HomeMy WebLinkAboutCPH Inc. - Agreement for Engineering Services - 2015 02 19AGREEMENT FOR
ENGINEERING SERVICES
THIS AGREEMENT is made and entered into this day of 2015, by
and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation,
hereinafter referred to as "City ", located at 1126 E. State Road 434, Winter Springs, Florida 32708,
and CPH, Inc., a Florida corporation, authorized to conduct business in the State of Florida, whose
address is 1117 East Robinson Street, Orlando, FL 32801, hereinafter referred to as "Engineer ".
WITNESSETH:
WHEREAS, City has a need to obtain engineering 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, Engineer participated in the selection and negotiation process; and
WHEREAS, Engineer is willing to provide such engineering services to the City under the
terms and conditions stated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM AND DEFINITIONS
1.1 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 three (3) additional years. 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
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Agreement, as amended from time to time, which shall constitute authorization for the Engineer to
provide the engineering services approved by Task Order by the City and is also sometimes referred
to herein to include all Task Orders approved hereunder.
b. "Effective Date" shall be the date on which the last signatory hereto shall execute this
Agreement, and it shall be the date on which this Agreement shall go into effect. The Agreement
shall not go into effect until said date.
C. "Engineer" shall mean CPH, Inc., and its principals, employees, resident project
representatives (and assistants).
d. "Public Record' shall have the meaning given in Section 119.011(1), Florida
Statutes.
e. "Reimbursable Expenses" shall mean the actual expenses incurred by Engineer or
Engineer's independent professional associates and consultants which are directly related to travel
and subsistence at the rates, and under the requirements of, Section 112.061, Florida Statutes, or any
other actual and direct expenses the City agrees to reimburse by Task Order.
L "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 Engineer 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 Engineer and Engineer agrees to perform
the Services outlined in this agreement for the stated fee arrangement. No prior or present
representations shall be binding upon any of the parties hereto unless incorporated in this Agreement.
2.0 DESCRIPTION OF SERVICES
2.1 The City shall make request of Engineer to perform engineering services on a "task"
basis. The City will communicate with Engineer, verbally or in writing, a general description of the
task to be performed. The Engineer will generate a detailed Scope of Work document, prepare a
Schedule, provide 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
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written price proposals from all subconsultants. The detailed cost breakdown shall include a line
item for Reimbursable Expenses and the list of the expenses proposed to be eligible for
reimbursement. The City will review the Task Proposal, and if the description is mutually
acceptable, the parties will enter into a written "Task Order ". The Scope of Services generally to be
provided by the Engineer through a Task Order may include any civil engineering 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 Engineer 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 Engineer 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 engineering companies to provide professional
engineering services.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 City may make changes in the Services at any time by giving written notice to
Engineer. If such changes increase (additional services) or decrease or eliminate any amount of
Work, City and Engineer will negotiate any change in total cost or schedule modifications. If the City
and the Engineer approve any change, the Task Order will be modified in writing to reflect the
changes; and Engineer 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 Engineer'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 Engineer shall perform services in conformance with the mutually agreed schedule set
forth in the negotiated Task Order. Engineer 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 Engineer fall behind the agreed upon schedule, it shall
employ such resources so as to comply with the agreed -upon schedule.
4.2 No extension for completion of services shall be granted to Engineer without City's
prior written consent, except as provided in Sections 3.1 and 19.1 herein.
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4.3 Any cost caused by defective or ill -timed services shall be borne by the party
responsible therefore.
5.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF
FNGINFF IR
5.1 General Services. For basic and additional Services performed by Engineer's
principals, employees, and resident project representatives (and assistants) pursuant to paragraphs 2.0
and 3.0, the City agrees to pay the Engineer 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 Engineer to render additional Services pursuant to paragraphs 2.0 and 3.0,
the City agrees to pay the Engineer an amount equal to that billed Engineer by the independent
professional associates and consultants. Prior to payment by the City, the Engineer shall submit to
the City a copy of any written invoice received by Engineer 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 Engineer'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
Engineer 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 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 Engineer.
