMMISSION ACTION:
AGREEMENT FOR
ARCHITECTURAL SERVICES
THIS AGREEMENT is made and entered into this day of , 2009, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City", located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and [INSERT ARCHITECT COMPANY NAME], a corporation, authorized to
conduct business in the State of Florida, whose address is
hereinafter referred to as "Architect".
WITNESSETH:
WHEREAS, City has a need to obtain architectural Architecting services from time to time
on an as-needed, task oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS, Architect participated in the selection and negotiation process; and
WHEREAS, Architect is willing to provide such architectural services to the City under the
terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,
this Agreement shall terminate on the fifth (5th) anniversary of the Effective Date. The Parties shall
have the option to extend the term for one (1) additional five (5) year renewal. Such an extension
shall only be by written amendment to this Agreement.
1.2 The terms and conditions of any Task Order, as described in Section 2 hereof, shall be
as set forth in such Task Order. Any Task in effect at the termination of this Agreement shall remain
in effect until completion of said Task Order, and all of the terms and conditions of this Agreement
shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
Architect Continuing Services Agreement
City of Winter Springs and [INSERT ARCHITECT COMPANY NAME]
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a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as amended from time to time, which shall constitute authorization for the Architect to
provide the architectural services approved by Task Order by the City and is also sometimes referred
to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
c. "Architect" shall mean [INSERT COMPANY NAME], and its principals, employees,
resident project representatives (and assistants).
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by Architect or
Architect's independent professional associates and consultants which are directly related to travel
and subsistence at the rates, and under the requirements of, Section 112.061, Florida Statutes, or any
other actual and direct expenses the City agrees to reimburse by Task Order.
f. "Work" or "Services" shall be used interchangeably and shall include the performance
of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to the
procedure outlined in paragraph 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in paragraph 3.0 herein, which sets forth the Work to be
performed by Architect under this Agreement, and shall include, without the necessity of a cross-
reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Architect and Architect agrees to perform
the Services outlined in this agreement for the stated fee arrangement. No prior or present
representations shall be binding upon any of the parties hereto unless incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Architect to perform Architectural services on a "task"
basis. The City will communicate with Architect, verbally or in writing, a general description of the
task to be performed. The Architect will generate a detailed Scope of Work document, prepare a
Schedule, add a Lump Sum Fee with a detailed cost breakdown to accomplish the task, and send the
thus developed "Task Proposal" to the City. The detailed cost breakdown of the lump sum fee shall
consist of a list of major sub-tasks and aman-hour breakdown for all work to be performed. The
Architect Continuing Services Agreement
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cost breakdown shall include all subconsultant work and the Task Proposal shall include the written
price proposals from all subconsultants. The detailed cost breakdown shall include a line item for
Reimbursable Expenses and the list of the expenses proposed to be eligible for reimbursement. The
City will review the Task Proposal, and if the description is mutually acceptable, the parties will
enter into a written "Task Order". The Scope of Services generally to be provided by the Architect
through a Task Order may include any civil Architecting services for any City project and may
contain written terms and conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Architect in the form of a letter and an executed
City purchase order. Upon receipt of the signed Task Order and the written notice to proceed from
the City, the Architect shall perform the services set forth in the Task Order.
2.2 The City reserves the right, at its discretion, to perform any services related to this
Agreement or to retain the services of other Architectural companies to provide professional
Architectural services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Architect. If such changes increase (additional services) or decrease or eliminate any amount of
Work, City and Architect will negotiate any change in total cost or schedule modifications. If the
City and the Architect approve any change, the Task Order will be modified in writing to reflect the
changes; and Architect shall be compensated for said services in accordance with the terms of Article
5.0 herein. All change orders shall be authorized in writing by City's and Architect's designated
representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Architect shall perform services in conformance with the mutually agreed schedule set
forth in the negotiated Task Order. Architect shall complete all of said services in a timely manner
and will keep City apprised of the status of work on at least a monthly basis or as otherwise
reasonably requested by the City. Should Architect fall behind the agreed upon schedule, it shall
employ such resources so as to comply with the agreed-upon schedule.
4.2 No extension for completion of services shall be granted to Architect without City's
prior written consent, except as provided in Sections 3.1 and 19.1 herein.
Architect Continuing Services Agreement
City of Winter Springs and [INSERT ARCHITECT COMPANY NAME]
(8/24/2009)
4.3 Any cost caused by defective or ill-timed services shall be borne by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
ARCHITECT
5.1 General Services. For basic and additional Services performed by Architect's
principals, employees, and resident project representatives (and assistants) pursuant to paragraphs 2.0
and 3.0, the City agrees to pay the Architect an amount equal to that agreed upon by the parties for a
particular Task Order. However, payment terms must be consistent with the terms and conditions in
this Agreement. To the extent that the payment terms in any Task Order conflict with the payment
terms set forth in this Agreement, the conflicting provisions of this Agreement shall prevail.
5.2 Additional Services Performed by Professional Associates and Consultants. For
additional Services and Reimbursable Expenses of independent professional associates and
consultants employed by Architect to render additional Services pursuant to paragraphs 2.0 and 3.0,
the City agrees to pay the Architect an amount equal to that billed Architect by the independent
professional associates and consultants. Prior to payment by the City, the Architect shall submit to
the City a copy of any written invoice received by Architect from all independent professional
associates and consultants which clearly evidences the amount billed by the independent professional
associates and consultants for additional Services and any Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by Architect's principals,
employees, resident prof ect representatives (and assistants), and independent professional associates
and consultants on behalf of the City in any litigation, arbitration, or other legal or interested
administrative proceeding in which the City is a named interested party, City agrees to pay the
Architect or independent professional associate or consultant, which is used as a witness or expert,
an amount equal to that agreed upon by the party for a particular Task Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by the
Florida Prompt Payment Act s.218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with in efficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs, or costs associated with delays caused
in whole or in part by the Architect.
5.6 Errors and Deficiencies. Architect shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Architect's services
provided under this Agreement.
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5.7 Payment Offsets. To the extent that Architect owes the City any money under this or
any other Agreement with the City, the City shall have the right to withhold payment and otherwise
back charge the Architect for any money owed to the City by Architect.
5.8 Payment not Waiver. The City's payment of any invoice under this Agreement shall
not be construed or operate as a waiver of any rights under this Agreement or any cause of action
arising out of the performance of this Agreement and Architect shall remain liable to the City in
accordance with applicable law for all damages to the City caused by Architect's performance of any
services provided under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed entirely
by the Architect, and in no event shall any claim relating thereto for an increase in compensation be
made or recognized. Architect shall not make any claim nor seek any damages of any kind against
the City for any delays, impacts, disruption or interruption caused by any delay. Architect's remedy
for a delay shall be an equitable extension of time to perform the Services for each day of such delay
that impacts the critical path of the schedule established under this Agreement or specific Task
Order.
6.0 RIGHT TO INSPECTION
61 City or its affiliates shall at all times have the right to review or observe the Services
performed by Architect.
6.2 No inspection, review, or observation shall relieve Architect of its responsibility
under this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Project Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the term of any Task Order entered into
under this Agreement. Architect's Project Manager and all other appropriate personnel shall attend
such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Architect shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, resident project representatives (and assistants)
while performing Services provided hereunder.
Architect Continuing Services Agreement
City of Winter Springs and [INSERT ARCHITECT COMPANY NAME]
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9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Architect reasonable access to the
City's premises, records, and files for purposes of fulfilling its obligations under this Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, Architect shall be
responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Architect shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Architect from claims of property damages and personal injury which may arise from any Services
performed under this Agreement whether such Services are performed by the Architect or by anyone
directly employed by or contracting with the Architect.
c. The Architect shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000 property
damage as the combined single limit for each occurrence to protect the Architect from claims for
damages for bodily injury, including wrongful death, as well as from claims from property damage,
which may arise from the ownership, use, or maintenance of owned and non-owned automobiles,
including rented automobiles whether such operations be by the Architect or by anyone directly or
indirectly employed by the Architect.
d. The Architect shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance and Employers' Liability Insurance in at least such amounts as are required
by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
policies included in article 10.1.b and 10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of the
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policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal refused
until at least thirty (30) days' prior written notice has been given to the City, and the Architect by
certified mail, return receipt requested. All such insurance shall remain in effect until final payment.
