HomeMy WebLinkAboutKittelson and Associates, Inc Agreement for Engineering Services - 2020 01 28 (EXECUTED) AGREEMENT FOR
ENGINEERING SERVICES
THIS AGREEMENT is made and entered into this 'Z day of 2020,by
and between the CITY OF WINTER SPRINGS,FLORIDA, a Florida Municipa. orporation,
hereinafter referred to as"City",located at 1126 E.State Road 434,Winter Springs,Florida 32708,
and lson & Associates, Inc., a corporation authorized to conduct business in the State of
Florida,whose address is 225 East Robinson Street,Suite 355;Orlando,Florida 32801,hereinafter
referred to as "Engineer".
WITNESSETH:
WHEREAS, City has a need to obtain engineering and related consulting services for
completion of a SR434 Traffic Safety Study; 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
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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 Deffnitions. 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.
b. "Effective Date"shall be the to 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 Kittelson&Associates, Inc. and its principals, employees,
resident project representatives(and assistants).
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d. "Public Record" shall have the meaning given in Section 119.011(l), 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 112.06 1,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 forte 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.EXHYBIT ".A."
2.2 Upon receipt of the signed written notice to proceed from the City,the Engineer shall
perforin 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.
2.4 The City shall furnish Engineer available studies,reports and other data pertinent to
Engineees services;obtain or authorize Engineer to obtain or provide additional reports and data as
required; ftu-nish to Engineer services of others required for the performance of Engineer's services
hereunder, and Engineer shall be entitled to use and rely upon all such information and services
provided by the City or others in performing Engineef s services under this Agreement.
3.0 CHANGES INTHEM'..".0PE OF WORK
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3.1 City may make changes in the Services at any tune 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 all be compensated for said services in accordance with the
terms of Article 5.0 herein. All change orders shall be authorized in writing by Citys and Engineer's
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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 SCHED111,1111�,'
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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, itshall 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 out 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 bome by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
5.1 Compensation. For the performance and fall completion of the Services specified
herein, the City and Engineer agree that the Engineer all be paid a lump sum total of$27,530,
inclusive of all Services,materials,and expenses directly related tote Services. There shall be no
other compensation due Engineer forte 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 or complete to to ere task listed in EXIIIBIT "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 is 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, offifte 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.
5.4 Errors and Deficiencies. Engineer shall not invoice the City or seek any
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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 eta otherwise
back charge the Engineer for any on 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 oft is Agreement and Engineer shall remain liable tote 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.
5.8 Acceptance of Payment. Acceptance of final payment by the Engineer all
constitute a release of all claims for payment is the Engineer may have against the City for such
Services unless such claims are specifically reserved in writing and transmitted to the City by the
Engineer prior to its acceptance. Said final payment shall not,however,be a bar to any claims that
the City may have against the Engineer or to any remedies the City may pursue with respect to such
claims.
5.9 Payment Adjustments. It is agreed that payment by the City of any billing will not
constitute agreement as to the appropriateness of any its and that at the time of any final audit,all
required adjustments will be made and reflected in a final payment. In the event that such final audit
reveals an overpayment to the Engineer,the Engineer agrees to refund such overpayment to the City
within ninety (90) as of notice of any such overpayment. Such refund shall not constitute a
waiver by the Engineer for any claims relating to the validity of a finding by the City of
overpayment.
5.10 Partial Payments. Payment made to the Engineer shall not constitute acceptance
of the work or any portion thereof is is not in accordance with this Agreement. The City retains
the right to pay only that percentage of the total contract amount that equals the same percentage that
work completed bears to the total amount of work required to be performed under this Agreement.
If the City objects to all or any portion of any invoice,itshall notify the Engineer of the same within
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five (5) days from the to of receipt and shall pay that portion of the invoice not in dispute. The
parties shall immediately make every effort to settle the disputed portion.
6.0 RIGHT TOINSPECTION
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 FROGRESS MEEXING
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7.1 City's designated reject Manager may of periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the to 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
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 to of this Agreement City shall grant Engineer reasonable access to the
City's premises,records, and files for purposes of ful-filling its obligations under this Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the to 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
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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,
is 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 flus.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 or for the it pursuant to this Agreement.
10.2 Special Requirements. Current,valid insurance policies meeting the requirements
herein identified shall be maintained during the to of this Agreement. Renewal certificates all
be sent to the City thirty(30)days prior to any expiration date. There all also be a thirty(30)day
advance written notification tote 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.
