HomeMy WebLinkAbout2009 08 24 Consent 201 Approval of Staff's Recommended Consultants Landscape Architecture Continuing Srevices RFQ#011-09-KLCOMMISSION AGENDA
ITEM 201
August 24, 2009
Meeting
CONSENT X
INFORMATIONAL
PUBLIC HEARING
REGULAR
MG /llEPT `~ i~
Authorization
REQUEST: Public Works Department requesting the City Commission's approval of
Staffs recommended consultants for Landscape Architecture Continuing
Services, RFQ #011-09-KL
PURPOSE: The purpose of this agenda item is to request the City Commission's approval of
Staff's recommended consultants for Landscape Architecture Continuing
Services, RFQ #011-09-KL
CONSIDERATIONS:
The City currently does not have a Continuing Services Agreement for Landscape
Architecture. Landscape Architecture work generally has been performed by subconsultants to
either SRI or CPH as part of bigger projects. However, staff feels there is going to be a need to
implement some of the projects described below where it would be more efficient to contract
directly with a landscape architect.
On May 17, 2009 the Public Works Department issued a Request for Qualifications (RFQ
#011-09-KL) for professional architectural and landscape architectural consultants to provide
professional services to the City under a Continuing Services agreement. The purpose of the
RFQ was to select several consultants who would be available to perform a variety of scopes of
service including but not limited to:
1) Florida Friendly/Waterwise Landscape Demonstration Projects
2) Assistance Preparing Friendly/Waterwise Landscape Code Changes
3) Median Irrigation and Landscape
4) Parks and Recreation Master Planning and Design
August 24, 2009
Consent Agenda Item #201
Page 2 of 3
5) Pedestrian and Bicycle Master Planning
6) Urban Design and Placemaking
CONSULTANT SELECTION PROCESS:
• A Request for Qualifications (RFQ) was advertised on May 17, 2009. The RFQ outlined
the services requested, submittal requirements, and evaluation criteria.
• A total of ten (10) submittals were received by the June 19, 2009 deadline. The
following firms submitted their qualifications:
o Bellemo-Herbert & Company of Orlando
o Bonnett Design Group of Maitland
o Brad Smith Associates, Inc. of Melbourne
o Cornerstone Solutions Group of Dade City
o CPH Engineers, Inc. of Sanford
o Glatting Jackson Kercher Anglin, Inc. of Orlando
o HHI Design of Orlando
o Land Design Innovations of Winter Park
o MSCW Inc. of Orlando
o MSI of Orlando
• Staffs selection committee consisted of: Randy Stevenson, RLA, Community
Development Director; Eloise Sahlstrom, RLA, Senior Planner; Chuck Pula, Parks and
Recreation Director; and Kip Lockcuff, P.E., Utility /Public Works Director.
• Firms were evaluated based on the following criteria established by the selection
commlttee:
o Experience of the firm and proposed project team - 20%
o Work within Project Schedule and Budget Constraints - 20%
o Florida Friendly, Water Wise and Green Building Familiarity - 20%
o Creative Solutions to Challenges -15%
o Office Location -15%
o Familiarity with Winter Springs - 10%
August 24, 2009
Consent Agenda Item #201
Page 3 of 3
LANDSCAPE ARCHITECTURAL SERV ICES
irm
tevenson
ula
ahlstrom
ockcuff Total
Points
(Least is
Best
GLATTING JACKSON 1 2 2 1 6
BELLOMO HERBERT 2 1 2 2 7
MSCW 4 3 1 5 13
CPH 3 5 4 4 16
LDI 4 5 5 3 17
HHI DESIGN 7 4 6 9 26
MSI 6 7 9 7 29
BONNETT DESIGN
GROUP
8
8
10
6
32
BRAD SMITH ASSO. 10 9 7 8 34
CORNERSTONE 9 10 8 10 37
• Based on the selection committee's totalized rankings of the submittal packages, the
following three firms are recommended to be retained for Landscape Architectural
Continuing Services:
o Glatting Jackson Kercher Anglin, Inc.
o Bellemo-Herbert & Company
o MSCW Inc.
• With the City Commission's approval of the selected firms, the attached Continuing
Services Agreement will be executed for each firm. The duration is expected to be for
five years with a five year renewal option.
FUNDING:
No funding is required at this time.
RECOMMENDATION:
Staff recommends the City Commission approve the following consultants for
Landscape Architectural Continuing Services in response to RFQ #011-09-KL:
o Glatting Jackson Kercher Anglin, Inc. of Orlando
o Bellemo-Herbert & Company of Orlando
o MSCW Inc. of Orlando
ATTACHMENTS:
1. Landscape Architects Continuing Services Agreement
COMMISSION ACTION:
AGREEMENT FOR
LANDSCAPE ARCHITECTURAL SERVICES
THIS AGREEMENT is made and entered into this day of , 2009, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City", located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and [INSERT LANDSCAPE ARCHITECT COMPANY NAME], a corporation,
authorized to conduct business in the State of Florida, whose address is
hereinafter referred to as "Landscape Architect".
WITNESSETH:
WHEREAS, City has a need to obtain Landscape Architectural services from time to time on
an as-needed, task oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS, Landscape Architect participated in the selection and negotiation process; and
WHEREAS, Landscape Architect is willing to provide such Landscape Architectural
services to the City under the terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,
this Agreement shall terminate on the fifth (5th) anniversary of the Effective Date. The Parties shall
have the option to extend the term for one (1) additional five (5) year renewal. Such an extension
shall only be by written amendment to this Agreement.
1.2 The terms and conditions of any Task Order, as described in Section 2 hereof, shall be
as set forth in such Task Order. Any Task in effect at the termination of this Agreement shall remain
in effect until completion of said Task Order, and all of the terms and conditions of this Agreement
shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
Landscape Architect Continuing Services Agreement
City of Winter Springs and [INSERT LANDSCAPE ARCHITECT COMPANY NAME]
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a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as amended from time to time, which shall constitute authorization for the Landscape
Architect to provide the Landscape Architectural services approved by Task Order by the City and is
also sometimes referred to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
c. "Landscape Architect" shall mean [INSERT COMPANY NAME], and its principals,
employees, resident project representatives (and assistants).
d. "Public Record" shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by Landscape
Architect or Landscape Architect's independent professional associates and consultants which are
directly related to travel and subsistence at the rates, and under the requirements of, Section 112.061,
Florida Statutes, or any other actual and direct expenses the City agrees to reimburse by Task Order.
f. "Work" or "Services" shall be used interchangeably and shall include the performance
of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to the
procedure outlined in paragraph 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in paragraph 3.0 herein, which sets forth the Work to be
performed by Landscape Architect under this Agreement, and shall include, without the necessity of
across-reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Landscape Architect and Landscape
Architect agrees to perform the Services outlined in this agreement for the stated fee arrangement.
No prior or present representations shall be binding upon any of the parties hereto unless
incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Landscape Architect to perform Landscape
Architectural services on a "task" basis. The City will communicate with Landscape Architect,
verbally or in writing, a general description of the task to be performed. The Landscape Architect
will generate a detailed Scope of Work document, prepare a Schedule, add a Lump Sum Fee with a
detailed cost breakdown to accomplish the task, and send the thus developed "Task Proposal" to the
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City. The detailed cost breakdown of the lump sum fee shall consist of a list of major sub-tasks and
a man-hour breakdown for all work to be performed. The cost breakdown shall include all
subconsultant work and the Task Proposal shall include the written price proposals from all
subconsultants. The detailed cost breakdown shall include a line item for Reimbursable Expenses
and the list of the expenses proposed to be eligible for reimbursement. The City will review the Task
Proposal, and if the description is mutually acceptable, the parties will enter into a written "Task
Order". The Scope of Services generally to be provided by the Landscape Architect through a Task
Order may include any civil Landscape Architecting services for any City project and may contain
written terms and conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Landscape Architect in the form of a letter and
an executed City purchase order. Upon receipt of the signed Task Order and the written notice to
proceed from the City, the Landscape Architect shall perform the services set forth in the Task Order.
2.2 The City reserves the right, at its discretion, to perform any services related to this
Agreement or to retain the services of other Landscape Architectural companies to provide
professional Landscape Architectural services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Landscape Architect. If such changes increase (additional services) or decrease or eliminate any
amount of Work, City and Landscape Architect will negotiate any change in total cost or schedule
modifications. If the City and the Landscape Architect approve any change, the Task Order will be
modified in writing to reflect the changes; and Landscape Architect shall be compensated for said
services in accordance with the terms of Article 5.0 herein. All change orders shall be authorized in
writing by City's and Landscape Architect's designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Landscape Architect shall perform services in conformance with the mutually agreed
schedule set forth in the negotiated Task Order. Landscape Architect shall complete all of said
services in a timely manner and will keep City apprised of the status of work on at least a monthly
basis or as otherwise reasonably requested by the City. Should Landscape Architect fall behind the
agreed upon schedule, it shall employ such resources so as to comply with the agreed-upon schedule.
4.2 No extension for completion of services shall be granted to Landscape Architect
without City's prior written consent, except as provided in Sections 3.1 and 19.1 herein.
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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
LANDSCAPE ARCHITECT
5.1 General Services. For basic and additional Services performed by Landscape
Architect's principals, employees, and resident project representatives (and assistants) pursuant to
paragraphs 2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that
agreed upon by the parties for a particular Task Order. However, payment terms must be consistent
with the terms and conditions in this Agreement. To the extent that the payment terms in any Task
Order conflict with the payment terms set forth in this Agreement, the conflicting provisions of this
Agreement shall prevail.
5.2 Additional Services Performed by Professional Associates and Consultants. For
additional Services and Reimbursable Expenses of independent professional associates and
consultants employed by Landscape Architect to render additional Services pursuant to paragraphs
2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that billed Landscape
Architect by the independent professional associates and consultants. Prior to payment by the City,
the Landscape Architect shall submit to the City a copy of any written invoice received by Landscape
Architect from all independent professional associates and consultants which clearly evidences the
amount billed by the independent professional associates and consultants for additional Services and
any Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by Landscape Architect's
principals, employees, resident project representatives (and assistants), and independent
professional associates and consultants on behalf of the Ciry in any litigation, arbitration, or other
legal or interested administrative proceeding in which the City is a named interested party, City
agrees to pay the Landscape Architect or independent professional associate or consultant, which is
used as a witness or expert, an amount equal to that agreed upon by the party for a particular Task
Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by the
Florida Prompt Payment Act s.218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with in efficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs, or costs associated with delays caused
in whole or in part by the Landscape Architect.
5.6 Errors and Deficiencies. Landscape Architect 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 Landscape Architect's
services provided under this Agreement.
5.7 Payment Offsets. To the extent that Landscape Architect owes the City any money
under this or any other Agreement with the City, the City shall have the right to withhold payment
and otherwise back charge the Landscape Architect for any money owed to the City by Landscape
Architect.
5.8 Payment not Waiver. The City's payment of any invoice under this Agreement shall
not be construed or operate as a waiver of any rights under this Agreement or any cause of action
arising out of the performance of this Agreement and Landscape Architect shall remain liable to the
City in accordance with applicable law for all damages to the City caused by Landscape Architect's
performance of any services provided under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed entirely
by the Landscape Architect, and in no event shall any claim relating thereto for an increase in
compensation be made or recognized. Landscape Architect shall not make any claim nor seek any
damages of any kind against the City for any delays, impacts, disruption or interruption caused by
any delay. Landscape Architect's remedy for a delay shall be an equitable extension of time to
perform the Services for each day of such delay that impacts the critical path of the schedule
established under this Agreement or specific Task Order.
6.0 RIGHT TO INSPECTION
6.1 City or its affiliates shall at all times have the right to review or observe the Services
performed by Landscape Architect.