In the event that the Architect shall fail to comply with the foregoing requirement, the City is
authorized, but in no event shall be obligated, to purchase such insurance, and the City may bill the
Architect. The Architect shall immediately forward funds to the City in full payment for said
insurance. It is expressly agreed that neither the provision of the insurance referred to in this
Agreement nor the City's acceptance of the terms, conditions or amounts of any insurance policy
shall be deemed a warranty or representation as to adequacy of such coverage. All insurance
coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or equivalent rating and rating
service as reasonably determined by the City Manager) and licensed by the State of Florida to engage
in the business of writing of insurance. Unless agreed to by the City to the contrary, the City shall be
named on the insurance policies included in article 10.1.b and 10.1.c as "additional insured." The
Architect shall cause its insurance carriers, prior to the effective date of this agreement to furnish
insurance certificates specifying the types and amounts of coverage in effect pursuant hereto, the
expiration dates of such policies, and a statement that no insurance under such policies will be
canceled without thirty (30) days' prior written notice to the City in compliance with other provisions
of this Agreement. Further copies of all relevant policies will be provided to the City within thirty
(30) days of the effective date of this agreement. If the City has any objection to the coverage
afforded by or other provision of the insurance required to be purchased and maintained by the
Architect in accordance with this Article on the basis of its not complying with the Agreement, the
City shall notify the Architect in writing thereof within thirty (30) days of the date of delivery of such
certificates to the City. For all Work performed pursuant to this Agreement, the Consultant shall
continuously maintain such insurance in the amounts, type, and quality as required by the
Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Architect to perform any Services hereunder shall fully comply with the
insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Architect shall comply with all requirements of federal, state, and local laws, rules,
regulations, standards, and/or ordinances applicable to the performance of Services under this
Agreement.
12.0 REPRESENTATIONS
12.1 Architect represents that the Services provided hereunder shall conform to all
requirements of this Agreement and any Task Order, shall be consistent with recognized and sound
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Architecting practices and procedures; and shall conform to the customary standards of care, skill,
and diligence appropriate to the nature of the Services rendered. Architect shall perform as
expeditiously as is consistent with professional skill and care and the orderly progress of the Services
performed hereunder. Architect's services shall be consistent with the time periods established
under this Agreement or the applicable Task Order. Architect shall provide City with a written
schedule for services performed under each Task Order and such schedule shall provide for ample
time for the City to reviews, for the performance of consultants (if any), and for the approval of
submissions by authorities having jurisdiction over the services. The Architect's designated
representative shall have the authority to act on Architect's behalf with respect to the Services. In
addition, Architect's representative shall render decisions in a timely manner in order to avoid
unreasonable delay in the orderly and sequential progress of the Services. Except with the City's
knowledge and consent, the Architect shall not engage in any activity, or accept any employment,
interest or contribution that would reasonably appear to compromise the Architect's professional
judgment with respect to the Services. The Architect shall review laws, codes, and regulations
applicable to Architect's Services. The Architect's services and design shall comply with all
applicable requirements imposed by all public authorities. The Architect represents and warrants
that it is familiar with, and accepts that it will perform the Services hereunder in a manner that
complies with all applicable requirements of law, codes, and regulations. Architect shall be
responsible for the professional quality, technical accuracy and the coordination of all plans, studies,
reports and other services furnished to the City under this Agreement. Unless this Agreement is
terminated by the City, or terminated by Architect for nonpayment of any proper invoices, or the City
exercises its rights to perform the Services pursuant to under Paragraph 2.2 herein, Architect shall be
responsible for the satisfactory and complete execution of the Services described in this Agreement
and any Task Order. The Architect represents that it will carefully examine the scope of services
required by the City in and Task Order, that it will investigate the essential requirements of the
services required by the Task Order, and that it will have sufficient personnel, equipment, and
material at its disposal top complete the services set forth in the Task Order in a good professional
and workmanlike manner in conformance with the requirements of this Agreement.
12.2 Architect represents that all principals, employees, and other personnel furnishing
such Services shall be qualified and competent to perform the Services assigned to them and that
such guidance given by and the recommendations and performance of such personnel shall reflect
their best professional knowledge and judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Architect guarantees that all Services performed under this Agreement shall be free
from claims of patent, copyright, and trademarks infringement. Notwithstanding any other provision
of this Agreement, Architect shall indemnify, hold harmless, and defend City, its officers, directors,
employees, agents assigns, and servants from and against any and all liability, including expenses,
legal or otherwise, for actual or alleged infringement of any patent, copyright, or trademark resulting
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from the use of any goods, Services, or other item provided under this Agreement. Notwithstanding
the foregoing, Architect may elect to provide non-infringing services.
14.0 DOCUMENTS
14.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Architect and its independent contractors and associates related, directly or indirectly, to this
Agreement, shall be deemed to be a Public Record whether in the possession or control of the City or
the Architect. Said record, document, computerized information and program, audio or video tape,
photograph, or other writing of the Architect is subject to the provisions of Chapter 119, Florida
Statutes, and may not be destroyed without the specific written approval of the City's City manager.
Upon request by the City, the Architect shall promptly supply copies of said public records to the
City. All books, cards, registers, receipts, documents, and other papers in connection with this
Agreement shall at any and all reasonable times during the normal working hours of the Architect be
open and freely exhibited to the City for the purpose of examination and/or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Architect
and its independent contractors and associates pursuant to this Agreement or related exclusively to
the Services described herein shall be owned by the City and may be reused by the City for any
reason or purpose at anytime. However, the City agrees that the aforesaid documents are not
intended or represented to be suitable for reuse by the City or others on any undertaking other than
the Work outlined in this Agreement. Any reuse for an undertaking other than for the Work without
verification or adaptation by the Architect, or its independent contractors and associates if necessary,
to specific purposes intended will be at the City's sole risk and without liability or legal exposure to
the Architect.
b. Ownership of Documents. The City and the Architect agree that upon payment of
fees due to the Architect by the City for a particular design, report, inventory list, compilation,
drawing, specification, model, recommendation, schedule or otherwise, said design, report, inventory
list, compilation, drawing, specification, technical data, recommendation, model, schedule and other
instrument produced by the Architect in the performance of this Agreement, or any Work hereunder,
shall be the sole property of the City, and the City is vested with all rights therein. The Architect
waives all rights of copyright in said design, report, inventory list, compilation, drawing,
specification, technical data, recommendation, model, schedule and other instrument produced by the
Architect in the performance of this Agreement, and hereby assigns and conveys the same to the City
whether in the possession or control of the Architect or not.
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15.0 ASSIGNMENT
15.1 Architect shall not assignor subcontract this Agreement, any Task Order hereunder,
or any rights or any monies due or to become due hereunder without the prior, written consent of
City.
15.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Architect, Architect shall be fully responsible to City for all acts and/or omissions
performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Architect who shall take immediate steps to remedy the situation.
15.4 If any part of this Agreement is subcontracted by Architect, prior to the
commencement of any Work by the subcontractor, Architect shall require the subcontractor to
provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, Architect shall be considered an
independent contractor and not an employee of the City.
17.0 DEFAULT BY ARCHITECT AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Architect defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within thirty (30) calendar days after written notice
from the City specifying the default complained of, unless, however, the nature of the default is such
that it cannot, in the exercise of reasonable diligence, be remedied within thirty (30) calendar days, in
which case the Architect shall have such time as is reasonably necessary to remedy the default,
provided the Architect promptly takes and diligently pursues such actions as are necessary therefor;
or
17.3 Architect is adjudicated bankrupt or makes any assignment for the benefit of creditors
or Architect becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Architect has acted grossly negligent, as defined by general and applicable law, in
performing the Services hereunder; or
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17.5 Architect has committed any act of fraud upon the City; or
17.6 Architect has made a material misrepresentation offact to the City while performing
its obligations under this Agreement.
