2010 Poulos & Bennet Engineering ServicesTo: City Clerk
E: Request for Services
The item(s) noted below is/are attached and forwarded to your office for the following action(s):
❑
Development Order
®
Mayor's signature
❑
Final Plat (original mylars)
❑
Recording
❑
Letter of Credit
❑
Rendering
❑
Maintenance Bond
®
City Attorney's Signature
❑
Ordinance
®
City Clerk's Signature
❑
Performance Bond
❑
Resolution
®
Poulos & Bennet, LLC for General Engineering Services
(RFP 16/17-1 OR)
Once completed, please:
® Return original
❑ Return copy
Special Instructions:
Please return one signed and fully executed copy. City Clerk's office may keep one copy for
their records.
Please advise if you have any questions regarding the above.
Thank you!
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From
T:\Dept_forms\City Clerk Transmittal Memo - 2009.doc
oil
Date
AGREEMENT BY AND BETWEEN THE CITY OF SANFORD AND POULOS &
BENNETT, LLC FOR GENERAL ENGINEERING SERVICES (RFP 16/17-10R)
„THIS AGREEMENT (hereinafter the "Agreement") is made and entered
into this a'day of July, 2017, by and, between the City of Sanford, Florida, a Florida
municipality, (hereinafter referred to as the "City"), whose mailing address is 300 North
Park Avenue, Sanford, Florida 32771, a Poulos & Bennett, LLC, a Florida limited liability
company authorized to do business in the State of Florida, ("P&B" throughout)") whose
principal address is 2602 East Livingston Street, Orlando, Florida 32803. The CITY and
P&B may be collectively referenced herein as the "parties".
WITNESSETH.
IN CONSIDERATION of the mutual covenants, promises, and representations
contained herein and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Recitals. The above recitals are true and form a material part of
this Agreement upon which the parties have relied.
Section 2. Authority. 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 each party certify that they are authorized to
bind the party fully to the terms of this Agreement.
Section 3. Scope of Agreement. This Agreement is for the services
necessary to implement the evaluation and appraisal of the City of Sanford
Comprehensive Plan in order to assess its compliance with current controlling
provisions of the Florida Statutes and other controlling law and to determine how
effectively it implements the City's goals, policies and objectives (GOPs) under the
Comprehensive Plan as well as the evolving priorities of the City in the overall context of
comprehensive planning. As part of these services, P&B will update the Data, Inventory
and Analysis (DIA) section of the Comprehensive Plan for the next 10 -year planning
period, in accordance with Statute, and modify the GOPs to adequately reflect the
results of this analysis and effectively implement the City's vision. This effort will result
in the delivery of a draft updated Comprehensive Plan, including, but not limited to, the
DIA and GOPs sections and a companion Evaluation and Appraisal Report to the City.
Additionally, the City may direct P&B to draft a proposed new element to the
Comprehensive Plan that reflects the City's historic preservation, economic
development and sustainability goals, or any combination of those subject areas. The
aforementioned services to include all labor and materials that may be required
including, but in no way limited to, the services provided by subconsultants as may be
approved by the City. Specific services and compensation shall be agreed to by the
parties by means of the issuance of work orders.
Section 4. Effective Date and Term of Agreement. This Agreement
shall take effect on the date that this Agreement is fully executed by the parties hereto.
This Agreement shall remain in effect until the services to be provided by P&B to the
City under each work order have been fully performed in accordance with the
requirements of the City; provided, however, that, the indemnification provisions and
insurance provisions of the standard contractual terms and conditions referenced herein
shall not terminate and the protections afforded to the City shall continue in effect
subsequent to such services being provided by P&B No services have commenced
prior to the execution of this Agreement that would entitle P&B for any compensation
therefor. This Agreement shall be a continuing agreement that runs year-to-year unless
terminated by the City.
Section 5. Compensation. The parties agree to compensation as set forth
in each work order issued by the City.
Section 6. Standard Contractual Terms and Conditions. All "Standard
Contractual Terms and Conditions", as provided on the City's website, apply to this
Agreement. Such Terms and Conditions may be found at the City's website
(www. Sanford FL.gov). The parties shall also be bound by the purchasing policies and
procedures of the City as well as the controlling provisions of Florida law. Work orders
shall be used, in accordance therewith, in the implementation of this Agreement.
Section 7. P&B's Mandatory Compliance with Chapter 119, Florida
Statutes, and Public Records Requests.
(a). In order to comply with Section 119.0701, Florida Statutes, public records
laws, P&B must:
(1). Keep and maintain public records that ordinarily and necessarily would be
required by the City in order to perform the service.
(2). Provide the public with access to public records on the same terms and
conditions that the City would provide the records and at a cost that does not exceed
the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law.
(3). Ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as authorized by
law.
(4). Meet all requirements for retaining public records and transfer, at no cost,
to the City all public records in possession of P&B upon termination of the contract and
destroy any duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. All records stored electronically must be
provided to the City in a format that is compatible with the information technology
systems of the City.
2 113 a g e
(b). If P&B does not comply with a public records request, the City shall
enforce the contract provisions in accordance with this Agreement.
(c). Failure by P&B to grant such public access and comply with public records
requests shall be grounds for immediate unilateral cancellation of this Agreement by the
City. P&B shall promptly provide the City with a copy of any request to inspect or copy
public records in possession of P&B and shall promptly provide the City with a copy of
P&B' response to each such request.
(d).
IF THE CONTRACTOR/P&B HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE CONTRACTOR'S (P&B'S) DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS
CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT (407) 688-5012, CYNTHIA PORTER, CITY
CLERK, CITY OF Sanford, CITY HALL, 300 NORTH PARK
AVENUE, SANFORD, FLORIDA 32771,
PORTERC @ SAN FORDFL.GOV.
Section 8. Notices.
(a). P&B agrees that it shall send notices and invoices to, and shall conduct all
business with, the City to the attention of Russ L. Gibson, AICP, Director of Planning
and Development Services, Post Office Box 1788, 300 North Park Avenue; Sanford,
Florida 32771-1778, telephone number (407-688-5142) and whose e-mail address is:
Russell. Gibson @ sanfordfl.gov.