5.6 Errors and Deficiencies. Engineer shall not invoice the City or seek any
compensation from the City to correct or revise any errors or deficiencies in Engineer's services
provided under this Agreement.
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5.7 Payment Offsets. To the extent that Engineer owes the City any money under this or
any other Agreement with the City, the City shall have the right to withhold payment and otherwise
back charge the Engineer for any money owed to the City by Engineer.
5.8 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 Engineer shall remain liable to the City in
accordance with applicable law for all damages to the City caused by Engineer's performance of any
services provided under this Agreement.
5.9 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 Engineer, and in no event shall any claim relating thereto for an increase in compensation be
made or recognized. Engineer shall not make any claim nor seek any damages of any kind against
the City for any delays, impacts, disruption or interruption caused by any delay. Engineer's remedy
for a delay shall be an equitable extension of time to perform the Services for each day of such delay
that impacts the critical path of the schedule established under this Agreement 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 Engineer.
6.2 No inspection, review, or observation shall relieve Engineer of its responsibility under
this Agreement.
7.0 PROGRESS MEETING
7.1 City's designated Proj ect Manager may hold periodic progress meetings on a monthly
basis, or more frequently if required by the City, during the term of any Task Order entered into
under this Agreement. Engineer's Project Manager and all other appropriate personnel shall attend
such meetings as designated by City's Project Manager.
8.0 SAFETY
8.1 Engineer shall be solely and absolutely responsible and assume all liability for the
safety and supervision of its principals, employees, resident project representatives (and assistants)
while performing Services provided hereunder.
9.0 REASONABLE ACCESS
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9.1 During the term of this Agreement, City shall grant Engineer reasonable access to the
City's premises, records, and files for purposes of fulfilling its obligations under this Agreement.
10.0 INSURANCE
10.1 Liability Amounts. During the term of this Agreement, Engineer shall be
responsible for providing the types of insurance and limits of liability as set forth below.
a. Professional Liability. Proof of professional liability insurance shall be provided to
the City for the minimum amount of $1,000,000 as the combined single limit per claim and
$1,000,000 in the aggregate.
b. The Engineer shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to protect the
Engineer from claims of property damages and personal injury which may arise from any Services
performed under this Agreement whether such Services are performed by the Engineer or by anyone
directly employed by or contracting with the Engineer.
C. The Engineer shall maintain comprehensive automobile liability insurance in the
minimum amount of $1,000,000 combined single limit bodily injury and minimum $50,000 property
damage as the combined single limit for each occurrence to protect the Engineer from claims for
damages for bodily injury, including wrongful death, as well as from claims from property damage,
which may arise from the ownership, use, or maintenance of owned and non -owned automobiles,
including rented automobiles whether such operations be by the Engineer or by anyone directly or
indirectly employed by the Engineer.
d. The Engineer shall maintain, during the life of this Agreement, adequate Workers'
Compensation Insurance and Employers' Liability Insurance in at least such amounts as are required
by law for all of its employees performing Work for the City pursuant to this Agreement.
10.2 Special Requirements. Current, valid insurance policies meeting the requirements
herein identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the City thirty (30) days prior to any expiration date. There shall also be a thirty (30) day
advance written notification to the City in the event of cancellation or modification of any stipulated
insurance coverage. The City shall be an additional named insured on stipulated insurance
policies included in article 101b 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
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endorsement that at least thirty (3 0) days' prior written notice (10 days for nonpayment) will be given
to the City prior to cancellation of, or material changes to the policy. All such insurance shall
remain in effect until final payment. In the event that the Engineer shall fail to comply with the
foregoing requirement, the City is authorized, but in no event shall be obligated, to purchase such
insurance, and the City may bill the Engineer. The Engineer shall immediately forward funds to the
City in full payment for said insurance. It is expressly agreed that neither the provision of the
insurance referred to in this Agreement nor the City's acceptance of the terms, conditions or amounts
of any insurance policy shall be deemed a warranty or representation as to adequacy of such
coverage. All insurance coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or
equivalent rating and rating service as reasonably determined by the City Manager) and licensed by
the State of Florida to engage in the business of writing of insurance. Unless agreed to by the City to
the contrary, the City shall be named on the insurance policies included in article 101b and 101c as
"additional insured." The Engineer shall cause its insurance carriers, prior to the effective date of
this agreement to furnish insurance certificates specifying the types and amounts of coverage in
effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under
such policies will be canceled without thirty (30) days' prior written notice to the City in compliance
with other provisions of this Agreement. If the City has any objection to the coverage afforded by
or other provision of the insurance required to be purchased and maintained by the Engineer in
accordance with this Article on the basis of its not complying with the Agreement, the City shall
notify the Engineer in writing thereof within thirty (30) days of the date of delivery of such
certificates to the City. For all Work performed pursuant to this Agreement, the Consultant shall
continuously maintain such insurance in the amounts, type, and quality as required by the
Agreement.
