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1305 Bellomo Herbert & Co.d 1 PURCHASING DEPARTMENT TRANSMITTAL MEMORANDUM To: City Clerk RE: Bellomo & Herbert Executed Contract The item(s) noted below is /are attached and forwarded to your office for the following action(s): ❑ Development Order ❑ Final Plat (original mylars) ❑ Letter of Credit ❑ Maintenance Bond ❑ Ordinance ❑ Performance Bond ❑ Resolution El Once completed, please: ❑ Return original ❑ R turn copy ❑ S. Special Instructions: For safe keeping. .1 Mayor's signature Recording Rendering Safe keeping (Vault) Payment Bond City Manager Signature City Clerk Signature Please advise if you have any questions regarding the above. Thank you! From Date TADept_ forms \City Clerk Transmittal Memo - 2009.doc City Of Sanford Agreement With Bellomo Herbert And Company, Inc. 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; a municipal corporation of the State of Florida, holding tax exempt status, hereinafter referred to as the "City," and: Bellomo Herbert and Company, Inc., whose address is 833 Highland Avenue, Suite 201, Orlando, Florida 32803, a Florida corporation, authorized to do business in the State of Florida, sometimeshereinafter referred to as the "Contractor ". The City and the Contractor are collectively referred to herein as the "parties ". Witnesseth: Whereas, the City desires to retain the Contractor for the work identified in various Work Orders for various and diverse projects of the City; and Whereas, the Contractor hereby warrants and represents to the City that it is competent and otherwise able to provide professional and high quality services to the City; and Whereas, the references to the provisions of services to the City to the City shall include to provision of goods and the term "Work Order" shall include the term "Purchase Order" herein; and Whereas, this Agreement is subject to the provisions of the Consultants Copetitive Negotiations Act, 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 subsequent work orders or related contractual documents between the City and Contractor. Billing Period — The period of time between project commencement to the close of the current period, (inclusive); or from the close of the previous billing period, (exclusive), to the close of the current period, usually concurrent with the month. In no case shall this period be less than one calendar month except for the final Billing Period. Bona Fide - Made or carried out in good faith; sincere. 1 1 Page City — The City of Sanford, a municipal corporation of the State of Florida holding tax exempt status. Contractor - To include all principals of the Contractor including, but not limited to, full and part time employees, professional or otherwise, and all other agents employed by or for Contractor to perform its obligations hereunder. Description of Services - Shall be written in paragraph form resonably describing those services the City can expect the Contractor to provide. The description shall be written in such a manner that the type of service is clearly provided, but broad enough that all services reasonably expected of the Contractor, including services provided by partners, subcontractors, and other supporting professionals, can be provided to the City. Designated Representative — A person who administers, reviews, and coordinates the provision of services. This definition applies equally to the City and to the Contractor. 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 the Contractor must provide the City either for inclusion as part of this Agreement or not. Work Order - A detailed description of quantities, services, and a completion schedule provided on a City prescribed form describing all work associated with the service to be provided by the Contractor to the City for an agreed price referencing this agreement by title and date. 21 Page 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, 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, if any, attached, 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 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. (b) The Contractor shall not have the right to compel the exercise of the ad valorem taxing power of the City. Section 5: Contractor Understanding Of Services Required. (a) Execution of this Agreement by the Contractor is a representation that the Contractor is familiar with local conditions and with the services to be performed. 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 Work Orders, and that it is well acquainted with the components that are properly and customarily included 31 Page 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 a Work Order shall be an affirmative and irrefutable representation by the Contractor to the City that the Contractor is fully familiarwith 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 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. (d) Persons employed by the Contractor 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. 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 the Contractor certifies /certify that they are authorized to bind the Contractor fully to the terms of this Agreement. (b) This Agreement is for services pertaining to landscape architecture and planning services 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) The Contractor acknowledges that the City may retain other Contractors to provide the same types of services for City projects. The City reserves the right to select which Contractor shall provide services for City projects. (d) The Contractor acknowledges that the City has retained other Contractors and the coordination between said Contractors and the Contractor may be necessary from time to time for the successful completion of each Work Order. The Contractor agrees to provide such coordination as necessary within the Scope of Services of each Work Order. 