(b). The City agrees that it shall send notices to, and shall conduct all business
with, P&B to: Jamie T. Poulos, P.E., LEED AP, Partner, Poulos & Bennett, LLC, 2602
East Livingston Street, Orlando, Florida 32803, telephone number (407 487-2594)
Section 9. Time is of the Essence. Time is hereby declared of the essence
as to the lawful performance of all duties and obligations set forth in this Agreement.
Section 10. Entire Agreement/Modification. This Agreement, together
with all "Standard Contractual Terms and Conditions", as provided on the City's website,
and including, without limitation, the exhibits hereto, constitutes the entire integrated
agreement between the City and P&B and supersedes and controls over any and all
prior agreements, understandings, representations, correspondence and statements
whether written or oral in connection therewith and all the terms and provisions
contained herein constitute the full and complete agreement between the parties hereto
to the date hereof. This Agreement may only be amended, supplemented or modified by
a formal written amendment of equal dignity herewith.
31Pa<,c
Section 11. Severability. 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.
Section 12. 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 13. 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 14. 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 15. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the successors in interest, transferees and assigns of the parties.
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 signatories hereof represent that
they have the requisite and legal authority to execute this Agreement and bind the
respective parties herein.
Section 16. Remedies. The rights and remedies of the parties, provided for
under this Agreement, are in addition to any other rights and remedies provided by law
or otherwise necessary in the public interest.
Section 17. Governing law, Venue and Interpretation. This Agreement is
to be governed by the laws of the State of Florida. Venue for any legal proceeding
related to this Agreement shall be in the Eighteenth Judicial Circuit Court in and for
Seminole County, Florida. This Agreement is the result of bona fide arms length
negotiations between the City and P&B, and all parties have contributed substantially
and materially to the preparation of the Agreement. Accordingly, this Agreement shall
not be construed or interpreted more strictly against any one party. than against any
other party and all provisions shall be applied to fulfill the public interest.
IN WITNESS WHEREOF, the City and P&B have executed this instrument for
the purpose herein expressed.
41 Pa -c
ATTEST.
Q04L�Z-2
Cyntft Porter
City Clerk
Approved as to form and
legal sufficiency.
William L. Colbert
City Attorney
A TTES T.
R. Lance Bennett
Manager
CITY OF S,ANFORD
By:
-Jeff-Tripi
Mayor
Date:
POU BENNETT, LLC
By:
Jam-7ne. Poulos
Manager
Date: 3Z 17
5 1 P a (, e
pop
WITNESSETH:
(1) The Vendor' hereby warrants and represents to the City that it is
competent and otherwise able to provide professional and high quality goods and/or
services to the City by means of employees who are neat in appearance and of polite
demeanor.
(2) All submissions submitted by the Vendor, in the proposals/bid submitted to
the City are hereby incorporated herein to the extent not inconsistent with the terms and
conditions as set forth herein.
(3) The Vendor acknowledges that the City may retain other goods and/or
service providers to provide the same goods and/or services for City projects. The
Vendor acknowledges that the City, at the City's option, may request proposals from the
Vendor and the other goods and/or service providers for City projects. The City
reserves the right to select which goods and/or services provider shall provide goods
and/or services for the City's projects.
(4) The Vendor agrees to provide and ensure coordination between
goods/services providers.
(5) 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 Vendor certify that he/she/they is/are authorized to
bind the Vendor fully to the terms of this Agreement. '
(6) - If this is a Work Order contract:
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
Vendor. 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 Vendor letterhead.
Services described in said Work Order will commence upon the
issuance of a City Notice -To -Proceed.
1 The term "Vendor," as used herein, includes vendors, contractors, consultants, and goods and services
providers of every type and nature.
Page 1 of 24
b. The services required to be performed by a Work Order shall be clearly
defined within the Work Order. The Vendor shall perform all services
required by the Work Order, but in no event shall the Vendor be paid
more than the negotiated fee amount stated therein or the fee resulting
from the stated method of calculation.
c. The Vendor agrees to adhere to the schedules established in the
various Work Orders issued under this Agreement.
d. The Vendor 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.
(7) If this is a Work Order contract:
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/services, including all direct and indirect
costs of whatever nature, and all adjustments to the Vendor schedule.
c. If instructed by the City, the Vendor 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 Vendor, the. Vendor may be
entitled to additional compensation. The Vendor 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.
(8) If this is a Work Order contract, compensation to the Vendor for the
services performed on each Work Order shall be as set forth the Work Order/Change
Order and may be set as a fixed fee, an fee based upon rates, a fee that is a "not to
exceed" fee, or a fee based upon some other basis as agreed upon by the parties.
Page 2 of 24
(9) The Vendor hereby guarantees the City that all materials, 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.
(10) If the Vendor is contracted to provide products, the Vendor warrants that
such products shall be free of all liens, claims or encumbrances, and the Vendor
warrants that it has clear title to the products being delivered.
(11) The Vendor warrants that the services, including, but not limited to,
equipment and materials provided shall conform to professional standards of care and
practice in effect at the time the service is performed, be of the highest quality, and be
free from all faults, defects or errors. Vendor standard of care shall not be altered by
the application, interpretation, or construction of any other provision of this Agreement.
Whenever required by the specifications of the Invitation to Bid, the Vendor warrants
that all equipment and materials provided shall be new, in unused condition and free
from defects in title, workmanship, defects in design and in full compliance with the
specifications designed by the City. If the Vendor is notified in writing of a fault,
deficiency or error in the goods and/or services provided within one (1) year from
completion of the services, the Vendor shall, at the City's option, either reperform such
portions of the services to correct such fault, defect or error, at no additional cost to the
City, or refund to the City, the charge paid by the City, which is attributable to such
portions of the faculty, defective or erroneous services, including, but not limited to, the
costs for reperformance of the services provided by other Vendors.
(12) All goods purchased hereunder must -be packaged to ensure its security
and delivery in accordance with the City's shipping and packing specifications and good
commercial practice. Each package shall be labeled indicating the addresses of each
package or shipment and the purchase order number, if applicable. Charges are not
allowed for boxing or crating unless specifically agreed to in writing.
(13) All work shall be constructed with asbestos -free materials. Vendor agrees
that if materials containing asbestos are subsequently discovered at any future time to
have been included in the construction done by the Vendor or any of its subcontractors
or agents that were not specified in the design or required by the Agreement Vendor
shall be liable for all costs relating to the abatement of such asbestos and damages or
claims against the City.
