Loading...
1089-CPH-Engineer Stormwater Im CITY OF SANFORD CONTRACT WITH CPH ENGINEERS, INC. FOR ENGINEERING STORMWATER IMPROVEMENT PLAN, ROADWAY AND INTERSECTION DESIGN RFSOQ 01/02-28 THIS CONTRACT is entered by and between the CITY OF SANFORD, FLORIDA, (CITY), whose address is 300 North Park Avenue, Sanford, Florida 32771, and the firm of CPH ENGINEERS, INC. (CONSULTANT), whose address is 500 Fulton Street, Post Office Box 2808, Sanford, Florida 32772-2828, on this November 15, 2004. 2004. WHEREAS, the CITY intends to accomplish Stormwater, Roadway and Intersection (Final Design and Permitting Phase) projects in the City of Sanford, Florida; and WHEREAS, the CONSULTANT's services and expertise are necessary to implement CITY's contemplated projects; and WHEREAS, it has been determined that the execution of this Contract is beneficial to the people of Sanford, Florida. NOW, THEREFORE, in consideration of the mutual covenants, conditions, agreements, terms and provisions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree that with the mutual acceptance of this Contract as indicated hereinafter by the execution of this Contract by both parties that a Contract shall exist between both parties consisting of: I. SCOPE OF SERVICES The CONSULTANT shall provide expertise and technical skills as set forth in Work Orders issued under the terms of this Contract. Exhibit "A" to this Contract contains Work Order No. 1. II. TERM OF CONTRACT The initial term of this Contract shall be for a period as necessary to complete the Scope of Services set forth in Exhibit "A", and shall be extended for each Work Order as authorized under this Contract, unless terminated as set forth herein. III. RESPONSIBILITIES OF THE CONSULTANT The CONSULTANT shall be responsible for the professional and technical accuracy and the coordination of all work or materials furnished by the CONSULTANT under this Contract. The CONSULTANT shall, without additional cost to the CITY, correct or revise any errors or deficiencies in its performance. IV. REUSE OF DOCUMENTS The CITY shall have unlimited rights, for the benefit of the CITY, in ail drawings, designs, specifications, notes and other CONSULTANT'S work produced in the performance of this Contract, or in contemplation thereof, and all as-built drawings produced after completion of the work, including, but not limited to, the right to use same on any other CITY work without additional cost to the CITY. All documents including drawings and specifications prepared by the CONSULTANT pursuant to this Contract are instruments of service with respect to each project. They are not intended or represented to be suitable for reuse by CITY or others for any other project. Reuse for another project without written verification or adaptation by the CONSULTANT for the specific purpose intended will be at the CITY'S risk. Any such verification or adaptation, if requested by the CITY, will entitle the CONSULTANT to further compensation at rates to be agreed upon by the CITY and the CONSULTANT. A reproducible set of plans and specifications shall be delivered to, and become the property of, the CITY upon the completion of each project by the CONSULTANT. V. EXPERT WITNESS The CONSULTANT shall serve as an expert witness for the CITY in any legal proceedings arising in connection with this Contract, if the CITY so requests. The expert witness fee for the CONSULTANT shall be negotiated at the time the CONSULTANT is called for such duty. VI. COMPENSATION The CITY agrees to compensate the CONSULTANT for the professional services called for under this Contract as set forth in each Work Order to this Contract. Compensation to the CONSULTANT shall include all labor, subconsultant fees and reimbursement for out-of-pocket expenses, without increase. The CONSULTANT shall advise the CITY whenever the CONSULTANT equals or exceeds eighty percent (80%) of the Funds for each Work Order. VIII. BILLING AND PAYMENT The CONSULTANT shall render to the CITY as work progresses an itemized invoice for services furnished but not more than once monthly in accordance with the guidelines contained in Article X. The CONSULTANT may invoice the amount due based on percentage of total services actually performed and completed. 2. Upon review and approval of the invoice submitted by the CONSULTANT to the CITY, the CITY shall pay the CONSULTANT the amount as approved. IX. FINAL BILLING AND PAYMENT Upon satisfactory completion of all work, and, upon acceptance of the work by the CITY, the CONSULTANT may invoice the CITY for the full amount of compensation provided for under the terms of this Contract. The CITY may perform or have performed an audit of the records of the CONSULTANT after final payment. This audit would be performed at a time mutually agreeable to the CONSULTANT and the CITY subsequent to the close of the final fiscal period in which the last work is performed. Total compensation to the CONSULTANT may be determined a subsequent to an audit as provided for in this Subsection and the immediately following Subsection, and the total compensation so determined shall be used to calculate final payment to the CONSULTANT. The accomplishment of this audit shall not delay final payment as provided in this Contract. 3. In addition to the above, if Federal funds are used for any work under this Contract, the Comptroller General of the United States, or any of their duly authorized representatives or any other appropriate Federal agency, shall have access to any and all books, documents, papers and records of the CONSULTANT which are directly pertinent to work performed under this Contract as determined by the CITY for purposes of making audits, examination, excerpts and transcriptions. The CONSULTANT agrees to maintain any and ail books, documents, papers, accounting records and other evidences pertaining to work performed under this Contract in such a manner as will readily conform to the terms of this Contract and to make such materials available at its office at all reasonable times during the Contract period and for three (3) years from the date of final payment under this Contract for audit or inspection as provided for in this contract. 