41 Page (e) The Contractor agrees to provide and ensure coordination between goods/ services providers. (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 Work Order. The parties covenant and agree that they shall diligently and expeditiously pursue their respective obligations set forth in this Agreement and each Work Order. (g) Contractor will maintain an adequate and competent staff or professionally qualified persons throughout the performance of this Agreement to ensure acceptable and timely completion of each Work Order. (h) Requirements for signing and sealing plans, reports, and documents prepared by the Contractor shall be governed by the laws and regulations of Seminole County and State regulatory agencies. (i) 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. (j) No claim for services furnished by the Contractor not specifically provided for herein shall be honored by the City. Section 7: Codes And Design Standards. (a) All the services to be provided or 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 services to be performed under this Agreement. Section 8: 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, local business tax proof of payment, and insurance certifications. 51 Page (b) The Contractor 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 the Contractor 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. Section 9: Assignability. 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 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) The Contractor shall commence the provision of services as described in this Agreement immediately upon execution of this Agreement and execution of a Work 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 Work Orders as described in each Work Order. However, if the Contractor is delayed at any time in the provision of 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'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 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. Section 11: Length Of Agreement. (a) Unless terminated, this Agreement shall be in effect until December 31, 2011 and shall automatically renew for one year periods unless action to terminate 61 Page this Agreement is taken by a party consistent with the provisions of this Agreement. (b) Should s party wish to not have this Agreement automatically renewed, the City shall provide written notice to the Contractor thirty days prior to the automatic renewal subject; however, to the completion of all pending Work Orders. Section 12: Description Of Services. (a) The Contractor agrees to perform landscape architecture and planning in accordance with Work Orders issued by the City to the Contractor from time - to -time. (b) The Contractor shall diligently and in a professional and timely manner perform and provide the services contemplated by this Agreement. Unless modified in writing by the parties hereto, the duties of the Contractor shall not be construed to exceed the provision of the services pertaining to this Agreement. Section 13: Contractor Responsibilities. (a) The Contractor shall be responsible for the professional quality, accepted standards, technical accuracy and the coordination of all 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 services. With respect to services, the Contractor 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 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) The Contractor shall furnish a Contractor Designated Representative to administer, review, and coordinate the provision of services under each Work Order. (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. The Contractor shall be and shall remain liable to the City in accordance with applicable law for all damages to the City caused by the 71 Page Contractor's negligent or improper performance or failure to perform any of the services furnished under this Agreement. (d) The rights and remedies of the Contractor provided for under this Agreement, are in addition to any other rights and remedies provided by law. (e) In the event the Contractor fails to comply with the terms and conditions of this Agreement, the City shall notify the Contractor's Designated Representative in writing so that the Contractor may take remedial action. (f) Time is of the essence in the performance of all services provided by the Contractor under the terms of this Agreement and each and every Work Order. Section 14: 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 Designated Representative to administer, review, and coordinate the provision of services under each Work Order. (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 furnish the Contractorwith 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 the Contractor 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 the Contractor. (e) The City shall examine all Contractor reports, sketches, drawing, estimates, proposals, and other documents presented to the City and indicate the City's approval or disapproval within a reasonable time so as not to materially delay the provisions of the services of the Contractor. (f) The City shall provide access to and make provisions for the Contractor to enter upon public and private lands as required for the Contractor within a reasonable time to perform work as necessary to complete the Work Order. (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 81 Page Agreement. (h) The City shall give written notice to the Contractor whenever the City designated representative knows of a development that affects the services provided and performed under this Agreement, timing of the Contractor's provision of services, or a defect or change necessary in the services of the Contractor. (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. Q) 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 the Contractor 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. (1) 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 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 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 the Consutant'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. (n) In the event the City fails to comply with the terms and conditions of this Agreement, the Contractor shall notify the City's Designated Representative in writing so that the City may take remedial action. Section 15: Waiver. 