301* CPH Nutrient Removal Modifications X3df
City Of Sanford
Agreement Relating To Design Services And Other Related
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Engineering Services Pertaining To Nutrient Removal Modifications
At Treatment Facilities With CPH Engineers, Inc. (CPH) ``
This Agreement is made and entered into on the dates set forth below by and between
the: City of Sanford, whose address is 300 North Park Avenue; Sanford, Florida 32771; r :'
a municipal corporation of the State of Florida, holding tax exempt status, hereinafter ci
referred to as the "City," and CPH Engineers, Inc. a Florida corporation, authorized to
do business in the State of Florida, whose address is 500 West Fulton Street, Sanford,
Florida 32772, sometimeshereinafter referred to as "CPH ". The City and CPH are
collectively referred to herein as the "parties ".
Witnesseth:
Whereas, CPH has solicited the City for the work herein described in the Scope
of Services and the City desires to retain CPH for the work identified in this Agreement
which is work of a design related type providing engineering and related services to the
City as more specifically set forth in the Scope of Services and the Administrative Order
that is referred to below; and
Whereas, CPH hereby warrants and represents to the City that it is competent
and otherwise able to provide professional and high quality engineering and related
services to the City and to attain the completion of each and every element and
component of the Scope of Services; and
Whereas, the City is currently under the controlling provisions of an
Administrative Order (Number. 09 -007) issued by the Florida Department of
Environmental Protections (FDEP) relative to the reduction of nutrients discharged from
the City's two water reclamation facilities which Administrative Order is incorporated
herein by this reference thereto as if full set forth herein verbatim and which
Administrative Order is further described in the Scope of Services; and
Whereas,. the Administrative Order was part of the City's operating permit
renewal issued in 2009 and the FDEP adopted new Total Maximum Daily Loads
(TMDL) standards for the middle St. Johns River Basin this action constituting part of
the Statewide effort by the FDEP to reduce nutrient levels in the waters of Florida; and
Whereas,. CPH has represented to the City that CPH can meet all requirements
of the Administrative Order and accomplish all tasks and requirements on time and in a
manner that meets the performance requirements of the FDEP and the City; and
Whereas,. in order to meet these requirements the City will need to modify the
treatment process at both of its facilities to reduce total nitrogen and total phosphorus
discharges and CPH will perform the work and services as set forth in this Agreement in
order for the City to timely meet all requirements; and
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Whereas, the Scope of Services which is part of this Agreement has been
developed by CPH and shall be read in a manner most favorably to the City and in a
manner which ensures that all services necessary to accomplish the requirement of the
Administrative Order as well as the other services described in the Scope of Services
are accomplished; and
Whereas, the timeline for services which is part of this Agreement has been
developed by CPH and shall be read in a manner most favorably to the City; and
Whereas, CPH developed the City's schedule of actions and activities and
submitted City schedules to the FDEP; and
Whereas, CPH has previously accomplished some of the early activities that
were part of the feasibility study that has previously occurred; and
Whereas, this Agreement is subject to the provisions of the Consultants
Copetitive Negotiations Act (CCNA); provided, however, that, as a result of the
Administrative Order, the requirements of the FDEP, the timing of City activities, the
nature of CPH as a City service provider, the City Commission has concluded, based
upon the recommendation of its Utiity staff and Purchasing staff, to declare that the
procurement of the services herein described are being procured on an emergency
basis and with CPH being determined to be a sole source of and for the provisions of
the needed services.
Now, Therefore, in consideration of the mutual covenants and agreements
hereinafter contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed by and between the parties
hereto as follows:
Section 1: Definitions.
Ad valorem - In proportion to the estimated value of the goods taxed.
Agreement — This document and all related contractual documents between the City
and CPH.
Bona Fide - Made or carried out in good faith; sincere.
City — The City of Sanford, a municipal corporation of the State of Florida holding tax
exempt status.
CPH - To include all principals of CPH including, but not limited to, full and part time
employees, professional or otherwise, and all other agents employed by or for CPH to
perform its obligations hereunder. CPH shall be responsible for the work of its
subcontractors which term shall include subconsultants of every type and nature.
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Designated Representative — A person who administers, reviews, and coordinates the
provision of services. This definition applies equally to the City and to CPH.
Force Majeure - Force Majeure shall include, but not be limited to, hostility, revolution,
civil commotion, strike, epidemic, fire, flood, wind, earthquake, explosion, any law,
proclamation, regulation, or ordinance or other act of government, or any act of God or
any cause whether of the same or different nature, existing or future; provided that the
cause whether or not enumerated in this Agreement is beyond the control and without
the fault or negligence of the party seeking relief under this Agreement.
Law - Said phrase shall include statutes, codes, rules, and regulations of whatsoever
type or nature enacted or adopted by a governmental entity of competent jurisdiction.
Pari Materia — of the same matter; on the same subject. Laws pari materia must be
construed with reference to each other /together when related to the same matter or
subject. The provisions of a contract/agreement are to be construed together with no
isolated construction of a particular provision such that it would defeat the overall intent
of the contract/agreement.
Submittals — Any item required by this Agreement that CPH must provide the City
either for inclusion as part of this Agreement or not.
Section 2: Captions.