3 5. In the event any audit or inspection conducted after final payment, but within the period provided in this Contract reveals any overpayment by the CITY to the CONSULTANT under the terms of this Contract, the CONSULTANT shall refund such overpayment to the CITY within thirty (30) days of notice of same by the CITY to the CONSULTANT. XI. INVOICES Invoices from the CONSULTANT to the CITY shall not be rendered more often than once monthly. Each invoice shall be properly dated, describing the services rendered, the cost of the services, the name and address of the CONSULTANT, Confirming Purchase Order Number Contract Number and all other information required, if any by this Contract. The original invoice shall be sent to the CITY representative as defined in each Work Order. 2. Payment shall be made after review and approval by the CiTY within thirty (30) days of receipt of a proper Invoice from CONSULTANT. XI. SCHEDULE OF PERFORMANCE A. Time Is Of The Essence The timely performance and completion of the required services, work and materials is vitally important to the interest of the CITY. Time is of the essence for all of the duties and obligations contained in this Contract. B. Notice to Proceed Following the execution of this Contract by both parties, and after the CONSULTANT has complied with the insurance requirements set forth, the CITY shall issue the CONSULTANT a written notice to proceed. Following the issuance of such notice to proceed the CONSULTANT shall be authorized to commence work and the CONSULTANT thereafter shall commence work promptly and shall carry on all such services and work as may be required in a continuous, diligent and forthright manner to expeditious completion. C. Time Of Performance The CONSULTANT agrees to complete the services required pursuant to the Contract within the time period(s) for completion of the various phases and/or tasks of the project as set forth by the CITY. Should the CONSULTANT be obstructed or delayed in the prosecution or completion of its obligations under this Contract, as a result of unforeseeable causes beyond the control of the CONSULTANT, and not due to its fault or neglect, the CONSULTANT shall notify the CITY, in writing, within forth-eight (48) hours after the commencement of such delay, stating the cause(s) thereof and requesting an extension of the 4 CONSULTANT's time of performance. Upon receipt of the CONSULTANT's request for an extension of time, the CITY shall grant the extension if the CITY determines the delay(s) encountered by the CONSULTANT, is/are due to unforeseen causes and not attributable to the CONSULTANT's fault or neglect. D. Consultant Work Schedule The CONSULTANT may be required as a condition of this Contract to prepare and submit to the CITY, on a monthly basis, commencing with the issuance of the notice to proceed, a CONSULTANT's work schedule in a format and containing such detail and information as the CITY may request. E. Failure to Perform In a Timely Manner Should the CONSULTANT fail to commence, provide, and/or perform any of the services and work required pursuant to this Contract in a timely, continuous, diligent and expeditious manner, the CITY may consider such failure as justifiable cause to terminate this Contract and/or any Supplement. XII. SECURING CONTRACT The CONSULTANT warrants that the CONSULTANT has not employed or retained any company or person other than a bona fide employee working solely for the CONSULTANT to solicit or secure this Contract and that the CONSULTANT has not paid or agreed to pay any person, company, corporation or firm other than a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Contract. Xlll. CONFLICT OF INTEREST The CONSULTANT represents that it shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of service required hereunder. The CONSULTANT further agrees that no person having any such interest shall be employed or engaged by the CONSULTANT for said performance. If the CONSULTANT for itself and on behalf of its sub-consultants, is about to engage in representing another client, which it in good faith believes could result in a conflict of interest with the work being performed by the CONSULTANT or such sub-consultants under this Contract, then it will promptly bring such potential conflict of interest to the CITY'S attention, in writing. If the CITY determines that there is a conflict of interest, the CONSULTANT or sub- consultants shall decline the representation upon written notice by the CITY. If the CITY determines that there is not such conflict of interest, then the CITY shall give its written consent to such representation which will not be unreasonably withheld. If the CONSULTANT or sub-consultants accepts such a representation without obtaining the CITY'S prior written consent, and if the CiTY subsequently determines that there is a conflict of interest between such representation and 5 the work being performed by the CONSULTANT or such sub-consultants under this Contract, then the CONSULTANT or sub-consultants agrees to promptly terminate such representation. The CONSULTANT shall require each of such sub-consultants to comply with the provisions of this Contract. Should the CONSULTANT fail to advise or notify the CITY as provided hereinabove of representations which could, or does, result in a conflict of interest, or should the CONSULTANT fail to discontinue such representation, the CITY may consider such failure as justifiable cause to terminate this Contract. XlV. CITY REPRESENTATIVE The work will be under the direction of the