91 Page 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) 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, 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 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. (c) The Contractor 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 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 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. (e) 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 101 Page 1324a(e) Section 274A(e) of the Immigration and Nationally Act (INA)]. The City shall consider the employment by the Contractor of unauthorized aliens, a violation of Section 274A (e) of the INA. Such violation by the Contractor 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) 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. (g) 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. (h) If the Contractor or an affiliate is placed on a discriminatory vendor list, such action may result in termination by the City. The Contractor 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 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 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. Q) 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. (k) The Contractor agrees to comply with Federal, State, and local environmental, health, and safety laws and regulations applicable to the 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. (1) If applicable, in accordance with Section 216.347, Florida Statutes, the Contractor shall not use funds provided by this Agreement for the purpose of lobbying the Legislature, the Judicial Branch, or State Agency. (m) The Contractor shall not publish any documents or release information regarding this Agreement to the media without prior approval of the City. 11 1 Page (n) The Contractor shall ensure that all 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. (o) The Contractor shall ensure that all taxes due from the Contractor 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 the Contractor Mr. Frank Bellomo Bellomo Herbert and Company, Inc. 833 Highland Avenue Suite 201 Orlando, Florida 32803 (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 121 Page written notice requirements herein. Computer notification (e -mails and message boards) shall not constitute proper written notice under the terms of the Agreement. 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 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 knows of a defect or change necessary in the project; and (c) Until further written notice, the City's Designated Representative for this Agreement is: Purchasing Manager City of Sanford 300 North Park Avenue Sanford, Florida 32771 (d) Until further written notice, the Contractor's Designated Representative for this Agreement is: Mr. Frank Bellomo Bellomo Herbert and Company, Inc. 833 Highland Avenue Suite 201 Orlando, Florida 32803 Section 20: Work Orders. (a) The provision of services to be performed under this Agreement may commence upon the issuance of a Work Order from the City to the 131 Page Contractor. Each Work Order shall reference this agreement by title and date, include a detailed description of quantities, services, and a completion schedule, and will be provided on Contractor letterhead. Services described in said Work Order will commence upon the issuance of a City Notice -To- Proceed. (b) The services required to be performed by a Work Order shall clearly defined, the Work Order and 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) The Contractor agrees to adhere to the schedules established in the various Work Orders issued under this Agreement. (e) 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. Section 21: Change Orders. (a) The City may revise the Description of Services set forth in any particular Work Order. (b) Revisions to any Work Order shall be authorized in writing by the City as a Change Order. Each Change Order shall include a schedule of completion for the services authorized. Change Orders shall identify this Agreement and the appropriate Work Order number. The Change Orders may contain additional instructions or provisions specific upon certain aspects of this Agreement pertinent to the 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 schedule. (c) If instructed by the City, the Contractor shall change or revise work that has been performed, and if such work is not required as a result of error, omission or negligence of the Contractor, the Contractor may be entitled to additional compensation. The Contractor must submit for City approval a revised proposal with a revised fee quotation. Additional compensation, if any, shall be agreed upon before commencement of any such additional work and shall be incorporated into the work by Change Order to the Work Order. 