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574-Ardaman & Associates-2006 CITY OF SANFORD AGREEMENT FOR ENGINEERING SERVICES WITH ARDAMAN & ASSOCIATES, INC. (RFQ 05/06-15} THIS AGREEMENT made and entered into the /1[)ffJ day of (f}eIJ{U:A~ , 2006 by and between the City of Sanford, 300 North Park Avenue, Sanford, Florida 32771, a municipal corporation of the State of Florida, holding tax exempt status, f hereinafter referred to as the "CITY" and ARDAMAN & ASSCIATES, INC., a Florida corporation, whose address is 8008 South Orange Avenue, Orlando, Florida 32809, hereinafter referred to as the "CONTRACTOR". The CITY and the CONTRACTOR are collectively referred to herein as the pa rties. WITNESSETH: WHEREAS, the CITY desires to retain the CONTRACTOR for the work identified in the specifications outlined in the documents relating to RFQ 05/06-15 and for the time periods set forth set forth herein; and WHEREAS, the CITY desires to retain the CONTRACTOR to furnish services and perform those tasks outlined above, and generally described in Section 2, and made part hereof, as subsequently specifically set out in Work Orders to be issued under this Agreement; and WHEREAS, the CITY desires to employ the CONTRACTOR for the performance to support the activities, programs and projects of the CITY upon the terms and conditions hereinafter set forth, and the CONTRACTOR is desirous of providing and performing such goods/services upon said terms and conditions; and WHEREAS, the CONTRACTOR hereby warrants and represents to the CITY that it is competent and otherwise able to provide goods and services to the CITY; and WHEREAS, all submissions submitted by the CONTRACTOR in its materials submitted to the CITY are hereby incorporated herein to the extent not inconsistent with the terms and conditions as set forth herein; and WHEREAS, the CITY desires to engage the CONTRACTOR for engineering services; and WHEREAS, the CONTRACTOR desires to provide services to the CITY, as an independent contractor of the CITY, regarding goods and services as needed; and WHEREAS, this Agreement IS subject to the provisions of the Consultants Competitive Negotiations Act; and WHEREAS, the CITY desires to use the expertise and knowledge of the CONTRACTOR; 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: GENERAL PROVISIONS. (a). The term "CONTRACTOR" as used in this Agreement is hereby defined herein as that person or entity, including employees, servants, partners, principals, agents and assignees providing services under this Agreement. (b). The CONTRACTOR acknowledges that the CITY may retain other goods or service providers to provide the same goods or services for CITY projects. The CONTRACTOR acknowledges that the CITY, at the CITY's option, may request proposals from the CONTRACTOR and the other goods or service providers for CITY projects. The CITY reserves the right to select which goods or service providers shall provide goods or services for the CITY projects. (c). The CONTRACTOR agrees to provide and ensure coordination between the goods and/or service providers. (d). The recitals herein are true and correct and form and constitute a material part of this Agreement upon which the parties have relied. (e). 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 person(s) executing this Agreement for the CONTRACTOR certify that he/she/they is/are authorized to bind the CONTRACTOR fully to the terms of this Agreement. (f). Time is of the essence of the lawful performance of the duties and obligations contained in this Agreement to include, but not be limited to, each PurchaselWork Order. The parties covenant and agree that they shall diligently and expeditiously pursue their respective obligations set forth in this Agreement and each PurchaselWork Order. (g). When the term "law" is used herein, said phrase shall include statutes, codes, rule and regulations of whatsoever type or nature enacted or adopted by a 2 governmental entity of competent jurisdiction. (h). Packages must be plainly marked with the shipper's name and the Purchase Order Number; charges are not allowed for boxing or crating unless previously agreed upon in writing. (i). All materials must be shipped F.O.B. Destination. The CITY will not pay freight or express charges, except by previous agreement. The CONTRACTOR shall prepay shipping charges and add to invoice. Delivery must actually be affected within the time stated on Purchase Order unless delay is caused by any act or omission of the CITY, or any employee of the CITY, or by changes ordered by 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 the CONTRACTOR and beyond the CONTRACTOR's control, 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 and the CONTRACTOR may decide. Deliveries shall be made between 8:00 A.M. and 5:00 P.M., Monday through Friday unless otherwise stated. (j). The CONTRACTOR shall furnish the CITY with a current Material Safety Data Sheet(s) (MSDS) on or before delivery of each and every hazardous chemical or substance purchased. Appropriate labels and MSDS shall be provided for all shipments. (k). The CONTRACTOR hereby guarantees the CITY that all material, supplies, services and equipment as listed on a Purchase Order meet the requirements, specifications and standards as provided for under the Federal Occupations Safety and Health Act of 1970, from time to time amended and in force on the date hereof. (I). 