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' or written notice has been given to the City, and the Engineer by
certified mail,return receipt requested. All such insurance all 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. Ile 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 byte 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 to 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
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such policies will be canceled without thirty(30)days'prior written notice to the City in compliance
with other provisions oft is Agreement. Further copies of all relevant policies will be provided to
the City within thirty(30)days oft 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 is of its not complying with the
Agreement,the City shall notify the Engineer in writing thereof within thirty(30)days of the to 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 forte Project (a) to defend,
indemnify and hold harmless the City and the Engineer, it 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 as of any
construction contract, and(b)to provide insurance acceptable tote City as security for the risk of
it 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
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 COMPLIANCEWITH 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 to governing use of the system,to confirm the employment eligibility of.
1)all persons employed by the Engineer during the to 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.
® RE.P.R.1 SENTATIONS
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
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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 tote Services. In addition, Engineer's representative all 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. Ile 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 of services famished tote City under this Agreement. Unless this
Agreement is terminated by the it , 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 famishing
such Services all 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 all reflect
their professional knowledge and judgment.
13.0
13.1 Engineer guarantees that all Services performed under this Agreement shall be ftee
from claims ofp ate nt,copyright,and trademarks infringement. Notwithstanding any other provision
of this Agreement, Engineer all 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
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the use of any goods, Services, or other it 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 tote Project by the City or City's other contractors.
14.0 DOCUMENTS
14.1 Public Records. Pursuant to Section 119.070 1,Florida Statutes and other applicable
public records laws, Engineer agrees that any records, documents, transactions, writings, papers,
letters, computerized information and programs, maps, books, audio or video tapes, films,
photographs,data processing software,writings or other material(s),regardless of the physical form,
characteristics,or means of transmission,of Engineer related,directly or indirectly,to the services
provided to the City under this Agreement and made or received pursuant to law or ordinance or in
connection with the transaction of official business by the City, may be deemed to be a public
record, whether in the possession or control of the City or the Engineer. Said records, documents,
transactions,writings,papers,letters,computerized information and programs,maps,books,audio
or video tapes,films,photographs,data processing software,writings or other material(s),regardless
of the physical form, characteristics, or means of transmission of Engineer are subject to the
provisions of Chapter 119,Florida Statutes, and may not be destroyed without the specific written
approval of the City's designated custodian of public records.
IF THE ENGINEER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119,FLORIDA STATUTES,TO THE ENGINEER'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS, THE CITY CLERK, AT (407-327-5955), city clerk departrnent@winterspringsfl.or g,
City Clerk's Office, 1126 E. State Road 434, Winter Springs, Florida 32708.
Engineer is required to and agrees to comply with public records laws. Engineer shall keep
and maintain all public records required by the City to perform the services as agreed to herein.
Engineer shall provide the City, on request from the City Clerk,copies of the requested records or
to the records to be inspected or copied within a reasonable time at a cost that does not exceed
the cost provided by law. Engineer shall ensure that public records that are exempt or confidential
and exempt from public records disclosure requirements are not disclosed except as authorized by
law forte duration of the Agreement term. Upon completion of the Agreement, Engineer shall
transfer to the City,at no cost,all public records in possession of the Engineer,provided the transfer
is requested in writing by the City Clerk. Upon such transfer,Engineer shall destroy any duplicate
public records that are exempt or confidential and exempt from public records disclosure
requirements.However,if the City Clerk does not request that the public records be transferred,the
Engineer shall continue to keep and maintain the public records upon completion of the Agreement
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and shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City Clerk, in a format that is
compatible with the information technology systems of the City. Should the City not possess public
records relating to this Agreement which are requested to be inspected or copied by the City or any
other person,the City shall immediately notify Engineer of the request and the Engineer shall then
provide such records to the City or allow the records to be inspected or copied within a reasonable
time. If the Engineer does not comply with a public records request, the City may enforce this
Section to the extent permitted by law. Engineer acknowledges that if the Engineer does not provide
the public records to the City within a reasonable time, the Engineer may be subject to penalties
under Section 119.10, Florida Statutes. The Engineer acknowledges that if a civil action is filed
against the Engineer to compel production of public records relating tothis Agreement, the court
may assess and award against Engineer the reasonable costs of enforcement, including reasonable
attorney fees.All public records in connection with this Agreement shall, at any and all reasonable
times during the normal business hours of the Engineer,be open and freely exhibited to the City for
the purpose of examination,audit,or otherwise. Failure by Engineer to grant such public access and
comply with public records laws and/or requests shall be grounds for immediate unilateral
cancellation of this Agreement by the City upon delivery of a written notice of cancellation. If the
Engineer fails to comply with this Section,and the City must enforce this Section,or the City suffers
a third party award of attorney's fees and/or damages for violating Chapter 119,Florida Statutes,due
to Engineer's failure to comply with this Section, the City shall collect from Engineer prevailing
party attorney's fees and costs, and any damages incurred by the City, for enforcing this Section
against Engineer. And, if applicable, the City shall also be entitled to reimbursement of all
attorneys' fees and damages is the City had to pay a it party because of the Engineer's failure
to comply with this Section. The terms and conditions set forth in this Section shall survive the
termination of this Agreement,
14.2. 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 or outlined in this Agreement. Any reuse for an undertaking of than for the or 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.