authorized CITY Representative who shall have final decision authority for all phases of the work, including general direction, review, and approval of the work. Neither the CITY Representative's review, approval or acceptance of, nor payment for, any of the services required under this Contract shall be construed to operate as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract, and the CONSULTANT shall be and remain liable to the CITY for all costs of any kind which were incurred by the CITY as a result of the CONSULTANT's negligent performance of the services furnished under this Contract. XV. MODIFICATIONS TO SCOPE OF WORK/CHANGE ORDERS As applicable to each specific project performed by the CONSULTANT during the Contract term, the CITY Representative may at any time, by written order, and without notice of the sureties, make changes within the general scope of the Contract and the work and service to be performed, as set forth in this Contract. If any such changes cause an increase or decrease in the CONSULTANT cost of, or the time required for performance of the project/work, an equitable adjustment shall be made and the Contract shall be amended in writing accordingly. Any claim by the CONSULTANT for adjustment under this clause must be asserted in writing within thirty (30) days from the date of receipt by the CONSULTANT of the notification of change unless the CITY Representative grants a further period of time before the date of Final Payment under the Contract. The CONSULTANT shall proceed with the prosecution of the work as changed. Except as otherwise provided in this Contract, no charge for any extra work or materials will be allowed. XVI. SUBCONTRACTORS, OUTSIDE ASSOCIATES AND CONSULTANTS Any subcontractors and outside associates or sub-consultants required by the CONSULTANT in connection with the services covered by this Contract will be limited to such individuals or firms as are specifically identified for each project performed under this Contract. Any substitution of such subcontractors, associates, or sub-consultants will be subject to the prior approval of the CITY Representative. The CITY shall not be a party to, responsible or liable for, or assume any obligation whatever for any Contract entered into between the CONSULTANT and any sub-consultant or any sub-sub-consultant. XVlI. INSURANCE The CONSULTANT shall not commence any work in connection with this Contract until it has obtained all of the following types of insurance and such insurance has been approved by the CITY. Approval by the CITY of any policy of insurance shall not, however, relieve the CONSULTANT from its responsibilities to maintain the insurance coverage required herein for the entire term of this Contract and for such longer periods of time as may be required under other clauses of this Contract. During the term of the Contract, the CONSULTANT shall be also responsible for providing the CITY with copies of notices of cancellation or any other changes in the terms and conditions of the original insurance policies approved by the CITY. The CONSULTANT shall furnish to the CITY certificates of insurance evidencing the coverages required hereunder. Should the CITY find it necessary to require copies of the underlying policies, the CONSULTANT shall provide them promptly for the CITY's review and approval. The certificates shall clearly indicate that the CONSULTANT has obtained insurance of the type, amount and classification required by these provisions. This Contract may be terminated by the CITY, without penalty or expense, if proof of any insurance required hereunder is not provided to the CiTY for review within thirty (30) days of the date of execution of this Contract. All policies required hereunder shall contain language requiring thirty (30) days notification to the insured and the CITY, prior to any cancellations or reduction of limits taking effect. Upon receipt of any such notification, the CONSULTANT shall promptly advise the CITY's Risk Manager and provide the CITY with a copy of such notification. All insurance policies shall be issued by insurers licensed to do business in the State of Florida and any insuring company is required to have a minimum rating of B, Class VIII in the "Best Key Rating Guide" published by A.M. Best & Company, Inc. A. Worker's Compensation The CONSULTANT shall secure and maintain during the Contract term, all Worker's Compensation insurance required by Florida law for itself and its employees, and shall require its CONSULTANTS or subsidiaries doing work in connection with this Contract to provide the same coverage, without exclusion of any class of employee, and with a minimum of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) Employer's Liability coverage. 7 B. Liability COMMERCIAL GENERAL. The CONSULTANT shall secure and maintain during the Contract term ONE MILLION DOLLARS ($1,000,000) single limit Commercial General Liability insurance protecting itself, its employees, agents, consultants or subsidiaries and their employees or agents, for claims for damages caused by personal injury, loss or damage of property and other such causes including what is commonly known as groups A, B, and C (libel, false arrest, slander). If such comprehensive coverage of all sub contractors, outside sub-consultants and agents employed by the CONSULTANT in the performance of this Contract is not available from the CONSULTANT insurer then, upon CITY Representative's approval, the CONSULTANT may furnish to the CITY insurance polices with similar coverage and protection for the CITY, provided to it by its sub contractors, outside sub-consultants or agents, in addition to the CONSULTANT's own policy. Such policies shall include coverage for claims by any person as a result of actions directly or indirectly related to the employment of such person by the CONSULTANT or by any of its sub-consultants doing work in connection with this Contract. Public Liability coverage shall include either Blanket Contractual insurance or a Designated Contract Contractual Liability coverage endorsement, indicating expressly the CONSULTANT Contract to hold the CITY harmless as provided herein. 