HomeMy WebLinkAboutChen Moore and Associates, Inc. Agreement for Continuing Professional Services 2026 09 14AGREEMENT FOR
CONTINUING PROFESSIONAL SERVICES
THIS AGREEMENT FOR CONTINUING PROFESSIONAL SERVICES
("Agreement") is made and entered this P day of a&.4, 1 ep , 2026 ("Effective
Date"), by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation
located at 1126 E. State Road 434, Winter Springs, Florida 32708 (the "City") and CHEN
MOORE AND ASSOCIATES, INC., a Florida profit corporation with a principal address at 500
W. Cypress Creek Rd., Suite 600, Fort Lauderdale, Florida 33309 (the "Consultant") (City and
Consultant collectively the "Parties").
WITNESSETH:
WHEREAS, the City has a need to, from time to time, obtain services to support various
City projects, programs, facilities, and operations; and
WHEREAS, the City issued Request for Qualifications No. RFQ #05-26-02 CS on May
8, 2026, soliciting statements of qualifications from qualified professional firms to provide certain
continuing professional services to the City on an as -needed basis; and
WHEREAS, the City conducted the selection and negotiation process for RFQ #05-26-02
CS in accordance with the Consultants' Competitive Negotiation Act, Section 287.055, Florida
Statutes; and
WHEREAS, the Consultant participated in the selection and negotiation process and was
selected by the City as a qualified firm to provide certain professional services to the City; and
WHEREAS, the City desires to enter into this Agreement with the Consultant for the
provision of professional services on an as -needed, task -oriented basis, as more particularly
described in the General Scope of Services attached hereto and incorporated herein by this
reference; and
WHEREAS, the Consultant desires to provide such professional services to the City in
accordance with the terms and conditions of this Agreement.
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 Term. Unless sooner terminated by either Party pursuant to the terms and
conditions herein, this Agreement shall terminate on the third (3rd) anniversary of
the Effective Date. The Parties shall have the option to extend the term for two (2)
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additional one (1) year renewal terms. Any such renewal shall only be by written
amendment to this Agreement executed by both parties hereto.
1.2 The terms and conditions of any Task Order, as described in Section 2.0 hereof,
shall be as set forth in said Task Order. Any Task in effect at the termination of this
Agreement shall remain in effect until completion of said Task Order, and all the
terms and conditions of this Agreement shall survive until completion of all Task
Orders.
1.3 Engagement. The City hereby engages the Consultant, and the Consultant 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.
1.4 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 may be amended from time to time, which shall
constitute authorization for the Consultant to provide the Services
approved by City Task Order, and is also sometimes referred to herein
to include all Task Orders approved hereunder.
b. "Consultant" shall mean Chen Moore and Associates, Inc., and its
principals, employees, assistants, and resident project representatives.
e. "Professional Services" shall have the same meaning as defined in the
Consultants' Competitive Negotiation Act, Section 287.055, Florida
Statutes, and may include other related professional services approved
by the City to as needed to complete Work specified in a Task Order.
d. "Public Record" shall have the meaning given in Florida Statutes
Section 119.011(2), as may be amended.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by
the Consultant or Consultant's independent professional associates
which are directly related to travel and subsistence at the rates, and
under the requirements of, Section 112.061, Florida Statutes, as may be
amended 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 professional services generally identified to be performed under
Section 2.3 of this Agreement. If a Task Order is issued by the City,
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Work shall mean the performance of the work specifically agreed to by
the parties in a Task Order. .
g. "Task 0rc1ei" shall mean a written document approved by the parties
pursuant to the procedure outlined in Section 2.0 of this Agreement, and
any amendments thereto approved pursuant to the procedures outlined
in Section 3.0 herein, which sets forth the Work to be performed by the
Consultant under this Agreement, and shall include, without the
necessity of a cross-reference, the terms and conditions of this
Agreement.
2.0 DESCRIPTION OF SERVICES.
2.1 The City shall make request of the Consultant to perform the Services on a "task"
basis. The City will communicate with the Consultant, verbally or in writing, a
general description of the task to be performed. If a site visit by the Consultant is
needed to generate the scope of work document, the Consultant shall request
approval from the City prior to visiting the site. The Consultant will generate a
detailed Scope of Work document, prepare a Schedule, add a Not -to -Exceed Budget
or Lump Sum Fee to accomplish the task with a detailed cost breakdown based on
the hourly rate schedule attached hereto as Exhibit "A," and send the thus
developed "Task Proposal" to the City. The detailed cost breakdown of the lump
sum fee or not -to -exceed budget 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
sub -consultant work, and the Task Proposal shall include the written price proposals
from all sub -consultants. 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 reserves the right, at its discretion, to consider the Task
Proposal as part of a formal or informal competitive bid process before approving
or disapproving any Task Proposal.