10.4 Independent Associates and Consultants. All independent associates and
consultants employed by Engineer to perform any Services hereunder shall fully comply with the
insurance provisions contained in this paragraph.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
11.1 Engineer shall comply with all requirements of federal, state, and local laws, rules,
regulations, standards, and /or ordinances applicable to the performance of Services under this
Agreement.
12.0 REPRESENTATIONS
12.1 Engineer 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. Engineer shall perform as
expeditiously as is consistent with professional skill and care and the orderly progress of the Services
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performed hereunder. Engineer's services shall be consistent with the time periods established under
this Agreement or the applicable Task Order. Engineer 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 Engineer's designated representative shall have
the authority to act on Engineer's behalf with respect to the Services. In addition, Engineer's
representative shall render decisions in a timely manner in order to avoid unreasonable delay in the
orderly and sequential progress of the Services. Except with the City's knowledge and consent, the
Engineer shall not engage in any activity, or accept any employment, interest or contribution that
would reasonably appear to compromise the Engineer's professional judgment with respect to the
Services. The Engineer shall review laws, codes, and regulations applicable to Engineer's Services.
The Engineer's services and design shall comply with all applicable requirements imposed by all
public authorities. The Engineer represents and warrants that it is familiar with, and accepts that it
will perform the Services hereunder in a manner that complies with all applicable requirements of
law, codes, and regulations. Engineer shall be responsible for the professional quality, technical
accuracy and the coordination of all plans, studies, reports and other services furnished to the City
under this Agreement. Unless this Agreement is terminated by the City, or terminated by Engineer
for nonpayment of any proper invoices, or the City exercises its rights to perform the Services
pursuant to under Paragraph 2.2 herein, Engineer shall be responsible for the satisfactory and
complete execution of the Services described in this Agreement and any Task Order. The Engineer
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 Engineer represents that all principals, employees, and other personnel furnishing
such Services shall be qualified and competent to perform the Services assigned to them and that
such guidance given by and the recommendations and performance of such personnel shall reflect
their best professional knowledge and judgment.
13.4 GUARANTEE AGAINST" INFRINGEMENT
13.1 Engineer guarantees that all Services performed under this Agreement shall be free
from claims of patent, copyright, and trademarks infringement. Notwithstanding any other provision
of this Agreement, Engineer shall indemnify, 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, Engineer may elect to provide non - infringing services.
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14.0 DOCUMENTS
14.1 Public Records. It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of the
Engineer and its independent contractors and associates related, directly or indirectly, to this
Agreement, shall be deemed to be a Public Record whether in the possession or control of the City or
the Engineer. Said record, document, computerized information and program, audio or video tape,
photograph, or other writing of the Engineer is subject to the provisions of Chapter 119, Florida
Statutes, and may not be destroyed without the specific written approval of the City's City manager.