17.7 Architect has assigned this Agreement or any Task Order without the City's prior
written consent.
17.8 Notwithstanding the aforementioned, in the event of a default by Architect, the City
shall have the right to exercise any other remedy the City may have by operation of law, without
limitation, and without any further demand or notice.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written notice
to Architect, terminate this Agreement, without penalty, i£ (a) Architect is in default pursuant to
paragraph 17.0 Default; (b) Architect makes a general assignment for the benefit of its creditors; (c)
Architect fails to comply with any condition or provision of this Agreement; or (d) Architect is
experiencing a labor dispute which threatens to have a substantial, adverse impact upon performance
of this Agreement without prejudice to any other right or remedy City may have under this
Agreement. In addition, either party may terminate for convenience with no penalty at any time upon
thirty (30) days advance written notice. In the event of such termination, City shall be liable only for
the payment of all unpaid charges, determined in accordance with the provisions of this Agreement,
for Work properly performed prior to the effective date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or
regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the
party affected; provided that prompt notice of such delay is given by such party to the other and each
of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any
circumstance of Force Majeure remains in effect for sixty days, either party may terminate this
Agreement.
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20.0 GOVERNING LAW & VENUE
20.1 This Agreement is made and shall be interpreted, construed, governed, and enforced
in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be
Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision of this Agreement. The validity and enforceability of
the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
23.2 No waiver, consent, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by a duly authorized representative of each party hereto.
24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than City and Architect.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Architect warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Architect, to solicit or secure this Agreement, and
that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than
a bona fide employee working solely for the Architect, any fee, commission, percentage, gift, or
other consideration contingent upon or resulting from the award or making of this Agreement.
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26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Architect with respect
to the Services specified and all previous representations relative thereto, either written or oral, are
hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal-agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing parry shall be entitled to recover from the non-prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement maybe executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
30.0 DRAFTING
30.1 City and Architect each represent that they have both shared equally in drafting this
Agreement and rio party shall be favored or disfavored regarding the interpretation of this Agreement
in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed, postage prepaid to:
For Architect:
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For Ci
City of Winter Springs/ Public Works Department
Attention: Public Works Director
1126 E. State Road 434
Winter Springs, Florida 32708
(407) 327-5989 FAX: (407) 327-6695
31.2 Either party may change the notice address by providing the other party written notice
of the change.
32.0 SOVEREIGN IMMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, the City shall not be liable for any claim or
judgment, or portion thereof, to any one person for more than one hundred thousand dollars
($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other
claims or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY ARCHITECT
33.1 Architect hereby represents and warrants to the City the following:
a. Architect is duly registered and licensed to do business in the State of Florida and is
in good standing under the laws of Florida, and is duly qualified and authorized to carry on the
functions and operations set forth in this Agreement.
b. The undersigned representative of Architect has the power, authority, and legal right
to execute and deliver this Agreement on behalf of Architect.
34.0 INDEMNIFICATION
34.1 Architect shall indemnify and hold harmless the City, and its officers (including its
City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
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intentionally wrongful conduct of the Architect and other persons employed by the Architect in the
performance of the Agreement and any Task Order.
34.2 Architect shall also indemnify and hold harmless the City, and its officers (including
its City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by Architect's breach and caused by other
persons employed by the Architect in the performance of the Agreement and any Task Order.
The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
35.0 ARCHITECT'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Architect's personnel at a construction site, whether as
onsite representatives or otherwise, do not make Architect or Architect's personnel in any way
responsible for those duties that belong to City and/or the construction contractors or other entities,
and do not relieve the construction contractors or any other entity of their obligations, duties, and
responsibilities, including, but not limited to, all construction methods, means, techniques,
sequences, and procedures necessary for coordinating and completing all portions of the construction
work in accordance with the applicable construction contract documents and any health or safety
precautions required by such construction work. Architect and Architect's personnel have no
authority to exercise any control over any construction contractor or other entity or their employees
in connection with their work or any health or safety precautions and have no duty for inspecting,
noting, observing, correcting, or reporting on health or safety deficiencies of the construction
contractor(s) or other entity or any other persons at the site except Architect's own personnel.
35.2 The presence of Architect's personnel at a construction site is for the purpose of
providing to City a greater degree of confidence that the completed work will conform generally to
the applicable contract documents and that the integrity of the design concept as reflected in the
contract documents has been implemented and preserved by the construction contractor(s). Architect
neither guarantees the performance of the construction contractor(s) nor assumes responsibility for
construction contractor's failure to perform work in accordance with the contract documents. For
this Agreement only, construction sites include places of manufacture for materials incorporated into
the construction work, and construction contractors include manufacturers of materials incorporated
into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Architect is not
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responsible for any errors or omissions in the information from others that is incorporated into the
record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Architect for itself and its Subconsultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement is presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from participation in any
architecture, landscape architecture, Architecting, or surveying activity by any Federal, State, or local
governmental commission, department, corporation, subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed or
otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Architect
and said signature shall bind the Architect to this Agreement. No further action is required by the
Architect to enter into this Agreement other than Architect's undersigned representative execution of
the Agreement.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY: ARCHITECT:
CITY OF WINTER SPRINGS
By:
Print Name:
Title:
ATTEST:
By:
By:
Andrea Lorenzo-Luaces, MMC
City Clerk
Print Name:
Title:
* THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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AGREEMENT FOR
ARCHITECTURAL SERVICES
THIS AGREEMENT is made and entered into this 14-- day of 4 2009, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and BENTLEY ARCHITECTS ENGINEERS, INC., a Florida corporation, authorized to
conduct business in the State of Florida, whose address is 665 Warren Avenue of Longwood, Florida
32750 hereinafter referred to as "Architect
WITNESSETH:
WHEREAS, City has a need to obtain architectural Architecting services from time to time
on an as- needed, task oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS, Architect participated in the selection and negotiation process; and
WHEREAS, Architect is willing to provide such architectural services to the City under the
terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,
this Agreement shall terminate on the fifth (5th) anniversary of the Effective Date. The Parties shall
have the option to extend the term for one (1) additional five (5) year renewal. Such an extension
shall only be by written amendment to this Agreement.
1.2 The terms and conditions of any Task Order, as described in Section 2 hereof, shall
be as set forth in such Task Order. Any Task in effect at the termination of this Agreement shall
remain in effect until completion of said Task Order, and all of the terms and conditions of this
Agreement shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as amended from time to time, which shall constitute authorization for the Architect to
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provide the architectural services approved by Task Order by the City and is also sometimes referred
to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
c. "Architect" shall mean BENTLEY ARCHITECTS ENGINEERS, INC., and its
principals, employees, resident project representatives (and assistants).
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by Architect or
Architect's independent professional associates and consultants which are directly related to travel
and subsistence at the rates, and under the requirements of, Section 112.061, Florida Statutes, or any
other actual and direct expenses the City agrees to reimburse by Task Order.
f. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to the
procedure outlined in paragraph 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in paragraph 3.0 herein, which sets forth the Work to be
performed by Architect under this Agreement, and shall include, without the necessity of a cross
reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Architect and Architect agrees to perform
the Services outlined in this agreement for the stated fee arrangement. No prior or present
representations shall be binding upon any of the parties hereto unless incorporated in this
Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Architect to perform Architectural services on a "task"
basis. The City will communicate with Architect, verbally or in writing, a general description of the
task to be performed. The Architect will generate a detailed Scope of Work document, prepare a
Schedule, add a Lump Sum Fee with a detailed cost breakdown to accomplish the task, and send the
thus developed "Task Proposal" to the City. The detailed cost breakdown of the lump sum fee shall
consist of a list of major sub -tasks and a man-hour breakdown for all work to be performed. The
cost breakdown shall include all subconsultant work and the Task Proposal shall include the written
price proposals from all subconsultants. The detailed cost breakdown shall include a line item for
Reimbursable Expenses and the list of the expenses proposed to be eligible for reimbursement. The
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City will review the Task Proposal, and if the description is mutually acceptable, the parties will
enter into a written "Task Order The Scope of Services generally to be provided by the Architect
through a Task Order may include any civil Architecting services for any City project and may
contain written terms and conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Architect in the form of a letter and an executed
City purchase order. Upon receipt of the signed Task Order and the written notice to proceed from
the City, the Architect shall perform the services set forth in the Task Order.