The Section headings and captions of this Agreement are for convenience and
reference only and in no way define, limit, describe the scope or intent of this
Agreement or any part thereof, or in any way affect this Agreement or construe any
provision of this Agreement.
Section 3: Extent Of Agreement/Integration /Amendment.
(a). This Agreement, together with the exhibits, constitutes the entire integrated
Agreement between the City and CPH and supersedes all prior written or oral
understandings in connection therewith. This Agreement, and all the terms and
provisions contained herein, including, without limitation, the exhibits, constitute the full
and complete agreement between the parties hereto to the date hereof, and supersedes
and controls over any and all prior agreements, understandings, representations,
correspondence, and statements, whether written or oral.
(b). This Agreement may only be amended, supplemented, or modified by a formal
written amendment.
(c). Any alterations, amendments, deletions, or waivers of the provisions of this
Agreement shall be valid only when expressed in writing and duly signed by the parties.
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Section 4: No General City Obligation.
(a). In no event shall any obligation of the City under this Agreement be or constitute
a general obligation or indebtedness of the City, a pledge of the ad valorem taxing
power of the City or a general obligation or indebtedness of the City within the meaning
of the Constitution of the State of Florida or any other applicable laws, but shall be
payable solely from legally available revenues and funds. The funds for the services
provided for in this Agreement shall solely and exclusively be the funds as referenced in
the Scope of Services.
(b). CPH shall not have the right to compel the exercise of the ad valorem taxing
power of the City nor seek payment from funds except as specifically set forth herein.
Section 5: CPH's Understanding Of Services Required.
(a). Execution of this Agreement by CPH is a representation that CPH is familiar with
local conditions and with the services to be performed. CPH shall make no claim for
additional time or money based upon its failure to comply with this Agreement or any
other cause whatsoever. CPH has informed the City, and hereby represents to the City,
that it has extensive experience in performing and providing the services described in
this Agreement and obtaining the funds necessary to pay for the services set forth in
this Agreement, and that it is well acquainted with the components that are properly and
customarily included within such projects and the requirements of laws, ordinances,
rules, regulations, or orders of any public authority or licensing entity having jurisdiction
over City projects. Execution of this Agreement by CPH shall be an affirmative and
irrefutable representation by CPH to the City that CPH is fully familiar with any and all
requisite work conditions of the provisions of the services.
(b). The recitals herein are true and correct and form and constitute a material part of
this Agreement upon which the parties have relied.
(c). It is agreed that nothing herein contained is intended or should be construed as
in any manner creating or establishing a relationship of co- partners between the parties,
or as constituting CPH (including, but not limited to, its officers, employees, and agents)
the agent, representative, or employee of the City for any purpose, or in any manner,
whatsoever. CPH is to be and shall remain forever an independent 's with respect to all
services performed under this Agreement and shall not act on behalf of the City without
specific written authorization.
(d). Persons employed by CPH in the provision and performance of the services and
functions pursuant to this Agreement shall have no claim to pension, workers'
compensation, unemployment compensation, civil service or other employee rights or
privileges granted to the City's officers and employees either by operation of law or by
the City.
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Section 6: General Provisions.
(a). Each party hereto represents to the other that it has undertaken all necessary
actions to execute this Agreement, and that it has the legal authority to enter into this
Agreement, and to undertake all obligations imposed on it. The persons executing this
Agreement for CPH certify that they are authorized to bind CPH fully to the terms of this
Agreement.
(b). This Agreement is for services pertaining to various and diverse engineering
services as that term is statutorily defined and as needed for the City's operations,
programs and projects as set forth herein and as otherwise directed by the City to
include all labor and materials that may be required.
(c) CPH acknowledges that the coordination between other consulatants or
contractors and CPH may be necessary from time -to -time for the successful completion
of services. CPH agrees to provide such coordination as necessary within the Scope of
Services.
(d). Time is of the essence of the lawful performance of the duties and obligations
contained in this Agreement. The parties covenant and agree that they shall diligently
and expeditiously pursue their respective obligations set forth in this Agreement. CPH
shall pay any and all fines, penalties and costs arising from failure of the City to comply
with the aforementoned Administrative Order which result from the acts of CPH or
failure to perform in a timely manner as required in the Administrative Order or by FDEP
in implementation of the Administrative Order.
(e).. CPH shall maintain an adequate and competent staff or professionally qualified
persons throughout the performance of this Agreement to ensure acceptable and timely
completion of all services.
(f). Requirements for signing and sealing plans, reports, and documents prepared by
CPH shall be governed by the laws and regulations of Seminole County and State
regulatory agencies.
(g). CPH hereby guarantees the City that all material, supplies, services, and
equipment shall meet the requirements, specifications, and standards as provided for
under the Federal Occupations Safety and Health Act of 1970, as from time -to -time
amended.
(h). No claim for services furnished by CPH not specifically provided for herein shall
be honored by the City.
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Section 7: Codes And Design Standards.
(a). All the services to be provided or performed by CPH shall in the minimum be in
conformance with commonly accepted industry and professional codes and standards,
standards of the City, and the laws of any Federal, State, or local regulatory agencies.
(b). CPH shall be responsible for keeping apprised of any changing laws applicable
to the services to be performed under this Agreement.