14.3. Ownership of Documents. The City and the Engineer agree that upon payment of
fees due to the Engineer by the City fora 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
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and of 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 not Engineer who shall take immediate steps to remedy the situation.
15.4 If any part of this Agreement is subcontracted by Engineer, prior tot
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 ]1131.1113EPE.NFRENT (.�UNT.Ft,.ACTOR
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16.1 At all times during the to of this Agreement, Engineer shall be considered an
independent contractor and not an employee of the City.
17.0 DEFAX.JILT11Y.E.NGINEER AND crry,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, out penalty, in the following
circumstances, each of is shall represent a default and breach of this Agreement:
a. Engineer defaults in the performance of any material covenant or condition of this
Agreement and does not cure such of 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
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b. 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
C. Engineer has acted grossly negligent, as defined by general and applicable lawin
perforining the Services hereunder; or
d. Engineer has committed any act of fraud upon the City; or
e. Engineer has made a material misrepresentation of fact to the City while performing
its obligations under this Agreement.
f. Engineer has assigned this Agreement without the City's prior written consent.
17.2 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 out any farther demand or notice.
18.0
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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, on written notice to
Engineer, terininate this Agreement, out penalty, if. (a) Engineer is in default pursuant to
paragraph 17.0 Default;(b)Engineer makes a general assignment forte 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
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 or properly
performed through and including teeffective date of termination.
19.0 FORCEMAJEURE
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(with the exception of Engineer's labor force);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 as, either party may terminate this Agreement.
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20.0 G 0YE'RNI'NG'[..,AW& 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 SE"1V11R'J15tAB.fl J`TY
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22.1 In the event any portion or part oft eo is 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 "IffArro'ER AMID El',Elic'nicri (W RE MEDUIB"s
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23.1 Waiver by either party of any terms, or provision oft i eement shall not be
considered a waiver oft t term, condition, or provision in the future.
23.2 No waiver,consent,or modification of any of the provisions of this Agreement all
be binding unless in writing and signed by a duly authorized representative of each party hereto.
24.0 "111MUMPAR.'17Y 11.1111C..MTS
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24.1 Nothing in this Agreement all be construed to give any rights or benefits to anyone
other than City and Engineer. No person ore i not a signatory to this Agreement shall be entitled
to rely on the Engineer's performance of its services hereunder,and no right to assert a claim against
the Engineer by assignment of indemnity rights or otherwise shall accrue to a third party as a result
of this Agreement or the performance of the Engineer's services hereunder.
25.0 '11FE1111i"S
............................................................................................................................................
25.1 Engineer warrants that it has not employed or retained any company or person,other
than a on 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 tea or making of this Agreement.
Engineering Services Agreement
City of Winter Springs and Kittelson& Associates,Inc.
13
26.0
26.1 This Agreement, including any Schedules, Attachments, Appendix's and Exhibits
attached hereto, constitute the entire agreement between City and Engineer with respect tot
Services specified and all previous representations relative thereto,either written or oral,are hereby
annulled and superseded.
27.0 NOJOINT VENTURE
..................................................... ......
-
27.1 Nothing herein all be deemed to create a joint venture or principal-agent
relationship between the parties,and neither party is authorized to,noT shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 AT'I"ORNEY'SFEES
......................................................................................................................