2. MOTOR VEHICLE. The CONSULTANT shall secure and maintain during the Contract term, ONE MILLION DOLLARS ($1,000,000) single limit Business Automobile Liability insurance, protecting itself, its employees, agents, consultants or subsidiaries and their employees or agents, against claims for damages caused by personal injury, loss or damage of property and other such causes. If such comprehensive coverage of all sub contractors, outside consultants and agents employed by the CONSULTANT in the performance of this Contract is not available from the CONSULTANT's insurer then, upon CITY Representative's approval, the CONSULTANT may furnish to the CITY insurance polices with similar coverage and protection for the CITY, provided to it by its sub contractors, outside sub-consultants or agents in addition to the CONSULTANT's own policy. Such policy shall include coverage for claims by any person as a result of actions directly or indirectly related to the employment of such person by the CONSULTANT or by any of its sub- consultants doing work in connection with this Contract. Public Liability coverage shall also include automobiles, whether owned, non-owned, or hired. It shall include either Blanket Contractual insurance or a Designated Contract Contractual Liability coverage endorsement that shall make express reference to the CONSULTANT hold-harmless clause as provided herein. 3. PROFESSIONAL. The CONSULTANT shall secure and maintain during the Contract term and for at least three (3) years thereafter Professional Liability insurance coverage with minimum limits of ONE MILLION DOLLARS ($1,000,000) (with a maximum deductible of $100,000 per claim). Such policy shall cover all of the CONSULTANT's professional liabilities whether occasioned by the CONSULTANT, its agents, employees, sub-consultants or subsidiaries, or their agents or employees, arising out of services performed under or in accordance with this Contract. If such comprehensive coverage of all sub contractors, outside sub-consultants and agents employed by the CONSULTANT in the performance of this Contract is not available from the CONSULTANT's insurer then, upon the CITY Representative's approval, the CONSULTANT may furnish to the CITY insurance polices with similar coverage and protection for the CITY, provided to it by its sub contractors, outside sub-consultants or agents, in addition to the CONSULTANT's own policy. Such policies shall include coverage for claims by any person as a result of actions directly or indirectly related to the employment of such .person by the CONSULTANT or by any of its sub-consultants doing work ~n connection with this Contract. It is the CONSULTANT'S responsibility to verify and cause its subcontractors to maintain this coverage in strict accordance with the stipulations of this Contract. The CONSULTANT shall immediately inform its carrier, the CITY's Risk Manager and the CITY of any Contractual obligations that may alter its Professional Liability coverage under this Contract. The CONSULTANT will furnish copies of the policy and any changes thereto, immediately, to the CITY and CITY's Risk Manager, prior to the commencement of any such contractual obligations. The proposed policy shall be subject to the CITY's approval. C. Personal Property The CONSULTANT shall secure and maintain during the Contract term, adequate insurance coverage for its own personal property and for the personal property of its employees and agents, and shall require its subsidiaries and sub- consultants to provide the same coverage for their employees and agents. Such coverage shall include, but not be limited to, motor vehicles, whether licensed or unlicensed, mobile equipment, whether licensed or unlicensed, and temporary or portable shelters or offices. D. Notice. The CONSULTANT shall timely report in writing to the CITY's Risk Manager any incident which it believes might result in claims under any of the coverages mentioned herein. The CONSULTANT shall timely report in writing to the CITY's Risk Manager any option for modification in the original Professional Liability coverage offered by its insurer for the benefit of the CITY. E. Indemnity. For consideration of receipt by the CONSULTANT from the CITY of $10.00, CONSULTANT agrees to indemnify and hold the CITY harmless from all claims for: 1. LIABILITY. The CONSULTANT shall indemnify and hold the CITY harmless from any and all claims for personal injury and property damages that may arise from errors, omissions, or negligent acts of the CONSULTANT or its subcontractors, sub-consultants, employees or agents during the performance of services under this Contract. Notwithstanding this indemnification and not by any way of waiver of such indemnification, the CONSULTANT shall obtain and retain throughout the term of the Contract, insurance coverage described herein. 2. PERSONAL PROPERTY. The CONSULTANT shall save the CITY harmless from the claims of any person for loss, loss of use, or damage to the personal property of the CONSULTANT, its agents, subcontractors, employees, sub-consultants or subsidiaries that may arise from and be the proximate result of errors, omissions, or negligent acts of the CONSULTANT or its sub-consultants, subcontractors, employees, or agents during the performance of services under this Contract. XVIII, SUCCESSORS AND ASSIGNS The CITY and the CONSULTANT each binds itself and its partners, successors, executors, administrators, assigns and legal representatives to the other party to this Contract and to the partners, successors, executors, administrators, assigns and legal representatives of such other party, in respect to afl covenants, Contracts and obligations of this Contract. Neither the CITY nor the CONSULTANT shall assign, sublet or transfer any rights under or interest in (including, but without limitation, monies that may become due or monies that are due) this Contract without the written consent of the other. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Contract. XlX. ADDITIONAL RIGHTS AND REMEDIES The rights and remedies of the CITY provided for under this Contract are in addition to any other rights and remedies provided by law; the CITY may assert its right of recovery by any appropriate means including, but not limited to, set- off, suit, withholding, recoupment, or counterclaim, either during or after performance of this Contract. ]0 XX. TERMINATION A. The performance of work under this Contract may be terminated by the CITY in accordance with this clause in whole, or from time to time in part, whenever the CITY's Representative shall determine that such termination is in the best interest of the CITY. Any such termination shall be effected by delivery to the CONSULTANT of a Notice of Termination specifying the extent to which performance of work under the Contract is terminated, and the date upon which such termination becomes effective. B. After receipt of a Notice of Termination, and except as otherwise directed by the CITY's Representative, the CONSULTANT shall: (1) Stop work under the Contract on the date and to the extent specified in the Notice of Termination. (2) Place no further orders or sub-contracts for materials, services or facilities, except as may be necessary for completion of such portion of the work under the Contract as is not terminated. (3) Terminate all orders and sub-contracts to the extent that they relate to the performance of work terminated by the Notice of Termination. (4) Assign to the CITY, in the manner, at the times and to the extent directed by the CITY's Representative, all of the right, title, and interest of the CONSULTANT under the orders and sub-contracts so terminated, in which case the CITY shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and sub-contracts. (5) Settle all outstanding liabilities and all claims arising out of such termination of orders and sub-contracts with the approval or ratification of the CITY's Representative, to the extent the CITY may require which approval or ratification shall be final for all the purposes of this clause. (6) Transfer title and deliver to the CITY, in the manner, at the times, and to the extent, if any, directed by the CITY's Representative: (a) the sketches, calculations, reports, models studies and other work in process, completed work, supplies, and other materials produced as a part of, or acquired in connection with the performance of the work terminated by the Notice of Termination; and (b) the completed or partially completed plans, drawings, information, and other property which, if the Contract had been completed, would have been required to be furnished to the CITY. (7) Complete performance of such part of the work as shall not have been terminated by the Notice of Termination. C. After receipt of a Notice of Termination, the CONSULTANT shall submit to the CITY's Representative its termination claim, in the form and with certification prescribed by the CITY's Representative. Such claim shall be submitted promptly but in no event later than thirty (30) days from the effective date of termination, unless one or more extensions in writing are granted by the CITY's Representative, upon request of the CONSULTANT made in writing within such thirty (30) days period or authorized extension thereof. Upon failure of the CONSULTANT to submit its termination claim within the time allowed, the CITY Representative may determine on the basis of information available to it, the amount, if any, due to the CONSULTANT by reason of the termination and shall thereupon pay to the CONSULTANT the amount so determined. D. Subject to the provisions of Subsection C, the CONSULTANT and the CITY's Representative may agree upon the whole or any part of the amount or amounts to be paid to the CONSULTANT by reason of the total or partial termination of work pursuant to this Contract, which amount or amounts may include a reasonable allowance for profit on work done; provided, that such agreed amount or amounts exclusive of settlement costs, shall not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of work not terminated. The Contract shall be amended accordingly and the CONSULTANT shall be paid the agreed amount. Nothing in Subsection E hereunder, prescribing the amount to be paid to the CONSULTANT in the event of failure of the CONSULTANT and the CITY's Representative to agree upon the whole amount to be paid to the CONSULTANT by reason of the termination of work pursuant to this clause, shall be deemed to limit, restrict, or otherwise determine or affect the amount or amounts which may be agreed upon to be paid to the CONSULTANT pursuant to this Subsection D. E. In the event of the failure of the CONSULTANT and the CITY's Representative to agree as provided in Subsection D, upon the whole amount to be paid to the CONSULTANT by reason of the termination of work pursuant to this clause, the CITY's Representative shall pay to the CONSULTANT the amounts determined by the CITY Representative as follows, but without duplication of any amounts agreed upon in accordance with Subsection D: (1) For completed work and services accepted by the CITY, the price or prices specified in the Contract for such work, less any payments previously made. (2) The total of: (a) the costs incurred in the performance of the work and service terminated, including initial costs and preparatory expenses allocable thereto, but exclusive of any costs attributable to the work