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2014 05 12 Consent 300 Engineering Services Agreement with VHBCOMMISSION AGENDA ITEM 300 REQUEST: Informational Consent X Public Hearings Regular May 12, 2014 KS KL Regular Meeting City Manager Department The Public Works Department requests the City Commission's authorization to enter into an Engineering Services Agreement with VHB, Inc. in the amount of $50,000, funded by the US 17 -92 CRA, for the design of streetscape improvements along SR 434 from US 17 -92 to Talmo Street. SYNOPSIS: The SR 434 Streetscape Improvements consists of various sidewalk, landscape, and hardscape improvements along both sides of SR 434 from US 17 -92 to Talmo Street. The design and future construction of the project is funded entirely by the US 17 -92 Community Redevelopment Agency (CRA). This agenda item is for the approval of an Engineering Services Agreement with VHB, who was the top ranked engineering consultant as recommended by Staff under Request for Qualifications (RFQ) 4001- 14 -1317. CONSIDERATIONS: . The SR 434 Streetscape Improvements project consists of various sidewalk, landscape, and hardscape improvements along both sides of SR 434 from US 17 -92 to Talmo Street. These improvements include: • Construction of new decorative sidewalks 6 to 8 -feet in width along both sides of SR 434 • Construction of two "gateway columns" located at the back of sidewalk, similar to the two gateway columns installed in 2012 as part of the Shepard Road Streetscape • Reconstruction of existing driveways for ADA compliance and aesthetics • Reconstruct curb ramps at various locations to meet current standards Consent 300 PAGE 1 OF 3 - May 12, 2014 c Landscaping and hardscaping at the US 17 -92 intersection and at various other locations between US 17 -92 and Talmo Street The SR 434 Streetscape Improvements are funded by the US 17 -92 Community Redevelopment Agency (CRA). Seminole County has committed to funding the design phase of the project in the amount of $50.000. The execution of the Engineering Services Agreement between the City and VHB is contingent upon the execution of a Memorandum of Agreement between the City and Seminole County for funding of the design phase of the project. Request for Qualifications 4RFQ- 001 -14 -BF was publicly posted in November 2013 seeking proposals from qualified engineering consultants. A selection committee comprised of City Staff reviewed the qualifications packages received and short- listed three firms for interviews: CPH, BESH, and VHB. The criteria used for selection included: experience of the firm and project team; awareness of and approach to key project issues; and familiarity with the applicable design criteria and project procedures. . Interviews of the three short - listed firms were conducted by the selection committee on January 17, 2014. Based on the interview and the committee's review of the written proposals, Staff recommends the following final ranking of the three short - listed firms: 1. VHB 2. CPH 3. BESH Staff worked with VHB to finalize the scope of work and to negotiate a total fee for the project in the amount of $50,000. Attachment 1 includes the Agreement, detailed scope of work, and fee proposal. . The design phase of the project is expected to begin in May 2014 with completion in approximately six (6) months. The construction phase is expected to be fully funded by the US 17 -92 CRA with construction planned for calendar year 2015. FISCAL IMPACT: The project is funded entirely by the US 17 -92 CRA and has no budget impact to the City. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas /Agenda Item information, Homeowner's Associations /Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the Consent 300 PAGE 2 OF 3 - May 12, 2014 City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: Staff recommends the Commission authorize entering into an Engineering Services Agreement with VHB, Inc. in the amount of $50,000 for design of SR 434 Streetscape Improvements, and authorize the City Manager and City Attorney to prepare and execute any and all applicable documents. The execution of the Engineering Services Agreement between the City and VHB is contingent upon the execution of a Memorandum of Agreement between the City and Seminole County for funding of the design phase of the proj ect. ATTACHMENTS: 1. Attachment 1 - Agreement for Engineering Services (24 pages) Consent 300 PAGE 3 OF 3 - May 12, 2014 AGREEMENT FOR ENGINEERING SERVICES THIS AGREEMENT is made and entered into this day of 2014, 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 ., a corporation, authorized to conduct business in the State of Florida, whose address is , hereinafter referred to as "Engineer". WITNESSETH: WHEREAS, City has a need to obtain engineering and related consulting services for streetscape improvements on S.R. 434 and Florida Avenue; and WHEREAS, the City has followed the competitive selection and negotiation process set forth in the Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes, and WHEREAS, Engineer participated in the selection and negotiation process; and WHEREAS, Engineer is willing to provide such engineering 