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 the CONTRACTOR (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. The CONTRACTOR is to be and shall remain forever an independent contractor with respect to all services performed under this Agreement. (m). Persons employed by the CONTRACTOR in the provIsion and performance of the goods and/or 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 officers and employees either by operation of law or by the CITY. (n). No claim for services furnished by the CONTRACTOR not specifically provided for herein shall be honored by the CITY. " .) SECTION 2: SCOPE OF SERVICES. The CONTRACTOR shall provide goods and service in accordance with this Agreement in all areas and fields of expertise identified in the CONTRACTOR's response to RFQ 05/06-15. SECTION 3: PURCHASEIWORK ORDERS. (a). The provision of goods and/or services to be performed under the provisions of this Agreement shall be commenced upon the execution of this Agreement and receipt by the CONTRACTOR of a written PurchaseIWork Order issued by the CITY on a form provided by the CITY. PurchaseIWork Orders executed by the CITY shall include a detailed description of quantities, services and a completion schedule. The CONTRACTOR shall review PurchaseIWork Orders and notify the CITY in writing of inadequacies for the CITY correction, if warranted. (b). If the services required to be performed by a Work Order is clearly defined, the Work Order shall be issued on a Fixed Fee basis. The CONTRACTOR shall perform all services required by the Work Order but, in no event, shall the CONTRACTOR be paid more than the negotiated Fixed Fee amount stated therein. (c). If the services are not clearly defined, the Work Order may be issued on a "Time Basis Method" and contain a Not-to-Exceed amount. If a Not-to-Exceed amount is provided, the CONTRACTOR shall perform all worked required by the Work Order; but, in no event, shall the CONTRACTOR be paid more than the Not-to-Exceed amount specified in the applicable Work Order. (d). If the services are not clearly defined, the Work Order may be issued on a ''Time Basis Method" and contain a Limitation of Funds amount. The CONTRACTOR is not authorized to exceed that amount without the prior written approval of the CITY. Said approval, if given by the CITY, shall indicate a new Limitation of Funds amount. The CONTRACTOR shall advise the CITY whenever the CONTRACTOR has incurred expenses on any Work Order that equals or exceeds eighty percent (80%) of the Limitation of Funds amount. (e). For Work Orders issued on a "Fixed Fee Basis," the CONTRACTOR may invoice the amount due based on the percentage of total Work Order services actually performed and completed; but, in no event, shall the invoice amount exceed a percentage of the Fixed Fee amount equal to a percentage of the total services actually completed. The CITY shall pay the CONTRACTOR ninety percent (90%) of the approved amount on Work Orders issued on a "Fixed Fee Basis". (f). For Work Orders issued on a ''Time Basis Method" with a Not-to-Exceed amount, the CONTRACTOR may invoice the amount due for actual work hours 4 performed but, in no event, shall the invoice amount exceed a percentage of the Not-to- Exceed amount equal to a percentage of the total services actually completed. The CITY shall pay the CONTRACTOR ninety percent (90%) of the approved amount on Work Orders issued on a "Time Basis Method" with a Not-to-Exceed amount. (g). Each Work Order issued on a "Fixed Fee Basis" or "Time Basis Method" with a Not-to-Exceed amount shall be treated separately for retainage purposes. If the CITY determines that work is substantially complete and the amount retained is considered to be in excess, the CITY may, at its sole and absolute discretion, release the retainage or any portion thereof. (h). For Work Orders issued on a 'Time Basis Method" with a Limitation of Funds amount, the CONTRACTOR may invoice the amount due for services actually performed and completed. The CITY shall pay the CONTRACTOR one hundred percent (100%) of the approved amount on Work Orders issued on a "Time Basis Method" with a Limitation of Funds amount. (i). Purchase Orders shall detail the goods procured. (j). Payments shall be made by the CITY to the CONTRACTOR when requested as work progresses for services furnished, but not more than once monthly. Each Work Order shall be invoiced separately. The CONTRACTOR shall render to the CITY, at the close of each calendar month, an itemized invoice properly dated, describing any services rendered, the cost of the services, the name and address of the CONTRACTOR, Work Order Number, Contract Number and all other information required by this Agreement. SECTION 