6.2 No inspection, review, or observation shall relieve Landscape Architect of its
responsibility under this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Proj ect Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the term of any Task Order entered into
under this Agreement. Landscape Architect's Project Manager and all other appropriate personnel
shall attend such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Landscape Architect shall be solely and absolutely responsible and assume all liability
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for the safety and supervision of its principals, employees, resident project representatives (and
assistants) while performing Services provided hereunder.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Landscape Architect reasonable
access to the City's premises, records, and files for purposes of fulfilling its obligations under this
Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, Landscape Architect shall be
responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Landscape Architect shall maintain comprehensive general liability insurance in
the minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Landscape Architect from claims of property damages and personal injury which may arise from any
Services performed under this Agreement whether such Services are performed by the Landscape
Architect or by anyone directly employed by or contracting with the Landscape Architect.
c. The Landscape Architect shall maintain comprehensive automobile liability insurance
in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000
property damage as the combined single limit for each occurrence to protect the Landscape Architect
from claims for damages for bodily injury, including wrongful death, as well as from claims from
property damage, which may arise from the ownership, use, or maintenance of owned and non-
owned automobiles, including rented automobiles whether such operations be by the Landscape
Architect or by anyone directly or indirectly employed by the Landscape Architect.
d. The Landscape Architect shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance and Employers' Liability Insurance in at least such amounts as are
required by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
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policies included in article 10.1.b and 10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of the
policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal refused
until at least thirty (30) days' prior written notice has been given to the City, and the Landscape
Architect by certified mail, return receipt requested. All such insurance shall remain in effect until
final payment. In the event that the Landscape Architect shall fail to comply with the foregoing
requirement, the City is authorized, but in no event shall be obligated, to purchase such insurance,
and the City may bill the Landscape Architect. The Landscape Architect shall immediately forward
funds to the City in full payment for said insurance. It is expressly agreed that neither the provision
of the insurance referred to in this Agreement nor the City's acceptance of the terms, conditions or
amounts of any insurance policy shall be deemed a warranty or representation as to adequacy of such
coverage. All insurance coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or
equivalent rating and rating service as reasonably determined by the City Manager) and licensed by
the State of Florida to engage in the business of writing of insurance. Unless agreed to by the City to
the contrary, the City shall be named on the insurance policies included in article 10.1.b and 10.1.c as
"additional insured." The Landscape Architect shall cause its insurance carriers, prior to the effective
date of this agreement to furnish insurance certificates specifying the types and amounts of coverage
in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance
under such policies will be canceled without thirty (30) days' prior written notice to the City in
compliance with other provisions of this Agreement. Further copies of all relevant policies will be
provided to the City within thirty (30) days of the effective date of this agreement. If the City has
any objection to the coverage afforded by or other provision of the insurance required to be
purchased and maintained by the Landscape Architect in accordance with this Article on the basis of
its not complying with the Agreement, the City shall notify the Landscape Architect in writing
thereof within thirty (30) days of the date of delivery of such certificates to the City. For all Work
performed pursuant to this Agreement, the Consultant shall continuously maintain such insurance in
the amounts, type, and quality as required by the Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Landscape Architect to perform any Services hereunder shall fully comply
with the insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Landscape Architect shall comply with all requirements of federal, state, and local
laws, rules, regulations, standards, and/or ordinances applicable to the performance of Services under
this Agreement.
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12.0 REPRESENTATIONS
12.1 Landscape Architect represents that the Services provided hereunder shall conform to
all requirements of this Agreement and any Task Order, shall be consistent with recognized and
sound Landscape Architecting practices and procedures; and shall conform to the customary
standards of care, skill, and diligence appropriate to the nature of the Services rendered. Landscape
Architect shall perform as expeditiously as is consistent with professional skill and care and the
orderly progress of the Services performed hereunder. Landscape Architect's services shall be
consistent with the time periods established under this Agreement or the applicable Task Order.
Landscape Architect shall provide City with a written schedule for services performed under each
Task Order and such schedule shall provide for ample time for the City to reviews, for the
performance of consultants (if any), and for the approval of submissions by authorities having
jurisdiction over the services. The Landscape Architect's designated representative shall have the
authority to act on Landscape Architect's behalf with respect to the Services. In addition, Landscape
Architect's representative shall render decisions in a timely manner in order to avoid unreasonable
delay in the orderly and sequential progress of the Services. Except with the City's knowledge and
consent, the Landscape Architect shall not engage in any activity, or accept any employment, interest
or contribution that would reasonably appear to compromise the Landscape Architect's professional
judgment with respect to the Services. The Landscape Architect shall review laws, codes, and
regulations applicable to Landscape Architect's Services. The Landscape Architect's services and
design shall comply with all applicable requirements imposed by all public authorities. The
Landscape Architect represents and warrants that it is familiar with, and accepts that it will perform
the Services hereunder in a manner that complies with all applicable requirements of law, codes, and
regulations. Landscape Architect shall be responsible for the professional quality, technical accuracy
and the coordination of all plans, studies, reports and other services furnished to the City under this
Agreement. Unless this Agreement is terminated by the City, or terminated by Landscape Architect
for nonpayment of any proper invoices, or the City exercises its rights to perform the Services
pursuant to under Paragraph 2.2 herein, Landscape Architect shall be responsible for the satisfactory
and complete execution of the Services described in this Agreement and any Task Order. The
Landscape Architect represents that it will carefully examine the scope of services required by the
City in and Task Order, that it will investigate the essential requirements of the services required by
the Task Order, and that it will have sufficient personnel, equipment, and material at its disposal top
complete the services set forth in the Task Order in a good professional and workmanlike manner in
conformance with the requirements of this Agreement.
12.2 Landscape Architect represents that all principals, employees, and other personnel
furnishing such Services shall be qualified and competent to perform the Services assigned to them
and that such guidance given by and the recommendations and performance of such personnel shall
reflect their best professional knowledge and judgment.
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13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Landscape Architect guarantees that all Services performed under this Agreement
shall be free from claims of patent, copyright, and trademarks infringement. Notwithstanding any
other provision of this Agreement, Landscape Architect shall indemnify, hold harmless, and defend
City, its officers, directors, employees, agents assigns, and servants from and against any and all
liability, including expenses, legal or otherwise, for actual or alleged infringement of any patent,
copyright, or trademark resulting from the use of any goods, Services, or other item provided under
this Agreement. Notwithstanding the foregoing, Landscape Architect may elect to provide non-
infringing services.
14.0 DOCUMENTS
14.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Landscape Architect and its independent contractors and associates related, directly or indirectly, to
this Agreement, shall be deemed to be a Public Record whether in the possession or control of the
City or the Landscape Architect. Said record, document, computerized information and program,
audio or video tape, photograph, or other writing of the Landscape Architect is subject to the
provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written
approval of the City's City manager. Upon request by the City, the Landscape Architect shall
promptly supply copies of said public records to the City. All books, cards, registers, receipts,
documents, and other papers in connection with this Agreement shall at any and all reasonable times
during the normal working hours of the Landscape Architect be open and freely exhibited to the City
for the purpose of examination and/or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Landscape
Architect and its independent contractors and associates pursuant to this Agreement or related
exclusively to the Services described herein shall be owned by the City and may be reused by the
City for any reason or purpose at anytime. However, the City agrees that the aforesaid documents
are not intended or represented to be suitable for reuse by the City or others on any undertaking other
than the Work outlined in this Agreement. Any reuse for an undertaking other than for the Work
without verification or adaptation by the Landscape Architect, or its independent contractors and
associates if necessary, to specific purposes intended will be at the City's sole risk and without
liability or legal exposure to the Landscape Architect.
b. Ownership of Documents. The City and the Landscape Architect agree that upon
payment of fees due to the Landscape Architect by the City for a particular design, report, inventory
list, compilation, drawing, specification, model, recommendation, schedule or otherwise, said design,
report, inventory list, compilation, drawing, specification, technical data, recommendation, model,
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schedule and other instrument produced by the Landscape Architect in the performance of this
Agreement, or any Work hereunder, shall be the sole property of the City, and the City is vested with
all rights therein. The Landscape Architect waives all rights of copyright in said design, report,
inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule
and other instrument produced by the Landscape Architect in the performance of this Agreement,
and hereby assigns and conveys the same to the City whether in the possession or control of the
Landscape Architect or not.
15.0 ASSIGNMENT
15.1 Landscape Architect shall not assignor subcontract this Agreement, any Task Order
hereunder, or any rights or any monies due or to become due hereunder without the prior, written
consent of City.
15.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Landscape Architect, Landscape Architect shall be fully responsible to City for all
acts and/or omissions performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Landscape Architect who shall take immediate steps to remedy the
situation.
15.4 If any part of this Agreement is subcontracted by Landscape Architect, prior to the
commencement of any Work by the subcontractor, Landscape Architect shall require the
subcontractor to provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, Landscape Architect shall be
considered an independent contractor and not an employee of the City.
17.0 DEFAULT BY LANDSCAPE ARCHITECT AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Landscape Architect defaults in the performance of any material covenant or
condition of this Agreement and does not cure such other default within thirty (30) calendar days
after written notice from the City specifying the default complained of, unless, however, the nature of
the default is such that it cannot, in the exercise of reasonable diligence, be remedied within thirty
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(30) calendar days, in which case the Landscape Architect shall have such time as is reasonably
necessary to remedy the default, provided the Landscape Architect promptly takes and diligently
pursues such actions as are necessary therefor; or
17.3 Landscape Architect is adjudicated bankrupt or makes any assignment for the benefit
of creditors or Landscape Architect becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Landscape Architect has acted grossly negligent, as defined by general and applicable
law, in performing the Services hereunder; or
17.5 Landscape Architect has committed any act of fraud upon the City; or
17.6 Landscape Architect has made a material misrepresentation offact to the City while
performing its obligations under this Agreement.
17.7 Landscape Architect has assigned this Agreement or any Task Order without the
City's prior written consent.
17.8 Notwithstandingthe aforementioned, in the event of a default by Landscape Architect,
the City shall have the right to exercise any other remedy the City may have by operation of law,
without limitation, and without any further demand or notice.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written notice
to Landscape Architect, terminate this Agreement, without penalty, if: (a) Landscape Architect is in
default pursuant to paragraph 17.0 Default; (b) Landscape Architect makes a general assignment for
the benefit of its creditors; (c) Landscape Architect fails to comply with any condition or provision of
this Agreement; or (d) Landscape Architect is experiencing a labor dispute which threatens to have a
substantial, adverse impact upon performance of this Agreement without prejudice to any other right
or remedy City may have under this Agreement. In addition, either party may terminate for
convenience with no penalty at any time upon thirty (30) days advance written notice. In the event of
such termination, City shall be liable only for the payment of all unpaid charges, determined in
accordance with the provisions of this Agreement, for Work properly performed prior to the effective
date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
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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.
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 Landscape Architect.
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25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Landscape Architect warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Landscape Architect, to solicit or
secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation,
individual, or firm, other than a bona fide employee working solely for the Landscape Architect, any
fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement.
26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Landscape Architect
with respect to the Services specified and all previous representations relative thereto, either written
or oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal-agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the non-prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement maybe executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
30.0 DRAFTING
30.1 City and Landscape Architect each represent that they have both shared equally in
drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of
this Agreement in the event of a dispute between the parties.
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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 Landscape Architect:
For Ci
City of Winter Springs/ Public Works Department
Attention: Public Works Director
1126 E. State Road 434
( ) Winter Springs, Florida 32708
(407) 327-5989 FAX: (407) 327-6695
31.2 Either party may change the notice address by providing the other party written notice
of the change.
32.0 SOVEREIGN IMMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, the City shall not be liable for any claim or
judgment, or portion thereof, to any one person for more than one hundred thousand dollars
($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other
claims or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY LANDSCAPE ARCHITECT
33.1 Landscape Architect hereby represents and warrants to the City the following:
a. Landscape Architect is duly registered and licensed to do business in the State of
Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to
carry on the functions and operations set forth in this Agreement.
b. The undersigned representative of Landscape Architect has the power, authority, and
legal right to execute and deliver this Agreement on behalf of Landscape Architect.
34.0 INDEMNIFICATION
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34.1 Landscape Architect shall indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentionally wrongful conduct of the Landscape Architect and other persons employed by the
Landscape Architect in the performance of the Agreement and any Task Order.
34.2 Landscape Architect shall also indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by Landscape Architect's breach
and caused by other persons employed by the Landscape Architect in the performance of the
Agreement and any Task Order.