28.1 Should any litigation arise concerning this Agreement between the parties,the parties
agree to bear their own costs and attorney's fees, whether at settlement, trial or on appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts,each ofwhich 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 of 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:
Kittelson&Associates, Inc.
Attention: Ryan Cunninghan-4 P.E.
225 E. Robinson Street, to 355
Orlando, FL 32801
(407) 540-0555
Engineering Services Agreement
City of Winter Springs and Kittelson&Associates, Inc.
14
Emgw
City of Winter Springs
Utilities/Public Works Department
Attention: Utilities/Public Works Director
1126 E. State Road 434
Winter Springs, Florida 32708
(407) 327-5989
31.2 Either party may change the notice address by providing the other party written
notice oft e change.
31.3 Any Notice given as provided herein shall be deemed received as follows: if
delivered by personal service,on the date so delivered;if delivered to an overnight courier service,
on the business day immediately following delivery to such service; and if mailed, on the it
business day after mailing.
32.0 SOVERE.111[GN .I.M11 UNI,ry
............................................................................................
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
incident or occurrence, exceeds the sum oft ee hundred thousand dollars ($300,000.00). This
paragraph shall survive termination oft is Agreement.
33.0 CORPORAT'.F.'.,.R.E.P.RES.E.NTA."LrIO.NS.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
ftmctions 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.
Engineering Services Agreement
City of Winter Springs and Kittelson&Associates, Inc.
15
34.0 INDEMPilIFICATION,
34.1 Engineer shall inderrinify 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.
The Engineer specifically assumes potential liability for actions brought by the Engineer's
own employees against the City and,solely for the purpose of this indemnification and defense,the
Engineer specifically waives its entitlement, if any, to immunity under Section 440.11, Florida
Statutes. This waiver has been specifically and mutually negotiated by the parties.
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 of for any incidental, special,indirect or other
consequential damages incurred due tot fault of the other party regardless of the nature oft e
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 ofprofits,loss ofproduction or business interruption-however,the
same may be caused.
34.3 THE CITY ACKNOWLEDGES AND AGREES THAT
THIS AGREEMENT IS SUBJECT TO SECTION 558.00357
FLORIDA STATUTES WHICH PROVIDES THAT INDIVIDUAL
DESIGN PROFESSIONALS EMPLOYED BY THE ENGINEER OR
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.
Engineering Services Agreement
City of Winter Springs and Kittelson&Associates, Inc.
16
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 SI`.r
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 oft eir obligations, duties, and
responsibilities, including, but not limited to, all construction methods, means, techniques,
sequences, and procedures necessary for coordinating and completing all portions ofthe
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 oft
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 con actors) 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 P.ECO.RD.DRAWINGS
36.1 Record drawings, if required,will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location,type of various
components, or exact manner in which the project was finally constructed. Engineer is not
responsible for any errors or omissions in the information from others that is incorporated into the
record drawings.
37.0 ADDITIONALASSURANCES
37.1 The Engineer for itself and its Subcons ultants, if any, certifies that:
Engineering Services Agreement
City of Winter Springs and Kittelson&Associates, Inc.
17
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 offic&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 CON.F.L.ICT'S
................................................................................................
38.1 In the event of a conflict between any provision of this Agreement and any
attachment orexhibit 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 Es,rTMATES
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 fumished 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.
Engineering Services Agreement
City of Winter Springs and Kittelson&Associates, Inc.
18
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 WINTEA
.P S
Print Na, itl Print Name/Title. : t�
ATTEST:
.
..wm..
Ci_
Engineering Services Agreement
City of Winter Springs and Kittelson&Associates, Inc.
19
EXHIBIT "A.'9
.........................................................................-
SCOPE OF SERVICES
Engineering Services Agreement
City of Winter Springs and Kittelson&Associates, Inc.
20
225 East Robinson Street,Suite 355
Orlando,FL 32801
407.540.0555 407.540.0550
January 17, 2020 Project :24857
Mrs. Lena Rivera
City of Winter Springs
1126 East State Road SR 434
Winter Springs, FL 32708
RE. SR 434 Safety Study
Dear Lena:
Attached is a proposal in response to your request to conduct a safety study on SR 434 from Michael
Blake Boulevard to Creek Run Way. The attached scope of work identifies our proposed services for the
project. This scope was developed based on our discussions with you and our familiarity with the area.