4: CONTRACTOR UNDERSTANDING OF GOODS/SERVICES REQUIRED. Execution of this Agreement by the CONTRACTOR is a representation that the CONTRACTOR is familiar with the goods and/or services to be provided and/or performed and with local conditions. The CONTRACTOR shall make no claim for additional time or money based upon its failure to comply with this Agreement. The CONTRACTOR has informed the CITY, and hereby represents to the CITY, that it has extensive experience in performing and providing the services and/or goods described in this Agreement and to be identified in the PurchaseIWork Orders, and that it is well acquainted with the components that are properly and customarily included within such projects and the requirements of laws, ordinance, rules, regulations or orders of any public authority or licensing entity having jurisdiction over the CITY projects. Execution of a PurchaseIWork Order shall be an affirmative and irrefutable representation by the CONTRACTOR to the CITY that the CONTRACTOR is fully familiar with any and all requisite work conditions of the provisions of the goods and/or services. SECTION 5: CHANGE ORDERS. 5 (a). The CITY may revise the scope of goods or services set forth In any particular PurchaseIWork Order. (b). Revisions to any PurchaseIWork Order shall be authorized in writing by the CITY as a Change Order and are subject to approval by the CONTRACTOR. Each Change Order shall include a schedule of completion for the goods and/or services authorized. Change Orders shall identify this Agreement and the appropriate PurchaseIWork Order number. The Change Orders may contain additional instructions or provisions specific upon certain aspects of this Agreement pertinent to the goods and/or services to be provided. Such supplemental instructions or provisions shall not be construed as a modification of this Agreement. An Agreement between the parties on and execution of any Change Order shall constitute a final settlement and a full accord and satisfaction of all matters relating to the change and to the impact of the change on unchanged goods and/or work, including all direct and indirect costs of whatever nature, and all adjustments to the CONTRACTOR's schedule. SECTION 6: CONTRACTOR RESPONSIBILITIES. (a). The CONTRACTOR shall be responsible for the professional quality, accepted standards, technical accuracy and the coordination of all goods and services furnished by the CONTRACTOR under this Agreement as well as the conduct of its staff, personnel, employees and agents. The CONTRACTOR shall work closely with the CITY on all aspects of the provision of the goods and/or services. With respect to services, the CONTRACTOR shall be responsible for the professional 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 the CONTRACTOR under this Agreement. The CONTRACTOR 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). Neither the CITY review, approval or acceptance of, nor payment for, any of the goods or services required shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement and the CONTRACTOR shall be and remain liable to the CITY in accordance with applicable law for all damages to the CITY caused by the CONTRACTOR's negligent or improper performance or failure to perform any of the goods and/or services furnished under this Agreement. (c). The rights and remedies of the CITY, provided for under this Agreement, are in addition to any other rights and remedies provided by law. (d). Time is of the essence in the performance of all services provided by the 6 CONTRACTOR under the terms of this Agreement and each and every PurchaselWork Order, however, if the CONTRACTOR is delayed at any time in the provision of goods and/or services by any act or omission of the CITY, or by changes ordered by 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 the CONTRACTOR and beyond the CONTRACTOR's control, 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 for delivery of goods or completion of services shall be extended for such reasonable time as the CITY and the CONTRACTOR may decide. SECTION 7: CITY RIGHTS AND RESPONSIBILITIES. (a). The CITY shall reasonably cooperate with the CONTRACTOR in a timely fashion at no cost to the CONTRACTOR as set forth in this Section. (b). The CITY shall furnish a CITY representative, as appointed by the designated representative to administer, review and coordinate the provision of services under PurchaselWork Orders. (c). The CITY shall make CITY personnel available where, in the CITY's opinion, they are required and necessary to assist the CONTRACTOR. The availability and necessity of said personnel to assist the CONTRACTOR shall be determined solely at the discretion of the CITY. (d). The CITY shall examine all of the CONTRACTOR's goods and/or services and indicate the CITY's approval or disapproval within a reasonable time so as not to materially delay the provisions of the goods and/or services of the CONTRACTOR. (e). 