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1362 Fausnight Stripe & Line PiggybackI ���-- PURCHASING DEPARTMENT TRANSMITTAL MEMORANDUM To: Mayor & City Clerk RE: Fausnight Stripe & Line Inc. Piggy Back Contract 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 Maintenance Bond ❑ g afe keeping (Vault) ❑ Ordinance ❑ I V ❑ Performance Bond ❑ Resolution ❑ City Manager Signature ❑ ® City Clerk Signature C _/ Once completed, please: ® Return original ❑ Return copy Special Instructions: Executed signatures .... Please advise if you have any questions regarding the above. Date r tN, It sf; ? ��a 4..:1 P I T:\Dept_forms \City Clerk Transmittal Memo - 2009.doc m i —, k , 9 DOCUMENT APPROVAL Contract/Agreement Name: Fausnight Stripe & Line Inc Piggy Back Contract Approval: C-,--�V4A - - � , -,, Finance Director City Attorney / Cliz/v) (QA �t4 Date tLl��c.ItO Date Date � u� f -.1. City Of Sanford Agreement With Fausnight Stripe And Line, Inc. For Roadway Markings, Striping And Brick Texture Surfacing For Traffic Engineering (Piggyback) This Agreement made and entered into thisj•.5�ay of December, 2010 by and between the: City of Sanford, Florida City Hall 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: Fausnight Stripe and Line, Inc. 910 Charles Street Longwood, Florida 32750 a Florida corporation, authorized to do business in the State of Florida, hereinafter referred to as the "Contractor ". The City and the Contractor are collectively referred to herein as the "parties ". Witnesseth: Whereas, the Contractor has entered an agreement to provide services to Seminole County, Florida pursuant to an Agreement which Agreement continues to be in effect (hereinafter collectively the "Seminole County Agreement "); and Whereas, the City desires to retain the Contractor for the work identified in the specifications outlined in the Seminole County Agreement and for the periods set forth in the Seminole County Agreement; and Whereas, the Seminole County Agreement is attached hereto as Exhibit "A" along with the certain other documents relating thereto to include, but are not limited to, the documents relating to Invitation For Bids (IFB) 600325- 08/TLR which are incorporated herein by this reference thereto; and Whereas, the City desires to employ the Contractor for the performance to support the activities, programs, and projects of the City upon the terms and conditions hereinafter set forth and in the Seminole County Agreement, and the Contractor is desirous of performing and providing such services upon said terms and conditions; and 4� Y' r: C1> N ,:) 1 Page 1 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; 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: Extent Of Agreement /Integration /Amendment. (a). This Agreement, together with the exhibits, 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, constitute the full and complete agreement between the parties hereto and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements regardless of 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 2: 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 3: 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 person(s) executing this Agreement for the Contractor certifies /certify that he /she /they is /are authorized to bind the Contractor fully to the terms of this Agreement. (b). This Agreement is for the services as described in this Agreement and the Seminole County Agreement and are to be accomplished in accordance with the controlling provisions of law and as directed by the City to include all labor and materials that may be Page 2 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, or may retain, 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. (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). The Contractor shall maintain an adequate and competent staff and 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). No claim for services furnished by the Contractor not specifically provided for herein shall be honored by the City. Section 4: 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 a Work Order thereunder. (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 Page 3 expressly understood and agreed that the Contractor shall not be entitled to any damages or compensation, of any type or nature, 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 5: Length Of Agreement. (a). The term of this Agreement is coextensive with the term of the Seminole County Agreement. (b). The Contractor's services shall begin upon written notification to proceed by the City as set forth in a Work Order. (c). The Contractor's services shall be on a Work Order basis and may include matters such as serving as an expert witness. Section 6: Description Of Services. (a). The contractor agrees to provide the services as outlined and described in this Agreement all of which are to be provided to the City in accordance with the controlling provisions of law as more specifically outlined in Exhibit "A" and Work Orders issued hereunder. (b). The Contractor shall diligently and in a professional and timely manner perform and provide the services outlined herein or as included in each subsequently entered Work Order. 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. (c). The City and the Contractor agree that there may be certain additional services required to be performed by the Contractor during the performance of the Work Orders that can not be defined sufficiently at the time of execution of this Agreement. Such services shall be authorized in writing as a Change Order. The Work Orders may contain addititonal instructions or provide specifications upon certain aspects of this Agreement pertinent to the work to be undertaken. Such supplemental instructions or provisions shall not be construed as a modification of this Agreement. Section 7: 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: Page 4 City Manager City of Sanford City Hall 300 North Park Avenue Sanford, Florida 32771 (2). For the Contractor: Fausnight Stripe and Line, Inc. 910 Charles Street Longwood, Florida 32750 (c). Written notice requirements of this Agreement shall be strictly construed and such requirements are a condition precedent to pursuing any rights or remedies hereunder. The Contractor agrees not to claim any waiver by City of such notice requirements based upon City having actual knowledge, implied, verbal or constructive notice, lack of prejudice, or any other grounds as a substitute for the failure of the Contractor to comply with the express written notice requirements herein. Computer notification (e -mails and message boards) shall not constitute proper written notice under the terms of the Agreement. Section 8: Work Orders. (a). The provision of services to be performed under this Agreement may commence immediately upon the execution of this Agreement or a Work Order as directed and determined by the City. Services to be provided by the Contractor to the City shall be negotiated between the Contractor and the City. 