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 This Agreement shall become effective on the Effective Date and shall remain in effect until the Engineer completes the services required by this Agreement to the full and complete satisfaction of the City. 1.2 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 Engineer to provide the engineering services set forth herein. Engineering Services Agreement City of Winter Springs and VHB, Inc. 1 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. "Engineer" shall mean VHB, 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 Engineer or Engineer'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 pursuant to this Agreement. L "Work" or "Services" shall be used interchangeably and shall include the performance of the work agreed to by the parties pursuant to this Agreement. 1.3 Engagement. The City hereby engages the Engineer and Engineer 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 scope of services under this Agreement is set forth in EXHIBIT "A." 2.2 Upon receipt of the signed written notice to proceed from the City, the Engineer shall perform the services set forth herein. 2.3 The City reserves the right, at its discretion, to perform any services related to this Agreement or to retain the services of other engineering companies to provide professional engineering 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 Engineer. If such changes increase (additional services) or decrease or eliminate any amount of Work, City and Engineer will negotiate any change in total cost or schedule modifications. If the City and the Engineer approve any change, the scope of services will be modified in writing to reflect the changes; and Engineer shall be compensated for said services in accordance with the Engineering Services Agreement City of Winter Springs and VHB, Inc. 2 terms of Article 5.0 herein. All change orders shall be authorized in writing by City's and Engineer's designated representative. 3.2 All Services shall be performed in strict accordance with the applicable professional standard of care and the terms of this Agreement insofar as they are applicable. 4.0 SCHEDULE 4.1 Engineer shall perform services in conformance with the mutually agreed schedule set forth in EXHIBIT "A" or as provided in writing after the Effective Date. Engineer shall keep City apprised of the status of work on at least a monthly basis or as otherwise reasonably requested by the City. Should Engineer 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 Engineer 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 ENGINEER 5.1 Compensation. For the performance and full completion of the Services specified herein, the City and Engineer agree that the Engineer shall be paid a lump sum total of $ , inclusive of all Services, materials, and expenses directly related to the Services. There shall be no other compensation due Engineer for the Services provided under this Agreement, unless specifically agreed to by the City in writing. The lump sum shall be paid in monthly installments based on a percent complete of work complete to date under each task listed in EXHIBIT "A." Payment requests shall be made to the City by submitting a proper invoice detailing the Services performed and the payment requested. Payment will not be made for tasks not performed or for portions of any tasks not performed. 5.2 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. 5.3 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 Engineer. Engineering Services Agreement City of Winter Springs and VHB, Inc. 3 5.4 Errors and Deficiencies. Engineer shall not invoice the City or seek any compensation from the City to correct or revise any errors or deficiencies in Engineer's services provided under this Agreement. 5.5 Payment Offsets. To the extent that Engineer 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 Engineer for any money owed to the City by Engineer. 5.6 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 Engineer shall remain liable to the City in accordance with applicable law for all damages to the City caused by Engineer's performance of any services provided under this Agreement. 5.7 Delay Remedy. The risk of any monetary damages caused by any delays in performing the Services under this Agreement are accepted and assumed entirely by the Engineer, and in no event shall any claim relating thereto for an increase in compensation be made or recognized. Engineer 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. Engineer'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. 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 Engineer. 6.2 No inspection, review, or observation shall relieve Engineer 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 this Agreement. Engineer's Project Manager and all other appropriate personnel shall attend such meetings as designated by City's Project Manager. 