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. (f). The CITY shall give written notice to the CONTRACTOR whenever the CITY's designated representative knows of a development that affects the goods and/or services provided and performed under this Agreement, timing of the CONTRACTOR provision of goods and/or services, or a defect or change necessary in the goods and/or services of the CONTRACTOR. (g). 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. (h). Each party shall be entitled to recover any and all legal costs including, 7 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 the parties hereunder deriving from this Agreement. (i). 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. 0). Neither the CITY's review, approval or acceptance of, nor payment for, any of the goods and/or 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 the CONTRACTOR shall be and always remain liable to the CITY in accordance with applicable law for any and all damages to the CITY caused by the CONTRACTOR's negligent or wrongful provision or performance of any of the goods and/or services furnished under this Agreement. (k). All deliverable analysis, reference data, survey data, plans and reports or any other form of written instrument or document that may result from the CONTRACTOR's services or have been created during the course of the CONTRACTOR's performance under this Agreement shall become the property of the CITY after final payment is made to the CONTRACTOR. SECTION 8: COMPENSATION. (a). Compensation to the CONTRACTOR shall be as set forth in each CITY Purchase/Work Order. (b). There are no reimbursable expenses to be paid to the CONTRACTOR except as specifically set forth in a Purchase/ Work Order. (c). Pricing of the CONTRACTOR to the CITY shall be such that the CITY shall be provided "most favored nation" treatment in that the CONTRACTOR shall not charge the CITY any rate higher for any goods or services than the lowest rate charged to any other local government or State agency. SECTION 9. INVOICE PROCESS. (a). Invoices, which are in an acceptable form to the CITY and without disputable items, which are received by the CITY, will be processed for payment within thirty (30) days of receipt by the CITY. (b). The CONTRACTOR will be notified of any disputable items contained in invoices submitted by the CONTRACTOR within fifteen (15) days of receipt by the CITY with an explanation of the deficiencies. 8 (c). The CITY and the CONTRACTOR will make every effort to resolve all disputable items contained in the CONTRACTOR invoices. (d). Each invoice shall reference this Agreement, the appropriate PurchaseIWork Order and Change Order, if applicable, and billing period. (e). The Florida Prompt Payment Act shall apply when applicable. A billing period represents the dates in which the CONTRACTOR completed goods and/or services referenced in an invoice. (f). Invoices are to be forwarded directly to: Jim Poulalion Finance Director Finance Department City of Sanford 300 North Park Avenue Sanford, Florida 32771 SECTION 10: COMMENCEMENTIIMPLEMENTATION SCHEDULE OF AGREEMENT. (a). The CONTRACTOR shall commence the provIsion of goods and/or services as described in this Agreement immediately upon execution of this Agreement and receipt of a PurchaseIWork Order. The CITY may seek other firms to provide the same services. (b). The CONTRACTOR and the CITY agree to make every effort to adhere to the schedules established for the various PurchaseIWork Orders as described in each PurchaseIWork Order. However, if the CONTRACTOR is delayed at any time in the provision of goods and/or services by any act or omission of the CITY, or of any employee of the CITY, or by any other contractor employed by the CITY, or by changes ordered by 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 the CONTRACTOR and beyond the CONTRACTOR control which would not reasonably be expected to occur in connection with or during performance or provision of the goods and/or 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 and CONTRACTOR agree. It is further expressly understood and agreed that the CONTRACTOR 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. 9 SECTION 11. TERM/LENGTH OF AGREEMENT. The initial term of this Agreement shall be for a period of one (1) year; provided, however, that this Agreement shall be automatically renewed on a year-to-year basis until terminated as set forth herein,. SECTION 12: DESIGNATED REPRESENTATIVES. (a). The CITY designates the City Manager or his designated representative, to represent the CITY in all matters pertaining to and arising from the work and the performance of this Agreement. (b). The City Manager, or his 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 the CONTRACTOR; (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 the CONTRACTOR whenever the CITY's designated representative knows of a defect or change necessary in the project; and (4). Coordinating and managing the CONTRACTOR for preparation of any necessary applications to governmental bodies, to arrange for submission of such applications. (c). Until further notice from the City Manager the designated representative for this