Section 8: Subcontractors (Including Subconsultants).
(a) Any consultant or contractor proposed subcontractors shall be submitted to the
City for written approval prior to CPH entering into a subcontract. Subcontractor
information shall include, but not be limited to, State registrations, business address,
local business tax proof of payment, and insurance certifications. CPH shall not
subcontract with enterprises, businesses or companies which are related to or owned
by CPH and CPH shall ensure that bona fide and good faith competitive bidding occurs
relative to the provision of subcontracted services.
(b). CPH shall coordinate the provision of services and work product of any City
approved subcontractor and remain fully responsible for such services and work under
the terms of this Agreement.
(c). Any subcontract shall be in writing and shall incorporate this Agreement and
require the subcontractors to assume performance of CPH's duties commensurately
with CPH's duties to the City under this Agreement, it being understood that nothing
herein shall in any way relieve CPH from any of its duties under this Agreement. CPH
shall provide the City with executed copies of all subcontracts.
Section 9: Assignability.
CPH shall not sublet, assign, or transfer any interest in this Agreement, or claims for the
money due or to become due out of this Agreement to a bank, trust company, or other
financial institution without written City approval. When approved by the City, written
notice of such assignment or transfer shall be furnished promptly to the City.
Section 10: Commencement/Implementation Schedule Of Agreement.
(a). CPH shall commence the provision of services as described in this Agreement
immediately upon execution of this Agreement.
(b). CPH shall adhere to the schedules established by the City, in the Scope of
Services and in the Administrative Order. However, if CPH is delayed at any time in the
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provision of services by any act or omission of the City, or of any employee of the City,
or by strikes, lock outs, fire, unusual delay in transportation, unavoidable casualties, or
any other causes of force majeure not resulting from the inactions or actions of CPH
and beyond CPH's control which would not reasonably be expected to occur in
connection with or during performance or provision of the services, or by delay
authorized by the City pending a decision, or by any cause which the City shall decide
to justify the delay, the time of completion shall be extended for such reasonable time
as the City may decide in its sole and absolute discretion. It is further expressly
understood and agreed that CPH shall not be entitled to any damages or compensation,
or be reimbursed for any losses on account of any delay or delays resulting from any of
the aforesaid causes or any other cause whatsoever.
Section 11: Length Of Agreement.
This Agreement shall be in effect until CPH has completed all of the services required
as set forth in this Agreement.
Section 12: Description Of Services.
(a). CPH agrees to perform all engineering services, as that term is statutorily
defined, and all other services set forth in the Scope of Services in accordance with the
Administrative Order and the requirements of the FDEP.
(b). CPH shall diligently and in a professional and timely manner perform and provide
the services contemplated by this Agreement.
Section 13: CPH's Responsibilities.
(a). CPH shall be responsible for the professional quality, accepted standards,
technical accuracy and the coordination of all services furnished by CPH under this
Agreement as well as the conduct of its staff, personnel, employees, and agents. CPH
shall work closely with the City on all aspects of the provision of the services and shall
guide and direct the City to compliance with the Administrative Order and the
requirements of the FDEP. With respect to services, CPH shall be responsible for the
quality, technical accuracy, competence, methodology, accuracy, and the coordination
of all of the following which are listed for illustration purposes and not as a limitation:
documents, analysis, reports, data, plans, plats, maps, surveys, specifications, and any
and all other services of whatever type or nature furnished by CPH under this
Agreement. CPH shall, without additional compensation, correct or revise any errors or
deficiencies in his plans, analysis, data, reports, designs, drawings, specifications, and
any and all other services of whatever type or nature.
(b). CPH shall furnish a Designated Representative to administer, review, and
coordinate the provision of services tto the City and with regard to interactions with the
FDEP.
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(c). Neither City review, approval, or acceptance of, nor payment for, any of the
services required under this Agreement shall be construed to operate as a waiver of any
rights or of any cause of action arising out of the performance of this Agreement. CPH
shall be and shall remain liable to the City in accordance with applicable law for all
damages to the City caused by CPH's negligent or improper performance or failure to
perform any of the services furnished under this Agreement. Additionally, CPH shall be
obligated to pay, as liquidated damages and not a penalty, any fines or penalties that
may be imposed by the FDEP relative to the Administrative Order and the requirements
thereunder.
(d). The rights and remedies of CPH provided for under this Agreement, are in
addition to any other rights and remedies provided by law.
(e). In the event that CPH fails to comply with the terms and conditions of this
Agreement, the City shall notify CPH's Designated Representative in writing so that
CPH may take remedial action.
(f). Time is of the essence in the performance of all services provided by CPH under
the terms of this Agreement including, without limitation, compliance with the
requirements of the FDEP and the Administrative Order..
Section 14: City Rights And Responsibilities.
(a). The City shall reasonably cooperate with CPH in a timely fashion at no cost to
CPH as set forth in this Section. The provisions of Section 1.4 are hereby agreed to be
inapplicable.
(b). The City shall furnish a City Designated Representative to administer, review,
and coordinate the provision of services, but who shall nott relieve CPH of any
obligation to provide the services as set forth herein.
(c). The City shall make City personnel available where, in the City's opinion, they
are required and necessary to assist CPH. The availability and necessity of said
personnel to assist CPH shall be determined solely at the discretion of the City.