8.0 SAFETY 8.1 Engineer shall be solely and absolutely responsible and assume all liability for the Engineering Services Agreement City of Winter Springs and VHB, Inc. 4 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 Engineer 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, Engineer 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 Engineer shall maintain comprehensive general liability insurance in the minimum amount of $1,000,000 as the combined single limit for each occurrence and in the aggregate to protect the Engineer 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 Engineer or by anyone directly employed by or contracting with the Engineer. C. The Engineer 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 Engineer 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 Engineer or by anyone directly or indirectly employed by the Engineer. d. The Engineer 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 101b and 101c herein, as its interest may appear, from time to time. Engineering Services Agreement City of Winter Springs and VHB, Inc. 5 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 (3 0) days' prior written notice has been given to the City, and the Engineer by certified mail, return receipt requested. All such insurance shall remain in effect until final payment. In the event that the Engineer 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 Engineer. The Engineer 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 or approved 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 101b and 101c as "additional insured." The Engineer 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 (3 0) 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 Engineer in accordance with this Article on the basis of its not complying with the Agreement, the City shall notify the Engineer in writing thereof within thirty (3 0) 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 Engineer to perform any Services hereunder shall fully comply with the insurance provisions contained in this paragraph. 10.5 The City shall require its construction contractors for the Project (a) to defend, indemnify and hold harmless the City and the Engineer, their officers (including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorney's fees, arising out of any third party personal injury during the construction phase of any construction contract, and (b) to provide insurance acceptable to the City as security for the risk of third party personal injury, provided, however, the Engineer agrees to release and hold harmless the City and their employees, officers, and city attorneys regarding any claim that Engineer may file, or Engineering Services Agreement City of Winter Springs and VHB, Inc. 6 should have filed, against said insurance provided by construction contractors. The City does not represent, guarantee, or warrant that said insurance will cover any claims made by Engineer whatsoever. 11.0 COMPLIANCE WITH LAWS AND REGULATIONS 11.1 Engineer 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 as is consistent with the applicable professional standard of care. 11.2 Engineer shall utilize the U.S. Department of Homeland Security's E- Verify system, in accordance with the terms governing use of the system, to confirm the employment eligibility of: 1) all persons employed by the Engineer during the term of the Agreement to perform employment duties within Florida; and 2) all persons, including subcontractors, assigned by the Engineer to perform work under this Agreement. 12.0 REPRESENTATIONS 12.1 Engineer represents that the Services provided hereunder shall conform to all requirements of this Agreement, shall be consistent with recognized and sound engineering practices and procedures; and shall conform to the customary standards of care, skill, and diligence appropriate to the nature of the Services rendered. Engineer shall perform as expeditiously as is consistent with professional skill and care and the orderly progress of the Services performed hereunder. Engineer's services shall be consistent with the time periods established under this Agreement. Engineer shall provide City with a written schedule for services performed and such schedule shall provide for ample time for the City to review, for the performance of consultants (if any), and for the approval of submissions by authorities having jurisdiction over the services. The Engineer's designated representative shall have the authority to act on Engineer's behalf with respect to the Services. In addition, Engineer'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 Engineer shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Engineer's professional judgment with respect to the Services. The Engineer shall review laws, codes, and regulations applicable to Engineer's Services. The Engineer's services and design shall comply with all applicable requirements imposed by all public authorities. The Engineer 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. Engineer 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 Engineering Services Agreement City of Winter Springs and VHB, Inc. 7 Agreement is terminated by the City, or terminated by Engineer for nonpayment of any proper invoices, or the City exercises its rights to perform the Services pursuant to under Paragraph 2.2 herein, Engineer shall be responsible for the satisfactory and complete execution of the Services described in this Agreement. The Engineer represents that it will carefully examine the scope of services required by the City and that it will investigate the essential requirements of the services required, and that it will have sufficient personnel, equipment, and material at its disposal top complete the services set forth in the Agreement in a good professional and workmanlike manner in conformance with the requirements of this Agreement. 