The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
35.0 LANDSCAPE ARCHITECT'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Landscape Architect's personnel at a construction site,
whether as onsite representatives or otherwise, do not make Landscape Architect or Landscape
Architect's personnel in any way responsible for those duties that belong to City and/or the
construction contractors or other entities, and do not relieve the construction contractors or any other
entity of their obligations, duties, and responsibilities, including, but not limited to, all construction
methods, means, techniques, sequences, and procedures necessary for coordinating and completing
all portions of the construction work in accordance with the applicable construction contract
documents and any health or safety precautions required by such construction work. Landscape
Architect and Landscape Architect's personnel have no authority to exercise any control over any
construction contractor or other entity or their employees in connection with their work or any health
or safety precautions and have no duty for inspecting, noting, observing, correcting, or reporting on
health or safety deficiencies of the construction contractor(s) or other entity or any other persons at
the site except Landscape Architect's own personnel.
35.2 The presence of Landscape Architect's personnel at a construction site is for the
purpose of providing to City a greater degree of confidence that the completed work will conform
generally to the applicable contract documents and that the integrity of the design concept as
reflected in the contract documents has been implemented and preserved by the construction
contractor(s). Landscape Architect neither guarantees the performance of the construction
contractor(s) nor assumes responsibility for construction contractor's failure to perform work in
accordance with the contract documents. For this Agreement only, construction sites include places
of manufacture for materials incorporated into the construction work, and construction contractors
include manufacturers of materials incorporated into the construction work.
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36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Landscape Architect is
not responsible for any errors or omissions in the information from others that is incorporated into
the record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Landscape Architect for itself and its Subconsultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement is presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from participation in any
Landscape Architecture, landscape Landscape Architecture, Landscape Architecting, or surveying
activity by any Federal, State, or local governmental commission, department, corporation,
subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed or
otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Landscape
Architect and said signature shall bind the Landscape Architect to this Agreement. No further action
is required by the Landscape Architect to enter into this Agreement other than Landscape Architect's
undersigned representative execution of the Agreement.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY: LANDSCAPE ARCHITECT:
CITY OF WINTER SPRINGS
By:
Print Name:
Title:
ATTEST:
By:
Andrea Lorenzo-Luaces, MMC
City Clerk
By:
Print Name:
Title:
* THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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AGREEMENT FOR
LANDSCAPE ARCHITECTURAL SERVICES
THIS AGREEMENT is made and entered into this day of 2009, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and Glatting Jackson Kercher Anglin, Inc., a Florida corporation, authorized to conduct business in
the State, of Florida, whose address is 120 North Orange Avenue of Orlando, Florida 32801
hereinafter referred to as "Landscape Architect
WITNESSETH:
WHEREAS, City has a need to obtain Landscape Architectural services from time to time
on an as- needed, task oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS, Landscape Architect participated in the selection and negotiation process; and
WHEREAS, Landscape Architect is willing to provide such Landscape Architectural
services to the City under the terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,
this Agreement shall terminate on the fifth (5th) anniversary of the Effective Date. The Parties shall
have the option to extend the term for one (1) additional five (5) year renewal. Such an extension
shall only be by written amendment to this Agreement.
1.2 The terms and conditions of any Task Order, as described in Section 2 hereof, shall
be as set forth in such Task Order. Any Task in effect at the termination of this Agreement shall
remain in effect until completion of said Task Order, and all of the terms and conditions of this
Agreement shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as amended from time to time, which shall constitute authorization for the Landscape
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Architect to provide the Landscape Architectural services approved by Task Order by the City and is
also sometimes referred to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
c. "Landscape Architect" shall mean Glatting Jackson Kercher Anglin, 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 Landscape
Architect or Landscape Architect's independent professional associates and consultants which are
directly related to travel and subsistence at the rates, and under the requirements of, Section 112.061,
Florida Statutes, or any other actual and direct expenses the City agrees to reimburse by Task Order.
f. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to the
procedure outlined in paragraph 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in paragraph 3.0 herein, which sets forth the Work to be
performed by Landscape Architect under this Agreement, and shall include, without the necessity of
a cross reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Landscape Architect and Landscape
Architect agrees to perform the Services outlined in this agreement for the stated fee arrangement.
No prior or present representations shall be binding upon any of the parties hereto unless
incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Landscape Architect to perform Landscape
Architectural services on a "task" basis. The City will communicate with Landscape Architect,
verbally or in writing, a general description of the task to be performed. The Landscape Architect
will generate a detailed Scope of Work document, prepare a Schedule, add a Lump Sum Fee with a
detailed cost breakdown to accomplish the task, and send the thus developed "Task Proposal" to the
City. The detailed cost breakdown of the lump sum fee shall consist of a list of major sub -tasks and
a man-hour breakdown for all work to be performed. The cost breakdown shall include all
subconsultant work and the Task Proposal shall include the written price proposals from all
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subconsultants. The detailed cost breakdown shall include a line item for Reimbursable Expenses
and the list of the expenses proposed to be eligible for reimbursement. The City will review the
Task Proposal, and if the description is mutually acceptable, the parties will enter into a written
"Task Order The Scope of Services generally to be provided by the Landscape Architect through a
Task Order may include any civil Landscape Architecting services for any City project and may
contain written terms and conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Landscape Architect in the form of a letter and
an executed City purchase order. Upon receipt of the signed Task Order and the written notice to
proceed from the City, the Landscape Architect shall perform the services set forth in the Task
Order.
2.2 The City reserves the right, at its discretion, to perform any services related to this
Agreement or to retain the services of other Landscape Architectural companies to provide
professional Landscape Architectural services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Landscape Architect. If such changes increase (additional services) or decrease or eliminate any
amount of Work, City and Landscape Architect will negotiate any change in total cost or schedule
modifications. If the City and the Landscape Architect approve any change, the Task Order will be
modified in writing to reflect the changes; and Landscape Architect shall be compensated for said
services in accordance with the terms of Article 5.0 herein. All change orders shall be authorized in
writing by City's and Landscape Architect's designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Landscape Architect shall perform services in conformance with the mutually agreed
schedule set forth in the negotiated Task Order. Landscape Architect shall complete all of said
services in a timely manner and will keep City apprised of the status of work on at least a monthly
basis or as otherwise reasonably requested by the City. Should Landscape Architect fall behind the
agreed upon schedule, it shall employ such resources so as to comply with the agreed -upon schedule.
4.2 No extension for completion of services shall be granted to Landscape Architect
without City's prior written consent, except as provided in Sections 3.1 and 19.1 herein.
4.3 Any cost caused by defective or ill -timed services shall be borne by the party
responsible therefore.
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5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
LANDSCAPE ARCHITECT
5.1 General Services. For basic and additional Services performed by Landscape
Architect's principals, employees, and resident project representatives (and assistants) pursuant to
paragraphs 2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that
agreed upon by the parties for a particular Task Order. However, payment terms must be consistent
with the terms and conditions in this Agreement. To the extent that the payment terms in any Task
Order conflict with the payment terms set forth in this Agreement, the conflicting provisions of this
Agreement shall prevail.
5.2 Additional Services Performed by Professional Associates and Consultants. For
additional Services and Reimbursable Expenses of independent professional associates and
consultants employed by Landscape Architect to render additional Services pursuant to paragraphs
2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that billed Landscape
Architect by the independent professional associates and consultants. Prior to payment by the City,
the Landscape Architect shall submit to the City a copy of any written invoice received by
Landscape Architect from all independent professional associates and consultants which clearly
evidences the amount billed by the independent professional associates and consultants for
additional Services and any Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by Landscape Architect's
principals, employees, resident project representatives (and assistants), and independent
professional associates and consultants on behalf of the City in any litigation, arbitration, or other
legal or interested administrative proceeding in which the City is a named interested party, City
agrees to pay the Landscape Architect or independent professional associate or consultant, which is
used as a witness or expert, an amount equal to that agreed upon by the party for a particular Task
Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by the
Florida Prompt Payment Acts .218.70 et. seq. Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with in efficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs, or costs associated with delays
caused in whole or in part by the Landscape Architect.
5.6 Errors and Deficiencies. Landscape Architect shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Landscape Architect' s
services provided under this Agreement.
5.7 Payment Offsets. To the extent that Landscape Architect owes the City any money
under this or any other Agreement with the City, the City shall have the right to withhold payment
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and otherwise back charge the Landscape Architect for any money owed to the City by Landscape
Architect.
5.8 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
action arising out of the performance of this Agreement and Landscape Architect shall remain liable
to the City in accordance with applicable law for all damages to the City caused by Landscape
Architect's performance of any services provided under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed
entirely by the Landscape Architect, and in no event shall any claim relating thereto for an increase
in compensation be made or recognized. Landscape Architect shall not make any claim nor seek any
damages of any kind against the City for any delays, impacts, disruption or interruption caused by
any delay. Landscape Architect's remedy for a delay shall be an equitable extension of time to
perform the Services for each day of such delay that impacts the critical path of the schedule
established under this Agreement or specific Task Order.
6.0 RIGHT TO INSPECTION
6.1 City or its affiliates shall at all times have the right to review or observe the Services
performed by Landscape Architect.
6.2 No inspection, review, or observation shall relieve Landscape Architect of its
responsibility under this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Project Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the term of any Task Order entered into
under this Agreement. Landscape Architect's Project Manager and all other appropriate personnel
shall attend such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Landscape Architect shall be solely and absolutely responsible and assume all
liability for the safety and supervision of its principals, employees, resident project representatives
(and assistants) while performing Services provided hereunder.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Landscape Architect reasonable
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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, Landscape Architect shall
be responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Landscape Architect shall maintain comprehensive general liability insurance in
the minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Landscape Architect from claims of property damages and personal injury which may arise from any
Services performed under this Agreement whether such Services are performed by the Landscape
Architect or by anyone directly employed by or contracting with the Landscape Architect.
c. The Landscape Architect shall maintain comprehensive automobile liability insurance
in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000
property damage as the combined single limit for each occurrence to protect the Landscape Architect
from claims for damages for bodily injury, including wrongful death, as well as from claims from
property damage, which may arise from the ownership, use, or maintenance of owned and non
owned automobiles, including rented automobiles whether such operations be by the Landscape
Architect or by anyone directly or indirectly employed by the Landscape Architect.
d. The Landscape Architect shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance and Employers' Liability Insurance in at least such amounts as are
required by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
policies included in article 10.1.b and 10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of the
policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal refused
until at least thirty (30) days' prior written notice has been given to the City, and the Landscape
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Architect by certified mail, return receipt requested. All such insurance shall remain in effect until
final payment. In the event that the Landscape Architect shall fail to comply with the foregoing
requirement, the City is authorized, but in no event shall be obligated, to purchase such insurance,
and the City may bill the Landscape Architect. The Landscape Architect shall immediately forward
funds to the City in full payment for said insurance. It is expressly agreed that neither the provision
of the insurance referred to in this Agreement nor the City's acceptance of the terms, conditions or
amounts of any insurance policy shall be deemed a warranty or representation as to adequacy of
such coverage. All insurance coverage shall be with insurer(s) rated as A+ by Best's Rating Guide
(or equivalent rating and rating service as reasonably determined by the City Manager) and licensed
by the State of Florida to engage in the business of writing of insurance. Unless agreed to by the
City to the contrary, the City shall be named on the insurance policies included in article 10.1.b and
10.1.c as "additional insured." The Landscape Architect shall cause its insurance carriers, prior to the
effective date of this agreement to furnish insurance certificates specifying the types and amounts of
coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no
insurance under such policies will be canceled without thirty (30) days' prior written notice to the
City in compliance with other provisions of this Agreement. Further copies of all relevant policies
will be provided to the City within thirty (30) days of the effective date of this agreement. If the
City has any objection to the coverage afforded by or other provision of the insurance required to be
purchased and maintained by the Landscape Architect in accordance with this Article on the basis of
its not complying with the Agreement, the City shall notify the Landscape Architect in writing
thereof within thirty (30) days of the date of delivery of such certificates to the City. For all Work
performed pursuant to this Agreement, the Consultant shall continuously maintain such insurance in
the amounts, type, and quality as required by the Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Landscape Architect to perform any Services hereunder shall fully comply
with the insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Landscape Architect shall comply with all requirements of federal, state, and local
laws, rules, regulations, standards, and/or ordinances applicable to the performance of Services
under this Agreement.
12.0 REPRESENTATIONS
12.1 Landscape Architect represents that the Services provided hereunder shall conform to
all requirements of this Agreement and any Task Order, shall be consistent with recognized and
sound Landscape Architecting practices and procedures; and shall conform to the customary
standards of care, skill, and diligence appropriate to the nature of the Services rendered. Landscape
Architect shall perform as expeditiously as is consistent with professional skill and care and the
orderly progress of the Services performed hereunder. Landscape Architect's services shall be
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consistent with the time periods established under this Agreement or the applicable Task Order.