(d). The City shall furnish CPH with exisitng data, records, maps, plans,
specifications, reports, fiscal data, and other engineering information that is available in
the City's files that is necessary or useful to CPH for the performance of the work. All
such documents conveyed by the City shall be, and remain the property of, the City and
shall be returned to the City upon completion of the work to be performed by CPH. It is
noted, however, that CPH maintains a great amount of City records relative to the utility
systems and facilities of the City. CPH shall provide any and all of such records upon
demand by the City.
(e). The City shall examine all reports, sketches, drawing, estimates, proposals, and
other documents presented to the City and indicate the City's approval or disapproval
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within a reasonable time so as not to materially delay the provisions of the services of
CPH.
(f). The City shall provide access to and make provisions for CPH to enter upon
public and private lands as required for CPH within a reasonable time to perform work
as necessary as determined by the City.
(g). The City shall transmit instructions, relevant information, and provide
interpretation and definition of City policies and decisions with respect to any and all
materials and other matters pertinent to the services covered by this Agreement.
(h). The City shall give written notice to CPH whenever the City designated
representative knows of a development that affects the services provided and
performed under this Agreement, timing of CPH's provision of services, or a defect or
change necessary in the services of CPH.
(i). The rights and remedies of the City provided for under this Agreement are in
addition to any other rights and remedies provided by law; the City may assert its right
of recovery by any appropriate means including, but not limited to, set -off, suit,
withholding, recoupment, or counterclaim, either during or after performance of this
Agreement.
(j). The City shall be entitled to recover any and all legal costs including, but not
limited to, attorney fees and other legal costs that it may incur in any legal actions it may
pursue in the enforcement of the terms and conditions of this Agreement or the
responsibilities of CPH in carrying out the duties and responsibilities deriving from this
Agreement.
(k). The failure of the City to insist in any instance upon the strict performance of any
provision of this Agreement, or to exercise any right or privilege granted to the City
hereunder shall not constitute or be construed as a waiver of any such provision or right
and the same shall continue in force.
(I). Neither the City's review, approval or acceptance of, nor payment for, any of the
services required shall be construed to operate as a waiver of any rights under this
Agreement nor or any cause of action arising out of the performance of this Agreement
and CPH shall be and always remain liable to the City in accordance with applicable law
for any and all damages to the City caused by CPH's negligent or wrongful provision or
performance of any of the services furnished under this Agreement.
(m). All deliverable analysis, reference data, survey data, plans and reports, or any
other form of written instrument or document that may result from CPH's services or
have been created during the course of CPH's performance under this Agreement shall
become the property of the City.
(n) In the event the City fails to comply with the terms and conditions of this
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Agreement, CPH shall notify the City's Designated Representative in writing so that the
City may take remedial action.
Section 15: Waiver.
The failure of the City to insist in any instance upon the strict performance of any
provision of this Agreement, or to exercise any right or privilege granted to the City
hereunder, shall not constitute or be construed as a waiver of any such provision or
right and the same shall continue in force.
Section 16: Force Majeure.
Neither party shall be considered in default in performance of its obligations hereunder
to the extent that performance of such obligations, or any of them, is delayed or
prevented by force majeure.
Section 17: Standards Of Conduct.
(a). CPH warrants that it has not employed or retained any company or person, other
than a bona fide employee working solely for CPH, to solicit or secure this Agreement
and that CPH has not paid or agreed to pay any person, company, corporation,
individual, or firm other than a bona fide employee working solely for CPH, any fee,
commission, percentage, gift, or any other consideration, contingent upon or resulting
from the award of making this Agreement.
(b). If the City determines that any employee or representative of CPH is not
satisfactorily performing his or her assigned duties or is demonstrating improper
conduct pursuant to any assignment or work performed under this Agreement, the City
shall so notify CPH, in writing. CPH shall immediately remove such employee or
representative of CPH from such assignment.
(c). CPH hereby certifies (in this writing) that no undisclosed conflict of interest exists
with respect to the Agreement, including, but not limited to, any conflicts that may be
due to representation of other clients, customers or vendees, other contractual
relationships of CPH, or any interest in property that CPH may have. CPH further
certifies that any conflict of interest that arises during the term of this Agreement shall
be immediately disclosed in writing to the City. Violation of this Section shall be
considered as justification for immediate termination of this Agreement. CPH shall also
ensure that it will not violate, or cause the City to violation, the laws relating to public
records and public meetings.
(d). CPH shall not engage in any action that would create a conflict of interest for any
City employee or other person during the course of performance of, or otherwise related
to, this Agreement or which would violate or cause others to violate the provisions of
Part III, Chapter 112, Florida Statutes, relating to ethics in government.
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(e). The City will not intentionally award publicly- funded contracts to any consultant or
ontractor who knowingly employs unauthorized alien workers, constituting a violation of
the employment provisions contained in 8 U.S.C. Section 1324a(e) Section 274A(e) of
the Immigration and Nationally Act (INA)]. The City shall consider the employment by
CPH of unauthorized aliens, a violation of Section 274A (e) of the INA. Such violation
by CPH of the employment provisions contained in Section 274A (e) of the INA shall be
grounds for immediate termination of this Agreement by the City.