(14) Terms of shipping are F.O.B. the City's delivery location unless otherwise
noted within the terms of this Agreement. Regardless of the indicated F.O.B. point, the
City does not accept title until the shipment is acknowledged by an authorized City
representative.
(15) The Vendor shall provide the City with any and all data, reports or other
information as required and requested by the City to enable it to utilize the product or
Page 3 of 24
service furnished by the Vendor. At the convenience of and at no expense to the' City,
the Vendor may be required to provide training to City employees in the operation and
maintenance of any item purchased unless otherwise specified.
(16) All final plans, documents, reports, studies and other data prepared by the
Vendor shall bear the professional's seal/signature, in accordance with the applicable
Florida Statute that governs and Administrative Rules promulgated by the Department
of Business and Professional Regulation, and guidelines published by the City, in effect
at the time of execution of this Agreement. In the event that changes in the Statute or
Rules create a conflict with the requirements of the published guidelines, requirements
of the Statute and/or Rules shall take precedence.
(17) Requirements for signing and sealing plans, reports and documents
prepared by the Vendor shall be governed by the laws and regulations of Federal,
Seminole County and State regulatory agencies.
(18) 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 Vendor (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 Vendor is to be and shall remain forever an independent contractor
with respect to all services performed under this Agreement.
(19) Persons employed by the Vendor 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's officers and employees either by
operation of law or by the City.
(20) No claim for goods and/or services furnished by the Vendor not
specifically provided for herein shall be honored by the City.
(21) Execution of this Agreement by the Vendor is a representation that the
Vendor is familiar with, and acknowledges full understanding of the extent and character
of, the goods and/or services to be provided and/or performed and with local conditions.
The Vendor shall make no claim for additional time or money based upon its failure to
comply with this Agreement. The Vendor 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 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's Projects. The City will not be
responsible for any alleged misunderstanding of the goods and services to be furnished
or completed, or any misunderstanding of conditions surrounding the performance
thereof. It is understood that the execution of this Agreement by the Vendor serves as
his stated commitment to fulfill all the conditions referred to in this Agreement.
Page 4 of 24
(22) The Vendor shall be responsible for the professional quality, accepted
standards, technical accuracy, neatness of appearance of employees, employee
conduct, and the coordination of all goods and/or services furnished by the Vendor
under this Agreement as well as the conduct of its staff, personnel, employees and
agents, which shall comply with reasonable conduct guidelines and City policies and
procedures. The Vendor shall work closely with the City on all aspects of the provision
of the goods and/or services. With respect to services, the Vendor 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 Vendor under this Agreement.
(23) 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 or of any cause of action arising out of the performance of
this Agreement and the Vendor shall be and remain liable to the City in accordance with
applicable law for all damages to the City caused by the Vendor's negligent or improper
performance or failure to perform any of the goods and/or services furnished under this
Agreement.
(24) Under the terms of this Agreement, the plans, reports and
recommendations of the Vendor may be reviewed by the City for conformity with the
City standards and agreements terms. However, review by the City does not constitute
detailed review or checking of design components and related details, or the accuracy
with which designs are depicted on the plans.
(25) The rights and remedies of the City, provided for under this Agreement,
are in addition to any other rights and remedies provided by law.
(26) Time is of the essence in the lawful performance of all goods and/or
services, duties and obligations provided by the Vendor under the terms of this
Agreement. The Vendor agrees that Vendor shall diligently and expeditiously pursue
the Vendor's obligations at such a rate of progress as will ensure full completion thereof
within the time specified.
(27) The Vendor agrees to provide project schedule progress reports in a
format acceptable to the City and at intervals established by the City. The City will be
entitled at all times to be advised, at its request, as to the status of work being done by
the Vendor and of the details thereof. Coordination will be maintained by the Vendor
with representatives of the City, or of other agencies interested in the project on behalf
of the City. Either party to the Agreement may request and be granted a conference.
Page 5 of 24
(28) 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.
(29) The Vendor will be notified of any disputable items contained in invoices
submitted by the Vendor within fifteen (15) days of receipt by the City with an
explanation of the deficiencies.
(30) Invoices which have to be returned to a Vendor because of Vendor
preparation errors will result in a delay of the payment. The invoice payment
requirements do not start until a properly completed invoice is provided to the City.
(31) Except for issues arising from contract indemnification provisions, the City
will have the right to retain out of any payment due the Vendor under this Agreement an
amount sufficient to satisfy any amount due and owing to the City by the Vendor on any
other Agreement between the Vendor and the City. The City may withhold payment on
any invoice in the event that the Vendor is in default under any provision of this
Agreement or any other Agreement between the Vendor and the City as of the time of
processing the invoice or as of the time payment is made available on the invoice. This
right to withhold will continue until such time as the default has been cured, and, upon
cure, the City will have the right to retain an amount equal to the damages suffered as a
result of the default.
(32) The City and the Vendor will make every effort to resolve all disputable
items contained in the Vendor's invoices.
(33) Each invoice shall reference this Agreement, the appropriate billing period.
(34) The Florida Prompt Payment Act shall apply when applicable. A billing
period represents the dates in which the Vendor completed goods and/or services
referenced in an invoice.
(35) Invoices are to be forwarded directly to:
�Di r�(Me �r P�, I H
City Of Sanford
300 N. Park Avenue
Sanford, Florida 32771
(36) City designates the City Manager or his/her designated representative, to
represent the City in all matters pertaining to and arising from the work, goods and/or
services, and the performance of this Agreementt.
(37) The Vendor shall designate a Vendor's representative who shall not be
replaced without written notice to the City within twenty-four (24) hours before or after
the incident. The Vendor's representative shall be present at the job site and will have
Page 6 of 24
the authority to act on behalf of the Vendor. The Vendor's representative shall be fluent
in the English language. All communications (both verbal and written) given to the
Vendor's representative will be binding 'as if given to the Vendor. All verbal
communications will be followed up in writing within two (2) working days. The Vendor's
representative shall supervise and direct the work efficiently with due care, skill and
attendance, The Vendor will be responsible to ensure that the completed work
complies accurately with the specifications.