Landscape Architect shall provide City with a written schedule for services performed under each
Task Order and such schedule shall provide for ample time for the City to reviews, for the
performance of consultants (if any), and for the approval of submissions by authorities having
jurisdiction over the services. The Landscape Architect's designated representative shall have the
authority to act on Landscape Architect's behalf with respect to the Services. In addition, Landscape
Architect's representative shall render decisions in a timely manner in order to avoid unreasonable
delay in the orderly and sequential progress of the Services. Except with the City's knowledge and
consent, the Landscape Architect shall not engage in any activity, or accept any employment,
interest or contribution that would reasonably appear to compromise the Landscape Architect's
professional judgment with respect to the Services. The Landscape Architect shall review laws,
codes, and regulations applicable to Landscape Architect's Services. The Landscape Architect's
services and design shall comply with all applicable requirements imposed by all public authorities.
The Landscape Architect represents and warrants that it is familiar with, and accepts that it will
perform the Services hereunder in a manner that complies with all applicable requirements of law,
codes, and regulations. Landscape Architect shall be responsible for the professional quality,
technical accuracy and the coordination of all plans, studies, reports and other services furnished to
the City under this Agreement. Unless this Agreement is terminated by the City, or terminated by
Landscape Architect for nonpayment of any proper invoices, or the City exercises its rights to
perform the Services pursuant to under Paragraph 2.2 herein, Landscape Architect shall be
responsible for the satisfactory and complete execution of the Services described in this Agreement
and any Task Order. The Landscape Architect represents that it will carefully examine the scope of
services required by the City in and Task Order, that it will investigate the essential requirements of
the services required by the Task Order, and that it will have sufficient personnel, equipment, and
material at its disposal top complete the services set forth in the Task Order in a good professional
and workmanlike manner in conformance with the requirements of this Agreement.
12.2 Landscape Architect represents that all principals, employees, and other personnel
furnishing such Services shall be qualified and competent to perform the Services assigned to them
and that such guidance given by and the recommendations and performance of such personnel shall
reflect their best professional knowledge and judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Landscape Architect guarantees that all Services performed under this Agreement
shall be free from claims of patent, copyright, and trademarks infringement. Notwithstanding any
other provision of this Agreement, Landscape Architect shall indemnify, hold harmless, and defend
City, its officers, directors, employees, agents assigns, and servants from and against any and all
liability, including expenses, legal or otherwise, for actual or alleged infringement of any patent,
copyright, or trademark resulting from the use of any goods, Services, or other item provided under
this Agreement. Notwithstanding the foregoing, Landscape Architect may elect to provide non
infringing services.
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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
Landscape Architect and its independent contractors and associates related, directly or indirectly, to
this Agreement, shall be deemed to be a Public Record whether in the possession or control of the
City or the Landscape Architect. Said record, document, computerized information and program,
audio or video tape, photograph, or other writing of the Landscape Architect is subject to the
provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written
approval of the City's City manager. Upon request by the City, the Landscape Architect shall
promptly supply copies of said public records to the City. All books, cards, registers, receipts,
documents, and other papers in connection with this Agreement shall at any and all reasonable times
during the normal working hours of the Landscape Architect be open and freely exhibited to the City
for the purpose of examination and /or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Landscape
Architect and its independent contractors and associates pursuant to this Agreement or related
exclusively to the Services described herein shall be owned by the City and may be reused by the
City for any reason or purpose at anytime. However, the City agrees that the aforesaid documents
are not intended or represented to be suitable for reuse by the City or others on any undertaking
other than the Work outlined in this Agreement. Any reuse for an undertaking other than for the
Work without verification or adaptation by the Landscape Architect, or its independent contractors
and associates if necessary, to specific purposes intended will be at the City's sole risk and without
liability or legal exposure to the Landscape Architect.
b. Ownership of Documents. The City and the Landscape Architect agree that upon
payment of fees due to the Landscape Architect by the City for a particular design, report, inventory
list, compilation, drawing, specification, model, recommendation, schedule or otherwise, said
design, report, inventory list, compilation, drawing, specification, technical data, recommendation,
model, schedule and other instrument produced by the Landscape Architect in the performance of
this Agreement, or any Work hereunder, shall be the sole property of the City, and the City is vested
with all rights therein. The Landscape Architect waives all rights of copyright in said design, report,
inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule
and other instrument produced by the Landscape Architect in the performance of this Agreement,
and hereby assigns and conveys the same to the City whether in the possession or control of the
Landscape Architect or not.
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15.0 ASSIGNMENT
15.1 Landscape Architect shall not assign or subcontract this Agreement, any Task Order
hereunder, or any rights or any monies due or to become due hereunder without the prior, written
consent of City.
15.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Landscape Architect, Landscape Architect shall be fully responsible to City for all
acts and/or omissions performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Landscape Architect who shall take immediate steps to remedy the
situation.
15.4 If any part of this Agreement is subcontracted by Landscape Architect, prior to the
commencement of any Work by the subcontractor, Landscape Architect shall require the
subcontractor to provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, Landscape Architect shall be
considered an independent contractor and not an employee of the City.
17.0 DEFAULT BY LANDSCAPE ARCHITECT AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Landscape Architect defaults in the performance of any material covenant or
condition of this Agreement and does not cure such other default within thirty (30) calendar days
after written notice from the City specifying the default complained of, unless, however, the nature
of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within thirty
(30) calendar days, in which case the Landscape Architect shall have such time as is reasonably
necessary to remedy the default, provided the Landscape Architect promptly takes and diligently
pursues such actions as are necessary therefor; or
17.3 Landscape Architect is adjudicated bankrupt or makes any assignment for the benefit
of creditors or Landscape Architect becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Landscape Architect has acted grossly negligent, as defined by general and applicable
law, in performing the Services hereunder; or
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17.5 Landscape Architect has committed any act of fraud upon the City; or
17.6 Landscape Architect has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement.
17.7 Landscape Architect has assigned this Agreement or any Task Order without the
City's prior written consent.
17.8 Notwithstanding the aforementioned, in the event of a default by Landscape
Architect, the City shall have the right to exercise any other remedy the City may have by operation
of law, without limitation, and without any further demand or notice.
18.0 TERMLNATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written
notice to Landscape Architect, terminate this Agreement, without penalty, if: (a) Landscape
Architect is in default pursuant to paragraph 17.0 Default; (b) Landscape Architect makes a general
assignment for the benefit of its creditors; (c) Landscape Architect fails to comply with any
condition or provision of this Agreement; or (d) Landscape Architect is experiencing a labor dispute
which threatens to have a substantial, adverse impact upon performance of this Agreement without
prejudice to any other right or remedy City may have under this Agreement. In addition, either party
may terminate for convenience with no penalty at any time upon thirty (30) days advance written
notice. In the event of such termination, City shall be liable only for the payment of all unpaid
charges, determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or
regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the
party affected; provided that prompt notice of such delay is given by such party to the other and each
of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any
circumstance of Force Majeure remains in effect for sixty days, either party may terminate this
Agreement.
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20.0 GOVERNING LAW VENUE
20.1 This Agreement is made and shall be interpreted, construed, governed, and enforced
in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be
Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision of this Agreement. The validity and enforceability of
the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
23.2 No waiver, consent, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by a duly authorized representative of each party hereto.
24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than City and Landscape Architect.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Landscape Architect warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Landscape Architect, to solicit or
secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation,
individual, or firm, other than a bona fide employee working solely for the Landscape Architect, any
fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement.
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26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Landscape Architect
with respect to the Services specified and all previous representations relative thereto, either written
or oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the non prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
30.0 DRAFTING
30.1 City and Landscape Architect each represent that they have both shared equally in
drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of
this Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed, postage prepaid to:
For Landscape Architect: For City:
Shift/WI K Li manta c City of Winter Springs/ Public Works Department
120 (7/0411, Attention: Public Works Director
fI kurlo FC' 3281)/ 1126 E. State Road 434
(407) $43 G 5 P) Winter Springs, Florida 32708
901 $39. l'18 (407) 327 -5989 FAX: (407) 327 -6695
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31.2 Either party may change the notice address by providing the other party written
notice of the change.
32.0 SOVEREIGN IIVIMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City' s right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential Liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, the City shall not be liable for any claim or
judgment, or portion thereof, to any one person for more than one hundred thousand dollars
($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other
claims or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY LANDSCAPE ARCHITECT
33.1 Landscape Architect hereby represents and warrants to the City the following:
a. Landscape Architect is duly registered and licensed to do business in the State of
Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to
carry on the functions and operations set forth in this Agreement.
b. The undersigned representative of Landscape Architect has the power, authority, and
legal right to execute and deliver this Agreement on behalf of Landscape Architect.
34.0 INDEMNIFICATION
34.1 Landscape Architect shall indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentionally wrongful conduct of the Landscape Architect and other persons employed by the
Landscape Architect in the performance of the Agreement and any Task Order.
34.2 Landscape Architect shall also indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by Landscape Architect's breach
and caused by other persons employed by the Landscape Architect in the performance of the
Agreement and any Task Order.
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The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
35.0 LANDSCAPE ARCHITECT'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Landscape Architect's personnel at a construction site,
whether as onsite representatives or otherwise, do not make Landscape Architect or Landscape
Architect's personnel in any way responsible for those duties that belong to City and /or the
construction contractors or other entities, and do not relieve the construction contractors or any other
entity of their obligations, duties, and responsibilities, including, but not limited to, all construction
methods, means, techniques, sequences, and procedures necessary for coordinating and completing
all portions of the construction work in accordance with the applicable construction contract
documents and any health or safety precautions required by such construction work. Landscape
Architect and Landscape Architect's personnel have no authority to exercise any control over any
construction contractor or other entity or their employees in connection with their work or any health
or safety precautions and have no duty for inspecting, noting, observing, correcting, or reporting on
health or safety deficiencies of the construction contractor(s) or other entity or any other persons at
the site except Landscape Architect's own personnel.
35.2 The presence of Landscape Architect's personnel at a construction site is for the
purpose of providing to City a greater degree of confidence that the completed work will conform
generally to the applicable contract documents and that the integrity of the design concept as
reflected in the contract documents has been implemented and preserved by the construction
contractor(s). Landscape Architect neither guarantees the performance of the construction
contractor(s) nor assumes responsibility for construction contractor's failure to perform work in
accordance with the contract documents. For this Agreement only, construction sites include places
of manufacture for materials incorporated into the construction work, and construction contractors
include manufacturers of materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Landscape Architect is
not responsible for any errors or omissions in the information from others that is incorporated into
the record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Landscape Architect for itself and its Subconsultants, if any, certifies that:
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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
Landscape Architecture, landscape Landscape Architecture, Landscape Architecting, or surveying
activity by any Federal, State, or local governmental commission, department, corporation,
subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed
or otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Landscape
Architect and said signature shall bind the Landscape Architect to this Agreement. No further action
is required by the Landscape Architect to enter into this Agreement other than Landscape
Architect's undersigned representative execution of the Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY: LANDSCAPE ARCHITECT:
CITY OF WINTER SPRINGS G-la J Je f Ar911?),
By: j By i, I/ fG ,zgaz
Y• t o
Print Name: Kevin L. Smith Print Name: Sh fGV) k Lamanh
Title: City Manager Title: Iliti Presle
ATTE T:
By:
And TIi renzo- Luaces, MMC
City Clerk
THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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ACORD. CERTIFICATE OF LIABILITY INSURANCE OP ID RR DATE(MMIODIVYYY)
GLATT -1 09/14/09
RODUCER THIS CERTIFICATE 1S ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
.ykea Insurance, Inc WP HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
1 0. Box 2703 ALTER THE COVERAGE AFFORDED BY THE POUCIES BELOW.