(f). CPH shall comply with the requirements of the Americans with Disabilities Act
(ADA), and any and all related Federal or State laws which prohibits discrimination by
public and private entities on the basis of disability.
(g). CPH shall not discriminate on the grounds of race, color, religion, sex, or national
origin in the performance of work under this Agreement or violate any laws pertaining to
civil rights, equal protection, or discrimination.
(h). If CPH or an affiliate is placed on a discriminatory vendor list, such action may
result in termination by the City. CPH shall certify, upon request by the City that it is
qualified to submit a bid under Section 287.134 (2) (c), Florida Statutes, relating to
public entity crimes.
(i). If CPH or an affiliate is placed on the convicted vendor list following a conviction
for a public entity crime, such action may result in termination by the City. CPH shall
certify, upon request by the City, that is qualified to submit a bid under Section
287.133(2)(a), Florida Statutes, relating to public entity crimes.
(j). CPH shall certify, upon request by the City, that CPH maintains a drug free
workplace policy in accordance with Section 287.0878, Florida Statutes. Failure to
submit this certification may result in termination.
(k). CPH agrees to comply with Federal, State, and local environmental, health, and
safety laws and regulations applicable to the services provided to the City. CPH agrees
that any program or initiative involving the work that could adversely affect any
personnel involved, citizens, residents, users, neighbors or the surrounding environment
will ensure compliance with any and all employment safety, environmental and health
laws.
(I). If applicable, in accordance with Section 216.347, Florida Statutes, CPH shall not
use funds provided by this Agreement for the purpose of lobbying the Legislature, the
Judicial Branch or a State agency. However, CPH shall accomplish all actions as may
be necessary to obtain all approvals as may be necessary in order to obtain and secure
funding for the services and approval of all of the elements of the Scope of Services.
(m). CPH shall not publish any documents or release information regarding this
Agreement to the media without prior approval of the City.
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(n). CPH shall ensure that all services are provided to the City after CPH has
obtained, at its sole and exclusive expense, any and all permits, licenses, permissions,
approvals or similar consents.
(o). CPH shall ensure that all taxes due from CPH are paid in a timely and complete
manner including, but not limited to, the City's local business tax.
Section 18: Notices.
(a). Whenever either party desires to give notice unto the other, it must be given by
written notice, sent by registered United States mail, with return receipt requested,
addressed to the party for whom it is intended, at the place last specified, and the place
for giving of notice shall remain such until it shall have been changed by written notice
in compliance with the provisions of this Section.
(b). For the present, the parties designate the following as the representative places
for giving of notice, to -wit:
(1) For the City:
City Manager
300 North Park Avenue
Sanford, Florida 32771
With a copy to:
Purchasing Manager
300 North Park Avenue
Sanford, Florida 32771
(2) For CPH:
David A. Gierach, P.E.
President
CPH Engineers, Inc.
500 West Fulton Street
Sanford, Florida 32772
(c) Written notice requirements of this Agreement shall be strictly construed and
such requirements are a condition precedent to pursuing any rights or remedies
hereunder. CPH agrees not to claim any waiver by City of such notice requirements
based upon City having actual knowledge, implied, verbal or constructive notice, lack of
prejudice, or any other grounds as a substitute for the failure of CPH to comply with the
express written notice requirements herein. Computer notification (e -mails and
message boards) shall not constitute proper written notice under the terms of the
Agreement.
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Section 19: Designated Representatives.
(a). The City Manager or the Designated Representative represents the City in all
matters pertaining to and arising from the work and the performance of this Agreement.
(b). The City Manager or the Designated Representative shall have the following
responsibilities:
(1). Examination of all work and rendering, in writing, decisions indicating the City's
approval or disapproval within a reasonable time so as not to materially delay the work
of CPH;
(2). Transmission of instructions, receipt of information, and interpretation and
definition of City's policies and decisions with respect to design, materials, and other
matters pertinent to the work covered by this Agreement;
(3) Giving prompt written notice to CPH whenever the City knows of a defect or
change necessary in the project.
(c). Until further written notice, the City's Designated Representative for this
Agreement is:
Utility Director
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
(d). Until further written notice, CPH's Designated Representative for this Agreement
is:
Benjamin M. Fries, P.E.
Vice - President
CPH Engineers, Inc.
500 West Fulton Street
Sanford, Florida 32772
Section 20: Compensation.
Upon receipt of an invoice and upon the City determining that reasonable progress is
being made with regard to the completion of the Scope of Services, commencing on
May 1, 2011 and for the first day of the nine (9) months thereafter, the City shall pay
CPH the sum of $89,107.11 monthly. The provisions of Section 1.5 of the Scope of
Services are agreed by the parties to be inapplicable, except for the provisions of
Section 1.5.2.
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Section 21: Invoice Process.
(a). Payments may be made by the City to CPH when requested as work progresses for
services furnished in accordance with Section 20.
(b). Invoices which are in an acceptable form to the City and without disputable items
will be processed for payment within thirty days of receipt by the City.
(c). CPH will be notified of any disputable items contained in invoices submitted by
CPH within fifteen days of receipt by the City with an explanation of the deficiencies.