and services paid or to be paid for under Subsection E(1) hereof; (b) the cost of settling and paying claims arising out of the termination of work or services under sub-contracts or orders as provided in Subsection B(5) above, which are properly chargeable to the terminated portion of the Contract exclusive of amounts paid or payable on account of work or services delivered or furnished by CITY approved sub- contractors prior to the effective date of termination, which amounts shall be included in the costs payable under (a) above; and (c) a sum, as profit on (a) above, determined by the CITY's Representative to be fair and reasonable. F. In the event this Contract is terminated because of CONSULTANT default, the CITY may take over the work and services and complete the same by Contract or otherwise, and the CONSULTANT shall be liable to the CITY for any increased cost of the project. XXI. CONTROLLING LAW; ATTORNEY'S FEES AND COSTS This Contract is to be governed by the laws of the State of Florida. Venue for any litigation between the parties to this Contract shall be in Seminole County, Florida and any trial shall be non-jury. The prevailing party shall recover against the other party all attorney's fees and costs incurred from any and all disputes and/or litigation including appeals which arise from this Contract. XXII. MODIFICATIONS TO CONTRACT This Contract, together with any exhibits and amendments, constitute the entire Contract between the CITY and the CONSULTANT and supersede all prior written or oral understandings. This Contract and any exhibits and amendments, may only be amended, supplemented, modified or canceled by a written instrument duly executed by the parties hereto. XXIII. EQUAL OPPORTUNITY During the performance of this Contract, the CONSULTANT agrees that the CONSULTANT will not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin. The CONSULTANT will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous place, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. XXlV. NOTICE TO PROCEED Following the execution of this Contract by both parties, and after the CONSULTANT has complied with the insurance requirements set forth hereinafter, the CITY shall issue the CONSULTANT a written notice to proceed for each project. Following the issuance of such notice to proceed the CONSULTANT shall be authorized to commence work and the CONSULTANT thereafter shall commerce work promptly and shall carry on all such services and work as may be required in a continuous, diligent and forthright manner to expeditious completion. XXV. NOTICES 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. Designated representatives shall be defined in each Work Order. Written notice requirements of this Contract shall be strictly construed and such requirements are a condition precedent to pursuing any rights or remedies hereunder. The CONSULTANT agrees not to claim any waiver by CITY of such notice requirements based upon the CITY having actual knowledge, implied, verbal or constructive notice, lack of prejudice or any other grounds as a substitute for the failure of the CONSULTANT to comply with the express written notice requirements herein. Computer notification (e-mails and message boards) do not constitute proper written notice under the terms of the Contract. 14 IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each s~}gnature: the CITY throuoh its City Commission taking action on the day of ~_~'~'~ ,/;~ ,200~ and the CONSULTANT signing by and through its duly authorized-corporate o~icer having the full and complete authority to execute same. ~-inda M. Gardner Corporate Secretary CPH ENGINNERS DA~I~D A. GIERACH, Corporate President Date: ATTEST: ANET D-OUGHER'i~, City C{Jerk CITY OF Sanford For use and reliance of the Sanford City Commission only. Approved as to form and legality. William L. Colbert City Attorney ]5 EXHIBIT A WORK ORDER No. I Page 16 of 28 WORK ORDER NO. 1 TO City of Sanford Contract With CPH Engineers, Inc. For Stormwater Improvement Plan, Roadway and Intersection Design RFSOQ 01/02-28 This Work Order No. 1 . dated this 17th, day of November, 2004, to a Contract previously entered into on the 15th day of November, 2004, by and between the City of Sanford, Florida, hereinafter referred to as the CITY, and CPH Engineers, Inc., hereinafter referred to as the CONSULTANT, is mutually agreed upon and declared an extension of the original Contract entitled "City of Sanford Contract with CPH Engineers, Inc. for Engineering Stormwater Improvement Plan, Roadway and Intersection Design, RFSOQ 01/02-28. It is the intent of this Work Order to provide for Engineering Services in connection with the Downtown Stormwater Improvements - Southeast Out'fall, Cloud Branch Ph. 2, 13th St., 10th Project. In the event of a conflict between this Work Order and the original Contract, the provisions of this Work Order shall apply for the work described herein. SECTION 1 GENERAL The CiTY has received an SRF Loan for the planning and design of the proposed stormwater improvements. The facilities planning has been completed and the design and permitting of the improvements must be completed to obtain the SRF funding from FDEP for construction. This authorization is to generally provide for engineering services for the design and permitting of the stormwater improvements identified in the SRF Stormwater Facilities Plan. The improvements identified in the Facilities Plan that are to be final designed and permitted under this Authorization are as follows: Page 17 of 28 Southeast Outfall consisting of a new pipeline or combination pipeline open ditch along North St./1st Drive from Mellonville Avenue to the Seminole County Club II Borrow Pit Pond, located west of Brisson Avenue. Cloud Branch Phase 2 consisting of a new stormwater detention pond at Coastline Park, and channel and culvert crossing improvements from the Railroad crossing to 3rd Street. 