(38) The City Manager, or. his/her designated (in writing) representative, shall
have the following responsibilities:
a. 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 Vendor when reasonably requested by
the Vendor;
b. 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;
c. Giving prompt written notice to the Vendor whenever the City official
representative knows of a defect or change necessary in the project;
and
d. Coordinating and managing the Vendor's preparation of any necessary
applications to governmental bodies, to arrange for submission of such
applications.
(39) Until further notice from the City Manager the designated representative
for this Agreement is:
(NAME
R
Lei,U N
City of Sanford
300 N. Park Avenue
Sanford, Florida 32771
(40) City may terminate this Agreement for convenience at any time or for any
one (1) or more of the reasons as follows:
a. If, in the City's opinion, adequate progress is not being made by the
Vendor due to the Vendor's failure to perform; or
Page 7 of 24
b. If, in the City's opinion, the quality of the goods and/or services
provided by the Vendor 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
Vendor has not corrected such deficiencies in a timely manner as
reasonably determined by the City; or
c. The Vendor, or any employee or agent of the Vendor, 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 Vendor; or
d. The Vendor becomes involved in either voluntary or involuntary
bankruptcy proceedings, or makes an assignment for the benefit of
creditors; or
e. The Vendor 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.
(41) In the event that the Vendor, or any employee or agent of the Vendor, is
indicted or has a direct charge issued against him or her for any crime arising out of or
in conjunction with any work that has been performed by the Vendor, the City further
reserves the right to suspend the qualifications of the Vendor to do business with the
City upon any such related conviction.
(42) The Vendor understands and agrees that in the event of any of the causes
of termination, all tracings, plans, specifications, computer files, maps, and data
prepared or obtained under this Agreement will immediately be turned over to the City.
(43) In the event of any of the causes of termination, the City's designated
representative may send a certified letter to the Vendor requesting that the Vendor
show cause why the Agreement should not be terminated. If assurance satisfactory to
the City of corrective measures to be made within a reasonable time is not given to the
City within seven (7) calendar days of the date of the letter, the City may consider the
Vendor to be in default, and may then immediately terminate this Agreement. The City
shall have no liability to the Vendor beyond payment of any balance owed for
material(s) purchased hereunder and delivered to and accepted by the City prior to the
Vendors receipt of the notice termination.
(44) In the event that this Agreement is terminated for cause and it is later
determined that the cause does not exist, then this Agreement and the pertinent
PurchaseMork 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
Vendor.
Page 8 of 24
(45) The Vendor may terminate this Agreement only if the City fails to pay the
Vendor in accordance with this Agreement.
(46) Notwithstanding any other provision of this Agreement, the City shall have
the right at any time to terminate this Agreement in its entirely without cause, if such
termination is deemed by the City to be in the public interest, in writing of deficiencies or
default in the performance of its duties under the Agreement and the Vendor shall have
ten (10) days to correct same or to request, in writing, a hearing. Failure of the Vendor
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.
(47) Failure of a Vendor to deliver or perform the required goods and/or
services within the time specified, or within a reasonable time as determined by the City
or failure to make replacements of rejected articles or goods and/or services when so
requested, immediately or as directed by the City, shall constitute authority for the City
to purchase in the open market articles or goods and/or services of comparable grade
to replace the articles or goods and/or services rejected, not delivered, nor completed.
On all such purchases, the Vendor or his surety, shall reimburse the City, within a
reasonable time specified by the City, for any expenses incurred in excess of the
Agreement prices. Such purchases shall be deducted from Agreement quantities.
Should public necessity demand it, the City reserves the right to utilize services or use
and/or consume articles delivered which are substandard in quality, subject to an
adjustment in price to be determined by the City. The Vendor shall not be liable for any
excess costs if applicable evidence has been submitted to the City that failure to
perform the goods and/or services was due to causes beyond the control and without
the fault or negligence of the Vendor.
(48) The Vendor shall promptly correct all goods and/or services rejected by
the City as faulty, defective, or failing to conform to this Agreement whether observed
before or after substantial completion of the goods and/or services, and whether or not
fabricated, installed or completed. The Vendor shall bear all costs of correcting such
rejected goods and/or services.
(49) Acceptance of the goods and/or services by the City or Agreement
termination does not constitute City approval and will not relieve the Vendor of the
responsibility for subsequent corrections of any errors and/or omissions and the
clarification of any ambiguities. The Vendor shall make all necessary revisions or
corrections resulting from errors and/or omissions on part of the Vendor without
additional compensation. If these errors and/or omissions are discovered during the
construction of the project, they shall be corrected without additional compensation.
(50) The City reserves the right to conduct any inspection or investigation to
verify compliance of the goods and/or services with the requirements of this purchase
Page 9 of 24
order and to reject any delivery not in compliance. If any deficiency is not visible at the
time of the delivery the City reserves the right to take and/or require appropriate
corrective action upon the delivery of any deficiency, non-compliance, or defect.
(51) In the event the goods and/or services covered by this Agreement
includes the preparation of construction plans, it is understood that the work may be
divided into two or more construction projects by the City and that, if this is done, the
Vendor will supply construction plans for each project.
(52) All design work performed by the Vendor for projects where anticipated
construction cost is one million dollars ($1,000,000) or more will be subject to value
engineering. The City further reserves the right to subject projects of lesser construction
cost to value engineering should be the City deem circumstances are present that
warrant such a decision. Value engineering may be performed at any stage of the
design process. Unless specifically identified by the City, the Vendor will not be required
to perform the value engineering analysis.
(53) The City shall have the right to terminate this Agreement without cause
with a sixty (60) day written notice to the other party. The City reserves the right to
terminate any Agreement for cause with a five (5) day written notice to the Vendor.
Notice shall be served to the parties as specified in the Agreement.
(54) In the event that this Agreement is terminated, the City shall identify any
specific work to be continued to completion pursuant to the provisions of this
Agreement.
(55) In the event that after the City termination for cause for failure of the
Vendor to fulfill its obligations under this Agreement it is found that the Vendor has not
so failed, the termination shall be deemed to have been for convenience and without
cause.
(56) In the event this Agreement is terminated prior to final completion without
cause, payment for the unpaid portion of the services provided by the Vendor to the
date of termination and any additional services shall be paid to the Vendor.