141Page Section 22: Compensation. (a) Compensation to the Contractor for the services performed on each Work Order shall be as set forth the Work Order /Change Order. (b) The City shall not pay for reimbursable items such as gas, tolls, mileage, meals, etc. and other items not directly attritbutable to items produced for each Work Order. (f) Work performed by the Contractor without written approval by the City's Designated Representative shall not be compensated. Any work performed by the Contractor without approval by the City is performed at the Contractor's own election. (e) In the event the City fails to provide compensation under the terms and conditions of this Agreement, the Contractor shall notify the City's Designated Representative in order that the City may take remedial action. (f). Hourly rates to be paid to the Contractor under this Agreement shall be as follows: Principal Landscape Architect $175.00 Senior Landscape Architect $150.00 Landscape Architect $105.00 Construction Administrator $85.00 Landscape Designer $85.00 Landscape Technician $75.00 CAD Technician $65.00 Administrative $50.00 Section 23: Invoice Process. (a) 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 all 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. (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) The Contractor will be notified of any disputable items contained in invoices submitted by the Contractor within fifteen days of receipt by the City with an 151 Page explanation of the deficiencies. (d) The City and the Contractor will make every effort to resolve all disputable items contained in the Contractor's invoices. (g) Each invoice shall reference this Agreement, the appropriate Work Order and Change Order if applicable, 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 Section 24: Termination Of Agreement. (a) The City may terminate this Agreement or any Work Order 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 under a Work Order is not being made by the Contractor; or (2) If, in the City's opinion, the quality of the services provided by the Contractor is /are not in conformance with commonly accepted professional standards, standards of the City, the requirements of Federal or State regulatory agencies, and the Contractor has not corrected such deficiencies in a timely manner as reasonably determined by the City; or (3) The Contractor or any employee or agent 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) The Contractor becomes involved in either voluntary or involuntary bankruptcy proceedings, or makes an assignment for the benefit of creditors; or 161 Page (5) The Contractor violates the Standards of Conduct provisions herein or any provision of State or local law or any provision of the City Code of Conduct. In the event of any of the causes described in this Section, the City's Designated Representative may send a certified letter requesting that the Contractor show cause why the Agreement or any Work 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 fourteen calendar days of the receipt of the letter, the City may consider the Contractor to be in default, and may immediately terminate this Agreement or any Work Order in progress under this Agreement. (c) In the event that this Agreement or a Work Order is terminated for cause and it is later determined that the cause does not exist, then this Agreement or the Work Order 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 the Contractor. Section 25: Termination By Contractor For Cause. (a) The Contractor may terminate this Agreement if 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 fourteen calendar days of the receipt of said show cause notice, the Contractor may consider the City to be in default, and may immediately terminate this Agreement. Section 26: 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 entirely without cause, or terminate any specific Work Order without cause, if such termination is deemed by the City to be in the public interest, provided that thirty calendar days prior written notice is given to the Contractor of the City's intent to terminate. (b) In the event that this Agreement is terminated, the City shall identify any specific Work Order(s) being terminated and the specific Work Order(s) to be continued to completion pursuant to the provisions of this Agreement. (c) This Agreement will remain in full force and effect as to all authorized Work Order(s) that is /are to be continued to completion. 171 Page Section 27: Payment In The Event Of Termination. In the event this Agreement or any Work Order is terminated or canceled prior to final completion 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 28: 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 29: Suspension. (a) The performance or provision of the Contractor services under any Work Order under this Agreement may be suspended by the City at any time. (b) In the event the City suspends the performance or provision of the contractor's services hereunder, the City shall so notify the Contractor in writing. Such suspension becoming effective upon the date stated in the notice. The City shall pay to the Contractor within thirty days all compensation which has become due to and payable to the Contractor to the effective date of such suspension. The City shall thereafter have no further obligation for payment to the Contractor for the suspended provision of services unless and until the City's designated representative notifies the Contractor in writing that the provision of the services of the Contractor called for hereunder are to be resumed by the Contractor. (c) Upon receipt of written notice from the City that the Contractor's provision of services hereunder are to be resumed, the Contractor shall continue to provide the services to the City. Section 30: 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) The Contractor 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 the Contractor had knowledge and failed to present during the City procedures. 