12.2 Engineer 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 professional knowledge and judgment. 13.0 GUARANTEE AGAINST INFRINGEMENT 13.1 Engineer 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, Engineer shall indemnify and hold harmless the City, its officers, directors, employees, and authorized agents assigns, from and against 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, Engineer may elect to provide non - infringing services. However, the foregoing shall not be applicable to any suit, claim or proceeding based on the infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by the City and not offered or recommended by Engineer to the City; or (ii) arising from modifications to the Project by the City or City's other contractors. 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 Engineer 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 Engineer. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Engineer is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City Manager. Upon request by the City, the Engineer 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 Engineer be open and freely exhibited to the City for the purpose of examination and /or audit. Engineering Services Agreement City of Winter Springs and VHB, Inc. 8 a. Reuse of Documents. All documents, including but not limited to, drawings, specifications, and data, or programs stored electronically or otherwise, prepared by the Engineer 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 Engineer, 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 Engineer. b. Ownership of Documents. The City and the Engineer agree that upon payment of fees due to the Engineer 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 Engineer 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 Engineer 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 Engineer in the performance of this Agreement, and hereby assigns and conveys the same to the City whether in the possession or control of the Engineer or not. 15.0 ASSIGNMENT 15.1 Engineer shall not assign or subcontract this Agreement, 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 Engineer, Engineer 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 Engineer who shall take immediate steps to remedy the situation. 15.4 If any part of this Agreement is subcontracted by Engineer, prior to the commencement of any Work by the subcontractor, Engineer shall require the subcontractor to provide City and its affiliates with insurance coverage as set forth by the City. 16.0 INDEPENDENT CONTRACTOR Engineering Services Agreement City of Winter Springs and VHB, Inc. 9 16.1 At all times during the term of this Agreement, Engineer shall be considered an independent contractor and not an employee of the City. 17.0 DEFAULT BY ENGINEER 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 Engineer 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 (3 0) calendar days, in which case the Engineer shall have such time as is reasonably necessary to remedy the default, provided the Engineer promptly takes and diligently pursues such actions as are necessary therefor; or 17.3 Engineer is adjudicated bankrupt or makes any assignment for the benefit of creditors or Engineer becomes insolvent, or is unable or unwilling to pay its debts; or 17.4 Engineer has acted grossly negligent, as defined by general and applicable law, in performing the Services hereunder; or 17.5 Engineer has committed any act of fraud upon the City; or 17.6 Engineer has made a material misrepresentation of fact to the City while performing its obligations under this Agreement. 17.7 Engineer has assigned this Agreement without the City's prior written consent. 17.8 Notwithstanding the aforementioned, in the event of a default by Engineer, 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 Either party may terminate this Agreement for convenience with no penalty at any time upon thirty (30) days advance written notice. The City may also, upon written notice to Engineer, terminate this Agreement, without penalty, if: (a) Engineer is in default pursuant to paragraph 17.0 Default; (b) Engineer makes a general assignment for the benefit of its creditors; (c) Engineer fails to comply with any condition or provision of this Agreement; or (d) Engineer is Engineering Services Agreement City of Winter Springs and VHB, Inc. 10 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 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 through and including 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 Maj eure 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. Engineering Services Agreement City of Winter Springs and VHB, Inc. 11 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 Engineer. 