We propose to conduct the services on a lump sum basis for $27,530 (detailed in Table 1 of the
attachment). We expect to complete Tasks 2-4 and submit the draft report within 10 weeks of formal
authorization. The commission presentation dates) in Task 1 and the final report in Task 5 will depend
upon coordination with the City.
This proposal (scope of work, budget, and timeline) is effective for sixty days. Future phases may be
developed at a later date to provide concept development and feasibility assessment of potential
improvements.
Ryan Cunningham will serve as the Project Manager and Jack Freeman will serve as the Project Principal
providing senior review and quality assurance.Any questions of a technical or contractual nature can be
directed to either of us.
Please review this proposal at your earliest convenience. Thank you for the opportunity to propose on
this project. If you have any questions, please call us at 407.373.1109.
Sincerely,
KITTELSON &ASSOCIATES, l .
Rya Cunningha
Associate Engineer
Project M 24957
SR 434 Safety Study Page.,2 of
Kittelson &Associates, Inc. will conduct a safety analysis along SR 434 from Michael Blake Boulevard to
Creek Run Way.
I ASK I N4 itEl:l�,111,, I hNGSS
Kittelson staff will attend up to one project meeting with City staff and up to two City Commission
meetings or workshops to present the results of the study.
FASK Z DA I"A COLI III CT III IN
Kittelson will obtain or collect the necessary data to complete the safety analysis. The data collection
efforts are summarized as follows:
Task 2a: Traffic Data
• Kittelson will utilize our sub-consultant, Quality Counts,to obtain 4 -hour speed counts at two
locations in the study area.The locations are expected to include:
• On SIR 434, east of Michael Blake Boulevard
• On SIR 434, west of Creek Run Way
• Kittelson will utilize our sub-consultant, Quality Counts,to obtain two-hour a.m. peak period
and two-hour p.m. peak period turning movement counts at the study intersections.These
counts will also include pedestrian and bicycle observations, where applicable.The following
intersections are anticipated to be included:
• SR 434 at Tuskawilla Road
• SR 434 at Michael Blake Boulevard
• SR 434 at Tuscora Road
• SR 434 at Creek Run Way
• Kittelson will obtain historical AADT volumes on SR 434 from the FDOT Florida Traffic
Information (FTI) DVD or from Seminole County's annual traffic count program.
• Kittelson will request from Seminole County the intersection signal timing data for the
signalized intersection in the study area.
Task 2b: Crash Data
0 Kittelson will request crash data from Seminole County's database in an electronic format(e.g.,
Excel)for the most recent 3-year study period, including the following details for each crash:
• Location (milepost, intersection)
• Severity(fatal, injury)
• Type (run-off-road, head-on,side-swipe, etc.),
• Vehicle movements
• Crash cause
• Roadway surface conditions
...............--..........................................................................................--,""I'll"..............."I'l""I'll""I'llIll""Il-""-,.....................
Kittelson&Associates,Inc. Orlando,Florida
Project M 24857
SR 434 Safety Study Page.3 of 4
........................................................—--—-"I.................. ............
o Number of vehicles involved
• Kittelson will supplement Seminole County's crash data with crash data from Signal Four
Analytics for the study area, if applicable.
• Kittelson will request copies of police reports for each crash over the study period.
ASK ,,��31, SAFETYANALYSIS
Kittelson will evaluate the historical crashes and the existing a.m. and p.m. peak hour traffic operations
at the study intersections.
Task 3a: Historical Crash Analysis
* Kittelson will review the crash reports and summarize the three-year crash data into crash types
and contributing factors.
* Kittelson will prepare a collision diagram showing all crashes along SR 434 within the study area.
Task 3b: Field Review Observations
0 Kittelson will conduct weekday a.m. and p.m. peak period field reviews while school is in
session, including:
• Document general observations in the field regarding driver behavior, apparent speed,
and potential vehicle conflicts related to movements at the study intersections.
• Photograph observed operational and/or safety issues for documentation.
Task 3c: Identify Potential Improvements
0 Kittelson will identify potential improvements along the corridor to reduce crash frequency and
severity.This may include speed management elements along the corridor,turn lane
improvements, roundabouts, or other intersection improvements.
TAS�K< 4: 1 N"l EII&ECTIGN OPERATIONS ANALYSIS
Kittelson will evaluate existing a.m. and p.m. peak hour traffic operations at the study intersections and
the potential operational impacts of proposed improvement(s) identified in Task 3c.