The City will review the Task Proposal, along with any other task proposals
submitted to the City by other contractors, and if the description, cost and other
details of the Task Proposal are deemed by the City to be in the City's best interests,
the parties will enter into a mutually agreeable written "Task Order." The Scope of
Services generally to be provided by the Consultant through a Task Order may
include engineering, planning, design and permitting, architecture, and/or
landscape architecture 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 Consultant 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 Consultant shall perform the services
set forth in the Task Order.
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2.2 The City reserves the right, at its discretion, to itself perform any services related
to this Agreement or to retain the services of other engineering companies/firms to
provide such professional services to the City. Further, the City does not guarantee
that any Work will be assigned to Consultant under this Agreement. The City
reserves the right to assign or contract for professional services with any Party at
its sole discretion. No provision of this Agreement shall be construed to require the
City to assign any Work or task to Consultant under this Agreement.
2.3 The Consultant may be asked to perform any engineering, planning, design and
permitting, architecture, and/or landscape architecture services for the City as the
City so requires, which Services may include the following:
a. Roadway Design;
b. Bridge Repair and Design;
c. Traffic Signals, Pedestrian and Bicycle Facilities;
d. Streetscape Design;
e. Stormwater Engineering;
f. TMDL/Water Quality Studies/Design;
g. Flood Control Studies and Design;
h. Stormwater Master Planning and Modeling;
i. Potable Water and Reclaimed Water Distribution System Analysis and
Design;
j. Sanitary Sewer and Collection System Analysis and Design;
k. General Site Planning and Design for Municipal Facilities;
1. Parks and Recreational Facilities Master Planning and Design;
m. GIS Support Services;
n. Land Development Plan Review Support Services; and/or
2.4 The maximum hourly rates and certain direct charges or unit prices, as applicable,
that can be charged under this Agreement by Consultant, unless otherwise agreed
by the City in writing, are set forth in Exhibit "A" and fully incorporated herein
by this reference.
2.5 No task in which the Consultant is to provide professional services to the City for
a project with an estimated construction cost exceeding $7.5 Million, or an amount
as may otherwise be permitted in s. 287.055, Florida Statutes, may be the subject
of a Task Order under this Agreement.
3.0 CHANGES IN THE SCOPE OF WORK.
3.1 The City may make changes in the Services at any time by giving written notice to
the Consultant. If such changes increase (additional services) or decrease or
eliminate any amount of Work, the City and the Consultant will negotiate any
change in total cost or schedule modifications. If the City and the Consultant
approve any change, the Task Order will be modified in writing to reflect the
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changes; and the Consultant 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 the City's and the Consultant'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 The Consultant shall perform Services according to the mutually agreed schedule
set forth in the negotiated Task Order. The Consultant shall complete all Services
in a timely manner and will keep the City apprised of the status of work on at least
a monthly basis, or as otherwise reasonably requested by the City. Should the
Consultant fall behind the agreed upon schedule, it shall employ such resources as
may be necessary comply with the agreed -upon schedule.
4.2 No extension for completion of Services shall be granted to the Consultant without
the City's prior written consent, except as otherwise explicitly provided in this
Agreement.
4.3 Any cost caused by defective or ill-timed Services shall be borne by the Party
responsible therefor.
5.0 METHODS OF PAYMENT.
5.1 General Services. For basic and additional Services performed by the Consultant's
principals, employees and resident project representatives (and assistants) pursuant
to paragraphs 2.0 and 3.0, the City agrees to pay the Consultant an amount equal to
the amount agreed upon by the parties for a particular Task Order. Payment terms
must, however, 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 Engineers. For
additional Services and Reimbursable Expenses of independent professional
associates and engineers employed by the Consultant to render additional Services
pursuant to paragraphs 2.0 and 3.0, the City agrees to pay the Consultant an amount
equal to that billed the Consultant by the independent professional associates and
engineers. Prior to payment by the City, the Consultant shall submit to the City a
copy of any written invoice received by the Consultant from all independent
professional associates and engineers which clearly evidences the amount billed by
the independent professional associates and engineers for additional Services and
any Reimbursable Expenses.