(57) 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.
(58) The performance or provision of the Vendor's goods and/or services
under this Agreement may be suspended by the City at any time.
(59) In the event the City suspends the performance or provision of the Vendor
services hereunder, the City shall so notify the Vendor in writing, such suspension
becoming effective within seven (7) days from the date of mailing, and the City shall pay
to the Vendor within thirty (30) days all compensation which has become due to and
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payable to the Vendor to the effective date of such suspension. The City shall
thereafter have no further obligation for payment to the Vendor for the suspended
provision of goods and/or services unless and until the City's designated representative
notifies the Vendor in writing that the provision of the goods and/or services of the
Vendor called for hereunder are to be resumed by the Vendor.
(60) Upon receipt of written notice from the City that the Vendor's provision of
goods and/or services hereunder are to be resumed, the Vendor shall continue to
provide the services to the City.
(61) The Vendor 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 Vendor,
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.
(62) To the fullest extent permitted by law, the Vendor 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, breach of contract, malfeasance,
misfeasance, conduct, or misconduct of the Vendor, its agents, servants, officers,
officials, employees, or subcontractors.
(63) In accordance with Section 725.06, Florida Statutes, adequate
consideration has been provided to the Vendor for this obligation, the receipt and
sufficiency of which is hereby specifically acknowledged.
(64) In the event that the Vendor is providing services as a "design
professional", the indemnification by the Vendor running in favor of the City shall be to
the maximum extent permissible under the provisions of Section 725.08, Florida
Statutes.
(65) The Vendor shall submit a report to the City within twenty-four (24) hours
of the date of any incident resulting in damage or which is reasonably likely to result in a
claim of damage.
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(66) If the Vendor is an individual or entity licensed by the state of Florida who
holds a current certificate of registration under Chapter 481, Florida Statutes, to practice
architecture or landscape architecture, under Chapter 472, Florida Statutes, to practice
land surveying and mapping, or under Chapter 471, Florida Statutes, to practice
engineering, and who enters into a written agreement with the City relating 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, evacuation, or other facility, land, air, water, or
utility development or improvement, the Vendor will indemnify and hold harmless the
City, and its officers and employees, from liabilities, damage, losses, and costs,
including, but not limited to, reasonable attorneys' fees, to the extent caused by the
negligence, recklessness, or intentionally wrongful conduct of the Vendor and other
persons employed or utilized by the Vendor in the performance of the contract. The
parties agree that 1 % of the total compensation to the Vendor for performance of this
Agreement is the specific consideration from the City to the Vendor for the Vendor's
indemnity agreement.
(67) 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 of Section
768.28, Florida Statutes, or deemed to affect the rights, privileges, and immunities of
the City as set forth in Section 768.28, Florida Statutes.
(68) In claims against any person or entity indemnified under this Section by an
employee of the Vendor 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 Vendor or its agents or
subcontractors, under Workers Compensation acts, disability benefits acts, or other
employee benefit acts.
(69) The execution of this Agreement by the Vendor shall obligate the Vendor
to comply with the indemnification provision in this Agreement; provided, however, that
the Vendor must also comply with the provisions of this Agreement relating to insurance
coverages.
(70) The Vendor shall obtain or possess and continuously maintain the
insurance coverage as set forth and required in the bid documents.
(71) All insurance other than Workers Compensation and Professional Liability
that must be maintained by the Vendor shall specifically include the City as an
additional insured.
(72) The Vendor shall provide Certificates of Insurance to the City evidencing
that all such insurance is in effect prior to the issuance of the first Purchase/Work Order
under this Agreement from the City. These Certificates of Insurance shall become part
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of this Agreement. Neither approval by the City nor failure to disapprove the insurance
furnished by a Vendor shall relieve the Vendor of the Vendors full responsibility for
performance of any obligation including the Vendors 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 Vendor
shall, as soon as the Vendor 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 Vendor has replaced the unacceptable insurer with
insurance acceptable to the City, the Vendor shall be deemed to be in default of this
Agreement. All insurance policies shall be issued by responsible companies who are
acceptable to the City and authorized to do business under the laws of the State of
Florida.
(73) 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.
(74) The Vendor shall furnish Certificates of Insurance directly to the City's
Designated Representative. The certificates shall clearly indicate that the Vendor has
obtained insurance of the type, amount and classification required by this Agreement.
(75) The City shall not be obligated or liable under the terms of this Agreement
to any party other than the Vendor. There are no third party beneficiaries to this
Agreement.
(76) The Vendor 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.
(77) All insurance shall be primary to, and not contribute with, any insurance or
self-insurance maintained by the City.
(78) The Vendor warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Vendor, to solicit or
secure this Agreement and that the Vendor has not paid or agrded to pay any person,
company, corporation, individual or firm other than a bona fide employee working solely
for the Vendor, any fee, commission, percentage, gift, or any other consideration,
contingent upon or resulting from the award of making this Agreement.
(79) The Vendor 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.
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(80) The Vendor 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 Vendor, or any interest in property that the Vendor may
have. The Vendor 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.
(81) The Vendor shall ensure that all taxes due from the Vendor are paid in a
timely and complete manner including, but not limited to, occupational license tax.
(82) If the City determines that any employee or representative of the Vendor is
not satisfactorily performing his/her assigned duties or is demonstrating improper
conduct pursuant to any assignment or work performed under this Agreement, the City
shall so notify the Vendor, in writing. The Vendor shall immediately remove such
employee or representative of the Vendor from such assignment.
(83) The Vendor shall not publish any documents or release information, nor
shall it permit publication of documents or the release of information, regarding this
Agreement to the media without prior approval of the City. All publicity rights vest in the
City.
(84) The Vendor shall certify, upon request by the City, that the Vendor
maintains a drug free workplace policy in accordance with Section 287.0878, Florida
Statutes. Failure to submit this certification may result in termination.
(85) If the Vendor 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 Vendor shall provide a certification of compliance regarding the public crime
requirements set forth in State law upon request by the City.
(86) The City reserves the right to unilaterally terminate this Agreement if the
Vendor 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 Vendor in conjunction, in any way, with this
Agreement.
(87) The Vendor 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.