2.2 The City reserves the right, at its discretion, to perform any services related to this
Agreement or to retain the services of other Architectural companies to provide professional
Architectural services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Architect. If such changes increase (additional services) or decrease or eliminate any amount of
Work, City and Architect will negotiate any change in total cost or schedule modifications. If the
City and the Architect approve any change, the Task Order will be modified in writing to reflect the
changes; and Architect shall be compensated for said services in accordance with the terms of
Article 5.0 herein. All change orders shall be authorized in writing by City's and Architect's
designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Architect shall perform services in conformance with the mutually agreed schedule
set forth in the negotiated Task Order. Architect shall complete all of said services in a timely
manner and will keep City apprised of the status of work on at least a monthly basis or as otherwise
reasonably requested by the City. Should Architect fall behind the agreed upon schedule, it shall
employ such resources so as to comply with the agreed -upon schedule.
4.2 No extension for completion of services shall be granted to Architect without City's
prior written consent, except as provided in Sections 3.1 and 19.1 herein.
4.3 Any cost caused by defective or ill -timed services shall be borne by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
ARCHITECT
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5.1 General Services. For basic and additional Services performed by Architect's
principals, employees, and resident project representatives (and assistants) pursuant to paragraphs
2.0 and 3.0, the City agrees to pay the Architect an amount equal to that agreed upon by the parties
for a particular Task Order. However, payment terms must be consistent with the terms and
conditions in this Agreement. To the extent that the payment terms in any Task Order conflict with
the payment terms set forth in this Agreement, the conflicting provisions of this Agreement shall
prevail.
5.2 Additional Services Performed by Professional Associates and Consultants. For
additional Services and Reimbursable Expenses of independent professional associates and
consultants employed by Architect to render additional Services pursuant to paragraphs 2.0 and 3.0,
the City agrees to pay the Architect an amount equal to that billed Architect by the independent
professional associates and consultants. Prior to payment by the City, the Architect shall submit to
the City a copy of any written invoice received by Architect from all independent professional
associates and consultants which clearly evidences the amount billed by the independent
professional associates and consultants for additional Services and any Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by Architect's principals,
employees, resident project representatives (and assistants), and independent professional associates
and consultants on behalf of the City in any litigation, arbitration, or other legal or interested
administrative proceeding in which the City is a named interested party, City agrees to pay the
Architect or independent professional associate or consultant, which is used as a witness or expert,
an amount equal to that agreed upon by the party for a particular Task Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by the
Florida Prompt Payment Act s.218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with in efficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs, or costs associated with delays
caused in whole or in part by the Architect.
5.6 Errors and Deficiencies. Architect shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Architect's services
provided under this Agreement.
5.7 Payment Offsets. To the extent that Architect owes the City any money under this
or any other Agreement with the City, the City shall have the right to withhold payment and
otherwise back charge the Architect for any money owed to the City by Architect.
5.8 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
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action arising out of the performance of this Agreement and Architect shall remain liable to the City
in accordance with applicable law for all damages to the City caused by Architect's performance of
any services provided under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed
entirely by the Architect, and in no event shall any claim relating thereto for an increase in
compensation be made or recognized. Architect shall not make any claim nor seek any damages of
any kind against the City for any delays, impacts, disruption or interruption caused by any delay.
Architect's remedy for a delay shall be an equitable extension of time to perform the Services for
each day of such delay that impacts the critical path of the schedule established under this
Agreement or specific Task Order.
6.0 RIGHT TO INSPECTION
6.1 City or its affiliates shall at all times have the right to review or observe the Services
performed by Architect.
6.2 No inspection, review, or observation shall relieve Architect of its responsibility
under this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Project Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the term of any Task Order entered into
under this Agreement. Architect's Project Manager and all other appropriate personnel shall attend
such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Architect shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, resident project representatives (and assistants)
while performing Services provided hereunder.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Architect reasonable access to the
City's premises, records, and files for purposes of fulfilling its obligations under this Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, Architect shall be
responsible for providing the types of insurance and limits of liability as set forth below.
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a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Architect shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Architect from claims of property damages and personal injury which may arise from any Services
performed under this Agreement whether such Services are performed by the Architect or by anyone
directly employed by or contracting with the Architect.
c. The Architect shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000 property
damage as the combined single limit for each occurrence to protect the Architect from claims for
damages for bodily injury, including wrongful death, as well as from claims from property damage,
which may arise from the ownership, use, or maintenance of owned and non -owned automobiles,
including rented automobiles whether such operations be by the Architect or by anyone directly or
indirectly employed by the Architect.
d. The Architect shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance and Employers' Liability Insurance in at least such amounts as are required
by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
policies included in article 10.1.b and 10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of the
policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal refused
until at least thirty (30) days' prior written notice has been given to the City, and the Architect by
certified mail, return receipt requested. All such insurance shall remain in effect until final payment.
In the event that the Architect shall fail to comply with the foregoing requirement, the City is
authorized, but in no event shall be obligated, to purchase such insurance, and the City may bill the
Architect. The Architect shall immediately forward funds to the City in full payment for said
insurance. It is expressly agreed that neither the provision of the insurance referred to in this
Agreement nor the City's acceptance of the terms, conditions or amounts of any insurance policy
shall be deemed a warranty or representation as to adequacy of such coverage. All insurance
coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or equivalent rating and rating
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service as reasonably determined by the City Manager) and licensed by the State of Florida to
engage in the business of writing of insurance. Unless agreed to by the City to the contrary, the City
shall be named on the insurance policies included in article 10.1.b and 10.1.c as "additional insured."
The Architect shall cause its insurance carriers, prior to the effective date of this agreement to
furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto,
the expiration dates of such policies, and a statement that no insurance under such policies will be
canceled without thirty (30) days' prior written notice to the City in compliance with other
provisions of this Agreement. Further copies of all relevant policies will be provided to the City
within thirty (30) days of the effective date of this agreement. If the City has any objection to the
coverage afforded by or other provision of the insurance required to be purchased and maintained by
the Architect in accordance with this Article on the basis of its not complying with the Agreement,
the City shall notify the Architect in writing thereof within thirty (30) days of the date of delivery of
such certificates to the City. For all Work performed pursuant to this Agreement, the Consultant
shall continuously maintain such insurance in the amounts, type, and quality as required by the
Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Architect to perform any Services hereunder shall fully comply with the
insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Architect shall comply with all requirements of federal, state, and local laws, rules,
regulations, standards, and/or ordinances applicable to the performance of Services under this
Agreement.