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5.3 Witness Services. For witness or expert services rendered by the Consultant's
principals, employees, resident project representatives (and assistants) and
independent professional associates and engineers on behalf of the City in any
litigation, arbitration or other legal or interested administrative proceeding in which
the City is a named an interested Party, the City agrees to pay the Consultant or
independent professional associate or engineers who are 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 Section 218.70 et. seq., Florida Statutes.
5.5 Miscellaneous. Under no circumstances shall actual or direct costs under this
Agreement include costs associated with inefficiency, 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 Consultant.
5.6 Errors and Deficiencies. The Consultant shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in the
Consultant's Services provided under this Agreement.
5.7 Payment Offsets. To the extent that the Consultant 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 Consultant for any money owed to the City
by the Consultant.
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 the
Consultant shall remain liable to the City in accordance with applicable law for all
damages to the City caused by the Consultant'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 Consultant, and in no event shall any claim relating thereto
for an increase in compensation be made or recognized. The Consultant 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. The Consultant'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.
5.10 Acceptance of Payment. Acceptance of final payment by the Consultant for a
specific Task Order shall constitute a release of all claims for payment which the
Consultant may have against the City for that Task Order unless such claims are
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specifically reserved in writing and transmitted to the City by the Consultant prior
to its acceptance. Said final payment shall not, however, be a bar to any claims that
the City may have against the Consultant or to any remedies the City may pursue
with respect to such claims.
5.11 Payment Adjustments. It is agreed that payment by the City of any billing will
not constitute agreement as to the appropriateness of any item and that at the time
of any final audit, all required adjustments will be made and reflected in a final
payment. In the event that such final audit reveals an overpayment to the
Consultant, the Consultant agrees to refund such overpayment to the City within
ninety (90) days of notice of any such overpayment. Such refund shall not
constitute a waiver by the Consultant for any claims relating to the validity of a
finding by the City of overpayment.
5.12 Partial Payments. Payment made to the Consultant shall not constitute acceptance
of the work or any portion thereof which is not in accordance with this Agreement.
The City retains the right to pay only that percentage of the total contract amount
that equals the same percentage that work completed bears to the total amount of
work required to be performed under this Agreement. If the City objects to all or
any portion of any invoice, it shall notify the Consultant of the same within five (5)
days from the date of receipt and shall pay that portion of the invoice not in dispute.
The parties shall immediately make every effort to settle the disputed portion.
6.0 RIGHT TO INSPECTION,
6.1 The City and its affiliates shall at all times have the right to review or observe the
Services being performed by the Consultant. No inspection, review, or observation
shall relieve the Consultant of its responsibilities under this Agreement.
7.0 PROGRESS MEETINGS.
7.1 The 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. The Consultant's Project Manager
and all other appropriate personnel of Consultant shall attend such meetings as
designated by the City's Project Manager.
8.0 SAFETY.
8.1 The Consultant shall be solely and absolutely responsible and shall assume all
liability for the safety and supervision of its principals, employees, agents, and
resident project representatives (and assistants) while performing the Services. The
Consultant shall have no responsibility for any contractor's means, methods,
techniques, equipment choice and usage, sequence, schedule, safety programs, or
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safety practices, nor shall Consultant have any authority or responsibility to stop or
direct the work of any contractor.
9.0 REASONABLE ACCESS.
9.1 During the term of this Agreement, the City shall grant the Consultant 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, the Consultant 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 $5,000,000.00 per
occurrence or claim, and in the aggregate, with a deductible not greater
than $150,000.00, unless a higher deductible is pre -approved by the City
Manager. For professional liability insurance written on a "claims -
made" basis, the Consultant shall maintain and provide evidence to the
City of "tail" coverage that extends coverage for an additional five (5)
years following completion of all Work rendered under this Agreement
and any Task Orders issued hereunder.
b. General Liability. The Consultant shall maintain comprehensive
general liability insurance in the minimum amount of $5,000,000.00 as
the combined single limit for each occurrence, with a deductible no
greater than $50,000.00, unless a higher deductible is pre -approved by
the City Manager, to protect the Consultant 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 Consultant or by anyone directly employed by or contracting with
the Consultant.
c. Automobile Liability. The Consultant shall maintain comprehensive
automobile liability insurance in the minimum amount of $1,000,000.00
per occurrence combined single limit for bodily injury, including
wrongful death, and 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
Consultant or by anyone directly or indirectly employed by the
Consultant.
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d. Workers' Compensation. The Consultant 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 Additional Requirements. Current, valid insurance policies meeting the
requirements identified herein 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 insured on stipulated insurance
policies included in articles 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 the insurance policies 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 Consultant by certified mail, return
receipt requested. All such insurance shall remain in effect until final payment.