13th Street Outfall consisting of upgrading the storm sewer trunkline along 13~ St. from Park Ave. to U.S. 17-92, and from U.S. 17-92 to 10th Street, and along 10th Street to Cloud Branch at Coastline Park. 10th Street Ouffall consisting of upgrading the storm sewer pipeline along 10th St. from U.S. 17-92 to its connection point with the 13th Street outfall on 10t~ Street (between Holly Ave. and Maple Ave.) Railroad Outfall consisting of upgrading the storm sewer trunkline a on the ' tracks from Palmetto Avenue to 1 lt~ Street, and from 11 th Street to Cloud Brganch. railroad The CONSULTANT has previously assisted the CITY in obtaining funding for the project under the State Revolving Fund (SRF) Loan Program. In order to maintain the eligibility for financing under the SRF program, the CONSULTANT will provide coordination and assistance in obtaining necessary approvals of design documents and 3ermitting for these projects. SECTION 2 SPECIFIC SERVICES OF THE CONSULTANT The CONSULTANT agrees to perform professional engineering services ~n connection with the project as hereinafter stated. The CONSULTANT will serve as the CITY's professional engineering representative in those phases of the project to which this Scope of Services applies, and will give consultation and advice to the CITY during the performance of his services. Attached to this Work Order is a manhour breakdown for the project Scope of Services. Desiqn and Permittinq - South=---=t Ouffall The CONSULTANT will obtain information along proposed route, field review potential conflicts and areas to be addressed during design or construction. The CONSULTANT will attend a kick-off meeting with City and County staff (necessary in order to coordinate connection to the County's Club II Borrow Pit pond), review route, available information. The CONSULTANT will survey the approximate 4000 LF route from Mellonville Ave. to the Club II Borrow Pit pond (and will use the existing topographic aerials as the survey base). The surveying includes profiling along North Street/1st Dr., establishing a horizontal and vertical 50' grid from the centerline of ditch to the right-of-way line, Page 18 of 28 location of existing visible above ground improvements and utilities locating the horizontal. Ioca!ion of underground CITY owned utilities as flagged by the CITY, Iocat ng storm ana sanitary structures (pipe sizes and invert elevations). The CONSULTANT will obtain from the geotechnical subconsultant soil and groundwater information, and construction recommendations. The CONSULTANT will, using its in-house environmental scientist, assess the route, coordinate with review agencies, and prepare an environmental report addressing proposed impacts to the wetlands and surface waters for use in permitting. Preparation of a detailed mitigation plan is not anticipated to be required and is not included. The CONSULTANT will submit monthly progress reports to CITY during the design and permitting phase. The CONSULTANT will update the storm sewer modeling (conducted during the planning phase) to finalize pipe and ditch design. The CONSULTANT will prepare 90% construction plans consisting of: Cover Sheet Summary of Quantities Key Sheet and General Notes Plan and Profile (8 Sheets, 1"=20' Scale) Cross Sections (Every 400' (+/-), 2 Sheets) Detail Sheet The CONSULTANT will prepare an opinion of probable construction cost based on the 90% construction plans. The CONSULTANT will submit the 90% drawings to CITY, attend a review meeting with The CONSULTANT will make minor revisions to plans as result of the review meeting with CITY. The CONSULTANT will prepare the St. Johns River Water Management District (SJRWMD) permit application, hydraulic calculations and report, and submit the calculations and report with the 90% plans to the SJRWMD. The CONSULTANT will also submit calculations and plans to the County stormwater division for approval if necessary. The CONSULTANT will prepare a County R/W Use Permit Application (if needed for the construction of the pipeline/ditch regarding), and will submit the plans and application to County. The CONSULTANT will prepare a Project Manual consisting of front end documents and technical specifications, and submit it to the CITY for review. The CONSULTANT will revise the plans based on SJRWMD and County review. The CONSULTANT will submit the plans and Project Manual to FDEP for approval under the SRF program, and make revisions based on FDEP review. Page 19 of 28 The CONSULTANT will update the previously prepared Opinion of Probable Construction Cost and Project Manual. The CONSULTANT will submit the 100% plans and Project Manual to the CITY. Desi~3n and Permlttim3 - Cloud Branch Phase ? The CONSULTANT will obtain information along proposed route, field review potential conflicts and areas to be addressed during design or construction. The CONSULTANT will attend a kick-off meeting with City staff, review route, available information. The CONSULTANT will survey the proposed pond site at Coastline Park, approximately 1800 LF of existing Cloud Branch channel from the railroad to 3r~ Street, and will use existing topographic aerials as the survey base. The surveying includes profiling along the channel, establishing a horizontal and vertical 50' grid from the centerline of the channel, provide mapping of the existing parcels along the channel, locating existing visible above ground improvements and utilities, locating the horizontal location of underground CITY owned utilities as flagged by the CITY, locating storm and sanitary structures (pipe sizes and invert elevations). Detailed tree surveying and locations by survey are not included. The CONSULTANT will obtain from the geotechnical subconsultant soil and groundwater information at the pond site and 3 culvert crossings, plus construction