25.0 PROHIBITION AGAINST CONTINGENT FEES 25.1 Engineer warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Engineer, 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 Engineer, 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 Schedules, Attachments, Appendix's and Exhibits attached hereto, constitute the entire agreement between City and Engineer 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. Engineering Services Agreement City of Winter Springs and VHB, Inc. 12 30.0 DRAFTING 30.1 City and Engineer 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 Engineer: Mark Bertoncini, PE Vanasse Hangen Brustlin, Inc. 225 East Robinson Street Orlando, FL 32801 (407) 839 -4006 For City: City of Winter Springs/ Public Works Department Attention: City Engineer 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327 -7597 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 two hundred thousand dollars ($200,000.00), 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 Engineering Services Agreement City of Winter Springs and VHB, Inc. 13 incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement. 33.0 CORPORATE REPRESENTATIONS BY ENGINEER 33.1 Engineer hereby represents and warrants to the City the following: a. Engineer 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 Engineer has the power, authority, and legal right to execute and deliver this Agreement on behalf of Engineer. 34.0 INDEMNIFICATION 34.1 Engineer 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 Engineer and other persons employed by the Engineer in the performance of the Agreement. 34.2 Engineer 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 Engineer's breach and caused by other persons employed by the Engineer in the performance of the Agreement. 34.3 Neither party shall be liable to the other for any incidental, special, indirect or other consequential damages incurred due to the fault of the other party regardless of the nature of the fault or whether it was committed by the City or the Engineer, or their employees, sub - consultants, or subcontractors. Consequential damages include, without limitation, liability for loss of use of the Project or existing property, loss of profits, loss of production or business interruption; however, the same may be caused. 34.3 THE CITY ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT IS SUBJECT TO SECTION 558.0035, FLORIDA STATUTES WHICH PROVIDES THAT INDIVIDUAL DESIGN PROFESSIONALS EMPLOYED BY THE ENGINEER OR AN AGENT OF THE ENGINEER MAY NOT BE INDIVIDUALLY Engineering Services Agreement City of Winter Springs and VHB, Inc. 14 LIABLE FOR ECONOMIC DAMAGES RESULTING FROM NEGLIGENCE OCCURRING WITHIN THE COURSE AND SCOPE OF PROFESSIONAL SERVICES PERFORMED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT PROVIDED CERTAIN STATUTORY CONDITIONS ARE SATISFIED. The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate and independent indemnity provisions. 35.0 ENGINEER'S PERSONNEL AT CONSTRUCTION SITE 35.1 The presence or duties of Engineer's personnel at a construction site, whether as onsite representatives or otherwise, do not make Engineer or Engineer'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. Engineer and Engineer'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 Engineer's own personnel. 35.2 The presence of Engineer'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). Engineer 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 Engineering Services Agreement City of Winter Springs and VHB, Inc. 15 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. Engineer 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 Engineer 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, engineering, 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 Engineer and said signature shall bind the Engineer to this Agreement. No further action is required by the Engineer to enter into this Agreement other than Engineer's undersigned representative execution of the Agreement. 38.0 CONFLICTS 38.1 In the event of a conflict between any provision of this Agreement and any attachment or exhibit attached hereto, the provisions of this Agreement shall prevail unless the attachment or exhibit expressly provides otherwise by making specific reference to the paragraph and provision of this Agreement that is being replaced or modified. 39.0 ESTIMATES 39.1 Estimates, opinions of probable construction or implementation costs, financial evaluations, feasibility studies or economic analyses prepared by Engineer will represent its best Engineering Services Agreement City of Winter Springs and VHB, Inc. 16 Engineer to enter into this Agreement other than Engineer's undersigned representative execution of the Agreement. 38.0 CONFLICTS 38.1 In the event of a conflict between any provision of this Agreement and any attachment or exhibit attached hereto, the provisions of this Agreement shall prevail unless the attachment or exhibit expressly provides otherwise by making specific reference to the paragraph and provision of this Agreement that is being replaced or modified. 