(inter Park FL 32790
?hone:407- 644 -5722 Fax :407 628 -1363 INSURERS AFFORDING COVERAGE NAIC#
ISURED INSURER A: Trawlers Sudemsaty Company
INSURERS: Phoenix Insurance Company 25615
Glatting Jackson Karcher INStmERC CNA Insurance Co
Anglin, Inc. Companies
120 N. Orange Ave. INSURER D:
Orlando FL 32801
INSURER E:
:OVERAGES
THE POLICES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED 7D THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECTTO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDIflONS OF SUCH
POUCIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TR IRC TYPE OF INSURANCE POLICY NUMBER PDD14� M D D ATE NS Y) LIMITS
GENERAL LIABILITY EACH OCCURRENCE 51,000,000
A X X COMMERCIAL GENERAL L 6807244LS5ATCT 01/04/09 01/04/10 PRm11SES(Eao I ca�ee) 5 300, 000
I CLAIMS MADE fl OCCUR MED EXP (Any one person) S 10,000
X Contractural Liab PERSONAL &ADV INJURY 51,000,000
X Primary Non Con GENERAL AGGREGATE 52,000,000
GEM. AGGREGATE LIMIT APPLIES PER PRODUCTS COMP/OP AGG 52,000,000
POLICY 1 j n LOC
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT
51,000,000
A X ANYAUTO BA7248L295 01/04/09 01/04/10 (EeaeddeM)
ALL OWNED AUTOS
BODILY INJURY 5
SCHEDULED AUTOS (Per peiann)
X HIRED AUTOS BODILY INJURY
X NON -OWNED AUTOS (Peraeddent) 5
PROPERTY DAMAGE 5
(Per accident)
GARAGE LIABILITY AUTO ONLY EA ACCIDENT 5
1 ANY AUTO OTHER THAN EA ACC S
AUTO ONLY: AGG S
EXCESSIUMB RELLA LIABILITY EACH OCCURRENCE 34,000,000
A E OCCUR El CLAIMS MADE XSFCUP8090Y585 01/04/09 01/04/10 AGGREGATE 54,000,000
S
DEDUCTIBLE
RETENTION S
WORKERS COMPENSATION AND X ITORY LIMBS I I
B EJdPLOYERS'LIABILITY XACRUB8649Y22 01/01/09 01/01/10 E.LEACHACCIDENT 5500,000
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED? EL DISEASE EA EMPLOYEE 5500,000
H yyeess,, de under
SPECUU. PROVISIONS below E.L DISEASE POLICY LIMIT 5500,000
OTHER
C Professional Liab LAII004316242 01/04/09 01/04/10 Limit 1,000,000
Full Retro Aggregate 1,000,000
3ESCRIPTION OF OPERATIONS 1 LOCATIONS f VEHICLES f EXCLUSIONS ADDED BY ENDORSEMENT 1 SPECIAL PROVISIONS
Ref: City of Winter Springs is listed as additional insured as respects to
General Liability.
CERTIFICATE HOLDER CANCELLATION
WINT112 SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO OD SO SHALL
City of Winter Springs IMPOSE NO OBUGATION OR UAaIUTY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
1126 E. State Road 434
Winter Springs FL 32708 REPRESENTATIVES.
AIJTi�Li TATN
ACORD 25 (2001/08) ACORD CORPORATION 1988
AGREEMENT FOR
LANDSCAPE ARCHITECTURAL SERVICES
THIS AGREEMENT is made and entered into this day of 2009, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and Bellemo- Herbert Company, a Florida corporation, authorized to conduct business in the State
of Florida, whose address is 801 North Orange Avenue of Orlando, Florida 32801, hereinafter
referred to as "Landscape Architect
WITNESSETH:
WHEREAS, City has a need to obtain Landscape Architectural services from time to time
on an as- needed, task oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS, Landscape Architect participated in the selection and negotiation process; and
WHEREAS, Landscape Architect is willing to provide such Landscape Architectural
services to the City under the terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,
this Agreement shall terminate on the fifth (5th) anniversary of the Effective Date. The Parties shall
have the option to extend the term for one (1) additional five (5) year renewal. Such an extension
shall only be by written amendment to this Agreement.
1.2 The terms and conditions of any Task Order, as described in Section 2 hereof, shall
be as set forth in such Task Order. Any Task in effect at the termination of this Agreement shall
remain in effect until completion of said Task Order, and all of the terms and conditions of this
Agreement shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as amended from time to time, which shall constitute authorization for the Landscape
Architect to provide the Landscape Architectural services approved by Task Order by the City and is
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also sometimes referred to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
c. "Landscape Architect" shall mean Bellemo- Herbert Company, 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 Landscape
Architect or Landscape Architect's independent professional associates and consultants which are
directly related to travel and subsistence at the rates, and under the requirements of, Section 112.061,
Florida Statutes, or any other actual and direct expenses the City agrees to reimburse by Task Order.
f. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to the
procedure outlined in paragraph 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in paragraph 3.0 herein, which sets forth the Work to be
performed by Landscape Architect under this Agreement, and shall include, without the necessity of
a cross reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Landscape Architect and Landscape
Architect agrees to perform the Services outlined in this agreement for the stated fee arrangement.
No prior or present representations shall be binding upon any of the parties hereto unless
incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Landscape Architect to perform Landscape
Architectural services on a "task" basis. The City will communicate with Landscape Architect,
verbally or in writing, a general description of the task to be performed. The Landscape Architect
will generate a detailed Scope of Work document, prepare a Schedule, add a Lump Sum Fee with a
detailed cost breakdown to accomplish the task, and send the thus developed "Task Proposal" to the
City. The detailed cost breakdown of the lump sum fee shall consist of a list of major sub -tasks and
a man -hour breakdown for all work to be performed. The cost breakdown shall include all
subconsultant work and the Task Proposal shall include the written price proposals from all
subconsultants. The detailed cost breakdown shall include a line item for Reimbursable Expenses
and the list of the expenses proposed to be eligible for reimbursement. The City will review the
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1,
Task Proposal, and if the description is mutually acceptable, the parties will enter into a written
"Task Order The Scope of Services generally to be provided by the Landscape Architect through a
Task Order may include any civil Landscape Architecting services for any City project and may
contain written terms and conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Landscape Architect in the form of a letter and
an executed City purchase order. Upon receipt of the signed Task Order and the written notice to
proceed from the City, the Landscape Architect shall perform the services set forth in the Task
Order.
2.2 The City reserves the right, at its discretion, to perform any services related to this
Agreement or to retain the services of other Landscape Architectural companies to provide
professional Landscape Architectural services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Landscape Architect. If such changes increase (additional services) or decrease or eliminate any
amount of Work, City and Landscape Architect will negotiate any change in total cost or schedule
modifications. If the City and the Landscape Architect approve any change, the Task Order will be
modified in writing to reflect the changes; and Landscape Architect shall be compensated for said
services in accordance with the terms of Article 5.0 herein. All change orders shall be authorized in
writing by City's and Landscape Architect's designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Landscape Architect shall perform services in conformance with the mutually agreed
schedule set forth in the negotiated Task Order. Landscape Architect shall complete all of said
services in a timely manner and will keep City apprised of the status of work on at least a monthly
basis or as otherwise reasonably requested by the City. Should Landscape Architect fall behind the
agreed upon schedule, it shall employ such resources so as to comply with the agreed -upon schedule.
4.2 No extension for completion of services shall be granted to Landscape Architect
without City's prior written consent, except as provided in Sections 3.1 and 19.1 herein.
4.3 Any cost caused by defective or ill -timed services shall be borne by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
LANDSCAPE ARCHITECT
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5.1 General Services. For basic and additional Services performed by Landscape
Architect's principals, employees, and resident project representatives (and assistants) pursuant to
paragraphs 2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that
agreed upon by the parties for a particular Task Order. However, payment terms must be consistent
with the terms and conditions in this Agreement. To the extent that the payment terms in any Task
Order conflict with the payment terms set forth in this Agreement, the conflicting provisions of this
Agreement shall prevail.
5.2 Additional Services Performed by Professional Associates and Consultants. For
additional Services and Reimbursable Expenses of independent professional associates and
consultants employed by Landscape Architect to render additional Services pursuant to paragraphs
2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that billed Landscape
Architect by the independent professional associates and consultants. Prior to payment by the City,
the Landscape Architect shall submit to the City a copy of any written invoice received by
Landscape Architect from all independent professional associates and consultants which clearly
evidences the amount billed by the independent professional associates and consultants for
additional Services and any Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by Landscape Architect's
principals, employees, resident project representatives (and assistants), and independent
professional associates and consultants on behalf of the City in any litigation, arbitration, or other
legal or interested administrative proceeding in which the City is a named interested party, City
agrees to pay the Landscape Architect or independent professional associate or consultant, which is
used as a witness or expert, an amount equal to that agreed upon by the party for a particular Task
Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by the
Florida Prompt Payment Act s.218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with in efficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs, or costs associated with delays
caused in whole or in part by the Landscape Architect.
5.6 Errors and Deficiencies. Landscape Architect shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Landscape Architect's
services provided under this Agreement.
5.7 Payment Offsets. To the extent that Landscape Architect owes the City any money
under this or any other Agreement with the City, the City shall have the right to withhold payment
and otherwise back charge the Landscape Architect for any money owed to the City by Landscape
Architect.
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5.8 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
action arising out of the performance of this Agreement and Landscape Architect shall remain liable
to the City in accordance with applicable law for all damages to the City caused by Landscape
Architect's performance of any services provided under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed
entirely by the Landscape Architect, and in no event shall any claim relating thereto for an increase
in compensation be made or recognized. Landscape Architect shall not make any claim nor seek any
damages of any kind against the City for any delays, impacts, disruption or interruption caused by
any delay. Landscape Architect's remedy for a delay shall be an equitable extension of time to
perform the Services for each day of such delay that impacts the critical path of the schedule
established under this Agreement or specific Task Order.
6.0 RIGHT TO INSPECTION
6.1 City or its affiliates shall at all times have the right to review or observe the Services
performed by Landscape Architect.
6.2 No inspection, review, or observation shall relieve Landscape Architect of its
responsibility under this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Project Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the term of any Task Order entered into
under this Agreement. Landscape Architect's Project Manager and all other appropriate personnel
shall attend such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Landscape Architect shall be solely and absolutely responsible and assume all
liability for the safety and supervision of its principals, employees, resident project representatives
(and assistants) while performing Services provided hereunder.
9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Landscape Architect reasonable
access to the City's premises, records, and files for purposes of fulfilling its obligations under this
Agreement.
10.0 INSURANCE
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10.1 Liability Amounts. During the term of this Agreement, Landscape Architect shall
be responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Landscape Architect shall maintain comprehensive general liability insurance in
the minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Landscape Architect from claims of property damages and personal injury which may arise from any
Services performed under this Agreement whether such Services are performed by the Landscape
Architect or by anyone directly employed by or contracting with the Landscape Architect.
c. The Landscape Architect shall maintain comprehensive automobile liability insurance
in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000
property damage as the combined single limit for each occurrence to protect the Landscape Architect
from claims for damages for bodily injury, including wrongful death, as well as from claims from
property damage, which may arise from the ownership, use, or maintenance of owned and non
owned automobiles, including rented automobiles whether such operations be by the Landscape
Architect or by anyone directly or indirectly employed by the Landscape Architect.
d. The Landscape Architect shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance and Employers' Liability Insurance in at least such amounts as are
required by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
policies included in article 10.1.b and 10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of the
policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal refused
until at least thirty (30) days' prior written notice has been given to the City, and the Landscape
Architect by certified mail, return receipt requested. All such insurance shall remain in effect until
final payment. In the event that the Landscape Architect shall fail to comply with the foregoing
requirement, the City is authorized, but in no event shall be obligated, to purchase such insurance,
and the City may bill the Landscape Architect. The Landscape Architect shall immediately forward
funds to the City in full payment for said insurance. It is expressly agreed that neither the provision
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of the insurance referred to in this Agreement nor the City's acceptance of the terms, conditions or
amounts of any insurance policy shall be deemed a warranty or representation as to adequacy of
such coverage. All insurance coverage shall be with insurer(s) rated as A+ by Best's Rating Guide
(or equivalent rating and rating service as reasonably determined by the City Manager) and licensed
by the State of Florida to engage in the business of writing of insurance. Unless agreed to by the
City to the contrary, the City shall be named on the insurance policies included in article 10.1.b and
10.1.c as "additional insured." The Landscape Architect shall cause its insurance carriers, prior to the
effective date of this agreement to furnish insurance certificates specifying the types and amounts of
coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no
insurance under such policies will be canceled without thirty (30) days' prior written notice to the
City in compliance with other provisions of this Agreement. Further copies of all relevant policies
will be provided to the City within thirty (30) days of the effective date of this agreement. If the
City has any objection to the coverage afforded by or other provision of the insurance required to be
purchased and maintained by the Landscape Architect in accordance with this Article on the basis of
its not complying with the Agreement, the City shall notify the Landscape Architect in writing
thereof within thirty (30) days of the date of delivery of such certificates to the City. For all Work
performed pursuant to this Agreement, the Consultant shall continuously maintain such insurance in
the amounts, type, and quality as required by the Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Landscape Architect to perform any Services hereunder shall fully comply
with the insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Landscape Architect shall comply with all requirements of federal, state, and local
laws, rules, regulations, standards, and /or ordinances applicable to the performance of Services
under this Agreement.