(d). The City and CPH will make every effort to resolve all disputable items contained
in CPH's invoices.
(e). Each invoice shall reference this Agreement, the billing period, and include the
Project Status Report for the period being billed.
(f). The Florida Prompt Payment Act shall apply when applicable.
(g). Invoices are to be forwarded directly to:
Finance Director
City Of Sanford
300 North Park Avenue
Sanford, Florida 32771
With a copy to:
Utility Director
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
Section 22: Termination Of Agreement.
(a). The City may terminate this Agreement for convenience at any time.
(b). The City may also terminate this Agreement upon the City determining that any
one or more of the following reasons exist:
(1). If, in the City's opinion, adequate progress is not being made by CPH; or
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(2). If, in the City's opinion, the quality of the services provided by CPH is not in
conformance with commonly accepted professional standards, standards of the City,
the requirements of Federal or State regulatory agencies, and CPH has not corrected
such deficiencies in a timely manner as determined by the City; or
(3). CPH or any employee or agent of CPH is indicted or has a direct charge issued
against him for any crime arising out of or in conjunction with any work that has been
performed by CPH or CPH is found to be involved in any unethical conduct; or
(4). CPH becomes involved in either voluntary or involuntary bankruptcy
proceedings, or makes an assignment for the benefit of creditors; or
(5). CPH violates the Standards of Conduct provisions herein or any provision of
State or local law or any provision of the City Code of Conduct.
(c). In the event of any of the causes described in this Section, the City's Designated
Representative may send a certified letter requesting that CPH show cause why the
Agreement should not be terminated. If assurance satisfactory to the City of corrective
measures to be made within a reasonable time is not given to the City within fourteen
(14) calendar days of the receipt of the letter, the City may consider CPH to be in
default, and may immediately terminate this Agreement.
(d). In the event that this Agreement is terminated for cause and it is later
determined that the cause does not exist, then this Agreement shall be deemed
terminated for convenience by the City and the City shall have the right to so terminate
this Agreement without any recourse by CPH.
(e). Notwithstanding any other provision of this Agreement, the City shall have
the right at any time to terminate this Agreement in its entirely without cause if such
termination is deemed by the City to be in the public interest, provided that thirty (30)
calendar days prior written notice is given to CPH of the City's act of
termination.
(f). In the event that this Agreement is terminated, the City shall identify any specific
work being terminated and the specific work to be continued to completion pursuant to
the provisions of this Agreement.
Section 23: Termination By CPH For Cause.
(a). CPH may terminate this Agreement if the City fails to pay CPH in accordance
with this Agreement.
(b). In the event of either of the causes described in Subsection (a), CPH shall send
a certified letter requesting that the City show cause why the Agreement should not be
terminated. If adequate assurances are not given to CPH within fourteen (14) calendar
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days of the receipt of said show cause notice, CPH may consider the City to be in
default, and may immediately terminate this Agreement.
Section 24: Payment In The Event Of Termination.
In the event this Agreement is terminated prior to final completion payment for the
unpaid portion of the services provided by CPH to the date of termination.
Section 25: Action Following Termination.
Upon receipt of notice of termination, given by either party, the terminated party shall
promptly discontinue the provision of all services, unless the notice provides otherwise.
Section 26: Suspension.
(a). The performance or provision of CPH's services under this Agreement may be
suspended by the City at any time.
(b) In the event the City suspends the performance or provision of CPH's services
hereunder, the City shall so notify CPH in writing. Such suspension becoming effective
upon the date stated in the notice. The City shall pay to CPH within thirty (30) days all
compensation which has become due to and payable to CPH to the effective date of
such suspension. The City shall thereafter have no further obligation for payment to
CPH for the suspended provision of services unless and until the City's designated
representative notifies CPH in writing that the provision of the services of CPH called for
hereunder are to be resumed by CPH.
(c). Upon receipt of written notice from the City that CPH's provision of services
hereunder are to be resumed, CPH shall continue to provide the services to the City.
Section 27: Alternative Dispute Resolution (ADR).
(a). In the event of a dispute related to any performance or payment obligation
arising under this Agreement, the parties agree to exhaust any alternative dispute
resolution procedures reasonably imposed by the City prior to filing suit or otherwise
pursuing legal remedies.
(b). CPH agrees that it will file no suit or otherwise pursue legal remedies based on
facts or evidentiary materials that were not presented for consideration to the City in
alternative dispute resolution procedures or which CPH had knowledge and failed to
present during the City procedures.
(c). In the event that City procedures are exhausted and a suit is filed or legal
remedies are otherwise pursued, the parties shall exercise best efforts to resolve
disputes through voluntary mediation. Mediator selection and the procedures to be
employed in voluntary mediation shall be mutually acceptable to the parties. Costs of
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voluntary mediation shall be shared equally among the parties participating in the
mediation.
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Section 28: Severability.
(a). If any term, provision or condition contained in this Agreement shall, to any
extent, be held invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other than
those in respect of which it is invalid or unenforceable, shall not be affected thereby,
and each term, provision, and condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law when consistent with equity and the
public interest.
(b). All provisions of this Agreement shall be read and applied in Pari Materia with all
other provisions hereof.
(c). Violation of this Agreement by CPH is recognized by the parties to constitute
irreparable harm to the City.