Should the Consultant 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 Consultant. The Consultant 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 or provided
through the London Market for Professional Liability Insurance. The Consultant
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 Consultant in accordance with this Article on the basis of its not
complying with the Agreement, the City shall notify the Consultant 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
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continuously maintain such insurance in the amounts, type and quality as required
by the Agreement.
10.4 Independent Associates and Engineers. All independent associates and engineers
employed by the Consultant 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 The Consultant shall exercise the professional standard of care to comply with all
requirements of published federal, state and local laws, rules, regulations and/or
ordinances applicable to the performance of Services under this Agreement. The
standard of care applicable to Consultant's services will be the degree of care and
skill ordinarily exercised by consultants performing the same or similar services in
the same locality at the time the services are provided.
12.0 REPRESENTATIONS.
12.1 The Consultant 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 engineering practices and procedures; and shall conform to
the customary standards of care, skill, and diligence appropriate to the nature of the
Services rendered. The Consultant shall perform as expeditiously as is consistent
with professional skill and care and the orderly progress of the Services performed
hereunder. The Consultant's services shall be consistent with the time periods
established under this Agreement or the applicable Task Order. The Consultant shall
provide the City with a written schedule for services performed under each Task
Order and such schedule shall provide for ample time for the City to review, for the
performance of Consultants (if any), and for the approval of submissions by
authorities having jurisdiction over the services. The Consultant's designated
representative shall have the authority to act on the Consultant's behalf with respect
to the Services. In addition, the Consultant'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 Consultant shall not engage in any activity, or accept any employment, interest
or contribution that would reasonably appear to compromise the Consultant's
professional judgment with respect to the Services. The Consultant shall review
laws, codes and regulations applicable to the Consultant's Services. The
Consultant's services and design shall comply with all applicable requirements
imposed by all public authorities. The Consultant 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. The
Consultant 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
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terminated by the Consultant for nonpayment of any proper invoices, or the City
exercises its rights to perform the Services pursuant to under Section 2.2 herein, the
Consultant shall be responsible for the satisfactory and complete execution of the
Services described in this Agreement and any Task Order. The Consultant
represents that it will carefully examine the scope of services required by the City
in the 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 to 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 The Consultant represents that all principals, employees, agents, 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 The Consultant guarantees that all Services performed under this Agreement shall
be free from claims of patent, copyright, and trademark infringement.
Notwithstanding any other provision of this Agreement, the Consultant shall
indemnify, hold harmless and defend the 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, the Consultant may
elect to provide non -infringing services.
14.0 DOCUMENTS.
14.1 Public Records. Pursuant to Section 119.0701, Florida Statutes and other
applicable public records laws, Consultant agrees that any records, documents,
transactions, writings, papers, letters, computerized information and programs,
maps, books, audio or video tapes, films, photographs, data processing software,
writings or other material(s), regardless of the physical form, characteristics, or
means of transmission, of Consultant related, directly or indirectly, to the services
provided to the City under this Agreement and made or received pursuant to law or
ordinance or in connection with the transaction of official business by the City, may
be deemed to be a public record, whether in the possession or control of the City or
the Consultant. Said records, documents, transactions, writings, papers, letters,
computerized information and programs, maps, books, audio or video tapes, films,
photographs, data processing software, writings or other material(s), regardless of
the physical form, characteristics, or means of transmission of Consultant are
subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed
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without the specific written approval of the City's designated custodian of public
records.
IF THE CONSULTANT HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS, THE CITY CLERK, AT (407) 327-5955,
cityclerkdepartment@winterspringsfl.org, City Clerk's Office, 1126 East
State Road 434, Winter Springs, FL 32708.