39.0 ESTIMATES 39.1 Estimates, opinions of probable construction or implementation costs, financial evaluations, feasibility studies or economic analyses prepared by Engineer will represent its best judgment based on its experience and available information. The City recognizes that Engineer has no control over costs of labor, materials, equipment or services furnished by others or over market conditions or contractors' methods of determining prices, and that bids and actual costs may vary from the Engineer's opinions, evaluations or studies. [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: ENGINEER: CITY OF WINTER SPRINGS Print Name /Title: ATTEST: By-9 City Clerk Pri op nt Name /Title : Engineering Services Agreement City of winter Springs and VHB, Inc. 17 EXHIBIT "A" SCOPE OF SERVICES Engineering Services Agreement City of Winter Springs and VHB, Inc. 18 EXHIBIT A SCOPE OF WORK SR 434/US 17 -92 GATEWAY IMPROVEMENTS DESCRIPTION OF WORK March 28, 2014 Revised April 22, 2014 The City of Winter Springs has requested that Vanasse Hangen Brustlin, Inc. (VHB) prepare a Scope of Work and Fee Proposal to provide professional engineering services to develop construction plans for streetscape improvements to the SR 434/US 17 -92 intersection. VHB will complete Final Construction plans for the limits of SR 434 as follows: 1. SR 434 — US 17 -92 to 200' east of Talmo Street Improvements along SR 434 include decorative sidewalk replacement, landscape elements, streetscape elements (gateway features and decorative crosswalks /fencing), ADA compliant curb ramps (all 4 quadrants), signing and markings, and public involvement. SCOPE OF SERVICES The following tasks have been identified in order to complete final construction plans for this project. It is anticipated that the project will include four (4) submissions as follows: 0 Concept Plans 0 60% Plans • 100% Plans • Final Plans A public meeting will be held upon approval of the concept plans by the City. The following tasks outline the design services for SR 434. TASK 1 - PROJECT ADMINISTRATION 1.1 Design Review Meetings /Schedule A concurrent design/review format is proposed as a means of eliminating and /or reducing design work stoppage during formal design reviews by the City. This concurrent design /review format will consist of, at a minimum, monthly design progress review meetings between the project design team and the City. Comments received during the design /review meetings shall be immediately incorporated during the design process. This process will keep the project moving and avoid loss of design time awaiting receipt of formal review comments. Minutes will be prepared and distributed by VHB within five (5) days of the meeting. VHB will prepare a project schedule summarizing project milestone dates. 1.2 Coordination with City of Longwood and Seminole County During the design phase, VHB will prepare for and attend up to two (2) project design meetings each with the City of Longwood and Seminole County staff to discuss the proposed streetscape improvements and to address any concerns that may be identified. TASK 2 - DATA COLLECTION 2.1 Review of Available Data and Plans With the help of City officials, previously accumulated data and records will be researched and reviewed. It is anticipated that the following material will be obtained: • Available Construction Plans; Page 1 of 6 (D � Fb"aw ,HOU" ,8rwtff% ,Iba. March 28, 2014 Revised April 22, 2014 • Existing Utility Location Plans; • Existing GIS Data (utility, storm, contours, etc). 2.2 Design Survey VHB will subcontract the services of Southeastern Survey and Mapping Corporation (SSMC) to conduct a limited topographic survey, right -of -way mapping, and to locate existing utilities for the limits of work as outlined in the Description of Work. Topographic coverage will include designated areas defined during the preliminary design phase. The following will be provided: • Locate improvements and utilities as marked by utility owners or their representatives Obtain spot elevations on natural ground and topographic detail Use of existing construction drawing to fill in areas outside limits of field survey. At a minimum, design survey and apparent right -of -way will be developed for the sidewalk, driveway, and curb ramp areas. 2.3 On -Site Review VHB will conduct an on -site field review of the project area to determine and observe roadway widths, vertical alignment, roadside clearance, note roadway appurtenances, pavement condition, intersection operations, etc. and use this information to assist in the development of the design. VHB will also review the design survey, provided by our subconsultant, SSMC, against existing field conditions. As part of the on -site review, we will work with the City to identify trees along the corridor that should not be impacted where possible. TASK 3 - TRAFFIC ENGINEERING 3.1 Traffic Signal Modifications The traffic signal pedestrian features may need to be modified to be in compliance with FDOT District 5 ADA guidelines and the new curb ramp configurations for each quadrant of the intersection. The extent of the work will not be known until FDOT reviews the proposed sidewalk improvements. Should design effort be required to modify the pedestrian