12.0 REPRESENTATIONS
12.1 Architect represents that the Services provided hereunder shall conform to all
requirements of this Agreement and any Task Order, shall be consistent with recognized and sound
Architecting practices and procedures; and shall conform to the customary standards of care, skill,
and diligence appropriate to the nature of the Services rendered. Architect shall perform as
expeditiously as is consistent with professional skill and care and the orderly progress of the
Services performed hereunder. Architect's services shall be consistent with the time periods
established under this Agreement or the applicable Task Order. Architect shall provide City with a
written schedule for services performed under each Task Order and such schedule shall provide for
ample time for the City to reviews, for the performance of consultants (if any), and for the approval
of submissions by authorities having jurisdiction over the services. The Architect's designated
representative shall have the authority to act on Architect's behalf with respect to the Services. In
addition, Architect's representative shall render decisions in a timely manner in order to avoid
unreasonable delay in the orderly and sequential progress of the Services. Except with the City's
knowledge and consent, the Architect shall not engage in any activity, or accept any employment,
interest or contribution that would reasonably appear to compromise the Architect's professional
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judgment with respect to the Services. The Architect shall review laws, codes, and regulations
applicable to Architect's Services. The Architect's services and design shall comply with all
applicable requirements imposed by all public authorities. The Architect represents and warrants
that it is familiar with, and accepts that it will perform the Services hereunder in a manner that
complies with all applicable requirements of law, codes, and regulations. Architect shall be
responsible for the professional quality, technical accuracy and the coordination of all plans, studies,
reports and other services furnished to the City under this Agreement. Unless this Agreement is
terminated by the City, or terminated by Architect for nonpayment of any proper invoices, or the
City exercises its rights to perform the Services pursuant to under Paragraph 2.2 herein, Architect
shall be responsible for the satisfactory and complete execution of the Services described in this
Agreement and any Task Order. The Architect represents that it will carefully examine the scope of
services required by the City in and Task Order, that it will investigate the essential requirements of
the services required by the Task Order, and that it will have sufficient personnel, equipment, and
material at its disposal top complete the services set forth in the Task Order in a good professional
and workmanlike manner in conformance with the requirements of this Agreement.
12.2 Architect represents that all principals, employees, and other personnel furnishing
such Services shall be qualified and competent to perform the Services assigned to them and that
such guidance given by and the recommendations and performance of such personnel shall reflect
their best professional knowledge and judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Architect guarantees that all Services performed under this Agreement shall be free
from claims of patent, copyright, and trademarks infringement. Notwithstanding any other provision
of this Agreement, Architect shall indemnify, hold harmless, and defend City, its officers, directors,
employees, agents assigns, and servants from and against any and all liability, including expenses,
legal or otherwise, for actual or alleged infringement of any patent, copyright, or trademark resulting
from the use of any goods, Services, or other item provided under this Agreement. Notwithstanding
the foregoing, Architect may elect to provide non infringing services.
14.0 DOCUMENTS
14.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Architect and its independent contractors and associates related, directly or indirectly, to this
Agreement, shall be deemed to be a Public Record whether in the possession or control of the City
or the Architect. Said record, document, computerized information and program, audio or video
tape, photograph, or other writing of the Architect is subject to the provisions of Chapter 119,
Florida Statutes, and may not be destroyed without the specific written approval of the City's City
manager. Upon request by the City, the Architect shall promptly supply copies of said public
records to the City. All books, cards, registers, receipts, documents, and other papers in connection
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with this Agreement shall at any and all reasonable times during the normal working hours of the
Architect be open and freely exhibited to the City for the purpose of examination and/or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Architect
and its independent contractors and associates pursuant to this Agreement or related exclusively to
the Services described herein shall be owned by the City and may be reused by the City for any
reason or purpose at anytime. However, the City agrees that the aforesaid documents are not
intended or represented to be suitable for reuse by the City or others on any undertaking other than
the Work outlined in this Agreement. Any reuse for an undertaking other than for the Work without
verification or adaptation by the Architect, or its independent contractors and associates if necessary,
to specific purposes intended will be at the City's sole risk and without liability or legal exposure to
the Architect.
b. Ownership of Documents. The City and the Architect agree that upon payment of
fees due to the Architect by the City for a particular design, report, inventory list, compilation,
drawing, specification, model, recommendation, schedule or otherwise, said design, report,
inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule
and other instrument produced by the Architect in the performance of this Agreement, or any Work
hereunder, shall be the sole property of the City, and the City is vested with all rights therein. The
Architect waives all rights of copyright in said design, report, inventory list, compilation, drawing,
specification, technical data, recommendation, model, schedule and other instrument produced by
the Architect in the performance of this Agreement, and hereby assigns and conveys the same to the
City whether in the possession or control of the Architect or not.
15.0 ASSIGNMENT
15.1 Architect shall not assign or subcontract this Agreement, any Task Order hereunder,
or any rights or any monies due or to become due hereunder without the prior, written consent of
City.
15.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Architect, Architect shall be fully responsible to City for all acts and/or omissions
performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Architect who shall take immediate steps to remedy the situation.
15.4 If any part of this Agreement is subcontracted by Architect, prior to the
commencement of any Work by the subcontractor, Architect shall require the subcontractor to
provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
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16.1 At all times during the term of this Agreement, Architect shall be considered an
independent contractor and not an employee of the City.
17.0 DEFAULT BY ARCHITECT AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Architect defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within thirty (30) calendar days after written notice
from the City specifying the default complained of, unless, however, the nature of the default is such
that it cannot, in the exercise of reasonable diligence, be remedied within thirty (30) calendar days,
in which case the Architect shall have such time as is reasonably necessary to remedy the default,
provided the Architect promptly takes and diligently pursues such actions as are necessary therefor;
or
17.3 Architect is adjudicated bankrupt or makes any assignment for the benefit of creditors
or Architect becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Architect has acted grossly negligent, as defined by general and applicable law, in
performing the Services hereunder; or
17.5 Architect has committed any act of fraud upon the City; or
17.6 Architect has made a material misrepresentation of fact to the City while performing
its obligations under this Agreement.
17.7 Architect has assigned this Agreement or any Task Order without the City's prior
written consent.
17.8 Notwithstanding the aforementioned, in the event of a default by Architect, the City
shall have the right to exercise any other remedy the City may have by operation of law, without
limitation, and without any further demand or notice.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written
notice to Architect, terminate this Agreement, without penalty, if: (a) Architect is in default pursuant
to paragraph 17.0 Default; (b) Architect makes a general assignment for the benefit of its creditors;
(c) Architect fails to comply with any condition or provision of this Agreement; or (d) Architect is
experiencing a labor dispute which threatens to have a substantial, adverse impact upon performance
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of this Agreement without prejudice to any other right or remedy City may have under this
Agreement. In addition, either party may terminate for convenience with no penalty at any time upon
thirty (30) days advance written notice. In the event of such termination, City shall be liable only for
the payment of all unpaid charges, determined in accordance with the provisions of this Agreement,
for Work properly performed prior to the effective date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or
regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the
party affected; provided that prompt notice of such delay is given by such party to the other and each
of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any
circumstance of Force Majeure remains in effect for sixty days, either party may terminate this
Agreement.
20.0 GOVERNING LAW VENUE
20.1 This Agreement is made and shall be interpreted, construed, governed, and enforced
in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be
Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision of this Agreement. The validity and enforceability of
the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
23.2 No waiver, consent, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by a duly authorized representative of each party hereto.
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24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than City and Architect.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Architect warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Architect, to solicit or secure this Agreement, and
that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than
a bona fide employee working solely for the Architect, any fee, commission, percentage, gift, or
other consideration contingent upon or resulting from the award or making of this Agreement.
26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Architect with
respect to the Services specified and all previous representations relative thereto, either written or
oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the non prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
30.0 DRAFTING
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30.1 City and Architect each represent that they have both shared equally in drafting this
Agreement and no party shall be favored or disfavored regarding the interpretation of this
Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed, postage prepaid to:
For Architect:
For City:
City of Winter Springs/ Public Works Department
Attention: Public Works Director
1126 E. State Road 434
Winter Springs, Florida 32708
(407) 327 -5989 FAX: (407) 327 -6695
31.2 Either party may change the notice address by providing the other party written
notice of the change.
32.0 SOVEREIGN IMMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, the City shall not be liable for any claim or
judgment, or portion thereof, to any one person for more than one hundred thousand dollars
($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other
claims or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY ARCHITECT
33.1 Architect hereby represents and warrants to the City the following:
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a. Architect is duly registered and licensed to do business in the State of Florida and is
in good standing under the laws of Florida, and is duly qualified and authorized to carry on the
functions and operations set forth in this Agreement.
b. The undersigned representative of Architect has the power, authority, and legal right
to execute and deliver this Agreement on behalf of Architect.
