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HomeMy WebLinkAboutBellemo-Herbert & Company Landscape Architectural Services -2009 08 24 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 1 (9/4/2009) 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 2 (9/4/2009) 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 ofa 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 3 (9/4/2009) 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. Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 4 (9/4/2009) 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 5 (9/4/2009) 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 6 (9/4/2009) 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 7 (9/4/2009) 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 8 (9/4/2009) 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. Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 9 (9/4/2009) 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. Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 10 (9/4/2009) 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 11 (9/4/2009) 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. Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 12 (9/4/2009) 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: r vim) (e, City of Winter Springs/ Public Works Department ,611.4 I C49• G. Attention: Public Works Director r. 0 0 l;,- L' 3p 1126 E. State Road 434 d i R. 3Z Winter Springs, Florida 32708 C i o- 4,a, ,t* F, C �1)4' 22. o41l 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 13 (9/4/2009) 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 Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 14 (9/4/2009) 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. Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 15 (9/4/2009) 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] Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 16 (9/4/2009) 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 B By 6 4.d_rf y 'rhfl Name:. Kevin L. Smith Print Name: 1, 6l Title, City Manager Title: fre,S( ATTES By: Ad Andrea or zo- 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. Landscape Architect Continuing Services Agreement City of Winter Springs and Bellemo- Herbert Company 17 (9/4/2009)