12.0 REPRESENTATIONS
12.1 Landscape Architect represents that the Services provided hereunder shall conform to
all requirements of this Agreement and any Task Order, shall be consistent with recognized and
sound Landscape Architecting practices and procedures; and shall conform to the customary
standards of care, skill, and diligence appropriate to the nature of the Services rendered. Landscape
Architect shall perform as expeditiously as is consistent with professional skill and care and the
orderly progress of the Services performed hereunder. Landscape Architect' s services shall be
consistent with the time periods established under this Agreement or the applicable Task Order.
Landscape Architect shall provide City with a written schedule for services performed under each
Task Order and such schedule shall provide for ample time for the City to reviews, for the
performance of consultants (if any), and for the approval of submissions by authorities having
jurisdiction over the services. The Landscape Architect's designated representative shall have the
authority to act on Landscape Architect's behalf with respect to the Services. In addition, Landscape
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Architect's representative shall render decisions in a timely manner in order to avoid unreasonable
delay in the orderly and sequential progress of the Services. Except with the City's knowledge and
consent, the Landscape Architect shall not engage in any activity, or accept any employment,
interest or contribution that would reasonably appear to compromise the Landscape Architect's
professional judgment with respect to the Services. The Landscape Architect shall review laws,
codes, and regulations applicable to Landscape Architect's Services. The Landscape Architect's
services and design shall comply with all applicable requirements imposed by all public authorities.
The Landscape Architect represents and warrants that it is familiar with, and accepts that it will
perform the Services hereunder in a manner that complies with all applicable requirements of law,
codes, and regulations. Landscape Architect shall be responsible for the professional quality,
technical accuracy and the coordination of all plans, studies, reports and other services furnished to
the City under this Agreement. Unless this Agreement is terminated by the City, or terminated by
Landscape Architect for nonpayment of any proper invoices, or the City exercises its rights to
perform the Services pursuant to under Paragraph 2.2 herein, Landscape Architect shall be
responsible for the satisfactory and complete execution of the Services described in this Agreement
and any Task Order. The Landscape Architect represents that it will carefully examine the scope of
services required by the City in and Task Order, that it will investigate the essential requirements of
the services required by the Task Order, and that it will have sufficient personnel, equipment, and
material at its disposal top complete the services set forth in the Task Order in a good professional
and workmanlike manner in conformance with the requirements of this Agreement.
12.2 Landscape Architect represents that all principals, employees, and other personnel
furnishing such Services shall be qualified and competent to perform the Services assigned to them
and that such guidance given by and the recommendations and performance of such personnel shall
reflect their best professional knowledge and judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Landscape Architect guarantees that all Services performed under this Agreement
shall be free from claims of patent, copyright, and trademarks infringement. Notwithstanding any
other provision of this Agreement, Landscape Architect shall indemnify, hold harmless, and defend
City, its officers, directors, employees, agents assigns, and servants from and against any and all
liability, including expenses, legal or otherwise, for actual or alleged infringement of any patent,
copyright, or trademark resulting from the use of any goods, Services, or other item provided under
this Agreement. Notwithstanding the foregoing, Landscape Architect may elect to provide non
infringing services.
14.0 DOCUMENTS
14.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Landscape Architect and its independent contractors and associates related, directly or indirectly, to
this Agreement, shall be deemed to be a Public Record whether in the possession or control of the
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City or the Landscape Architect. Said record, document, computerized information and program,
audio or video tape, photograph, or other writing of the Landscape Architect is subject to the
provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written
approval of the City's City manager. Upon request by the City, the Landscape Architect shall
promptly supply copies of said public records to the City. All books, cards, registers, receipts,
documents, and other papers in connection with this Agreement shall at any and all reasonable times
during the normal working hours of the Landscape Architect be open and freely exhibited to the City
for the purpose of examination and/or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Landscape
Architect and its independent contractors and associates pursuant to this Agreement or related
exclusively to the Services described herein shall be owned by the City and may be reused by the
City for any reason or purpose at anytime. However, the City agrees that the aforesaid documents
are not intended or represented to be suitable for reuse by the City or others on any undertaking
other than the Work outlined in this Agreement. Any reuse for an undertaking other than for the
Work without verification or adaptation by the Landscape Architect, or its independent contractors
and associates if necessary, to specific purposes intended will be at the City's sole risk and without
liability or legal exposure to the Landscape Architect.
b. Ownership of Documents. The City and the Landscape Architect agree that upon
payment of fees due to the Landscape Architect by the City for a particular design, report, inventory
list, compilation, drawing, specification, model, recommendation, schedule or otherwise, said
design, report, inventory list, compilation, drawing, specification, technical data, recommendation,
model, schedule and other instrument produced by the Landscape Architect in the performance of
this Agreement, or any Work hereunder, shall be the sole property of the City, and the City is vested
with all rights therein. The Landscape Architect waives all rights of copyright in said design, report,
inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule
and other instrument produced by the Landscape Architect in the performance of this Agreement,
and hereby assigns and conveys the same to the City whether in the possession or control of the
Landscape Architect or not.
15.0 ASSIGNMENT
15.1 Landscape Architect shall not assign or subcontract this Agreement, any Task Order
hereunder, or any rights or any monies due or to become due hereunder without the prior, written
consent of City.
15.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Landscape Architect, Landscape Architect shall be fully responsible to City for all
acts and/or omissions performed by the subcontractor as if no subcontract had been made.
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15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Landscape Architect who shall take immediate steps to remedy the
situation.
15.4 If any part of this Agreement is subcontracted by Landscape Architect, prior to the
commencement of any Work by the subcontractor, Landscape Architect shall require the
subcontractor to provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, Landscape Architect shall be
considered an independent contractor and not an employee of the City.
17.0 DEFAULT BY LANDSCAPE ARCHITECT AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Landscape Architect defaults in the performance of any material covenant or
condition of this Agreement and does not cure such other default within thirty (30) calendar days
after written notice from the City specifying the default complained of, unless, however, the nature
of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within thirty
(30) calendar days, in which case the Landscape Architect shall have such time as is reasonably
necessary to remedy the default, provided the Landscape Architect promptly takes and diligently
pursues such actions as are necessary therefor; or
17.3 Landscape Architect is adjudicated bankrupt or makes any assignment for the benefit
of creditors or Landscape Architect becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Landscape Architect has acted grossly negligent, as defined by general and applicable
law, in performing the Services hereunder; or
17.5 Landscape Architect has committed any act of fraud upon the City; or
17.6 Landscape Architect has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement.
17.7 Landscape Architect has assigned this Agreement or any Task Order without the
City's prior written consent.
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17.8 Notwithstanding the aforementioned, in the event of a default by Landscape
Architect, the City shall have the right to exercise any other remedy the City may have by operation
of law, without limitation, and without any further demand or notice.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written
notice to Landscape Architect, terminate this Agreement, without penalty, if: (a) Landscape
Architect is in default pursuant to paragraph 17.0 Default; (b) Landscape Architect makes a general
assignment for the benefit of its creditors; (c) Landscape Architect fails to comply with any
condition or provision of this Agreement; or (d) Landscape Architect is experiencing a labor dispute
which threatens to have a substantial, adverse impact upon performance of this Agreement without
prejudice to any other right or remedy City may have under this Agreement. In addition, either party
may terminate for convenience with no penalty at any time upon thirty (30) days advance written
notice. In the event of such termination, City shall be liable only for the payment of all unpaid
charges, determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or
regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the
party affected; provided that prompt notice of such delay is given by such party to the other and each
of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any
circumstance of Force Majeure remains in effect for sixty days, either party may terminate this
Agreement.
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
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22.1 In the event any portion or part of thereof this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision of this Agreement. The validity and enforceability of
the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
23.2 No waiver, consent, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by a duly authorized representative of each party hereto.
24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than City and Landscape Architect.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Landscape Architect warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Landscape Architect, to solicit or
secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation,
individual, or firm, other than a bona fide employee working solely for the Landscape Architect, any
fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement.
26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Landscape Architect
with respect to the Services specified and all previous representations relative thereto, either written
or oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
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28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the non prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
30.0 DRAFTING
30.1 City and Landscape Architect each represent that they have both shared equally in
drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of
this Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed, postage prepaid to:
For Landscape Architect: For City:
I�(V, it tek AO, ?ie5;c I u+ City of Winter Springs/ Public Works Department
Mc Attention: Public Works Director
l hia Ol sa{>° f3a 1126 E. State Road 434
'Vibe Winter Springs, Florida 32708
049 42 1'AX;(47) 2. j (407) 327 -5989 FAX: (407) 327 -6695
31.2 Either party may change the notice address by providing the other party written
notice of the change.
32.0 SOVEREIGN IMMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, the City shall not be liable for any claim or
judgment, or portion thereof, to any one person for more than one hundred thousand dollars
($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other
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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 two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY LANDSCAPE ARCHITECT
33.1 Landscape Architect hereby represents and warrants to the City the following:
a. Landscape Architect is duly registered and licensed to do business in the State of
Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to
carry on the functions and operations set forth in this Agreement.
b. The undersigned representative of Landscape Architect has the power, authority, and
legal right to execute and deliver this Agreement on behalf of Landscape Architect.
34.0 INDEMNIFICATION
34.1 Landscape Architect shall indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentionally wrongful conduct of the Landscape Architect and other persons employed by the
Landscape Architect in the performance of the Agreement and any Task Order.
34.2 Landscape Architect shall also indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by Landscape Architect' s breach
and caused by other persons employed by the Landscape Architect in the performance of the
Agreement and any Task Order.
The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
35.0 LANDSCAPE ARCHITECT'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Landscape Architect's personnel at a construction site,
whether as onsite representatives or otherwise, do not make Landscape Architect or Landscape
Architect's personnel in any way responsible for those duties that belong to City and/or the
construction contractors or other entities, and do not relieve the construction contractors or any other
entity of their obligations, duties, and responsibilities, including, but not limited to, all construction
methods, means, techniques, sequences, and procedures necessary for coordinating and completing
all portions of the construction work in accordance with the applicable construction contract
documents and any health or safety precautions required by such construction work. Landscape
Architect and Landscape Architect's personnel have no authority to exercise any control over any
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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 Landscape Architect's own personnel.
35.2 The presence of Landscape Architect's personnel at a construction site is for the
purpose of providing to City a greater degree of confidence that the completed work will conform
generally to the applicable contract documents and that the integrity of the design concept as
reflected in the contract documents has been implemented and preserved by the construction
contractor(s). Landscape Architect neither guarantees the performance of the construction
contractor(s) nor assumes responsibility for construction contractor's failure to perform work in
accordance with the contract documents. For this Agreement only, construction sites include places
of manufacture for materials incorporated into the construction work, and construction contractors
include manufacturers of materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Landscape Architect is
not responsible for any errors or omissions in the information from others that is incorporated into
the record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Landscape Architect for itself and its Subconsultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement is presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from participation in any
Landscape Architecture, landscape Landscape Architecture, Landscape Architecting, or surveying
activity by any Federal, State, or local governmental commission, department, corporation,
subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed
or otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
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d. The undersigned is authorized to execute this Agreement on behalf of the Landscape
Architect and said signature shall bind the Landscape Architect to this Agreement. No further action
is required by the Landscape Architect to enter into this Agreement other than Landscape
Architect's undersigned representative execution of the Agreement.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY: LANDSCAPE ARCHITECT:
CITY OF WINTER SPRINGS
JO. By: 41/ -1!,!!i, IF
Print Name,. Kevin L. Smith Print Name: L b
OU
Title: City Manager Title: j'ideu,l
ATTEST.