(88) The City will not intentionally award publicly -funded contracts to any
Vendor who knowingly employs unauthorized alien workers, constituting a violation of
the employment provisions contained in 8 U.S.C. Section 1324a(e) Section 274A(e) of
the Immigration and Nationally Act (INA). The City shall consider the employment by
the Vendor of unauthorized aliens, a violation of Section 274A(e) of the INA. Such
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violation by the Vendor of the employment provisions contained in Section 274A(e) of
the INA shall be grounds for immediate unilateral termination of this Agreement by the
City.
(89) The Vendor agrees to comply with Federal, State, and local
environmental, health, and safety laws, rules, regulations and codes, and their
successors or amendments, applicable to the goods and/or services provided to the
City. The Vendor 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. The Vendor shall erect and properly maintain at all
times all necessary vehicular and facility safeguards for the protection of both the
workmen and general public. If necessary, the Vendor shall post signs warning against
hazards in and around the work site. Violation of such laws, rules, regulations, and
codes may be grounds for delaying or reducing the amount due, or in rescinding the
contract, agreement, bid or quote.
(90) The Vendor shall ensure that all goods and/or services are provided to the
City after the Vendor has obtained, at its sole and exclusive expense, any and all
permits, licenses, permissions, certificates, approvals or similar consents as may be
required by Federal, State and local laws, ordinances, rules, and regulations, for the
proper execution and completion of the work under this Agreement.
(91) The Vendor shall pay all royalties and assume all costs arising from the
use of any invention, design, process, materials, equipment, product or device in
performance of the Work (goods and/or services), which is the subject of patent rights
or copyrights. Vendor shall, at its own expense, hold harmless and defend the City
against any claim, suit or proceeding brought against the City which is based upon a
claim, whether rightful or otherwise, that the Work (goods and/or services), or any part
thereof, furnished under this Agreement, constitutes an infringement of any patent or
copyright of the United States. The Vendor shall pay all damages and costs awarded
against the City.
(92) All tracings, plans, specifications, maps, computer files and/or reports
prepared or obtained under this Agreement, as well as all data collected, together with
summaries and charts derived therefrom, will be considered works made for hire and
will become the property of the City upon completion or termination without restriction or
limitation on their use and will be made available, upon request, to the City at any time
during the performance of such services and/or upon completion or termination of this
Agreement. Upon delivery to the City of said document(s), the City will become the
custodian thereof in accordance with Chapter 119, Florida Statutes. The Vendor will not
publish or copyright any material and products or patent any invention developed under
this Agreement, it being understood that such material, products or inventions are or
were developed with the purpose of becoming property of the City. The City will have
the right to visit the site for inspection of the work, goods and/or services, and the
products of the Vendor at any time.
Page 15 of 24
(93) The Vendor will not be liable for use by the City of plans, documents,
studies or other data for any purpose other than intended by the terms of this Vendor
Agreement.
(94) The City will be deemed to have accepted the goods and/or services after
the City is notified by of its satisfaction that the Work is completed. The
work under this Agreement shall remain the property of the Vendor until the City
accepts it. In the event the Work furnished under this Agreement is found to be
defective or does not conform to the specifications, the City reserves the right to cancel
the Agreement upon written notice to the Vendor.
(95) All information, data, designs, plans, drawings, and specifications
furnished to or developed for the City by the Vendor or its employees, pursuant to this
Agreement, shall be the sole property of the City and all rights therein are reserved by
the City, except that the Vendor may disclose any such information to its corporate
affiliates and their agents.
(96) If applicable, in accordance with Section 216.347, Florida Statutes, the
Vendor shall not use funds provided by this Agreement for the purpose of lobbying the
Legislature, the judicial branch or State agency.
(97) The Vendor shall advise the City in writing of it who 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.
(98) The Vendor shall not engage in any action that would create a conflict of
interest in the performance of the 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, Florida
Statutes, relating to ethics in government.
(99) Vendor covenants and agrees that it and its employees will be bound by
the standards of conduct provided in applicable Florida Statutes and applicable rules of
the Department of Business and Professional Regulation as they relate to work
performed under this Agreement. Vendor further covenants and agrees that when a
former state employee is employed by the Vendor, the Vendor will require that strict
adherence by the former state employee to Sections 112.319(9) and 112.3185, Florida
Statutes, is condition of employment of said former state employee.* These statutes will
by reference be made a part of this Agreement as though set forth in full. Vendor agrees
to incorporate the provisions of this paragraph in any subcontract into which it might
enter with reference to goods and/or services provided or performed pursuant to this
Agreement.
(100) The Vendor shall maintain books, records, documents, time and costs
accounts and other evidence directly related to its provision or performance of services
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under this Agreement. All time records and cost data shall be maintained in accordance
with generally accepted accounting principles.
(101) The Vendor 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. Records of the
costs incurred will include, but are not limited to, the Vendor's general accounting
records and the project records, together with supporting documents and records, of the
Vendor and all sub consultants performing work on the project, and all other records of
the Vendor and sub consultants considered necessary by the City for a proper audit of
project costs.
(102) The City may perform, or cause to have performed, an audit of the records
of the Vendor or any subcontractor, to the extent that such books and records relate to
the performance of the Agreement or any sub -contract to the Agreement, before or after
final payment to support final payment under any PurchaseM/ork Order issued
hereunder. Such books and records shall be maintained by the Vendor for a period of
five (5) years from the date of final payment under the Agreement and by the
subcontractor for a period of five (5) years from the date of final payment under the sub-
contract unless a shorter period is otherwise authorized in writing. This audit shall be
performed at a time mutually agreeable to the Vendor 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 Vendor 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 Vendor. Conduct of this audit shall not delay final
payment as required by this Section.
(103) 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 Vendor which are directly pertinent to goods and/or services
provided or performed under this Agreement for purposes of making audit, examination,
excerpts, and transcriptions.
(104) The Vendor must provide copies of any audit referencing this Agreement,
the audit transmittal lefterm and any response to to such audit to the City within thirty
(30) days of receipt by the Vendor.
(105) In the event of any audit or inspection conducted reveals any overpayment
by the City under the terms of the Agreement, the Vendor shall refund such
overpayment to the City within thirty (30) days of notice by the City of the request for the
refund.