Consultant is required to and agrees to comply with public records laws. Consultant
shall keep and maintain all public records required by the City to perform the
services as agreed to herein. Consultant shall provide the City, upon request from
the City Clerk, copies of the requested records or allow the records to be inspected
or copied within a reasonable time at a cost that does not exceed the cost provided
by law. Consultant shall ensure that public records that are exempt or confidential
and exempt from public records disclosure requirements are not disclosed except
as authorized by law for the duration of the Agreement term. Upon completion of
the Agreement, Consultant shall transfer to the City, at no cost, all public records in
possession of the Consultant, provided the transfer is requested in writing by the
City Clerk. Upon such transfer, Consultant shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure
requirements. However, if the City Clerk does not request that the public records
be transferred, the Consultant shall continue to keep and maintain the public records
upon completion of the Agreement and shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the
City, upon request from the City Clerk, in a format that is compatible with the
information technology systems of the City. Should the City not possess public
records relating to this Agreement which are requested to be inspected or copied by
the City or any other person, the City shall immediately notify Consultant of the
request and the Consultant shall then provide such records to the City or allow the
records to be inspected or copied within a reasonable time. If the Consultant does
not comply with a public records request, the City may enforce this Section to the
extent permitted by law. Consultant acknowledges that if the Consultant does not
provide the public records to the City within a reasonable time, the Consultant may
be subject to penalties under Section 119.10, Florida Statutes. The Consultant
acknowledges that if a civil action is filed against the Consultant to compel
production of public records relating to this Agreement, the court may assess and
award against Consultant the reasonable costs of enforcement, including reasonable
attorney fees. All public records in connection with this Agreement shall, at any and
all reasonable times during the normal business hours of the Consultant, be open
and freely exhibited to the City for the purpose of examination, audit, or otherwise.
Failure by Consultant to grant such public access and comply with public records
laws and/or requests shall be grounds for immediate unilateral cancellation of this
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Agreement by the City upon delivery of a written notice of cancellation. If the
Consultant fails to comply with this Section, and the City must enforce this Section,
or the City suffers a third -Party award of attorney's fees and/or damages for
violating Chapter 119, Florida Statutes, due to Consultant's failure to comply with
this Section, the City shall collect from Consultant prevailing Party attorney's fees
and costs, and any damages incurred by the City, for enforcing this Section against
Consultant. If applicable, the City shall also be entitled to reimbursement of all
attorneys' fees and damages which the City had to pay a third Party because of the
Consultant's failure to comply with this Section. The terms and conditions set forth
in this Section shall survive the termination of this Agreement.
14.2 Reuse of Documents. All documents, including but not limited to, drawings,
specifications and data or programs stored electronically or otherwise, prepared by
the Consultant 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 any time.
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 Consultant, 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 Consultant.
14.3 Ownership of Documents. The City and the Consultant agree that upon payment
of fees due to the Consultant 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 Consultant 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 Consultant 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 Consultant in the performance of
this Agreement and hereby assigns and conveys the same to the City whether in the
possession or control of the Consultant or not.
14.4 Preexisting Ownership Rights to Documents. Notwithstanding any provisions to
the contrary contained in this Agreement, the Consultant shall retain sole ownership
to its preexisting information not produced and paid for by the City under this
Agreement including, but not limited to, computer programs, software, standard
details, figures, templates and specifications.
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15.0 ASSIGNMENT.
15.1 The Consultant 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 the City. Any subcontractors employed by Consultant for
any Work required under this Agreement shall require prior written approval from
the City, unless previously approved in the Task Order. Any attempt to assign or
subcontract the responsibilities and payments under this Agreement without the
express prior written consent of the City shall be grounds for termination of the
Agreement.
15.2 If upon receiving written approval from the City, any part of this Agreement is
subcontracted by the Consultant, the Consultant shall be fully responsible to the
City for all acts and/or omissions performed by the subcontractor as if no
subcontract had been made.
15.3 If the City determines that any subcontractor is not performing in accordance with
this Agreement, the City shall so notify the Consultant who shall take immediate
steps to remedy the situation.
15.4 If any part of this Agreement is subcontracted by the Consultant, prior to the
commencement of any Work by the subcontractor, the Consultant shall require the
subcontractor to provide the 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, the Consultant and any approved
subcontractors shall be considered independent contractors and not employees of
the City.
17.0 TERMINATION; DEFAULT AND REMEDIES.
17.1 Either Party may terminate this Agreement for convenience without penalty at any
time upon providing thirty (30) days advance written notice to the other Party.
17.2 In addition, the City also reserves the right to revoke and terminate this Agreement
for a default and to rescind all rights and privileges associated with this Agreement,
without penalty, based on a default including, but not limited to, any of the
following circumstances, each of which shall represent a default and breach of this
Agreement:
a. The Consultant 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
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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 Consultant shall have
such time as is reasonably necessary to remedy the default, provided the
Consultant promptly takes and diligently pursues such actions as are
necessary therefore; or
b. The Consultant is adjudicated bankrupt or makes any assignment for the
benefit of creditors or the Consultant becomes insolvent, or is unable or
unwilling to pay its debts; or
c. The Consultant has acted grossly negligent, as defined by general and
applicable law, in performing the Services hereunder; or
d. The Consultant has committed any act of fraud upon the City; or
e. The Consultant has made a material misrepresentation of fact to the City
while performing its obligations under this Agreement.
f. The Consultant has assigned this Agreement or any Task Order without
the City's prior written consent.