features, this effort will be negotiated and be considered Additional Design Services. TASK 4 - ROADWAY DESIGN 4.1 Analysis VHB shall design the project using the applicable design standards City, FDOT, and AASHTO design criteria that are most appropriate. The design elements shall include the development of sidewalk grades as required, median modifications, driveway cross sections, and curb ramps. As part of this effort, VHB will identify property impacts along the corridor resulting from the sidewalk improvements such as minor grading impacts and encroachments. There is no intent to acquire property; however, VHB will identify locations where right -of -entry agreements may be required. The City will be responsible for obtaining right -of -entry agreements. These elements and decisions will be made during the concept phase of the project. 4.2 Construction Plans Upon approval of the concept plans, VHB will complete construction plans and specifications. The plans will be prepared in accordance with the City and FDOT Greenbook standards, policies, and procedures. VHB shall prepare the applicable final plan sheets, notes, and details to include the following: Page 2 of 6 C), „ 9dl ����'������� ��� �i ���, �����m 1r ,ill' V �m ����I,I i . March 28, 2014 Revised April 22, 2014 Plan Sheet Key Sheet General Notes Summary of Pay Items Typical Sections Land sca e /Hardsca e Plans Monument Plan /Details Cross Sections* Utility Adjustment Plan Maintenance of Traffic Signing and Pavement Markin *As needed. TASK 5 - LANDSCAPE AND HARDSCAPE DESIGN AESTHETICS 5.1 Preliminary Land scape /Streetscape Design Phase As a part of the roadway upgrade design for the City of Winter Springs, VHB will complete the preliminary landscape design for SR 434/US 17 -92 Gateway Streetscape. The following will be completed within the preliminary design phase: 5.1.1 Field Visit and Kick -Off Meeting VHB will begin by visiting the site and attending a project kick -off meeting with the City to discuss desired landscape program, budget, and maintenance and operation issues in order to determine a clear direction for the project goals and objectives. During this meeting, VHB will review and photo document the existing site conditions and surrounding context which will establish a framework for the development and design of the proposed landscape and hardscape improvements. 5.1.2 Preliminary Concept Design Options VHB's approach to the landscape planning and design includes the development of site - specific plan analyses, alternatives, and overall landscape concepts for street tree plantings and detail development of the gateway monuments. The gateway structure will have alternative locations based on available right -of -way and coordination with FDOT. Gateway features are anticipated to be two decorative columns located at the back of sidewalk or possibly in the median of SR 434. Based on the initial site investigation, VHB will prepare the two (2) preliminary landscape /streetscape and gateway concept design options. The preliminary design options will indicate the initial layout of proposed plantings and structures with consideration given to existing vegetation and surrounding edge conditions. Sidewalk replacement will consist of a new 6' to 8' wide sidewalk with decorative bands, with the sidewalk located immediately adjacent to the curb; all sidewalk to be in the right -of -way. Decorative crosswalks will be shown for all four existing crossings at the intersection. 5.1.3 Final Concept Plan Based on the City's feedback, VHB will refine the selected design options and prepare a final landscape /streetscape concept plan. The final plan will be integrated with the street and walk cross sections, stormwater, and existing utilities. As part of the final concept plan VHB will provide a recommended plant palette and comparable images as appropriate. VHB will update the estimate of probable costs for landscape elements. Page 3 of 6 � C), March 28, 2014 Revised April 22, 2014 5.2 Final Landscape Architectural Construction Plans Based on the approval of the Final Roadway Improvement Plans and City authorization, VHB will prepare landscape construction plans that incorporate the City's comments. 5.2.1 Landscape Planting Plans VHB will prepare final planting plans for construction that will show the location of proposed trees, shrubs and ground cover and will include a plant list indicating the botanical and common names of plant material as well as proposed sizes, planting and tree protection details. VHB will prepare the required technical specifications for the final planting plans, to include applicable plant schedule, planting details and staking criteria, soil testing requirements, minimum soil amendment criteria, and appropriate warranty periods. Technical specifications and notes will be included on the drawings and not separate specifications booklet. 