Section 29: Controlling Laws/Venue /Interpretation.
(a). This Agreement is to be governed by the laws of the State of Florida.
(b). Venue for any legal proceeding related to this Agreement shall be in the
Eighteenth Judicial Circuit Court in and for Seminole County, Florida.
(c). This Agreement is the result of bona fide arms length negotiations between the
City and CPH and all parties have contributed substantially and materially to the
preparation of the Contract. Accordingly, this Agreement shall not be construed or
interpreted more strictly against any one party than against any other party; provided,
however, that the provisions of the Scope of Services and the timing of services has
been prepared by CPH and shall be matters upon which the performance of CPH is
gauged and evaluated.
Section 30: Indemnity.
(a). To the fullest extent permitted by law, CPH shall indemnify, hold harmless, and
defend the City, its agents, servants, officers, officials, and employees, or any of them,
from and against any and all claims, damages, losses, and expenses including, but not
limited to, attorneys fees and other legal costs such as those for paralegal, investigative,
and legal support services, and the actual costs incurred for expert witness testimony
arising out of or resulting from the performance or provision of services required under
this Agreement, provided that same is caused in whole or part by the error, omission,
negligent act, failure to act, malfeasance, misfeasance, conduct, or misconduct of CPH,
its agents, servants, officers, officials, employees, or subcontractors.
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(b). In accordance with Section 725.06, Florida Statutes, adequate consideration has
been provided to CPH for this obligation, the receipt and sufficiency of which is hereby
specifically acknowledged.
(c). Nothing herein shall be deemed to affect the rights, privileges, and immunities of
the City as set forth in Section 768.28, Florida Statutes.
(d). In claims against any person or entity indemnified under this Section by an
employee of CPH or its agents or subcontractors, anyone directly or indirectly employed
by them or anyone for whose acts they may be liable, the indemnification obligation
under this Section shall not be limited by a limitation on amount or type of damages,
compensation, or benefits payable by or for CPH or its agents or subcontractors, under
Workers Compensation acts, disability benefits acts, or other employee benefit acts.
(e). The execution of this Agreement by CPH shall obligate CPH to comply with the
indemnification provision in this Agreement; however, CPH must also comply with the
provisions of this Agreement relating to insurance coverages.
(f).. To the extent that services provided by CPH to the City under this Agreement
relate to the "planning, design, construction, administration, study, evaluation,
consulting, or other professional and technical support services furnished in connection
with any actual or proposed construction, improvement, alteration, repair, maintenance,
operation, management, relocation, demolition, excavation, or other facility, land, air,
water, or utility development or improvement," the indemnification set forth herein shall
not apply and the limitation of liability set forth in Section 725.08, Florida Statutes, shall
be applicable consistent, however, with all terms and conditions of this Agreement..
Section 31: Insurance.
(a). CPH shall obtain or possess and continuously maintain the following insurance
coverage, from a company or companies, with a Best Rating of A- or better, authorized
to do business in the State of Florida and in a form acceptable to the City and with only
such terms and conditions as may be acceptable to the City:
(1). Workers Compensation /Employer Liability: CPH shall provide Worker
Compensation insurance for all employees engaged in the work under this Agreement
in accordance with the laws of the State of Florida. Employers' Liability Insurance at
limits not less than the following:
$100,000 Each Accident
$100,000 Disease Each Employee
$500,000 Disease Aggregate
(2). Comprehensive General Liability: CPH shall provide coverage for all operations
including, but not limited to, contractual, independent consultant or contractor, products
and complete operations and personal injury with limits not less than the following:
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$1,000,000 Bodily Injury & Property Damage - each occurrence
$1,000,000 Personal & Advertising Injury - each occurrence
$2,000,000 General Aggregate
$2,000,000 Products /Completed Operations Aggregates limit
$5,000 Medical Payments
$100,000 Fire Damage Legal Liability
(3). Comprehensive Business Automobile Liability: CPH shall provide complete
coverage with a combined single limit of not less than $1,000,000 Bodily Injury and
Property Damage in accordance with the laws of the State of Florida, as to the
ownership, maintenance, and use of all owned, non - owned, leased or hired vehicles.
(4). Other Required Insurance Coverage: Where unusual operations are necessary
to complete the work, such as Longshoremen and Harbor Workers' Exposures, use of
aircraft or watercraft, use of explosives, and any high risk circumstances. No aircraft,
watercraft or explosives shall be used without the express advance written approval of
the City which may, thereupon, required additional insurance coverages.
(b). All insurance other than Workers Compensation and Professional Liability that
must be maintained by CPH shall specifically include the City as an additional insured.
All insurance minimum coverages extend to any subcontractor, and CPH shall be
responsible for all subcontractors.