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(106) The Vendor agrees to fully comply with all State laws relating to public
records.
(107) The Vendor 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.
(108) The Vendor shall not sublet, assign or transfer any interest in or rights
provided by 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.
(109) The Vendor may associate with it subcontractors, for the purpose of its
services hereunder, without additional cost to the City. Any Vendor proposed
subcontractors shall be submitted to the City for written approval prior to the Vendor
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. All Vendors and subcontractors must be authorized to do
business within the State of Florida.
(110) The Vendor 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.
(111) Any subcontract shall be in writing and shall incorporate this Agreement
and require the subcontractor to assume performance of the Vendor's duties
commensurately with the Vendor's duties to the City under this Agreement, it being
understood that nothing herein shall in any way relieve the Vendor from any of its duties
under this Agreement. The Vendor shall provide the City with executed copies of all
subcontracts.
(112) The Vendor agrees to reasonably participate in any "piggybacking"
programs pertinent to local government.
(113) The Vendor shall reasonably cooperate at all times with the City and
other City Vendors and professionals.
(114) This Agreement is to be governed by the laws of the State of Florida.
(115) Venue for any legal proceeding related to this Agreement shall be in the
Eighteenth Judicial Circuit Court in and for Seminole County, Florida, as to state actions
and the United States District Court for the Middle District of Florida as to federal
actions.
Page 18 of 24
(116) In any legal action related to this Agreement, instituted by either party,
Vendor hereby waives any and all privileges and rights it may have under Chapter 47
and Section 337.19, Florida Statutes, relating to venue, as it now exists or may
hereafter be amended, and any and all such privileges and rights it may have under any
other statute, rule or case law, including, but not limited to those grounded on
convenience. Any such legal action may be brought in the appropriate Court in any
county chosen by the City and in the event that any such legal action is filed by Vendor,
Vendor hereby consents to the transfer of venue to the county chosen by the City upon
the City filing a motion requesting the same.
(117) This Agreement is the result of bona fide arms length negotiations
between the City and the Vendor 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.
(118) 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. Any such causes of delay, even though existing on the date of
the Agreement or on the date of the start of Work, shall extend the time of the Vendors
or City's performance respectively, by length of the delays occasioned thereby,
including delays reasonably incident to the resumption of normal work schedules.
(119) In the event there are delays caused by the City in approval of any of the
materials submitted by the Vendor or if there are delays occasioned by circumstances
beyond the control and without fault or negligence of the Vendor which delay the
scheduled project completion date, the City may grant an extension of time equal to the
aforementioned project schedule delay, as a minimum and not to exceed the
Agreement term, by issuance of a Time Extension Letter. This letter will be for time only
and does not include any additional compensation. It will be the responsibility of the
Vendor to ensure at all times that sufficient time remains in the Project Schedule within
which to complete the services on the project. In the event there have been delays
which would affect the project completion date, the Vendor Will submit a written request
to the City which identifies the reason(s) for the delay, the amount of time related to
each reason and specific indication as to whether or not the delays were concurrent
with one another. The City will review the request and make a determination ad to
granting all or part of the requested extension. In the event time for performance of the
scheduled project services expired and the Vendor has not requested, or if the City has
denied same, and extension of the Project Schedule completion date, partial progress
payments will be stopped on the date time expires. No payment shall be made for work
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performed after the Project Schedule completion date until a time extension is granted
or all work has been completed and accepted by the City if the Agreement term has not
expired.
(120) The recitals herein are true and correct in form and constitute a material
part of this Agreement upon which the parties have relied.
(121) This Agreement, together with the exhibit(s), if any, constitutes the entire
integrated Agreement between the City and the Vendor 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.
(122) This Agreement may only be amended, supplemented or modified by a
formal written amendment.
(123) 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.
(124) 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 Vendor 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
Vendor 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.
(125) 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.
(126) No consent or waiver, expressed or implied, by a party, to or of any
breach or default of any other party with regard to the performance by said other party
of its obligations under this Agreement shall be deemed or construed to constitute
consent or waiver to or of any other breach or default in the performance of that party of
the same or of any other obligation of performance incumbent upon that party. Failure
on the part of a party to notify another party of any act or failure to act on the part of the
other party in default shall not constitute a waiver by that party of its rights and any
remedies that exist under this Amendment, at law or in equity.
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(127) 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.
(128) The Vendor shall not have the right to compel the exercise of the ad
valorem taxing power of the City.
(129) The Vendor shall not pledge the City's credit nor make the City a
guarantor of payment or surety for any contract, debt, obligation, judgment lien, or any
form of indebtedness.
(130) 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.
(131) 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.
(132) 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.
(133) All provisions of this Agreement shall be read and applied in para materia
with all other provisions hereof.
(134) 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.
(135) The Vendor 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
Vendor had knowledge and failed to present during the City procedures.
(136) 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
Page 21 of 24
voluntary mediation shall be shared equally among the parties participating in the
mediation.
(137) 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.
(138) Fiscal Year Funding Appropriation:
a. Specified Period: Unless otherwise provided by law, a contract for
supplies or services may be entered into for any period of time deemed
to be in the best interest of the City, provided the term of the contract
and conditions of renewal or extension, if any, are included in the
solicitation and funds are available for the first fiscal period at the time
of contract. Payment and performance obligations for succeeding fiscal
periods shall be subject to appropriation by City Commission of funds
therefor.
b. Cancellation Due to Unavailability of Funds in Succeeding Fiscal
Periods: When funds are not appropriated or otherwise made
available to support continuation of performance in a subsequent fiscal
period, the contract shall be cancelled and the Vendor shall be entitled
to reimbursement for the reasonable value of any nonrecurring cost
incurred but not advertised in the price of the supplies or services
delivered under the contract or otherwise recoverable.
(139) City is obligated only to the extent that funds are included in the City's
fiscal year and/or capital budget. Should the City not include funds for this expense the
Agreement is null and void.
(140) In order to comply with Section 119.0701, Florida Statutes, public records
laws, the Vendor must:
a. Keep and maintain public records that ordinarily and necessarily would
be required by the City in order to perform the service.
b. Provide the public with access to public records on the same terms
and conditions that the City would provide the records and at a cost
that does not exceed the cost provided in Chapter 119, Florida
Statutes, or as otherwise provided by law.
c. Ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except
as authorized by law.