By:
Andre ems- b r o- Luaces, MMC
City Clerk
THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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AGREEMENT FOR
LANDSCAPE ARCHITECTURAL SERVICES
THIS AGREEMENT is made and entered into this day of S i'-1'N c 2009, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City", located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and MSCW Inc., a Florida corporation, authorized to conduct business in the State of Florida, whose
address is 4750 New Broad Street of Orlando, Florida 32814, hereinafter referred to as "Landscape
Architect
WITNESSETH:
WHEREAS, City has a need to obtain Landscape Architectural services from time to time
on an as- needed, task oriented basis; and
WHEREAS, the City has followed the selection and negotiation process set forth in the
Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes; and
WHEREAS, Landscape Architect participated in the selection and negotiation process; and
WHEREAS, Landscape Architect is willing to provide such Landscape Architectural
services to the City under the terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,
this Agreement shall terminate on the fifth (5th) anniversary of the Effective Date. The Parties shall
have the option to extend the term for one (1) additional five (5) year renewal. Such an extension
shall only be by written amendment to this Agreement.
1.2 The terms and conditions of any Task Order, as described in Section 2 hereof, shall
be as set forth in such Task Order. Any Task in effect at the termination of this Agreement shall
remain in effect until completion of said Task Order, and all of the terms and conditions of this
Agreement shall survive until completion of all Task Orders.
1.3 Definitions. The following words and phrases used in this Agreement shall have the
following meaning ascribed to them unless the context clearly indicates otherwise:
a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this
Agreement, as amended from time to time, which shall constitute authorization for the Landscape
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Architect to provide the Landscape Architectural services approved by Task Order by the City and is
also sometimes referred to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
c. "Landscape Architect" shall mean MSCW 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 Landscape
Architect or Landscape Architect's independent professional associates and consultants which are
directly related to travel and subsistence at the rates, and under the requirements of, Section 112.061,
Florida Statutes, or any other actual and direct expenses the City agrees to reimburse by Task Order.
f. "Work" or "Services" shall be used interchangeably and shall include the
performance of the work agreed to by the parties in a Task Order.
g. "Task Order" shall mean a written document approved by the parties pursuant to the
procedure outlined in paragraph 2.0 of this Agreement, and any amendments thereto approved
pursuant to the procedures outlined in paragraph 3.0 herein, which sets forth the Work to be
performed by Landscape Architect under this Agreement, and shall include, without the necessity of
a cross reference, the terms and conditions of this Agreement.
1.4 Engagement. The City hereby engages the Landscape Architect and Landscape
Architect agrees to perform the Services outlined in this agreement for the stated fee arrangement.
No prior or present representations shall be binding upon any of the parties hereto unless
incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Landscape Architect to perform Landscape
Architectural services on a "task" basis. The City will communicate with Landscape Architect,
verbally or in writing, a general description of the task to be performed. The Landscape Architect
will generate a detailed Scope of Work document, prepare a Schedule, add a Lump Sum Fee with a
detailed cost breakdown to accomplish the task, and send the thus developed "Task Proposal" to the
City. The detailed cost breakdown of the lump sum fee shall consist of a list of major sub -tasks and
a man -hour breakdown for all work to be performed. The cost breakdown shall include all
subconsultant work and the Task Proposal shall include the written price proposals from all
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subconsultants. The detailed cost breakdown shall include a line item for Reimbursable Expenses
and the list of the expenses proposed to be eligible for reimbursement. The City will review the
Task Proposal, and if the description is mutually acceptable, the parties will enter into a written
"Task Order The Scope of Services generally to be provided by the Landscape Architect through a
Task Order may include any civil Landscape Architecting services for any City project and may
contain written terms and conditions which are deemed supplemental to this Agreement.
The City will issue a notice to proceed to the Landscape Architect in the form of a letter and
an executed City purchase order. Upon receipt of the signed Task Order and the written notice to
proceed from the City, the Landscape Architect shall perform the services set forth in the Task
Order.
2.2 The City reserves the right, at its discretion, to perform any services related to this
Agreement or to retain the services of other Landscape Architectural companies to provide
professional Landscape Architectural services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Landscape Architect. If such changes increase (additional services) or decrease or eliminate any
amount of Work, City and Landscape Architect will negotiate any change in total cost or schedule
modifications. If the City and the Landscape Architect approve any change, the Task Order will be
modified in writing to reflect the changes; and Landscape Architect shall be compensated for said
services in accordance with the terms of Article 5.0 herein. All change orders shall be authorized in
writing by City's and Landscape Architect's designated representative.
3.2 All of City's said Task Orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 Landscape Architect shall perform services in conformance with the mutually agreed
schedule set forth in the negotiated Task Order. Landscape Architect shall complete all of said
services in a timely manner and will keep City apprised of the status of work on at least a monthly
basis or as otherwise reasonably requested by the City. Should Landscape Architect fall behind the
agreed upon schedule, it shall employ such resources so as to comply with the agreed -upon schedule.
4.2 No extension for completion of services shall be granted to Landscape Architect
without City's prior written consent, except as provided in Sections 3.1 and 19.1 herein.
4.3 Any cost caused by defective or ill -timed services shall be borne by the party
responsible therefore.
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5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
LANDSCAPE ARCHITECT
5.1 General Services. For basic and additional Services performed by Landscape
Architect's principals, employees, and resident project representatives (and assistants) pursuant to
paragraphs 2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that
agreed upon by the parties for a particular Task Order. However, payment terms must be consistent
with the terms and conditions in this Agreement. To the extent that the payment terms in any Task
Order conflict with the payment terms set forth in this Agreement, the conflicting provisions of this
Agreement shall prevail.
5.2 Additional Services Performed by Professional Associates and Consultants. For
additional Services and Reimbursable Expenses of independent professional associates and
consultants employed by Landscape Architect to render additional Services pursuant to paragraphs
2.0 and 3.0, the City agrees to pay the Landscape Architect an amount equal to that billed Landscape
Architect by the independent professional associates and consultants. Prior to payment by the City,
the Landscape Architect shall submit to the City a copy of any written invoice received by
Landscape Architect from all independent professional associates and consultants which clearly
evidences the amount billed by the independent professional associates and consultants for
additional Services and any Reimbursable Expenses.
5.3 Witness Services. For witness or expert services rendered by Landscape Architect's
principals, employees, resident project representatives (and assistants), and independent
professional associates and consultants on behalf of the City in any litigation, arbitration, or other
legal or interested administrative proceeding in which the City is a named interested party, City
agrees to pay the Landscape Architect or independent professional associate or consultant, which is
used as a witness or expert, an amount equal to that agreed upon by the party for a particular Task
Order.
5.4 Florida Prompt Payment Act. Payment shall be due and payable as provided by the
Florida Prompt Payment Act s.218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with in efficiency, offsite or home office overhead, loss of
productivity, consequential damages, legal or consulting costs, or costs associated with delays
caused in whole or in part by the Landscape Architect.
5.6 Errors and Deficiencies. Landscape Architect shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Landscape Architect's
services provided under this Agreement.
5.7 Payment Offsets. To the extent that Landscape Architect owes the City any money
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under this or any other Agreement with the City, the City shall have the right to withhold payment
and otherwise back charge the Landscape Architect for any money owed to the City by Landscape
Architect.
5.8 Payment not Waiver. The City's payment of any invoice under this Agreement
shall not be construed or operate as a waiver of any rights under this Agreement or any cause of
action arising out of the performance of this Agreement and Landscape Architect shall remain liable
to the City in accordance with applicable law for all damages to the City caused by Landscape
Architect's performance of any services provided under this Agreement.
5.9 Delay Remedy. The risk of any monetary damages caused by any delays in
performing the Services under this Agreement and any Task Order are accepted and assumed
entirely by the Landscape Architect, and in no event shall any claim relating thereto for an increase
in compensation be made or recognized. Landscape Architect shall not make any claim nor seek any
damages of any kind against the City for any delays, impacts, disruption or interruption caused by
any delay. Landscape Architect's remedy for a delay shall be an equitable extension of time to
perform the Services for each day of such delay that impacts the critical path of the schedule
established under this Agreement or specific Task Order.
6.0 RIGHT TO INSPECTION
6.1 City or its affiliates shall at all times have the right to review or observe the Services
performed by Landscape Architect.
6.2 No inspection, review, or observation shall relieve Landscape Architect of its
responsibility under this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Project Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the term of any Task Order entered into
under this Agreement. Landscape Architect's Project Manager and all other appropriate personnel
shall attend such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Landscape Architect shall be solely and absolutely responsible and assume all
liability for the safety and supervision of its principals, employees, resident project representatives
(and assistants) while performing Services provided hereunder.
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9.0 REASONABLE ACCESS
9.1 During the term of this Agreement, City shall grant Landscape Architect reasonable
access to the City's premises, records, and files for purposes of fulfilling its obligations under this
Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, Landscape Architect shall
be responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Landscape Architect shall maintain comprehensive general liability insurance in
the minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Landscape Architect from claims of property damages and personal injury which may arise from any
Services performed under this Agreement whether such Services are performed by the Landscape
Architect or by anyone directly employed by or contracting with the Landscape Architect.
c. The Landscape Architect shall maintain comprehensive automobile liability insurance
in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000
property damage as the combined single limit for each occurrence to protect the Landscape Architect
from claims for damages for bodily injury, including wrongful death, as well as from claims from
property damage, which may arise from the ownership, use, or maintenance of owned and non
owned automobiles, including rented automobiles whether such operations be by the Landscape
Architect or by anyone directly or indirectly employed by the Landscape Architect.
d. The Landscape Architect shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance and Employers' Liability Insurance in at least such amounts as are
required by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
policies included in article 10.1.b and 10.1.c herein, as its interest may appear, from time to time.
10.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All of the
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policies of insurance so required to be purchased and maintained shall contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed or renewal refused
until at least thirty (30) days' prior written notice has been given to the City, and the Landscape
Architect by certified mail, return receipt requested. All such insurance shall remain in effect until
final payment. In the event that the Landscape Architect shall fail to comply with the foregoing
requirement, the City is authorized, but in no event shall be obligated, to purchase such insurance,
and the City may bill the Landscape Architect. The Landscape Architect shall immediately forward
funds to the City in full payment for said insurance. It is expressly agreed that neither the provision
of the insurance referred to in this Agreement nor the City's acceptance of the terms, conditions or
amounts of any insurance policy shall be deemed a warranty or representation as to adequacy of
such coverage. All insurance coverage shall be with insurer(s) rated as A+ by Best's Rating Guide
(or equivalent rating and rating service as reasonably determined by the City Manager) and licensed
by the State of Florida to engage in the business of writing of insurance. Unless agreed to by the
City to the contrary, the City shall be named on the insurance policies included in article 10.1.b and
10.1.c as "additional insured." The Landscape Architect shall cause its insurance carriers, prior to the
effective date of this agreement to furnish insurance certificates specifying the types and amounts of
coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no
insurance under such policies will be canceled without thirty (30) days' prior written notice to the
City in compliance with other provisions of this Agreement. Further copies of all relevant policies
will be provided to the City within thirty (30) days of the effective date of this agreement. If the
City has any objection to the coverage afforded by or other provision of the insurance required to be
purchased and maintained by the Landscape Architect in accordance with this Article on the basis of
its not complying with the Agreement, the City shall notify the Landscape Architect in writing
thereof within thirty (30) days of the date of delivery of such certificates to the City. For all Work
performed pursuant to this Agreement, the Consultant shall continuously maintain such insurance in
the amounts, type, and quality as required by the Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Landscape Architect to perform any Services hereunder shall fully comply
with the insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Landscape Architect shall comply with all requirements of federal, state, and local
laws, rules, regulations, standards, and/or ordinances applicable to the performance of Services
under this Agreement.
12.0 REPRESENTATIONS
12.1 Landscape Architect represents that the Services provided hereunder shall conform to
all requirements of this Agreement and any Task Order, shall be consistent with recognized and
sound Landscape Architecting practices and procedures; and shall conform to the customary
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standards of care, skill, and diligence appropriate to the nature of the Services rendered. Landscape
Architect shall perform as expeditiously as is consistent with professional skill and care and the
orderly progress of the Services performed hereunder. Landscape Architect's services shall be
consistent with the time periods established under this Agreement or the applicable Task Order.