17.3 Notwithstanding the aforementioned, in the event of a default by the Consultant,
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.
17.4 In the event of such termination upon default and breach of this Agreement, any
completed services performed by the Consultant under this Agreement shall, at the
option of the City, become the City's property and the Consultant shall be entitled
to receive equitable compensation for any work completed to the satisfaction of the
City. The Consultant, however, shall not be relieved of liability to the City for
damages sustained by the City by reason of any breach of the Agreement, and the
City may withhold any payments to the Consultant for the purpose of setoff until
such time as the amount of damages due to the City from the Consultant can be
determined.
17.5 In the event of 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.
18.0 FORCE MAJEURE.
18.1 Neither party shall be liable for any delay or failure to perform its obligations under
this Agreement to the extent such delay is caused by an event beyond its reasonable
control, including acts of God, fire, flood, windstorm, explosion, riot, war,
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sabotage, strikes (not involving the Consultant's own workforce), extraordinary
failure of or damage to City facilities, court orders or injunctions, changes in
applicable law or regulation, or orders of governmental or regulatory authorities.
18.2 The affected party shall promptly notify the other party in writing of the Force
Majeure event and shall exercise commercially reasonable efforts to mitigate its
effects and resume performance as soon as practicable. The time for performance
shall be extended only for the period reasonably attributable to the Force Majeure
event. If a Force Majeure event continues for sixty (60) consecutive days and
materially prevents performance of the Agreement, either party may terminate this
Agreement upon written notice to the other party. Neither party shall be entitled to
recover damages from the other arising solely from a delay or failure to perform
excused under this Section.
19.0 GOVERNING LAW AND VENUE.
19.1 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 the Middle District of Florida, Orlando Division, in Orlando,
Florida.
20.0 HEADINGS.
20.1 Paragraph headings are for convenience only and are not to be construed as part of
this Agreement.
21.0 SEVERABILITY.
21.1 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.
22.0 WAIVER AND ELECTION OF REMEDIES.
22.1 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. No waiver,
consent, or modification of any of the provisions of this Agreement shall be binding
unless in writing and signed by a duly authorized representative of each party
hereto.
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23.0 THIRD PARTY RIGHTS.
23.1 Nothing in this Agreement shall be construed to give any rights or benefits to
anyone other than the City and the Consultant.
24.0 PROHIBITION AGAINST CONTINGENT FEES.
24.1 The Consultant warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Consultant, 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 Consultant, any fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this
Agreement. For the breach or violation of this provision, the City shall have the
right to terminate the agreement without liability and, at its discretion, to deduct
from the contract price, or otherwise recover, the full amount of such fee,
commission, percentage, gift, or consideration.
25.0 ENTIRE AGREEMENT.
25.1 This Agreement, including any Task Orders and Schedules, Attachments,
Appendices and Exhibits attached hereto, constitute the entire agreement between
the City and the Consultant with respect to the Services specified and all previous
representations relative thereto, either written or oral, are hereby annulled and
superseded.
26.0 NO JOINT VENTURE.
26.1 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.
27.0 ATTORNEY'S FEES.
27.1 Except as explicitly provided under Section 33.1 of this Agreement, should any
litigation arise concerning this Agreement between the parties, the parties agree to
bear their own costs and attorney's fees, whether at settlement, trial or on appeal.
28.0 COUNTERPARTS.
28.1 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.
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29.0 DRAFTING.
29.1 The City and the Consultant 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.
30.0 NOTICE.
30.1 Any notices required to be given by the terms of this Agreement shall be delivered
by hand or mailed, postage prepaid to:
To Consultant:
Chen Moore and Associates, Inc.
Attn: Robert Best, Jr., PE
2290 Lucien Way, Suite 360
Maitland, Florida 32751
(407) 536-7970
To Ci
City of Winter Springs
Attention: City Manager
1126 East State Road 434
Winter Springs, FL 32708
(407) 327-5989
30.2 Either party may change the notice address by providing the other party written
notice of the change.
30.3 Any Notice given as provided herein shall be deemed received as follows: if
delivered by personal service, on the date so delivered; if delivered to an overnight
courier service, on the business day immediately following delivery to such service;
and if mailed, on the third business day after mailing.