34.0 INDEMNIFICATION
34.1 Architect shall indemnify and hold harmless the City, and its officers (including its
City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentionally wrongful conduct of the Architect and other persons employed by the Architect in the
performance of the Agreement and any Task Order.
34.2 Architect shall also indemnify and hold harmless the City, and its officers (including
its City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by Architect's breach and caused by other
persons employed by the Architect in the performance of the Agreement and any Task Order.
The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
35.0 ARCHITECT'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Architect's personnel at a construction site, whether as
onsite representatives or otherwise, do not make Architect or Architect's personnel in any way
responsible for those duties that belong to City and/or the construction contractors or other entities,
and do not relieve the construction contractors or any other entity of their obligations, duties, and
responsibilities, including, but not limited to, all construction methods, means, techniques,
sequences, and procedures necessary for coordinating and completing all portions of the
construction work in accordance with the applicable construction contract documents and any health
or safety precautions required by such construction work. Architect and Architect's personnel have
no authority to exercise any control over any construction contractor or other entity or their
employees in connection with their work or any health or safety precautions and have no duty for
inspecting, noting, observing, correcting, or reporting on health or safety deficiencies of the
construction contractor(s) or other entity or any other persons at the site except Architect's own
personnel.
35.2 The presence of Architect's personnel at a construction site is for the purpose of
providing to City a greater degree of confidence that the completed work will conform generally to
the applicable contract documents and that the integrity of the design concept as reflected in the
contract documents has been implemented and preserved by the construction contractor(s).
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Architect neither guarantees the performance of the construction contractor(s) nor assumes
responsibility for construction contractor's failure to perform work in accordance with the contract
documents. For this Agreement only, construction sites include places of manufacture for materials
incorporated into the construction work, and construction contractors include manufacturers of
materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Architect is not
responsible for any errors or omissions in the information from others that is incorporated into the
record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Architect for itself and its Subconsultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement is presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from participation in any
architecture, landscape architecture, Architecting, or surveying activity by any Federal, State, or
local governmental commission, department, corporation, subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed
or otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Architect
and said signature shall bind the Architect to this Agreement. No further action is required by the
Architect to enter into this Agreement other than Architect's undersigned representative execution of
the Agreement.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY: ARCHITECT:
CITY OF WINTER SPRINGS
By X By :i
Print Name: Kevin L. Smith Print N. e: 60AP( V4
Title: City Manager Title: VP
ATTEST:
By:
Andrea Lam` o- Luaces, MMC
City Clerk
THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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AGREEMENT FOR
ARCHITECTURAL SERVICES
THIS AGREEMENT is made and entered into this day of 2009, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and CPH ENGINEERS, INC., a Florida corporation, authorized to conduct business in the State of
Florida, whose address is 1117 East Robinson Street of Orlando, Florida 32801 hereinafter referred
to as "Architect
WITNESSETH:
WHEREAS, City has a need to obtain architectural Architecting services from time to time
on an as- needed, task oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS, Architect participated in the selection and negotiation process; and
WHEREAS, Architect is willing to provide such architectural services to the City under the
terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,
this Agreement shall terminate on the fifth (5th) anniversary of the Effective Date. The Parties shall
have the option to extend the tern for one (1) additional five (5) year renewal. Such an extension
shall only be by written amendment to this Agreement.
1.2 The terms and conditions of any Task Order, as described in Section 2 hereof, shall
be as set forth in such Task Order. Any Task in effect at the termination of this Agreement shall
remain in effect until completion of said Task Order, and all of the terms and conditions of this
Agreement shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as amended from time to time, which shall constitute authorization for the Architect to
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provide the architectural services approved by Task Order by the City and is also sometimes referred
to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
c. "Architect" shall mean CPH ENGINEERS, INC, and its principals, employees,
resident project representatives (and assistants).
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by Architect or
Architect's independent professional associates and consultants which are directly related to travel
and subsistence at the rates, and under the requirements of, Section 112.061, Florida Statutes, or any
other actual and direct expenses the City agrees to reimburse by Task Order.
f. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to the
procedure outlined in paragraph 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in paragraph 3.0 herein, which sets forth the Work to be
performed by Architect under this Agreement, and shall include, without the necessity of a cross
reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Architect and Architect agrees to perform
the Services outlined in this agreement for the stated fee arrangement. No prior or present
representations shall be binding upon any of the parties hereto unless incorporated in this
Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Architect to perform Architectural services on a "task"
basis. The City will coimnunicate with Architect, verbally or in writing, a general description of the
task to be performed. The Architect will generate a detailed Scope of Work document, prepare a
Schedule, add a Lump Sum Fee with a detailed cost breakdown to accomplish the task, and send the
thus developed "Task Proposal" to the City. The detailed cost breakdown of the lump sum fee shall
consist of a list of major sub -tasks and a man-hour breakdown for all work to be performed. The
cost breakdown shall include all subconsultant work and the Task Proposal shall include the written
price proposals from all subconsultants. The detailed cost breakdown shall include a line item for
Reimbursable Expenses and the list of the expenses proposed to be eligible for reimbursement. The
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City will review the Task Proposal, and if the description is mutually acceptable, the parties will
enter into a written "Task Order The Scope of Services generally to be provided by the Architect
through a Task Order may include any civil Architecting services for any City project and may
contain written terms and conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Architect in the form of a letter and an executed
City purchase order. Upon receipt of the signed Task Order and the written notice to proceed from
the City, the Architect shall perform the services set forth in the Task Order.
2.2 The City reserves the right, at its discretion, to perform any services related to this
Agreement or to retain the services of other Architectural companies to provide professional
Architectural services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Architect. If such changes increase (additional services) or decrease or eliminate any amount of
Work, City and Architect will negotiate any change in total cost or schedule modifications. If the
City and the Architect approve any change, the Task Order will be modified in writing to reflect the
changes; and Architect shall be compensated for said services in accordance with the terms of
Article 5.0 herein. All change orders shall be authorized in writing by City's and Architect's
designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terns of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Architect shall perform services in conformance with the mutually agreed schedule
set forth in the negotiated Task Order. Architect shall complete all of said services in a timely
manner and will keep City apprised of the status of work on at least a monthly basis or as otherwise
reasonably requested by the City. Should Architect fall behind the agreed upon schedule, it shall
employ such resources so as to comply with the agreed -upon schedule.
4.2 No extension for completion of services shall be granted to Architect without City's
prior written consent, except as provided in Sections 3.1 and 19.1 herein.
4.3 Any cost caused by defective or ill -timed services shall be borne by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
ARCHITECT
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5.1 General Services. For basic and additional Services performed by Architect's
principals, employees, and resident project representatives (and assistants) pursuant to paragraphs
2.0 and 3.0, the City agrees to pay the Architect an amount equal to that agreed upon by the parties
for a particular Task Order. However, payment terms must be consistent with the terms and
conditions in this Agreement. To the extent that the payment terms in any Task Order conflict with
the payment terms set forth in this Agreement, the conflicting provisions of this Agreement shall
prevail.
5.2 Additional Services Performed by Professional Associates and Consultants. For
additional Services and Reimbursable Expenses of independent professional associates and
consultants employed by Architect to render additional Services pursuant to paragraphs 2.0 and 3.0,
the City agrees to pay the Architect an amount equal to that billed Architect by the independent
professional associates and consultants. Prior to payment by the City, the Architect shall submit to
the City a copy of any written invoice received by Architect from all independent professional
associates and consultants which clearly evidences the amount billed by the independent
professional associates and consultants for additional Services and any Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by Architect's principals,
employees, resident project representatives (and assistants), and independent professional associates
and consultants on behalf of the City in any litigation, arbitration, or other legal or interested
administrative proceeding in which the City is a named interested party, City agrees to pay the
Architect or independent professional associate or consultant, which is used as a witness or expert,
an amount equal to that agreed upon by the party for a particular Task Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by the
Florida Prompt Payment Act s.218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with in efficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs, or costs associated with delays
caused in whole or in part by the Architect.