181 Page (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 voluntary mediation shall be shared equally among the parties participating in the mediation. Section 31: 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 the Contractor is recognized by the parties to constitute irreparable harm to the City. Section 32: 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 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 any one party than against any other party. 191 Page Section 33: Indemnity. (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 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. (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; however, the Contractor must also comply with the provisions of this Agreement relating to insurance coverages. (f). To the extent that services provided by the Contractor 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.. 201 Page Section 34: 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) Workers Compensation /Employer Liability: The Contractor 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: The Contractor shall provide coverage for all operations including, but not limited to, contractual, independent Contractor, products and complete operations and personal injury with limits not less than the following: $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: The Contractor 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 the Contractor shall specifically include the City 211Page as an additional insured. All insurance minimum coverages extend to any subcontractor, and the Contractor shall be responsible for all Subcontractors. (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 Work Order under this Agreement. These Certificates of Insurance shall become part of this Agreement. Neither approval by the City nor 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 an insurance rating 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 days prior notice will be given to the City by submission of a new Certificate of Insurance. (e) The Contractor shall provide 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 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 that have any right against the City; provided, however, that the owners of vehicles towed hereunder are considered to be third -party beneficiaries inconsideration of their forbearance in allowing their vehicles to be towed and are declared to have standing to enforce the provisions of this Agreement where the provisions inure to their benefit. It is further understood that such owner shall, upon prevailing, be entitled to recovery of reasonable costs, expenses, and attorney's fees. 221 Page (h) The Contractor is an independent Contractor and not an agent, representative, or employee of the City. The City shall have no liability except as specifically provided in this Agreement. (h) All insurance shall be primary to, and not contribute with, any insurance or self- insurance maintained by the City. (i) All insurance requirements shall be effectual and run to the benefit of the City notwithstanding any statutory limitations relative to indemnification. Section 35: Equal Opportunity Em ployment/Non- Discrimination. 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 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. 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 36: 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. (b) The Contractor 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 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. (d) 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 Work Order issued hereunder. This audit shall be performed at a time mutually agreeable to the Contractor and the City subsequent to the close of 231 Page the final fiscal period in which 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. (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 the Contractor 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, the Contractor shall refund such overpayment to the City within thirty days of notice by the City of the request for the refund. (g) The Contractor agrees to fully comply with all State laws relating to public records as determined by the City. (h) 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 37: 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 38: 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 Commission taking official action and the Contractor signing by and through its duly authorized corporate officer having the full and complete authority to execute same. 241 Page Attest: i Ruth Perry, Secretary Attest: Janet Dougherty, City derk Approved as to form and legal sufficiency. ,� ►1.1�11111111G/II ..- Contractor /Bellomo Herbert And Company, Inc. B Frank Be o r,� o , P sident Date: il k 2 ;- 'Z'V /o City Of Sanford Linda Kuhn, ( ayor Date: EXHIBIT A WORK ORDER FORM CITY OF SANFORD, FLORIDA Master Agreement/Contract Number: Contract/Project Title: Dated: Solicitation No: Consultant/Contractor: Sanford Project No: Purchase Order No: Consultant/Contractor's Business Address, Phone Number, Fax Number and E -mail address: ATTACHMENTS TO THIS WORK ORDER [ ] DRAWINGS /PLANS /SPECIFICATIONS [ ] SCOPE OF SERVICES [ ] SPECIAL CONDITIONS [ ] UNIT PRICING SCHEDULE Work Order Number: METHOD OF COMPENSATION: [ ] FIXED FEE BASIS [ ] TIME BASIS - NOT -TO- EXCEED AMOUNT [ ] TIME BASIS - LIMITATION OF FUNDS [ ] UNIT PRICE BASIS - NOT -TO- EXCEED AMOUNT TIME FOR COMPLETION: The services to be provided by the CONSULTANT /CONTRACTOR shall commence upon execution of this Work Order by the parties and shall be completed within the time frame of days of the effective date of this Work Order. Failure to meet the stated completion time requirement may be grounds for termination