Upon request by the City, the Engineer shall promptly supply copies of said public records to the
City. All books, cards, registers, receipts, documents, and other papers in connection with this
Agreement shall at any and all reasonable times during the normal working hours of the Engineer be
open and freely exhibited to the City for the purpose of examination and/or audit.
a. Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data, or programs stored electronically or otherwise, prepared by the Engineer and
its independent contractors and associates pursuant to this Agreement or related exclusively to the
Services described herein shall be owned by the City and may be reused by the City for any reason or
purpose at anytime. However, the City agrees that the aforesaid documents are not intended or
represented to be suitable for reuse by the City or others on any undertaking other than the Work
outlined in this Agreement. Any reuse for an undertaking other than for the Work without
verification or adaptation by the Engineer, or its independent contractors and associates if necessary,
to specific purposes intended will be at the City's sole risk and without liability or legal exposure to
the Engineer.
b. Ownership of Documents. The City and the Engineer agree that upon payment of
fees due to the Engineer by the City for a particular design, report, inventory list, compilation,
drawing, specification, model, recommendation, schedule or otherwise, said design, report, inventory
list, compilation, drawing, specification, technical data, recommendation, model, schedule and other
instrument produced by the Engineer in the performance of this Agreement, or any Work hereunder,
shall be the sole property of the City, and the City is vested with all rights therein. The Engineer
waives all rights of copyright in said design, report, inventory list, compilation, drawing,
specification, technical data, recommendation, model, schedule and other instrument produced by the
Engineer in the performance of this Agreement, and hereby assigns and conveys the same to the City
whether in the possession or control of the Engineer or not.
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15.0 ASSIGNMENT
15.1 Engineer 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 Engineer, Engineer shall be fully responsible to City for all acts and /or omissions
performed by the subcontractor as if no subcontract had been made.
15.3 If City determines that any subcontractor is not performing in accordance with this
Agreement, City shall so notify Engineer who shall take immediate steps to remedy the situation.
15.4 If any part of this Agreement is subcontracted by Engineer, prior to the
commencement of any Work by the subcontractor, Engineer shall require the subcontractor to
provide City and its affiliates with insurance coverage as set forth by the City.
16.0 INDEPENDENT CONTRACTOR
16.1 At all times during the term of this Agreement, Engineer shall be considered an
independent contractor and not an employee of the City.
17.0 DEFAULT BY ENGINEER AND CITY'S REMEDIES
17.1 The City reserves the right to revoke and terminate this Agreement and rescind all
rights and privileges associated with this Agreement, without penalty, in the following
circumstances, each of which shall represent a default and breach of this Agreement:
17.2 Engineer defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within thirty (30) calendar days after written notice
from the City specifying the default complained of, unless, however, the nature of the default is such
that it cannot, in the exercise of reasonable diligence, be remedied within thirty (30) calendar days, in
which case the Engineer shall have such time as is reasonably necessary to remedy the default,
provided the Engineer promptly takes and diligently pursues such actions as are necessary therefor;
or
17.3 Engineer is adjudicated bankrupt or makes any assignment for the benefit of creditors
or Engineer becomes insolvent, or is unable or unwilling to pay its debts; or
17.4 Engineer has acted grossly negligent, as defined by general and applicable law, in
performing the Services hereunder; or
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17.5 Engineer has committed any act of fraud upon the City; or
17.6 Engineer has made a material misrepresentation of fact to the City while performing
its obligations under this Agreement.
17.7 Engineer has assigned this Agreement or any Task Order without the City's prior
written consent.
17.8 Notwithstanding the aforementioned, in the event of a default by Engineer, the City
shall have the right to exercise any other remedy the City may have by operation of law, without
limitation, and without any further demand or notice.
18.0 TERMINATION
18.1 Notwithstanding any other provision of this Agreement, City may, upon written notice
to Engineer, terminate this Agreement, without penalty, if: (a) Engineer is in default pursuant to
paragraph 17.0 Default; or (b) Engineer is experiencing a labor dispute which threatens to have a
substantial, adverse impact upon performance of this Agreement without prejudice to any other right
or remedy City may have under this Agreement. In addition, either party may terminate for
convenience with no penalty at any time upon thirty (3 0) 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 perfonned 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 Nlaj eure remains in effect for sixty days, either party may terminate this
Agreement.
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20.0 GOVERNING LAW & VENUE
20.1 This Agreement is made and shall be interpreted, construed, governed, and enforced
in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be
Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida.
21.0 HEADINGS
21.1 Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
22.0 SEVERABILITY
22.1 In the event any portion or part of thereof this Agreement is deemed invalid, against
public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an
equitable adjustment in the affected provision of this Agreement. The validity and enforceability of
the remaining parts of this Agreement shall otherwise by fully enforceable.
23.0 WAIVER AND ELECTION OF REMEDIES
23.1 Waiver by either party of any terms, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
23.2 No waiver, consent, or modification of any of the provisions of this Agreement shall
be binding unless in writing and signed by a duly authorized representative of each party hereto.
24.0 THIRD PARTY RIGHTS
24.1 Nothing in this Agreement shall be construed to give any rights or benefits to anyone
other than City and Engineer.
25.0 PROHIBITION AGAINST CONTINGENT FEES
25.1 Engineer warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for the Engineer, to solicit or secure this Agreement, and
that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than
a bona fide employee working solely for the Engineer, any fee, commission, percentage, gift, or other
consideration contingent upon or resulting from the award or making of this Agreement.
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26.0 ENTIRE AGREEMENT
26.1 This Agreement, including any Task Orders and Schedules, Attachments, Appendix's
and Exhibits attached hereto, constitute the entire agreement between City and Engineer with respect
to the Services specified and all previous representations relative thereto, either written or oral, are
hereby annulled and superseded.
27.0 NO JOINT VENTURE
27.1 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party act toward
third persons or the public in any manner which would indicate any such relationship with the other.
28.0 ATTORNEY'S FEES
28.1 Should either party bring an action to enforce any of the terms of this Agreement, the
prevailing party shall be entitled to recover from the non - prevailing party the costs and expenses of
such action including, but not limited to, reasonable attorneys' fees, whether at settlement, trial or on
appeal.
29.0 COUNTERPARTS
29.1 This Agreement may be executed in any number of counterparts, each of which when
so executed and delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
30.0 DRAFTING
30.1 City and Engineer each represent that they have both shared equally in drafting this
Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement
in the event of a dispute between the parties.
31.0 NOTICE
31.1 Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed, postage prepaid to;
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For Engineer:
CPH, Inc.
500 W. Fulton Street
Sanford, FL. 32771
(40)7
322-6841
For City:
City of Winter Springs/ Public Works Department
Attention: City Engineer
1126 E. State Road 434
Winter Springs, Florida 32708
(407) 327 -5989 FAX: (407) 327 -6695
31.2 Either party may change the notice address by providing the other party written notice
of the change.
32.0 SOVEREIGN IMMUNITY
32.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in
this Agreement shall be construed as a waiver of the City's right to sovereign immunity under
section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under
state or federal law. As such, the City shall not be liable under this Agreement for punitive damages
or interest for the period before judgment. Further, in accordance with section 768.28, the City shall
not be liable for any claim or judgment, or portion thereof, to any one person for more than two
hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when
totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising
out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars
($300,,000.00). This paragraph shall survive termination of this Agreement.
33.0 CORPORATE REPRESENTATIONS BY ENGINEER
33.1 Engineer hereby represents and warrants to the City the following:
a. Engineer is duly registered and licensed to do business in the State of Florida and is in
good standing under the laws of Florida, and is duly qualified and authorized to carry on the
functions and operations set forth in this Agreement.
b. The undersigned representative of Engineer has the power, authority, and legal right
to execute and deliver this Agreement on behalf of Engineer.
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34.0 INDEMNIFICATION
34.1 Engineer shall indemnify and hold harmless the City, and its officers (including its
City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or
intentionally wrongful conduct of the Engineer and other persons employed by the Engineer in the
performance of the Agreement and any Task Order.
34.2 Engineer shall also indemnify and hold harmless the City, and its officers (including
its City Attorneys) and employees, from liabilities, damages, losses, and costs, including, but not
limited to, reasonable attorney's fees, to the extent caused by Engineer's breach and caused by other
persons employed by the Engineer in the performance of the Agreement and any Task Order.