31.0 SOVEREIGN Il4N1UNITY.
31.1 The City intends to avail itself of the benefits of Section 768.28, Florida Statutes
and any other statutes and common law governing sovereign immunity to the fullest
extent possible. Neither this provision nor any other provision of 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. Consultant agrees that City shall not
be liable under this Agreement for punitive damages or interest for the period before
judgment. Further, City shall not be liable for any claim or judgment, or portion
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thereof, to any one person for over two hundred thousand dollars ($200,000.00), or
any claim or judgment, or portion thereof, which, when totaled with all other claims
or judgments paid by the State or its agencies and subdivisions arising out of the
same incident or occurrence, exceeds three hundred thousand dollars
($300,000.00). Nothing in this Agreement is intended to inure to the benefit of any
third party for the purpose of allowing any claim which would otherwise be barred
under the doctrine of sovereign immunity or by operation of law. This paragraph
shall survive termination of this Agreement.
32.0 CORPORATE REPRESENTATIONS OF CONSULTANT.
32.1 The Consultant hereby represents and warrants to the City the following:
a. The Consultant is duly registered and licensed to do business in the State of
Florida, 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 the Consultant has the power, authority, and
legal right to execute and deliver this Agreement on behalf of the Consultant.
33.0 INDEMNIFICATION AND LIMITATION OF LIABILITY.
33.1 The Consultant shall defend, indemnify and hold harmless the City, its elected
officials, officers, employees, agents, attorneys and volunteers, against any and all
liabilities, damages, losses, costs, expenses, injuries (including death), claims or
actions, of whatever type, including, but not limited to, reasonable attorneys' fees
in any legal proceeding through trial and appeal, which the City may hereafter
sustain, incur, or be required to pay, to the extent caused by the negligence,
recklessness, or intentionally wrongful conduct of the Consultant and other persons
employed or utilized by the Consultant in the performance of this Agreement,
including any Task Order.
The Consultant specifically assumes potential liability for actions brought by the
Consultant's own employees against the City and, solely for the purpose of this
indemnification and defense, the Consultant specifically waives its entitlement, if
any, to immunity under Section 440.11, Florida Statutes. This waiver has been
specifically and mutually negotiated by the parties.
The indemnity provisions set forth in this Section shall survive termination of this
Agreement.
33.2 For other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Consultant expresses its willingness to enter into this
Agreement with the knowledge that the Consultant's recovery from the City to any
action or claim arising from the Agreement is limited to a maximum amount of the
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sum of any Agreement amount that is owed by the City for services actually
performed by the Consultant to the City's complete satisfaction, and in no case shall
exceed the amount provided in article31.1 herein. Nothing contained in this
paragraph or elsewhere in this Agreement is in any way intended either to be a
waiver of the limitation placed upon the City's liability as set forth in Section
768.28 Florida Statutes, or to extend the City's liability beyond the limits
established in said Section 768.28 Florida Statutes; and no claim or award against
the City shall include attorney's fees, investigative costs, expert fees, suit costs or
pre judgment interest.
33.3 PURSUANT TO SECTION 558.00355 FLORIDA
STATUTES, AN INDIVIDUAL EMPLOYEE OR
AGENT OF THE CONSULTANT MAY NOT BE
HELD INDIVIDUALLY LIABLE FOR ECONOMIC
DAMAGES RESULTING FROM NEGLIGENCE
UNDER THIS AGREEMENT IF THE CONDITIONS
OF SECTION 558.0035 ARE SATISFIED.
34.0 PERSONNEL AT CONSTRUCTION SITE.
34.1 The presence or duties of the Consultant's personnel at a construction site, whether
as onsite representatives or otherwise, do not make the Consultant or the
Consultant's personnel in any way responsible for those duties that belong to the
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. The Consultant and the Consultant'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 the Consultant's own personnel.
34.2 The presence of the Consultant's personnel at a construction site is for the purpose
of providing to the 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). The Consultant neither guarantees the
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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.
35.0 RECORD DRAWINGS.
35.1 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. The Consultant is not responsible for any errors or omissions in the
information from others that is incorporated into the record drawings.
36.0 ADDITIONAL INSURANCES.
36.1 The Consultant for itself and its Sub -consultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or
individual holding a professional license and performing work under
this Agreement is presently debarred, suspended, proposed for
debarment, declared ineligible or voluntarily excluded from
participation in any architecture, landscape architecture, engineering, or
surveying activity by any federal, State, or local governmental
commission, department, corporation, subdivision or agency;
b. No principal (which includes officers, directors or executive) or
individual holding a professional license and performing work under
this Agreement, employee or agent has employed or otherwise provided
compensation to, any employee or officer of the City; and
c. No principal (which includes officers, directors or executive) or
individual holding a professional license and performing work under
this Agreement, employee or agent has willfully offered an employee or
officer of the City any pecuniary or other benefit with the intent to
influence the employee or officer's official action or judgment.