for default. Work Order Amount: ❑ Fixed ❑ Not to Exceed Dollars ($ ) IN WITNESS WHEREOF, the parties hereto have made and executed this Work Order on the respective dates under each signature: the CITY through its City Commssion taking action on the day of , and the CONSULTANT /CONTRACTOR by and through its duly authorized corporate officer having the full and complete authority to execute same. ATTEST. Bv: CONSULTANT /CONTRACTOR: Corporate Secretary or Witness Printed Name and Title Date: ATTEST: CITY OF SANFORD Janet Dougherty, City Clerk Linda Kuhn, Mayor Date: EXHIBIT "A "(page 2) WORK ORDER TERMS AND CONDITIONS Execution of this Work Order by the CITY shall serve as authorization for the CONSULTANT /CONTRACTOR to provide goods and /or services for the above project as set out in the Scope of Services which is attached as Exhibit "A," as well as all other exhibits attached to that certain Agreement cited on the face of this Work Order all of which are incorporated herein by reference as if they had been set out in its entirety and as further delineated in the specifications, conditions and requirements stated in the listed documents which are attached hereto and made a part hereof. The CONSULTANT /CONTRACTOR shall provide said goods and /or services pursuant to this Work Order, its attachments and the above - referenced Agreement and its exhibits. If this Work Order conflicts with said Agreement or exhibits, the Agreement and exhibits shall prevail. TERM: This Work Order shall take effect on the date of its execution by the CITY and expires upon final delivery, inspection, acceptance and payment unless terminated earlier in accordance with the Termination provisions herein. METHOD OF COMPENSATION: (i) FIXED FEE BASIS. If the compensation is based on a "Fixed Fee Basis," then the CONSULTANT /CONTRACTOR shall perform all work required by this Work Order for the Fixed Fee Amount indicated as the Work Order Amount. The fixed feel is an all- inclusive Firm Fixed Price binding the CONSULTANT /CONTRACTOR to complete the work for the Fixed Fee Amount regardless of the costs of performance. In no event shall the CONSULTANT /CONTRACTOR be paid more than the Fixed Fee Amount. (ii) TIME BASIS WITH A NOT TO EXCEED AMOUNT. If the compensation is based on a "Time Basis Method" with a Not -to- Exceed Amount, then the CONSULTANT /CONTRACTOR shall perform all work required by this Work Order for a sum not exceeding the amount indicated as the Work Order Amount. In no event is the CONSULTANT /CONTRACTOR authorized to incur expenses exceeding the Not -To- Exceed Amount without the express written consent of the CITY. Such consent will normally be in the form of an amendment to this Work Order. The CONSULTANT /CONTRACTOR's compensation shall be based on the actual work required by this Work Order and the Labor Hour Rates established in the Master Agreement. (iii) TIME BASIS WITH A LIMITATION OF FUNDS AMOUNT. If the compensation is based on a "Time Basis Method" with a Limitation of Funds Amount, then the amount identified as the Work Order Amount becomes the Limitation of Funds amount which shall not be exceeded without prior written approval of the CITY. Such approval, if given by the CITY, will indicate a new Limitation of Funds amount. The CONSULTANT /CONTRACTOR shall advise the CITY whenever the CONSULTANT /CONTRACTOR has incurred expenses on this Work Order that equals or exceeds eighty percent (80 %) of the Limitation of Funds amount. The CONSULTANT /CONTRACTOR's compensation shall be based on the actual work required by this Work Order and the Labor Hour Rates established in the Master Agreement. (iv) UNIT PRICE BASIS WITH A NOT TO EXCEED AMOUNT. If the compensation is based on a "Unit Price Basis," then the CONSULTANT /CONTRACTOR shall perform all work required by this Work Order for the amount resulting from computing the quantity(ies) of defined units and agreed upon unit pricing to establish amount of CONTRACTOR'S compensation. All adjustments to quantities shall be approved by the Project Manager. Prior written approval by the City is required to adjust the not to exceed amount. The CITY shall make payment to the CONSULTANT /CONTRACTOR in strict accordance with the payment terms of the above - referenced Agreement. It is expressly understood by the CONSULTANT /CONTRACTOR that this Work Order, until executed by the CITY, does not authorize the performance of any services by the CONSULTANT /CONTRACTOR and that the CITY, prior to its execution of the Work Order, reserves the right to authorize a party other than the CONSULTANT /CONTRACTOR to perform the services called for under this Work Order if it is determined that to do so is in the best interest of the CITY. The CONSULTANT /CONTRACTOR shall execute this Work Order first and the CITY second. This Work Order becomes effective and binding upon execution by the CITY and not until then. A copy of this executed Work Order along with a Purchase Order will be forwarded to the CONSULTANT /CONTRACTOR at the completion of that action. It is noted that the Purchase Order Number must be indicated on all invoices germane to the Work Order. EXHIBIT B PROJECT STATUS REPORT (Required with Payment Request) CITY OF SANFORD Project Name: Project Manager: Status Report Period; From: To: This Report Applicable To: Level of Effort Performance (i.e. continuing service such as medical consulting, billing services, etc.) Phased Project involving: Planning _ Design_ Bidding _ Construction _ 1. In paragraph form, list the current status of the project and work completed this Billing Period. 2. In paragraph form, list all milestones reached this Billing Period. 3. In paragraph form, list any pending issues or items of note. Contract/Project Manager Signature: Date: