HomeMy WebLinkAbout2015 07 27 Consent 301 Consultant SelectionCOMMISSION AGENDA
ITEM 301
Informational
Consent
X
Public Hearings
Regular
July 27, 2015 KS KL
Regular Meeting City Manager Department
REQUEST:
Utility Department requesting City Commission approve CPH, Inc. as the top ranked
consultant for the design of Potable Water Quality Improvements under Request for
Qualifications (RFQ) #005 /15BF.
SYNOPSIS:
Request for Qualifications #005 /15BF was advertised in June 2015 for professional
engineering consulting services for the design of Potable Water Quality Improvements.
Staff received two submittals, interviewed both firms, and is recommending CPH, Inc. as
the top ranked firm.
CONSIDERATIONS:
. The Potable Water Quality Improvements project consists of professional engineering
services for the preliminary design, permitting, and the preparation of bid -ready final
construction drawings and specifications for Water Treatment Plant #1 improvements
for regulatory compliance. The engineering services include the design of the
equipment and /or process modifications to control disinfection by- products.
. In June 2015 the Utility Department advertised Request for Qualifications (RFQ)
#005 /15BF from professional engineering consultants for the design of Potable
Water Quality Improvements at Water Treatment Plant #1. The RFQ outlined the
services requested, submittal requirements, and evaluation criteria. The purpose of
the RFQ is to provide for the selection of one engineering consultant to complete an
initial task order for Water Treatment Plant #1 improvements for regulatory
Consent 301 PAGE 1 OF 3 - July 27, 2015
compliance, plus future related task orders for hydrogen sulfide and volatile organic
carbon removal.
The RFQ and subsequent selection process was performed in compliance with the
Consultant's Competitive Negotiation Act (CCNA, 287.055, Florida Statutes),
which is a statutorily prescribed procurement system for governments to perform a
competitive, qualifications -based selection of consulting engineers.
. A total of two (2) submittals from qualified engineering consultants were received by
the June 19, 2015 deadline. A selection committee comprised of three City Staff
members evaluated the firms based on the following criteria:
• Experience of the firm and proposed project team with disinfection by- product
control solutions
• Ability to meet project time requirements and approach to key project issues
• Familiarity with local groundwater quality and the City's water distribution
system
The two firms that responded to the RFQ, CPH, Inc. and Reiss Engineering, Inc.,
were short- listed and selected for interviews.
The two short- listed firms were interviewed by the selection committee on June 26,
2015. Based on the interviews and the written RFQ responses, the selection
committee is recommending the following final ranking:
1. CPH, Inc.
2. Reiss Engineering, Inc.
Exhibit A attached is the City's standard Engineering Services Agreement. All
services performed under the consultant section for RFQ #005 /15BF will be
performed as task orders under this standard agreement. All task orders will be
submitted for City Commission approval under separate agenda items. This agenda
item only covers the consultant selection.
FISCAL IMPACT:
This agenda item is only for the approval of Staff s recommended consultant ranking and
has no fiscal impact.
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 301 PAGE 2 OF 3 - July 27, 2015
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 City Commission approve CPH, Inc. as the top ranked consultant for
Potable Water Quality Improvements, Request for Qualifications (RFQ) #005 /15BF, and
authorize the City Manager and City Attorney to prepare and execute any and all applicable
documents.
ATTACHMENTS:
1. Exhibit A - Engineering Services Agreement (19 pages)
Consent 301 PAGE 3 OF 3 - July 27, 2015
EXHIBIT A
AGREEMENT FOR
ENGINEERING SERVICES
THIS AGREEMENT is made and entered into this day of 2015, 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_
business in the State of Florida,
referred to as "Engineer."
whose address is
WITNESSETH:
corporation, authorized to conduct
, hereinafter
WHEREAS, City has a need to obtain engineering and related consulting services for
: 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.
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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 CPH, 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
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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.
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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
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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 limitbodily 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 10.1.b and 10.1.c herein, as its interest may appear, from time to time.
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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 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 (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 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 (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 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
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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.
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
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
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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.
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
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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
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
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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 (30) 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
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 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 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 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
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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
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:
For City:
City of Winter Springs
Attention: Utility / Public Works Director
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
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claims or judgments paid by the State or its agencies and subdivisions arising out of the same
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
Proj ect or existing property, loss of profits, loss of production or business interruption; however, the
same may be caused.
34.4 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
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AN AGENT OF THE ENGINEER MAY NOT BE INDIVIDUALLY
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
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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
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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:
IRE
Print Name /Title:
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ATTEST:
By:
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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EXHIBIT "A"
SCOPE OF SERVICES
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