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 the Contractor's letterhead. Services described in said Work Order will commence upon the issuance of a City Notice -to- Proceed. (b). If the services required to be performed by a Work Order is clearly defined, the Work Order shall be issued on a "Fixed Fee" basis. The Contractor shall perform all services required by the Work Order but in no event shall the Contractor be paid more than the negotiated Fixed Fee amount stated therein. (c). The Contractor and the City agree to make every effort to adhere to the schedule established for the various Work Orders described in the Work Order. (d). If the services are not clearly defined, the Work Order may be issued on a "Time Basis Method" and contain a Not -to- Exceed amount. If a Not -to- Exceed amount is provided, the Contractor shall perform all work required by the Work Order; but in no event shall the Contractor be paid more than the Not -to- Exceed amount specified in the applicable Work Order. Page 5 (e). For Work Orders issued on a "Fixed Fee Basis," the Contractor may invoice the amount due based on the percentage of total Work Order services actually performed and completed; but in no event shall the invoice amount exceed a percentage of the Fixed Fee amount equal to a percentage of the total services actually completed. (f). For Work Orders issued on a "Time Basis Method" with a Not -to- Exceed amount, the Contractor may invoice the amount due for actual work hours performed; but in no event shall the invoice amount exceed a percentage of the Not -to- Exceed amount equal to a percentage of the total services actually completed. (g). Each Work Order issued on a "Fixed Fee Basis" or "Time Basis Method" with a Not - to- Exceed amount shall be treated separately for retainage purposes. If the City determines that work is substantially complete and the amount retained, if any, is considered to be in excess, the City may, at its sole and absolute discretion, release the retainage or any portion thereof. (h). For Work Orders issued on a "Time Basis Method" with a Limitation of Funds amount, the Contractor may invoice the amount due for services actually performed and completed. The City shall pay the Contractor one hundred percent (100 %) of the approved amount on Work Orders issued on a "Time Basis Method" with a Limitation of Funds amount. Section 9: 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 of work and /or services and to the impact of the change on unchanged goods and /or work including, but not limited to, all direct and indirect costs of whatever nature and all adjustments to the Contractor's 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. Page 6 Section 10: Compensation. (a). Compensation to the Contractor for the services performed on each Work Order shall be as set forth the Work Order /Change Order or as set forth in the Seminole County Agreement which enumerates rates and charges of the Contractor. (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. (c). 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. (d). 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. Section 11: 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 (30) 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 (15) days of receipt by the City with an 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. (e). 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: Page 7 Finance Director City Hall City of Sanford 300 North Park Avenue Sanford, Florida 32771 Section 12: Severability /Construction. (a). If any term, provision or condition contained in this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision, and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law when consistent with equity and the public interest. (b). All provisions of this Agreement shall be read and applied in 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. (d). Venue for any lawsuit arising under this Agreement shall be in the Circuit Court in and for Seminole County, Florida, with regard to State actions, and in the United States District Court for the Middle District of Florida (Orlando) with regard to Federal actions. Section 13: 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. The City does not waive its right to assert consquential damages against the Contractor. (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. Page 8 (d). In claims against any person or entity indemnified under this Section by an employee of the Contractor or its agents or subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section shall not be limited by a limitation on amount or type of damages, compensation, or benefits payable by or for the Contractor or its agents or subcontractors, under workers compensation acts, disability benefits acts, or other employee benefit acts. (e). The execution of this Agreement by the Contractor shall obligate the Contractor to comply with the indemnification provision in this Agreement; provided, however, that the Contractor shall also comply with the provisions of this Agreement relating to insurance coverages. 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. In Witness Whereof, the parties hereto have made and executed this Agreement on the respective dates under each signature with the City acting through its City Commission and the Contractor signing by and through its duly authorized corporate officer having the full and complete authority to execute same. - . s Fausnight Stripe and Line Inc. By: Phillip J. Fausnight President /1 9- -za >� Date Attest: Q ;Jtt�gherty, Ci Clerk For use and reliance of the Sanford City Commission c ADDrov.Wi as to form and le L. Colbert V v 'Al( C� i City Of Sanford Linda Ku n, Mayor Date Page 9