The indemnity provisions set forth in Paragraphs 34.1 and 34.2 shall be considered separate
and independent indemnity provisions.
34.3 THE CITY ACKNOWLEDGES AND AGREES THAT
THIS AGREEMENT IS SUBJECT TO SECTION 558.0035,
FLORIDA STATUTES WHICH PROVIDES THAT INDIVIDUAL
DESIGN PROFESSIONALS EMPLOYED BY THE ENGINEER OR
AN AGENT OF THE ENGINEER MAY NOT BE INDIVIDUALLY
LIABLE FOR ECONOMIC DAMAGES RESULTING FROM
NEGLIGENCE OCCURRING WITHIN THE COURSE AND SCOPE
OF PROFESSIONAL SERVICES PERFORMED IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT
PROVIDED CERTAIN STATUTORY CONDITIONS ARE
SATISFIED.
35.0 ENGINEER'S PERSONNEL AT CONSTRUCTION SITE
35.1 The presence or duties of Engineer's personnel at a construction site, whether as
onsite representatives or otherwise, do not make Engineer or Engineer's personnel in any way
responsible for those duties that belong to City and /or the construction contractors or other entities,
and do not relieve the construction contractors or any other entity of their obligations, duties, and
responsibilities, including, but not limited to, all construction methods, means, techniques,
sequences, and procedures necessary for coordinating and completing all portions of the construction
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work in accordance with the applicable construction contract documents and any health or safety
precautions required by such construction work. Engineer and Engineer's personnel have no authority
to exercise any control over any construction contractor or other entity or their employees in
connection with their work or any health or safety precautions and have no duty for inspecting,
noting, observing, correcting, or reporting on health or safety deficiencies of the construction
contractor(s) or other entity or any other persons at the site except Engineer's own personnel.
35.2 The presence of Engineer's personnel at a construction site is for the purpose of
providing to City a greater degree of confidence that the completed work will conform generally to
the applicable contract documents and that the integrity of the design concept as reflected in the
contract documents has been implemented and preserved by the construction contractor(s). Engineer
neither guarantees the performance of the construction contractor(s) nor assumes responsibility for
construction contractor's failure to perform work in accordance with the contract documents. For
this Agreement only, construction sites include places of manufacture for materials incorporated into
the construction work, and construction contractors include manufacturers of materials incorporated
into the construction work.
36.0 RECORD DRAWINGS
36.1 Record drawings, if required, will be prepared, in part, on the basis of information
compiled and furnished by others, and may not always represent the exact location, type of various
components, or exact manner in which the project was finally constructed. Engineer is not
responsible for any errors or omissions in the information from others that is incorporated into the
record drawings.
37.0 ADDITIONAL ASSURANCES
37.1 The Engineer for itself and its Subconsultants, if any, certifies that:
a. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement is presently debarred, suspended,
proposed for debarment, declared ineligible or voluntarily excluded from participation in any
architecture, landscape architecture, engineering, or surveying activity by any Federal, State, or local
governmental commission, department, corporation, subdivision, or agency;
b. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has employed or
otherwise provided compensation to, any employee or officer of the City; and;
C. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing work under this Agreement, employee, or agent has willfully
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offered an employee or officer of the City any pecuniary or other benefit with the intent to influence
the employee or officer's official action or judgment.
d. The undersigned is authorized to execute this Agreement on behalf of the Engineer
and said signature shall bind the Engineer to this Agreement. No further action is required by the
Engineer to enter into this Agreement other than Engineer's undersigned representative execution of
the Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by their
duly authorized representatives as of the date first written above.
CITY:
CITY OF WINTER SPRINGS
By;
Print Name /Tit • Kevin L. Smith
City Manager
ATTEST.
By.y,
City e:r
ENGINEER:
Print Name /Title: ;'
10;9 A
* THIS AGREEMENT IS ONLY VALID AGAINST THE CITY UPON APPROVAL BY
THE CITY COMMISSION OF WINTER SPRINGS AND SIGNATURE BY EITHER THE
MAYOR OR CITY MANAGER.
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