5.2.3 Gateway Construction Plans VHB will prepare the necessary Gateway constructions plans and details for the following: 0 Grading and Layout Plans for Gateway structures and associated landscape. Construction Details for Gateway structures, specialty paving areas, pedestrian sidewalk treatments, bus shelter and associated hardscape furnishings illustrating dimensions, materials, finishes, and structural reinforcing. An electric line will be shown to the gateway structures for future lighting. TASK 6 - PERMITTING 6.1 Environmental Resource Permitting It is anticipated the project will not require an Environmental Resource Permit (EPP) through the SJRWMD. VHB will prepare and submit a request for exemption for the project. No wetland impacts are anticipated within the project. Permits are not anticipated from the Army Corps of Engineers. 6.2 FDOT Permit VHB will work with FDOT and prepare supporting documentation to obtain a construction permit from the FDOT. It is not anticipated the work beyond what will be included in the design plans prepared under this agreement and the required permit application will be required to secure the permit. 6.3 City of Winter Springs Building Permit Documentation VHB will provide the required supporting design documentation (i.e. plans, calculations, details, etc.) in the plan set in order for the contractor to apply for a building permit from the City of Winter Springs for the construction of the gateway structure. The Contractor will be responsible for preparing and submitting the building permit application, any fees, and construction related details /documents required to obtain the permit. TASK 7 - PUBLIC INVOLVEMENT VHB will prepare the exhibits, flyers, and mailings for the public meeting to be held. The City will be responsible for mailing any information. 7.1 Public Meeting Page 4 of 6 � C), March 28, 2014 Revised April 22, 2014 VHB will prepare for and attend one (1) public informational meeting. The forum will consist of a short presentation outlining the project limits, discuss existing conditions /deficiencies, identify project goals, solicit input, and present the proposed improvements. Exhibits will be prepared by VHB which will include an existing conditions map and proposed improvements. 7.2 Presentation to Commissioners VHB shall prepare for and support City staff in presenting the projects to the City Commission and /or the Community Redevelopment Agency (CRA) to inform them of the proposed improvement, project status, and estimated construction costs. 7.3 Public Agency Communication In addition to the above, contact will be made with the following agencies /offices to obtain their input relative to this project regarding existing concerns, proposed development, and /or land use changes: • Local Officials • Chief of Fire Department • Chief of Police Department • CRA TASK 8 - BID PACKAGE AND COST ESTIMATE 8.1 Bid Package VHB will prepare the required technical specifications associated with the improvements. The improvements will be designed in accordance with City of Winter Springs and FDOT design standards. VHB will assemble the required technical specifications and bid form to be incorporated into the bid package. The City will be responsible for the general conditions and assembling the bid package for advertising. The following will be included in the bid package: • Identify pay items and work categories for specifications • Download and review FDOT specifications for appropriate work efforts • Bid documents will include links to the FDOT and City website for appropriate specifications. • Technical special provisions, of required, will be included in the bid document. 8.2 Estimate of Probable Construction Costs Based on the final construction plans, VHB will develop quantities and prepare an Engineer's Estimate of the probable construction costs for the project. Unit costs will be based on current FDOT average unit bid prices. TASK 9 - POST DESIGN SERVICES VHB will provide the following services: 9.1 Certifications Upon completion of construction in accordance with the permitted plans, VHB will attend a final walk through with the City and review the construction as -built plans against the design plans in order to verify project conditions and certify the project to the City. Page 5 of 6 � C), March 28, 2014 Revised April 22, 2014 WORK NOT INCLUDED The following items are not included in this proposal. If any of the following work is required, it will be completed by supplemental agreement: 1. Hazardous Material Testing (including PSI and DSI) 2. Cultural Resource Survey 3. Right -of -Way Acquisition Services 4. Construction Administration Services 5. Preparation of Permit Applications associated Gopher Tortoises COMPENSATION VHB and Southeastern will perform the Scope of Services contained in this Agreement on a lump sum basis per task. The total lump sum labor fee for this Scope of Services is $50,000 allocated as follows: Task 1 Description Project Administration Lump Sum Fee $4,040 2 Data Collection $2,720 3 Traffic Engineering (TBD) $0 4 Roadway Design $600 5 Landscape and Hardscape Design Aesthetics $13,500 6 Permitting $4,400 7 Public Involvement $300 8 Bid Package and Cost Estimate $2,900 9 Post Design Services $920 10 Additional Design Services as Directed by the City $7,590 Subtotal Engineering $45,150 Expenses $850 SSMC — Survey (Budget placeholder) $4,000 Subtotal Expenses $4,850 TOTAL $50,000 *Not to exceed. Page 6 of 6 � C),