Task 4a: Intersection Capacity Analysis
0 Kittelson will conduct a.m. and p.m. peak hour intersection capacity analyses at the study
intersections.Synchro version 10 or HCS 7 will be used for the intersection analyses.
0 Kittelson will summarize the operational performance of the five study intersections by
reporting average delay, Level of Service (LOS),volume-to-capacity(v/c) ratios, and queue
lengths for each approach.
Task 4b: Proposed Improvements Screening
0 Kittelson will evaluate up to three proposed potential improvements identified in coordination
with City staff for further screening. Quantitative and/or qualitative methods may be used to
...................11 11 11 11 11 11 11 11 11 11 11 11''I'll...................................................................................................................................................................................... ..........................................................................
Kittelson&Associates,Inc. Orlando,Fladda
Project#.-24857
SR 434 Safety Study Page.4 of
............................................................................... .........................................................................................."I'l""I'll""I'll'll""I'll""I'll",'ll""I'll""II.......................................
screen potential improvements where applicable, including intersection capacity analyses, crash
modification factors, and engineering judgment.
TA&K 5 NC;111] 11 IIC.. DDCUIWIIIIIII]N A KI 11 YN
Kittelson will document the findings of the traffic study in a technical report.
Task 5a: Draft Report
0 Kittelson will prepare a draft technical report to summarize the findings and conclusions of the
operations analyses for submittal to the City for review.
Task 5b- Final Report
0 Based on the City's review and further discussion in Task 5 , Kittelson will prepare the final
technical report and submit to the City.
Task 5c: Develop Commission Presentation
* Kittelson will develop a presentation for use in the Commission meeting(s).
TASK 6: 1AS III NII I I Y A N D CO N C E P r DEVEI. ,C ICE MEITF (GR FIONAI )
The City may request Kittelson to conduct a feasibility assessment or further develop any preferred
concept(s) from Task I through 5. This may include conducting a signal warrant analyses and/or
developing concept plans and cost estimates for roundabout intersections. This additional work will be
scoped, budgeted, and authorized as part of a future amendment or separate work order after Task 5 is
completed.
Table I. Fee Estimate
To
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S R 4 3 4 S a f e E—U� L u m p S u m $27,5301
1 ..... ................. ................... ... ............. ....- .:—
..................................................................................................................................................................................... ........................................................
Kittelson&Associates,Inc. Orlando,Florida
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Kittelson&Associates,Inc.
225 East Robinson St
Orlando,FL 32801
(407)373-1105
L I rll;I P 1:::!I,rJf C f ES"I I 64ATE DATE 1/1.3/2020 OFUI)EIR DA-11 i:1 1111.3/2f)210
(1)11:UII F"" "kJ PROJECT NAME st 1I'-fl"Id l f R S 01H01:'11� 1''
151612 SIR 434 Winter Springs Net 30 Days Ryan Cunningham
QTY DESCRIPTION RATE TOTAL
2 High Volume-Turn Count $320.00 $640.00
1 Location(s)for time period(s):7:00 AM--9:00 AM-(Midweek)
-Tuskawilia Rd—SIR 434,Winter Springs,FL
I Location(s)for time period(s):4:00 PM 6:00 PM-(Midweek)
-Tuskawilla Rd--SIR 434,Winter Springs,FL
6 Standard-Turn Count $175.00 $1,050.00
3 Location(s)for time period(s):7:00 AM--9:00 AM-(Midweek)
-Michael Blake Blvd--SIR 434,Winter Springs,FL
-Tuscora Dr--SR 434 .W!nter.Springs,FL
-Creeks Run Way—SR 434,Winter Springs,FL
3 Location(s)for time period(s):4:00 PM—6:00 PM-(Midweek)
-Michael Blake Blvd--SIR 434,Winter Springs,FL
-Tuscora Dr—SR 434,Winter Springs,FL
-Creeks Run Way--SR 434,Winter Springs,FL V II
2I 4+Lanes-Speed,Volume $285.00 $570.00
2 Location(s)for time period(s):2 Days(Speed,Volume)
-SR-434 south of Michael Blake Blvd,Winter Springs,FL
-SR-434 west of Spring Ave,Winter Springs,FL
I Tube Setup Fee-Standard tube setup fee l $2110.00 $200.00
TOTAL $2,460-00
............ ——------
Balances unpaid by end of Payment term(listed above)vAlL be charged 1.5%interest per month
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