Agreement is: Bilallftikhar, P .E. City Engineer City of Sanford City Hall 300 North Park Avenue Sanford, Florida 32771 Telephone Number: 407-330-5600 (d). The CONTRACTOR's designated representative is: Mark L. Mongeau, P .E. 10 Ardaman & Associates, Inc. Vice President 8008 South Orange Avenue Orlando, Florida 32809 SECTION 13: TERMINATION/SUSPENSION OF AGREEMENT. (a). The CITY may terminate this Agreement or any PurchaseIWork Order for convenience at any time or this Agreement or any PurchaseIWork Order for anyone or more of the reasons as follows: (1). If, in the CITY's opinion, adequate progress to be provided or under a PurchaseIWork Order is not being made by the CONTRACTOR due to the CONTRACTOR's failure to perform, however, failure to perform does not include delay by the CONTRACTOR at any time in the provision of goods and/or services by any act or omission of the CITY, or of any employee of the CITY, or by any other contractor employed by the CITY, or by changes ordered by 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 actions or inactions of the CONTRACTOR and beyond the CONTRACTOR's control, or by delay authorized by the CITY pending a decision, or by any cause which the CITY shall decide to justify the delay; or (2). If, in the CITY's opinion, the quality of the goods and/or services provided by the CONTRACTOR is/are not in conformance with commonly accepted professional standards, standards of the CITY, and the requirements of Federal and/or State regulatory agencies, and the CONTRACTOR has not corrected such deficiencies in a timely manner as reasonably determined by the CITY; or (3). If the CONTRACTOR or any principal officer of the CONTRACTOR 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 the CONTRACTOR; or (4). If the CONTRACTOR becomes involved in either voluntary or involuntary bankruptcy proceedings, or makes an assignment for the benefit of creditors; or (5). If the CONTRACTOR violates the Standards of Conduct provisions herein or any provision of Federal, State or local law or any provision of the CITY's Code of Conduct. (b). In the event of any of the causes described in this Section, the CITY's designated representative may send a certified letter to the CONTRACTOR requesting that the CONTRACTOR show cause why the Agreement or any PurchaseIWork Order 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 seven (7) calendar 11 days of the date of the letter, the CITY may consider the CONTRACTOR to be in default, and may then immediately terminate this Agreement or any PurchaseIWork Order in progress under this Agreement. SECTION 14. TERMINATION BY CONTRACTOR FOR CAUSE. (a). The CONTRACTOR may cancel this Agreement if: (1 ). The CITY materially fails to meet its obligations and responsibilities as contained in the CITY's Rights and Responsibilities; or (2). The CITY fails to pay the CONTRACTOR in accordance with this Agreement. (b). In the event of either of the causes described in Subsection (a), the CONTRACTOR 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 the CONTRACTOR within fifteen (15) days of the receipt by the CITY of said show cause notice, then the CONTRACTOR may consider the CITY to be in default, and may immediately terminate this Agreement. SECTION 15. TERMINATION BY THE CITY WITHOUT CAUSE. (a). Notwithstanding any other provision of this Agreement, the CITY shall have the right at any time to terminate this Agreement in its entirety without cause, or terminate any specific PurchaseIWork Order without cause, if such termination is deemed by the CITY to be in the public interest, in writing of deficiencies or default in the performance of its duties under the Agreement and the CONTRACTOR shall have ten (10) days to correct same or to request, in writing, a hearing. (b). Failure of the CONTRACTOR to remedy said specified items of deficiency or default in the notice by either the CITY's designated representative within ten (10) days of receipt of such notice of such decisions, shall result in the termination of the Agreement, and the CITY shall be relieved of any and all responsibilities and liabilities under the terms and provisions of the Agreement. (c). In the event that this Agreement is terminated, the CITY shall identify any specific PurchaseIWork Order(s) being terminated and the specific PurchaseIWork Order( s) to be continued to completion pursuant to the provisions of this Agreement. (d). This Agreement will remain in full force and effect as to all authorized PurchaseIWork Order(s) that is/are to be continued to completion. SECTION 16. PAYMENT IN THE EVENT OF TERMINATION. 