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d. Meet all requirements for retaining public records and transfer, at no
cost, to the City all public records in possession of the Vendor upon
termination of the contract and destroy any duplicate public records
that are exempt or confidential and exempt from public records
disclosure requirements. , All records stored electronically must be
provided to the City in a format that is compatible with the information
technology systems of the City.
If a Vendor does not comply with a public records request, the City shall enforce the
contract provisions in accordance with the contract. Failure by the Vendor to grant such
public access and comply with public records request(s) shall be grounds for immediate
unilateral cancellation of this Agreement by the City. The Vendor shall promptly provide
the City with a copy of any request to inspect or copy public records in possession of
the Vendor and shall promptly provide the City a copy of the Vendors response to each
such request.
(141) The City and Vendor agree that there may be additional services required
to be performed by the Vendor during the performance of obligations relating to this
Agreement that cannot be defined sufficiently at the time of execution of this
Agreement. The City, without invalidating this Agreement, may order changes in the
goods and/or services within the general scope of this Agreement consisting of
additions, deletions, or other revisions, the Agreement price and time being adjusted
accordingly. All such changes in the work shall be authorized by a written addendum to
this Agreement, and shall be executed under the applicable conditions of the
Agreement. Such supplemental instructions or provisions shall not be construed as a
modification of this Agreement. If the Vendor plans to make a claim for an increase in
the Agreement price or an extension in the Agreement Schedule/Term, he shall first
give the City written notice within ten (10) calendar days after the occurrence of the
event giving rise to such a claim. This written notice shall be given by the Vendor to the
City, and a written approval secured from the City, before proceeding to execute the
goods and/or services, except in an emergency endangering life or property, in which
case the Vendor shall immediately proceed. No claim for extra work will be considered
valid by the City unless first submitted in writing.
(142) Before making any additions or deletions to the work described in the
Agreement, and before undertaking any changes or revisions to such work, the parties
will negotiate any necessary cost changes and will enter into a Supplemental
Agreement covering such work and compensation. Reference herein to the Agreement
will be considered to include any Supplemental Agreement.
(143) The title and risk of loss to the goods and/or services shall pass from the
Vendor to the City upon the City's final acceptance of the goods and/or services.
(144) The Vendor shall at all times, keep the work area free from accumulation
of waste materials or rubbish caused by his operations, and promptly remove any such
materials to an approved disposal location.
Page 23 of 24
(145) The Vendor is responsible for all damage or loss by fire, theft or otherwise,
to materials, tools, equipment, and consumables, left on City property by the Vendor.
(146) All materials, tools, equipment, and consumables or property furnished to
the Vendor by the City shall remain the property of the City, be subject to removal upon
the City's demand, be used only on behalf of the City, be maintained in good order, and
be clearly identified as property of the City. The Vendor assumes any and all liability of
whatsoever type or nature for loss or damage to such property.
Page 24 of 24
CITY COMMISSION MEMORANDUM 17.215
.LUNE 26, 2017 AGENDA
WS x RM x
Item No.
TO: Honorable Mayor and Members of the City Commission
PREPARED BY: F. William Smith, Purchasing Manager
SUBMITTED BY: Norton N. Bonaparte, Jr., City Manager
SUBJECT: Award of Professional Consulting Contract Subject to CCNA —
Comprehensive Plan Evaluation and Appraisal Report (EAR) RFQ 16/17-
lOR
STRATEGIC PRIORITIES:
❑ Unify Downtown & the Waterfront
❑ Promote the City's Distinct Culture
❑ Update Regulatory Framework
❑ Redevelop and Revitalize Disadvantaged Communities
SYNOPSIS:
Approval of award of contract to provide professional services for a study to provide
Comprehensive Plan Evaluation and Appraisal Report (EAR) is requested.
FISCAL/STAFFING STATEMENT:
Funds are available and identified in the FY 2017 Budget for the proposed work.
BACKGROUND:
The solicitation for acquisition planning services was solicited using the guidelines provided by
the Consultants Competitive Negotiation Act (CCNA) and the Competitive Negotiation process is
the desired selection process for the services being sought.
On May 18, 2017, Solicitation Number, RFQ 16/17-1 OR, was advertised and posted on the City's
web site to invite all interested firms to compete for this work. It is noted that of 23 firms which
downloaded the submission documents applicable to this solicitation, three firms actually
submitted a response.
Following is an analysis which summarizes the evaluations by the staff selection committee:
SCORER
S & ME Inc.
Poulos & Bennett
Keith & Schnars
Richard Blake
335
405
310
Mike Cash
465
460
450
Chris Smith
465
415
455
Jordon Smith
365
415
365
Total
1630
1695
1580
As indicated by the CCNA, consideration of factors such as the ability of professional personnel;
willingness to meet time and budget requirements; location; recent, current, and projected
workloads of the firms; and the volume of work previously awarded to each firm by the City were
reviewed. In accordance with the CCNA, two firms are deemed most highly qualified to render the
required services, with Poulos & Bennett receiving the higher scoring. Over the past five years,
S&ME, Inc/LittleJohn has received $370,043 in City work while Poulos & Bennett, having
received no City work, receives additional points as provided by the CCNA. It is noted that the
extra points are not reflected in the above scores.
LEGAL REVIEW:
If awarded, the City Attorney will engage in Contract preparation.
RECOMMENDATION:
City staff recommends that the City Commission consider this procurement and approve the
recommended ranking of firms which reflects Poulos & Bennett being ranked number 1 and
S&ME, Inc./LittleJohn number 2; to waive presentations; and to authorize the City Manager to
negotiate and effect an award within the framework of budgeted funding for the work applicable
to this request.
SUGGESTED MOTION:
"I move to approve the recommended ranking of firms for the award of Professional Consulting
Contract for the Comprehensive Plan Evaluation and Appraisal (EAR) and rank Poulos & Bennett
as number 1 and S&ME, Inc./LittleJohn number 2; to waive presentations; and to authorize the
City Manager to negotiate and effect an award within the framework of budgeted funding for the
work applicable to this request.
Attachments: (1) RFQ 16/17-10 Announcement
(2) Solicitation opening certification
(3) Scoring Summary Report