5.6 Errors and Deficiencies. Architect shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Architect's services
provided under this Agreement.
5.7 Payment Offsets. To the extent that Architect owes the City any money under this
or any other Agreement with the City, the City shall have the right to withhold payment and
otherwise back charge the Architect for any money owed to the City by Architect.
5.8 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
action arising out of the performance of this Agreement and Architect shall remain liable to the City
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in accordance with applicable law for all damages to the City caused by Architect's performance of
any services provided under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed
entirely by the Architect, and in no event shall any claim relating thereto for an increase in
compensation be made or recognized. Architect shall not make any claim nor seek any damages of
any kind against the City for any delays, impacts, disruption or interruption caused by any delay.
Architect's remedy for a delay shall be an equitable extension of time to perform the Services for
each day of such delay that impacts the critical path of the schedule established under this
Agreement or specific Task Order.
6.0 RIGHT TO INSPECTION
6.1 City or its affiliates shall at all times have the right to review or observe the Services
performed by Architect.
6.2 No inspection, review, or observation shall relieve Architect of its responsibility
under this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Project Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the team of any Task Order entered into
under this Agreement. Architect's Project Manager and all other appropriate personnel shall attend
such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Architect shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, resident project representatives (and assistants)
while performing Services provided hereunder.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Architect reasonable access to the
City's premises, records, and files for purposes of fulfilling its obligations under this Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the tern of this Agreement, Architect shall be
responsible for providing the types of insurance and limits of liability as set forth below.
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a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Architect shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Architect from claims of property damages and personal injury which may arise from any Services
performed under this Agreement whether such Services are performed by the Architect or by anyone
directly employed by or contracting with the Architect.
c. The Architect shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000 property
damage as the combined single limit for each occurrence to protect the Architect from claims for
damages for bodily injury, including wrongful death, as well as from claims from property damage,
which may arise from the ownership, use, or maintenance of owned and non -owned automobiles,
including rented automobiles whether such operations be by the Architect or by anyone directly or
indirectly employed by the Architect.
d. The Architect shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance and Employers' Liability Insurance in at least such amounts as are required
by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the tenn of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
policies included in article 10.I.b and 10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of the
policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal refused
until at least thirty (30) days' prior written notice has been given to the City, and the Architect by
certified mail, return receipt requested. All such insurance shall remain in effect until final payment.
In the event that the Architect shall fail to comply with the foregoing requirement, the City is
authorized, but in no event shall be obligated, to purchase such insurance, and the City may bill the
Architect. The Architect shall immediately forward funds to the City in full payment for said
insurance. It is expressly agreed that neither the provision of the insurance referred to in this
Agreement nor the City's acceptance of the terms, conditions or amounts of any insurance policy
shall be deemed a warranty or representation as to adequacy of such coverage. All insurance
coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or equivalent rating and rating
service as reasonably determined by the City Manager) and licensed by the State of Florida to
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engage in the business of writing of insurance. Unless agreed to by the City to the contrary, the City
shall be named on the insurance policies included in article 10.1.b and 10.1.c as "additional insured."
The Architect shall cause its insurance carriers, prior to the effective date of this agreement to
furnish insurance certificates specifying the types and amounts of coverage in effect pursuant hereto,
the expiration dates of such policies, and a statement that no insurance under such policies will be
canceled without thirty (30) days' prior written notice to the City in compliance with other
provisions of this Agreement. Further copies of all relevant policies will be provided to the City
within thirty (30) days of the effective date of this agreement. If the City has any objection to the
coverage afforded by or other provision ofthe insurance required to be purchased and maintained by
the Architect in accordance with this Article on the basis of its not complying with the Agreement,
the City shall notify the Architect in writing thereof within thirty (30) days of the date of delivery of
such certificates to the City. For all Work performed pursuant to this Agreement, the Consultant
shall continuously maintain such insurance in the amounts, type, and quality as required by the
Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Architect to perform any Services hereunder shall fully comply with the
insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Architect shall comply with all requirements of federal, state, and local laws, rules,
regulations, standards, and/or ordinances applicable to the performance of Services under this
Agreement.
12.0 REPRESENTATIONS
12.1 Architect represents that the Services provided hereunder shall conform to all
requirements of this Agreement and any Task Order, shall be consistent with recognized and sound
Architecting practices and procedures; and shall conform to the customary standards of care, skill,
and diligence appropriate to the nature of the Services rendered. Architect shall perform as
expeditiously as is consistent with professional skill and care and the orderly progress of the
Services performed hereunder. Architect's services shall be consistent with the time periods
established under this Agreement or the applicable Task Order. Architect shall provide City with a
written schedule for services performed under each Task Order and such schedule shall provide for
ample time for the City to reviews, for the performance of consultants (if any), and for the approval
of submissions by authorities having jurisdiction over the services. The Architect's designated
representative shall have the authority to act on Architect's behalf with respect to the Services. In
addition, Architect's representative shall render decisions in a timely manner in order to avoid
unreasonable delay in the orderly and sequential progress of the Services. Except with the City's
knowledge and consent, the Architect shall not engage in any activity, or accept any employment,
interest or contribution that would reasonably appear to compromise the Architect's professional
judgment with respect to the Services. The Architect shall review laws, codes, and regulations
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applicable to Architect's Services. The Architect's services and design shall comply with all
applicable requirements imposed by all public authorities. The Architect represents and warrants
that it is familiar with, and accepts that it will perform the Services hereunder in a manner that
complies with all applicable requirements of law, codes, and regulations. Architect shall be
responsible for the professional quality, technical accuracy and the coordination of all plans, studies,
reports and other services furnished to the City under this Agreement. Unless this Agreement is
terminated by the City, or terminated by Architect for nonpayment of any proper invoices, or the
City exercises its rights to perform the Services pursuant to under Paragraph 2.2 herein, Architect
shall be responsible for the satisfactory and complete execution of the Services described in this
Agreement and any Task Order. The Architect represents that it will carefully examine the scope of
services required by the City in and Task Order, that it will investigate the essential requirements of
the services required by the Task Order, and that it will have sufficient personnel, equipment, and
material at its disposal top complete the services set forth in the Task Order in a good professional
and workmanlike manner in conformance with the requirements of this Agreement.
12.2 Architect represents that all principals, employees, and other personnel furnishing
such Services shall be qualified and competent to perform the Services assigned to them and that
such guidance given by and the recommendations and performance of such personnel shall reflect
their best professional knowledge and judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Architect guarantees that all Services performed under this Agreement shall be free
from claims of patent, copyright, and trademarks infringement. Notwithstanding any other provision
of this Agreement, Architect shall indemnify, hold harmless, and defend City, its officers, directors,
employees, agents assigns, and servants from and against any and all liability, including expenses,
legal or otherwise, for actual or alleged infringement of any patent, copyright, or trademark resulting
from the use of any goods, Services, or other item provided under this Agreement. Notwithstanding
the foregoing, Architect may elect to provide non infringing services.
14.0 DOCUMENTS
14.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Architect and its independent contractors and associates related, directly or indirectly, to this
Agreement, shall be deemed to be a Public Record whether in the possession or control of the City
or the Architect. Said record, document, computerized information and program, audio or video
tape, photograph, or other writing of the Architect is subject to the provisions of Chapter 119,
Florida Statutes, and may not be destroyed without the specific written approval of the City's City
manager. Upon request by the City, the Architect shall promptly supply copies of said public
records to the City. All books, cards, registers, receipts, documents, and other papers in connection
with this Agreement shall at any and all reasonable times during the normal working hours of the
Architect be open and freely exhibited to the City for the purpose of examination and/or audit.
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a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Architect
and its independent contractors and associates pursuant to this Agreement or related exclusively to
the Services described herein shall be owned by the City and may be reused by the City for any
reason or purpose at anytime. However, the City agrees that the aforesaid documents are not
intended or represented to be suitable for reuse by the City or others on any undertaking other than
the Work outlined in this Agreement. Any reuse for an undertaking other than for the Work without
verification or adaptation by the Architect, or its independent contractors and associates ifnecessary,
to specific purposes intended will be at the City's sole risk and without liability or legal exposure to
the Architect.
b. Ownership of Documents. The City and the Architect agree that upon payment of
fees due to the Architect by the City for a particular design, report, inventory list, compilation,
drawing, specification, model, recommendation, schedule or otherwise, said design, report,
inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule
and other instrument produced by the Architect in the performance of this Agreement, or any Work
hereunder, shall be the sole property of the City, and the City is vested with all rights therein. The
Architect waives all rights of copyright in said design, report, inventory list, compilation, drawing,
specification, technical data, recommendation, model, schedule and other instrument produced by
the Architect in the performance of this Agreement, and hereby assigns and conveys the same to the
City whether in the possession or control of the Architect or not.
15.0 ASSIGNMENT
15.1 Architect shall not assign or subcontract this Agreement, any Task Order hereunder,
or any rights or any monies due or to become due hereunder without the prior, written consent of
City.
15.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Architect, Architect shall be fully responsible to City for all acts and/or omissions
performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Architect who shall take immediate steps to remedy the situation.
15.4 If any part of this Agreement is subcontracted by Architect, prior to the
commencement of any Work by the subcontractor, Architect shall require the subcontractor to
provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
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16.1 At all times during the term of this Agreement, Architect shall be considered an
independent contractor and not an employee of the City.
17.0 DEFAULT BY ARCHITECT AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Architect defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within thirty (30) calendar days after written notice
from the City specifying the default complained of, unless, however, the nature of the default is such
that it cannot, in the exercise of reasonable diligence, be remedied within thirty (30) calendar days,
in which case the Architect shall have such time as is reasonably necessary to remedy the default,
provided the Architect promptly takes and diligently pursues such actions as are necessary therefor;
or
17.3 Architect is adjudicated bankrupt or makes any assignment for the benefit of creditors
or Architect becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Architect has acted grossly negligent, as defined by general and applicable law, in
performing the Services hereunder; or
17.5 Architect has committed any act of fraud upon the City; or
17.6 Architect has made a material misrepresentation of fact to the City while performing
its obligations under this Agreement.
17.7 Architect has assigned this Agreement or any Task Order without the City's prior
written consent.
17.8 Notwithstanding the aforementioned, in the event of a default by Architect, the City
shall have the right to exercise any other remedy the City may have by operation of law, without
limitation, and without any further demand or notice.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written
notice to Architect, terminate this Agreement, without penalty, if: (a) Architect is in default pursuant
to paragraph 17.0 Default; (b) Architect makes a general assignment for the benefit of its creditors;
(c) Architect fails to comply with any condition or provision of this Agreement; or (d) Architect is
experiencing a labor dispute which threatens to have a substantial, adverse impact upon performance
of this Agreement without prejudice to any other right or remedy City may have under this
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Agreement. In addition, either party may terminate for convenience with no penalty at any time upon
thirty (30) days advance written notice. In the event of such termination, City shall be liable only for
the payment of all unpaid charges, determined in accordance with the provisions ofthis Agreement,
for Work properly performed prior to the effective date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or
regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the
party affected; provided that prompt notice of such delay is given by such party to the other and each
of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any
circumstance of Force Majeure remains in effect for sixty days, either party may terminate this
Agreement.
20.0 GOVERNING LAW VENUE
20.1 This Agreement is made and shall be interpreted, construed, governed, and enforced
in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be
Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision ofthis Agreement. The validity and enforceability of
the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
23.2 No waiver, consent, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by a duly authorized representative of each party hereto.
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24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than City and Architect.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Architect warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Architect, to solicit or secure this Agreement, and
that it has not paid or agreed to pay any person, company, corporation, individual, or finn, other than
a bona fide employee working solely for the Architect, any fee, commission, percentage, gift, or
other consideration contingent upon or resulting from the award or making of this Agreement.
26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Architect with
respect to the Services specified and all previous representations relative thereto, either written or
oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the non prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
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30.0 DRAFTING
30.1 City and Architect each represent that they have both shared equally in drafting this
Agreement and no party shall be favored or disfavored regarding the interpretation of this
Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed, postage prepaid to:
For Architect:
C?f4 rig ;nee. Inc,
50 o F1414 -o,•c_ S+ t
SM t P1 3 2772
(1 3.?z
For City:
City of Winter Springs/ Public Works Department
Attention: Public Works Director
1126 E. State Road 434
Winter Springs, Florida 32708
(407) 327 -5989 FAX: (407) 327 -6695
31.2 Either party may change the notice address by providing the other party written
notice of the change.
32.0 SOVEREIGN IMMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, the City shall not be liable for any claim or
judgment, or portion thereof, to any one person for more than one hundred thousand dollars
($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other
claims or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
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33.0 CORPORATE REPRESENTATIONS BY ARCHITECT
33.1 Architect hereby represents and warrants to the City the following:
a. Architect is duly registered and licensed to do business in the State of Florida and is
in good standing under the laws of Florida, and is duly qualified and authorized to carry on the
functions and operations set forth in this Agreement.
b. The undersigned representative of Architect has the power, authority, and legal right
to execute and deliver this Agreement on behalf of Architect.
34.0 INDEMNIFICATION
34.1 Architect shall indemnify and hold harmless the City, and its officers (including its
City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentionally wrongful conduct of the Architect and other persons employed by the Architect in the
performance of the Agreement and any Task Order.
34.2 Architect shall also indemnify and hold harmless the City, and its officers (including
its City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by Architect's breach and caused by other
persons employed by the Architect in the performance of the Agreement and any Task Order.
The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
35.0 ARCHITECT'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Architect's personnel at a construction site, whether as
onsite representatives or otherwise, do not make Architect or Architect's personnel in any way
responsible for those duties that belong to City and/or the construction contractors or other entities,
and do not relieve the construction contractors or any other entity of their obligations, duties, and
responsibilities, including, but not limited to, all construction methods, means, techniques,
sequences, and procedures necessary for coordinating and completing all portions of the
construction work in accordance with the applicable construction contract documents and any health
or safety precautions required by such construction work. Architect and Architect's personnel have
no authority to exercise any control over any construction contractor or other entity or their
employees in connection with their work or any health or safety precautions and have no duty for
inspecting, noting, observing, correcting, or reporting on health or safety deficiencies of the
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construction contractor(s) or other entity or any other persons at the site except Architect's own
personnel.
35.2 The presence of Architect's personnel at a construction site is for the purpose of
providing to City a greater degree of confidence that the completed work will conform generally to
the applicable contract documents and that the integrity of the design concept as reflected in the
contract documents has been implemented and preserved by the construction contractor(s).
Architect neither guarantees the performance of the construction contractor(s) nor assumes
responsibility for construction contractor's failure to perform work in accordance with the contract
documents. For this Agreement only, construction sites include places of manufacture for materials
incorporated into the construction work, and construction contractors include manufacturers of
materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Architect is not
responsible for any errors or omissions in the information from others that is incorporated into the
record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Architect for itself and its Subconsultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement is presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from participation in any
architecture, landscape architecture, Architecting, or surveying activity by any Federal, State, or
local governmental commission, department, corporation, subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed
or otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Architect
and said signature shall bind the Architect to this Agreement. No further action is required by the
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Architect to enter into this Agreement other than Architect's undersigned representative execution of
the Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY: ARCHITECT:
CITY OF WINTER SPRINGS
CP goieneers
By: 4 B y
Print Name: Kevin L. Smith Print N e: 1 ✓Y' Zeatr- t-kf'
Title: City Manager Title: Chi &`1" r
ATTEST:
By: A
Andrea Lorizo- Luaces, MMC
City Clerk/
THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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