36.2 The undersigned is authorized to execute this Agreement on behalf of the
Consultant and said signature shall bind the Consultant to this Agreement. No
further action is required by the Consultant to enter into this Agreement other than
the Consultant's undersigned representative's execution of the Agreement.
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37.0 E-VERIFY.
37.1 Pursuant to section 448.095, Florida Statutes, all City Contractors, which shall
include Consultant, shall register with and use the U.S. Department of Homeland
Security's E-Verify system, https:He-verify.uscis.gov/emp, to verify the work
authorization status of all employees hired on and after January 1, 2021.
37.2 Subcontractors.
a. Consultant shall also require all subcontractors performing work under
this Agreement to use the E-Verify system for any employees they may
hire during the term of this Agreement.
b. Consultant shall obtain from all such subcontractors an affidavit stating
the subcontractor does not employ, contract with, or subcontract with an
unauthorized alien, as defined in section 448.095, Florida Statutes.
c. Consultant shall provide a copy of all subcontractor affidavits to the City
upon receipt and shall maintain a copy for the duration of the
Agreement.
37.3 Consultant must provide evidence of compliance with section 448.095, Florida
Statutes. Evidence shall consist of an affidavit from the Consultant stating all
employees hired on and after January 1, 2021, have had their work authorization
status verified through the E-Verify system and a copy of their proof of registration
in the E-Verify system.
37.4 Failure to comply with this provision is a material breach of the Agreement and
shall result in the immediate termination of the Agreement without penalty to the
City. Consultant shall be liable for all costs incurred by the City securing a
replacement Agreement, including but not limited to, any increased costs for the
same services, any costs due to delay, and rebidding costs, if applicable.
38.0 LIMITATION ON CAMPAIGN CONTRIBUTIONS.
38.1 The Consultant, including its chief executive officer, chief financial officer, chief
operating officer, or persons having an ownership interest exceeding five percent
in the Consultant's business entity, agree that they shall not directly or indirectly
make any contribution, or promise expressly or impliedly to make any contribution,
to any candidate for the Winter Springs City Commission at any time during the
term of this Agreement.
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39.0 CITY PREMISES.
39.1 Consultant acknowledges that its employees and agents will behave in an
appropriate manner while on City property and while on any residential or
commercial private property relating to the performance of Services in accordance
with this Agreement. It is a material breach of this Agreement for any agent or
employee of Consultant to behave in a manner which is inconsistent with
appropriate conduct or decorum or to behave in any manner that will disrupt the
functioning of the City or constitute any level of threat to the safety, health, and/or
well-being of any citizen, invitee, licensee, agent, or employee of the City.
Consultant agrees to immediately remove any agent or employee if directed to do
so by the City Project Manager or designee.
39.2 Precautions shall be exercised at all times for the protection of all persons
(including City's employees) and property. The safety of all applicable laws,
regulations, and codes shall be observed. Hazards arising from the use of vehicles,
machinery, and equipment shall be guided or eliminated in accordance with the
highest accepted standard of safety. Consultant shall be solely and absolutely
responsible and shall assume all liability for the safety and supervision of its
principles, employees, contractors, and agents when performing the Services
provided hereunder.
40.0 TRAFFICKING.
40.1 As a condition of this Agreement, the Consultant shall attest under penalty of
perjury that the Consultant does not use coercion for labor or services as defined in
Section 787.06(2), Florida Statutes. Attestations shall be documented using a
Human Trafficking Affidavit as provided by the City.
[Signatures to Follow]
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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:
CITY OF WINTER SPRINGS
Kevin Sweet
City Manager
Date: 1 � o.4
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CONSULTANT:
CHEN MOORE AND
ASSOCIATXS, INC.
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Agreement for Continuing Professional Services
Chen Moore and Associates, Inc.
Page 24 of 25
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EXH-- IBIT A
RATESCHEDULE
202512026 Rate Schedule
For City of Winter Springs
Rates Elfective 1#1 September 1, 2026,
Reimbursable Expenses: Costs considered reimbursable shall include. bud not limited to, Feinted
documents, duplicale copies Ofd0cumenis, shipping and postage, and travel expenses, as appropriale. A
100,L markup w2l be applied to all reirnbursabtes.
Agreement for Continuing Professional Services
Chen Moore and Associates, Inc.
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