12 In the event this Agreement or any Purchase/Work Order is terminated or canceled prior to final completion without cause, payment for the unpaid portion of the services provided by the CONTRACTOR to the date of termination and any additional services shall be paid to the CONTRACTOR. SECTION 17. ACTION FOLLOWING TERMINATION. Upon receipt of notice of termination, given by either party, the terminated party shall promptly discontinue the provision of all goods and/or services, unless the notice provides otherwise. SECTION 18: EQUAL OPPORTUNITY EMPLOYMENT/NONDISCRIMINA TION. The CONTRACTOR 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 insure 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 payor their forms or compensation; and selection for training, including apprenticeship. The CONTRACTOR, 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 19: INDEMNITY AND INSURANCE. (a). To the fullest extent permitted by law, the CONTRACTOR 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 goods and/or 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 the CONTRACTOR, its agents, servants, officers, officials, employees, or subcontractors. (b). In accordance with Section 725.06, Florida Statutes, adequate consideration has been provided to the CONTRACTOR 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, or other controlling Florida law. 13 (d). In claims against any person or entity indemnified under this Section by an employee of the CONTRACTOR 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 the CONTRACTOR or its agents or subcontractors, under Workers Compensation acts, disability benefits acts, or other employee benefit acts. (e). The execution of this Agreement by the CONTRACTOR shall obligate the CONTRACTOR to comply with the indemnification provision in this Agreement; provided, however, that the CONTRACTOR must also comply with the provisions of this Agreement relating to insurance coverage. SECTION 20. INSURANCE. (a). The CONTRACTOR 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). Worker's Compensation/Employers's Liability: The CONTRACTOR will provide Worker's Compensation/Employer's Liability for all employees. The limits will be $100,000 each accident, $500,000 disease policy limits, $100,000 disease limit each employee. (2). Commercial General Liability: The CONTRACTOR will provide coverage for all claims arising from bodily injury, sickness, disease, or death of any person other than the CONTRACTOR's employees or damage to property of the CITY or others arising out of any act or omission of the CONTRACTOR or his/her/their agents, employees or subcontractors. The liability limits shall not be less than $300,000 for bodily injury and single limit each occurrence for property damage. (3). Business Automobile Liability: The CONTRACTOR shall provide complete coverage for each occurrence, bodily injury not less than $300,000 and proeprty dmage single limit each equivalent. (b). All insurance other than Workers Compensation and Professional Liability that must be maintained by the CONTRACTOR shall specifically include the CITY as an additional insured. (c). The CONTRACTOR shall provide Certificates of Insurance to the CITY evidencing that all such insurance is in effect prior to the issuance of the first PurchaseIWork Order under this Agreement from the CITY. These Certificates of Insurance shall become part of this Agreement. Neither approval by the CITY nor 14 failure to disapprove the insurance furnished by a CONTRACTOR shall relieve the CONTRACTOR of the CONTRACTOR's full responsibility for performance of any obligation including the CONTRACTOR'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, the CONTRACTOR shall, as soon as the CONTRACTOR 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 the CONTRACTOR has replaced the unacceptable insurer with insurance acceptable to the CITY, the CONTRACTOR shall be deemed to be in default of this Agreement. (d). The insurance coverage shall contain a provision that requires that prior to any changes in the coverage, except increases in aggregate coverage, thirty (30) days prior notice will be given to the CITY by submission of a new Certificate of Insurance. (e). The CONTRACTOR shall furnish Certificate of Insurance directly to the CITY's designated representative. The certificates shall clearly indicate that the CONTRACTOR has obtained insurance of the type, amount and classification required by this Agreement. (f). Nothing in this Agreement or any action relating to this Agreement shall be construed as the CITY's 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 the CONTRACTOR. There are no third party beneficiaries to this Agreement. (h). The CONTRACTOR is an independent contractor and is not an agent, representative, or employee of the CITY. 