Landscape Architect shall provide City with a written schedule for services performed under each
Task Order and such schedule shall provide for ample time for the City to reviews, for the
performance of consultants (if any), and for the approval of submissions by authorities having
jurisdiction over the services. The Landscape Architect's designated representative shall have the
authority to act on Landscape Architect's behalf with respect to the Services. In addition, Landscape
Architect's representative shall render decisions in a timely manner in order to avoid unreasonable
delay in the orderly and sequential progress of the Services. Except with the City's knowledge and
consent, the Landscape Architect shall not engage in any activity, or accept any employment,
interest or contribution that would reasonably appear to compromise the Landscape Architect's
professional judgment with respect to the Services. The Landscape Architect shall review laws,
codes, and regulations applicable to Landscape Architect's Services. The Landscape Architect's
services and design shall comply with all applicable requirements imposed by all public authorities.
The Landscape Architect represents and warrants that it is familiar with, and accepts that it will
perform the Services hereunder in a manner that complies with all applicable requirements of law,
codes, and regulations. Landscape Architect shall be responsible for the professional quality,
technical accuracy and the coordination of all plans, studies, reports and other services furnished to
the City under this Agreement. Unless this Agreement is terminated by the City, or terminated by
Landscape Architect for nonpayment of any proper invoices, or the City exercises its rights to
perform the Services pursuant to under Paragraph 2.2 herein, Landscape Architect shall be
responsible for the satisfactory and complete execution of the Services described in this Agreement
and any Task Order. The Landscape Architect represents that it will carefully examine the scope of
services required by the City in and Task Order, that it will investigate the essential requirements of
the services required by the Task Order, and that it will have sufficient personnel, equipment, and
material at its disposal top complete the services set forth in the Task Order in a good professional
and workmanlike manner in conformance with the requirements of this Agreement.
12.2 Landscape Architect represents that all principals, employees, and other personnel
furnishing such Services shall be qualified and competent to perform the Services assigned to them
and that such guidance given by and the recommendations and performance of such personnel shall
reflect their best professional knowledge and judgment.
13.0 GUARANTEE AGAINST INFRINGEMENT
13.1 Landscape Architect guarantees that all Services performed under this Agreement
shall be free from claims of patent, copyright, and trademarks infringement. Notwithstanding any
other provision of this Agreement, Landscape Architect shall indemnify, hold harmless, and defend
City, its officers, directors, employees, agents assigns, and servants from and against any and all
liability, including expenses, legal or otherwise, for actual or alleged infringement of any patent,
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copyright, or trademark resulting from the use of any goods, Services, or other item provided under
this Agreement. Notwithstanding the foregoing, Landscape Architect may elect to provide non
infringing services.
14.0 DOCUMENTS
14.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Landscape Architect and its independent contractors and associates related, directly or indirectly, to
this Agreement, shall be deemed to be a Public Record whether in the possession or control of the
City or the Landscape Architect. Said record, document, computerized information and program,
audio or video tape, photograph, or other writing of the Landscape Architect is subject to the
provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written
approval of the City's City manager. Upon request by the City, the Landscape Architect shall
promptly supply copies of said public records to the City. All books, cards, registers, receipts,
documents, and other papers in connection with this Agreement shall at any and all reasonable times
during the normal working hours of the Landscape Architect be open and freely exhibited to the City
for the purpose of examination and/or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Landscape
Architect and its independent contractors and associates pursuant to this Agreement or related
exclusively to the Services described herein shall be owned by the City and may be reused by the
City for any reason or purpose at anytime. However, the City agrees that the aforesaid documents
are not intended or represented to be suitable for reuse by the City or others on any undertaking
other than the Work outlined in this Agreement. Any reuse for an undertaking other than for the
Work without verification or adaptation by the Landscape Architect, or its independent contractors
and associates if necessary, to specific purposes intended will be at the City's sole risk and without
liability or legal exposure to the Landscape Architect.
b. Ownership of Documents. The City and the Landscape Architect agree that upon
payment of fees due to the Landscape Architect by the City for a particular design, report, inventory
list, compilation, drawing, specification, model, recommendation, schedule or otherwise, said
design, report, inventory list, compilation, drawing, specification, technical data, recommendation,
model, schedule and other instrument produced by the Landscape Architect in the performance of
this Agreement, or any Work hereunder, shall be the sole property of the City, and the City is vested
with all rights therein. The Landscape Architect waives all rights of copyright in said design, report,
inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule
and other instrument produced by the Landscape Architect in the performance of this Agreement,
and hereby assigns and conveys the same to the City whether in the possession or control of the
Landscape Architect or not.
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15.0 ASSIGNMENT
15.1 Landscape Architect shall not assign or subcontract this Agreement, any Task Order
hereunder, or any rights or any monies due or to become due hereunder without the prior, written
consent of City.
15.2 If upon receiving written approval from City, any part of this Agreement is
subcontracted by Landscape Architect, Landscape Architect shall be fully responsible to City for all
acts and/or omissions performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Landscape Architect who shall take immediate steps to remedy the
situation.
15.4 If any part of this Agreement is subcontracted by Landscape Architect, prior to the
commencement of any Work by the subcontractor, Landscape Architect shall require the
subcontractor to provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, Landscape Architect shall be
considered an independent contractor and not an employee of the City.
17.0 DEFAULT BY LANDSCAPE ARCHITECT AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Landscape Architect defaults in the performance of any material covenant or
condition of this Agreement and does not cure such other default within thirty (30) calendar days
after written notice from the City specifying the default complained of, unless, however, the nature
of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within thirty
(30) calendar days, in which case the Landscape Architect shall have such time as is reasonably
necessary to remedy the default, provided the Landscape Architect promptly takes and diligently
pursues such actions as are necessary therefor; or
17.3 Landscape Architect is adjudicated bankrupt or makes any assignment for the benefit
of creditors or Landscape Architect becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Landscape Architect has acted grossly negligent, as defined by general and applicable
law, in performing the Services hereunder; or
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17.5 Landscape Architect has committed any act of fraud upon the City; or
17.6 Landscape Architect has made a material misrepresentation of fact to the City while
performing its obligations under this Agreement.
17.7 Landscape Architect has assigned this Agreement or any Task Order without the
City's prior written consent.
17.8 Notwithstanding the aforementioned, in the event of a default by Landscape
Architect, the City shall have the right to exercise any other remedy the City may have by operation
of law, without limitation, and without any further demand or notice.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written
notice to Landscape Architect, terminate this Agreement, without penalty, if: (a) Landscape
Architect is in default pursuant to paragraph 17.0 Default; (b) Landscape Architect makes a general
assignment for the benefit of its creditors; (c) Landscape Architect fails to comply with any
condition or provision of this Agreement; or (d) Landscape Architect is experiencing a labor dispute
which threatens to have a substantial, adverse impact upon performance of this Agreement without
prejudice to any other right or remedy City may have under this Agreement. In addition, either party
may terminate for convenience with no penalty at any time upon thirty (30) days advance written
notice. In the event of such termination, City shall be liable only for the payment of all unpaid
charges, determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination.
19.0 FORCE MAJEURE
19.1 Any delay or failure of either party in the performance of its required obligations
hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm;
explosion; riot; war; sabotage; strikes; extraordinary breakdown of or damage to City's affiliates'
generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or
regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the
party affected; provided that prompt notice of such delay is given by such party to the other and each
of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any
circumstance of Force Majeure remains in effect for sixty days, either party may terminate this
Agreement.
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20.0 GOVERNING LAW VENUE
20.1 This Agreement is made and shall be interpreted, construed, governed, and enforced
in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be
Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision of this Agreement. The validity and enforceability of
the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
23.2 No waiver, consent, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by a duly authorized representative of each party hereto.
24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than City and Landscape Architect.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Landscape Architect warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Landscape Architect, to solicit or
secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation,
individual, or firm, other than a bona fide employee working solely for the Landscape Architect, any
fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Agreement.
26.0 ENTIRE AGREEMENT
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26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Landscape Architect
with respect to the Services specified and all previous representations relative thereto, either written
or oral, are hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the non prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
30.0 DRAFTING
30.1 City and Landscape Architect each represent that they have both shared equally in
drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of
this Agreement in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed, postage prepaid to:
For Landscape Architect: For City:
VA5CkA 10,. City of Winter Springs/ Public Works Department
Arm U kb 4 L? 1Z r Attention: Public Works Director
1-1SoNc 5Ti F--T o K1-11.f 1126 E. State Road 434
(qc7) 4 zz 3 3 3 c) 7 ZOI Winter Springs, Florida 32708
(407) 327 -5989 FAX: (407) 327 -6695
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31.2 Either party may change the notice address by providing the other party written
notice of the change.
32.0 SOVEREIGN IMMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, the City shall not be liable for any claim or
judgment, or portion thereof, to any one person for more than one hundred thousand dollars
($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other
claims or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This
paragraph shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY LANDSCAPE ARCHITECT
33.1 Landscape Architect hereby represents and warrants to the City the following:
a. Landscape Architect is duly registered and licensed to do business in the State of
Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to
carry on the functions and operations set forth in this Agreement.
b. The undersigned representative of Landscape Architect has the power, authority, and
legal right to execute and deliver this Agreement on behalf of Landscape Architect.
34.0 INDEMNIFICATION
34.1 Landscape Architect shall indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentionally wrongful conduct of the Landscape Architect and other persons employed by the
Landscape Architect in the performance of the Agreement and any Task Order.
34.2 Landscape Architect shall also indemnify and hold harmless the City, and its officers
(including its City Attorneys) and employees, from liabilities, damages, losses, and costs, including,
but not limited to, reasonable attorney's fees, to the extent caused by Landscape Architect's breach
and caused by other persons employed by the Landscape Architect in the performance of the
Agreement and any Task Order.
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The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
35.0 LANDSCAPE ARCHITECT'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Landscape Architect's personnel at a construction site,
whether as onsite representatives or otherwise, do not make Landscape Architect or Landscape
Architect's personnel in any way responsible for those duties that belong to City and/or the
construction contractors or other entities, and do not relieve the construction contractors or any other
entity of their obligations, duties, and responsibilities, including, but not limited to, all construction
methods, means, techniques, sequences, and procedures necessary for coordinating and completing
all portions of the construction work in accordance with the applicable construction contract
documents and any health or safety precautions required by such construction work. Landscape
Architect and Landscape Architect's personnel have no authority to exercise any control over any
construction contractor or other entity or their employees in connection with their work or any health
or safety precautions and have no duty for inspecting, noting, observing, correcting, or reporting on
health or safety deficiencies of the construction contractor(s) or other entity or any other persons at
the site except Landscape Architect's own personnel.
35.2 The presence of Landscape Architect's personnel at a construction site is for the
purpose of providing to City a greater degree of confidence that the completed work will conform
generally to the applicable contract documents and that the integrity of the design concept as
reflected in the contract documents has been implemented and preserved by the construction
contractor(s). Landscape Architect neither guarantees the performance of the construction
contractor(s) nor assumes responsibility for construction contractor's failure to perform work in
accordance with the contract documents. For this Agreement only, construction sites include places
of manufacture for materials incorporated into the construction work, and construction contractors
include manufacturers of materials incorporated into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Landscape Architect is
not responsible for any errors or omissions in the information from others that is incorporated into
the record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Landscape Architect for itself and its Subconsultants, if any, certifies that:
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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
Landscape Architecture, landscape Landscape Architecture, Landscape Architecting, or surveying
activity by any Federal, State, or local governmental commission, department, corporation,
subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed
or otherwise provided compensation to, any employee or officer of the City; and;
c. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Landscape
Architect and said signature shall bind the Landscape Architect to this Agreement. No further action
is required by the Landscape Architect to enter into this Agreement other than Landscape
Architect's undersigned representative execution of the Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY: LANDSCAPE ARCHITECT:
CITY OF WINTER SPRINGS
By:�- By:
Print Name: Kevin L. Smith Print Name: t► t+�
Title:
Title: City Manager L r t
a! 04-1A-C ct
ATTEST:
By: L
Andre:" nzo- Luaces, MMC
City Clerk
THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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