(c). CPH shall provide Certificates of Insurance to the City evidencing that all such
insurance is in effect prior to the execution of this Agreement by CPH These
Certificates of Insurance shall become part of this Agreement. Neither approval by the
City nor failure to disapprove the insurance furnished by a consultant or contractor shall
relieve CPH of CPH's full responsibility for performance of any obligation including
CPH's indemnification of the City under this Agreement. If, during the period which an
insurance company is providing the insurance coverage required by this Agreement, an
insurance company shall: (1) lose its Certificate of Authority, (2) no longer comply with
Section 440.57, Florida Statutes, or (3) fail to maintain the requisite Best's Rating and
Financial Size Category, CPH shall, as soon as CPH has knowledge of any such
circumstance, immediately notify the City and immediately replace the insurance
coverage provided by the insurance company with a different insurance company
meeting the requirements of this Agreement. Until such time as CPH has replaced the
unacceptable insurer with an insurance rating acceptable to the City, CPH shall be
deemed to be in default of this Agreement.
(d). CPH shall provide the CITY with a revised Certificate of Insurance within (5) days
of the policy change, except with regard to increases in the aggregate coverage.
(e). CPH shall provide Certificate of Insurance directly to the City's Designated
Representative. The certificates shall clearly indicate that CPH has obtained insurance
of the type, amount, and classification required by this Agreement.
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(f). Nothing in this Agreement or any action relating to this Agreement shall be
construed as the City waiver of sovereign immunity beyond the limits set forth in Section
768.28, Florida Statutes.
(g). The City shall not be obligated or liable under the terms of this Agreement to any
party other than CPH. There are no third party beneficiaries to this Agreement that
have any right against the City.
(h). The City shall have no liability except as specifically provided in this Agreement.
(i). All insurance shall be primary to, and not contribute with, any insurance or self -
insurance maintained by the City.
(j). All insurance requirements shall be effectual and run to the benefit of the City
notwithstanding any statutory limitations relative to indemnification.
Section 32: Equal Opportunity EmploymentlNon- Discrimination.
CPH agrees that it will not discriminate against any employee or applicant for
employment for work under this Agreement because of race, color, religion, sex, age,
national origin, or disability and will take affirmative steps to ensure that applicants are
employed and employees are treated during employment without regard to race, color,
religion, sex, age, national origin, or disability. This provision shall include, but not be
limited to, the following: employment, upgrading, demotion or transfer; recruitment
advertising; layoff or termination; rates of pay or their forms or compensation; and
selection for training, including apprenticeship. CPH, moreover, shall comply with all
the requirements as imposed by the Americans with Disability Act, the regulations of the
Federal government issued thereunder, and any and all requirements of Federal or
State law related thereto.
Section 33: Access To Records /Audit/Public Records.
(a). CPH shall maintain books, records, documents, time and costs accounts, and
other evidence directly related to its provision or performance of services under this
Agreement. All time records and cost data shall be maintained in accordance with
generally accepted accounting principles.
(b). CPH shall maintain and allow access to the records required under this Section
for a minimum period of five years after the completion of the provision or performance
services under this Agreement and date of final payment for said services, or date of
termination of this Agreement.
(c). The City reserves the right to unilaterally terminate this Agreement if CPH
refuses to allow public access to all documents, papers, letters, or other materials
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subject to provisions of Chapter 119, Florida Statutes, and other applicable law, and
made or received by CPH in conjunction, in any way, with this Agreement.
(d). The City may perform, or cause to have performed, an audit of the records of
CPH before or after final payment. This audit shall be performed at a time mutually
agreeable to CPH and the City subsequent to the close of the final fiscal period in which
services are provided or performed. Total compensation to CPH may be determined
subsequent to an audit as provided for in this Section, and the total compensation so
determined shall be used to calculate final payment to CPH. Conduct of this audit shall
not delay final payment as required by this Section.
(e). In addition to the above, if Federal, State, County, or other entity funds are used
for any services under this Agreement, the Comptroller General of the United States or
the Chief Financial Officer of the State of Florida, or the County of Seminole, or any
representative, shall have access to any books, documents, papers, and records of
CPH which are directly pertinent to services provided or performed under this
Agreement for purposes of making audit, examination, excerpts, and transcriptions.
(f). In the event of any audit or inspection conducted reveals any overpayment by the
City under the terms of the Agreement, CPH shall refund such overpayment to the City
within thirty days of notice by the City of the request for the refund.
(g). CPH agrees to fully comply with all State laws relating to public records as
determined by the City.
(h). CPH agrees that if any litigation, claim, or audit is started before the expiration of
the record retention period established above, the records shall be retained until all
litigation, claims, or audit findings involving the records have been resolved and final
action taken.
Section 34: Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which, taken together, shall constitute one and the same
document.
Section 35: Exhibits.
Each exhibit, if any, referred to and attached to this Agreement is an essential part of
this Agreement. The exhibits, if any, and any amendments or revisions thereto, even if
not physically attached hereto, shall be treated as if they are part of this Agreement.
The City shall determine the contents of this Agreement relative to exhibits.
In Witness Whereof, the parties hereto have made and executed this
Agreement on the respective dates under each signature: the City through its City
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Commission taking official action and CPH signing by and through its duly authorized
corporate officer having the full and complete authority to execute same.
Attest:
CPH Engineers, Inc.
/.u-1 By:
Linda M. Gardner David A. Gierach, P.E.
Secretary/Treasurer President
Date: "l Zq P- 1
Attest: City Of Sanford
- / B 9 O 4LtM
anet Dougherty, City i Ierk Jeff Triplett, Mayor
Date: — — I
Approved as to form.
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• 4Ahof /V, 6-Th07- 231 Page