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. SECTION 21: STANDARDS OF CONDUCT. (a). The CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement and that the CONTRACTOR has not paid or agreed to pay any person, company, corporation, individual or firm other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, 15 percentage, gift, or any other consideration, contingent upon or resulting from the award of making this Agreement. (b). The CONTRACTOR 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. (c). The CONTRACTOR hereby certifies that no undisclosed (in writing) 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 the CONTRACTOR, or any interest in property that the CONTRACTOR may have. The CONTRACTOR 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. (d). The CONTRACTOR shall ensure that all taxes due from the CONTRACTOR are paid in a timely and complete manner including, but not limited to, occupational license tax. (e). If the CITY determines that any employee or representative of the CONTRACTOR 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 the CONTRACTOR, in writing. The CONTRACTOR shall immediately remove such employee or representative of the CONTRACTOR from such assignment. (f). The CONTRACTOR shall not publish any documents or release information regarding this Agreement to the media without prior approval of the CITY. (g). The CONTRACTOR shall certify, upon request by the CITY, that the CONTRACTOR maintains a drug free workplace policy in accordance with Section 287.0878, Florida Statutes. Failure to submit this certification may result in termination. (h). If the CONTRACTOR 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. The CONTRACTOR shall provide a certification of compliance regarding the public crime requirements set forth in State law upon request by the CITY. (i). The CITY reserves the right to unilaterally terminate this Agreement if the CONTRACTOR refuses to allow public access to all documents, papers, letters, or other materials subject to provisions of Chapter 119, Florida Statutes, and other applicable law, and made or received by the CONTRACTOR in conjunction, in any way, with this Agreement. 16 (j). The CONTRACTOR 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. (k). The CITY will not intentionally award publicly-funded contracts to any CONTRACTOR 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 (lNA)]. The CITY shall consider the employment by the CONTRACTOR of unauthorized aliens, a violation of Section 274A (e) of the /NA. Such violation by the CONTRACTOR of the employment provisions contained in Section 274A (e) of the /NA shall be grounds for immediate termination of this Agreement by the CITY. (I). The CONTRACTOR agrees to comply with Federal, State, and local intellectual property, environmental, health, and safety laws and regulations applicable to the goods and/or services provided to the CITY. The CONTRACTOR 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. (m). The CONTRACTOR shall ensure that all goods and/or services are provided to the CITY after the CONTRACTOR has obtained, at its sole and exclusive expense, any and all permits, licenses, permissions, approvals or similar consents. (n). If applicable, in accordance with Section 216.347, F/orida Statutes, the CONTRACTOR shall not use funds provided by this Agreement for the purpose of lobbying the Legislature, the judicial branch or State agency. (0). The CONTRACTOR shall advise the CITY in writing if it has been placed on a discriminatory vendor list, may not submit a bid on a contract to provide goods or services to a public entity, or may not transact business with any public entity. (p). The CONTRACTOR shall not knowingly engage in any action that would create a conflict of interest in the performance of that actions of 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, F/orida Statutes, relating to ethics in government. SECTION 22: ACCESS TO RECORDS/AUDIT/PUBLIC RECORDS. (a). The CONTRACTOR 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. 17 (b). The CONTRACTOR shall maintain and allow access to the records required under this Section for a minimum period of five (5) years after the completion of the provision or performance goods and/or services under this Agreement and date of final payment for said goods and/or services, or date of termination of this Agreement. (c). The CITY may perform, or cause to have performed, an audit of the records of the CONTRACTOR before or after final payment to support final payment under any PurchaseIWork Order issued hereunder. This audit shall be performed at a time mutually agreeable to the CONTRACTOR and the CITY subsequent to the close of the final fiscal period in which goods and/or services are provided or performed. Total compensation to the CONTRACTOR 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 the CONTRACTOR. Conduct of this audit shall not delay final payment as required by this Section. (d). In addition to the above, if Federal, State, County, or other entity funds are used for any goods and/or 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 representatives, shall have access to any books, documents, papers, and records of the CONTRACTOR which are directly pertinent to goods and/or services provided or performed under this Agreement for purposes of making audit, examination, excerpts, and transcriptions. (e). In the event of any audit or inspection conducted reveals any overpayment by the CITY under the terms of the Agreement, the CONTRACTOR shall refund such overpayment to the CITY within thirty (30) days of notice by the CITY of the request for the refund. (f). The CONTRACTOR agrees to fully comply with all State laws relating to public records. (g). The CONTRACTOR 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 23: CODES AND DESIGN S1 ANDARDS. (a). All the goods and/or services to be provided for performed by the CONTRACTOR 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). The CONTRACTOR shall be responsible for keeping apprised of any changing laws, applicable to the goods and/or services to be performed under this 18 Agreement. (c). The CONTRACTOR shall ensure compliance with all applicable laws relating to intellectual property. SECTION 24: ASSIGNABILITY. (a). The CONTRACTOR 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 other than a financial institution with a lending relationship with the CONTRACTOR. (b). The CONTRACTOR agrees to reasonably participate in the contract "piggybacking" programs pertinent to local governments. SECTION 25: SUBCONTRACTORS. (a). Any CONTRACTOR proposed subcontractors shall be submitted to the CITY for written approval prior to the CONTRACTOR entering into a subcontract. Subcontractor information shall include, but not be limited to, State registrations, business address, occupational license tax proof of payment, and insurance certifications. (b). The CONTRACTOR shall coordinate the provIsion of goods and/or services and work product of any CITY approved subcontractors, and remain fully responsible for such goods and/or services and work under the terms of this Agreement. (c). Any subcontract shall be in writing and shall incorporate this Agreement and require the subcontractor to assume performance of the CONTRACTOR's duties commensurately with the CONTRACTOR's duties to the CITY under this Agreement, it being understood that nothing herein shall in any way relieve the CONTRACTOR from any of its duties under this Agreement. The CONTRACTOR shall provide the CITY with executed copies of all subcontracts. (d). The CONTRACTOR shall reasonably cooperate at all times with the CITY and other CITY contractors and professionals. SECTION 26: CONTROLLING LAWSNENUE/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 19 between the CITY and the CONTRACTOR 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 anyone party than against any other party. SECTION 27: 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. Force Majeure shall include, but not be limited to, hostility, terrorism, 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 Section is beyond the control and without the fault or negligence of the party seeking relief under this Section. SECTION 28: EXTENT OF AGREEMENT/INTEGRATION/AMENDMENT. (a). This Agreement, together with the exhibits, if any, constitutes the entire integrated Agreement between the CITY and the CONTRACTOR 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 hereto, 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. SECTION 29: 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: 20 (1). For the CITY: Bilallftikhar, P.E. City Engineer City of Sanford City Hall 300 North Park Avenue Sanford, Florida 32771 Telephone Number: 407-330-5671 (2). For the CONTRACTOR: Mark L. Mongeau, P .E. Ardaman & Associates, Inc. Vice President 8008 South Orange Avenue Orlando, Florida 32809 (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. The CONTRACTOR 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 the CONTRACTOR 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. SECTION 30. 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 31. 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. (b). The CONTRACTOR shall not have the right to compel the exercise of the ad valorem taxing power of the CITY. 21 SECTION 32. EXHIBITS. Each exhibit referred to and attached to this Agreement is an essential part of this Agreement. The exhibits and any amendments or revisions thereto, even if not physically attached hereto, shall be treated as if they are part of this Agreement. SECTION 33. 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 34. SEVERABILITY/CONSTRUCTION. (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 para materia with all other provisions hereof. SECTION 35. 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 exercise best efforts to resolve disputes through voluntary mediation. (b). Mediator selection and the procedures to be employed in voluntary mediation shall be mutually acceptable to both parties. Costs of voluntary mediation shall be shared equally among the parties participating in the mediation. SECTION 36. 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. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature: the CITY through its City Council taking action on the _ day of , 2006, and the CONTRACTOR signing by and through its duly authorized corporate officer having the full and complete authority to execute same. 22 .' ATTEST: --- ____, Corporate Secretary IV t4-0(/lI r: rt7L.E (/7/111' ATTEST: For the use and reliance of the City of Sanford only_ Approved as to form and legal sufficiency. /~ William L. Colbert William L. Colbert, Esquire City Attorney By: Mar L. Mongeau, Vic resident (With Full Corporate Authority) Date: Ie!} I~II CITY OF SANFORD B~, Ma::, .K,.. ..- Date: \Q I '0' 0 c., 23