recommendations. The CONSULTANT will, using its in-house environmental scientist, assess the route, coordinate with review agencies, and prepare an environmental report addressing proposed impacts to the wetlands and surface waters for use in permitting. Preparation of a detailed mitigation plan is not anticipated to be required and is not included. The CONSULTANT will submit monthly progress reports to CITY during the design and permitting phase. The CONSULTANT will update the Cloud Branch stormwater model (conducted during Cloud Branch Phase 1 design phase) to finalize pond design and upsizing of the road and railroad crossing culverts. The CONSULTANT will prepare 90% construction plans consisting of: Cover Sheet Summary of Quantities Key Sheet and General Notes Plan and Profile (5 Sheets, 1"=20' Scale) Cross Sections (Every 400' (+/-), 1 Sheet) Detail Sheet The CONSULTANT will prepare an opinion of probable construction cost based on the 90% construction plans. Page 20 of 28 The CONSULTANT will submit the 90% drawings to CITY, attend a review meeting with The CONSULTANT will make minor revisions to plans as result of the review meeting with CITY. The CONSULTANT will prepare the St. Johns River Water Management District (SJRWMD) permit application, hydraulic calculations and report, and submit the calculations and report with the 90% plans to the SJRWMD. The CONSULTANT will coordinate the new pipe crossing and slip lining of the existing pipe crossings of the railroad with CSX. The CONSULTANT will also prepare a CSX right-of-way application, submit construction plans to CSX for approval, and make revisions to plans based on CSX review. The CONSULTANT will prepare a Project Manual consisting of front end documents and Technical specifications, and submit it to the CITY for review. The CONSULTANT will revise the plans based on SJRWMD review. The CONSULTANT will submit the plans and Project Manual to FDEP for approval under the SRF program, and make revisions based on FDEP review. The CONSULTANT will update the previously prepared Opinion of Probable Construction Cost and Project Manual. The CONSULTANT will submit the 100% plans and Project Manual to the CITY. Desiqn and Permittlnq - 13t~ Street Out'fall The CONSULTANT will obtain information along proposed route, field review potential conflicts and areas to be addressed during design or construction. The CONSULTANT will attend a kick-off meeting with City staff, review route, available information. The CONSULTANT will obtain from the geotechnical subconsuitant soil and groundwater information at 4 locations along the proposed pipeline, plus construction recommendations. The CONSULTANT will submit monthly progress reports to CITY during the design and permitting phase. The CONSULTANT will update the storm sewer modeling (conducted during the planning phase) to finalize pipe sizing. The CONSULTANT will prepare 90% construction plans consisting of: Cover Sheet Summary of Quantities Key Sheet and General Notes Plan and Profile (9 Sheets, 1"=20' Scale) Cross Sections (Every 500' (+/-), 2 Sheets) Detail Sheet Page 21 of 28 The CONSULTANT will prepare an opinion of probable construction cost based on the 90% construction plans. The CONSULTANT will submit the 90% drawings to CITY, attend a review meeting with The CONSULTANT will make minor revisions to plans as result of the review meeting with CITY. The CONSULTANT will schedule and attend a pre-application meeting with FDOT, prepare FDOT permit application, submit U.S. 17-92 culvert replacement plans to FDOT for approval, and make revisions to plans based on FDOT review. The CONSULTANT will prepare a Project Manual consisting of front end documents and technical specifications, and submit it to the CITY for review. The CONSULTANT will submit the plans and Project Manual to FDEP for approval under the SRF program, and make revisions based on FDEP review. The CONSULTANT will update the previously prepared Opinion of Probable Construction Cost and Project Manual. The CONSULTANT will submit the 100% plans and Project Manual to the CITY. Desiqn and Permittinq - 10th Street Outfall The CONSULTANT will obtain information along proposed route, field review potential conflicts and areas to be addressed during design or construction. The CONSULTANT will attend a kick-off meeting with City staff, review route, available information. The CONSULTANT will obtain from the geotechnical subconsultant soil and groundwater information at 2 locations along the proposed pipeline, plus construction recommendations. The CONSULTANT will submit monthly progress reports to CITY during the design and permitting phase. The CONSULTANT will update the storm sewer modeling (conducted during the planning phase) to finalize pipe sizing. The CONSULTANT will schedule and attend a coordination meeting with FDOT staff to discuss cost sharing of the design, permitting, and construction of the storm ouffall along 10th Street. Page 22 of 28 The CONSULTANT will prepare 90% construction plans consisting of: Cover Sheet Summary of Quantities Key Sheet and General Notes Plan and Profile (2 Sheets, 1"=20' Scale) Cross Sections (Every 500' (+/-), 1 Sheet) Detail Sheet The CONSULTANT will prepare an opinion of probable construction cost based on the 90% construction plans. The CONSULTANT will submit the 90% drawings to CITY, attend a review meeting with The CONSULTANT will make minor revisions to plans as result of the review meeting with CITY. The CONSULTANT will prepare a Project Manual consisting of front end documents and technical specifications, and submit it to the CITY for review. The CONSULTANT will submit the plans and Project Manual to FDEP for approval under the SRF program, and make revisions based on FDEP review. The CONSULTANT will update the previously prepared Opinion of Probable Construction Cost and Project Manual. The CONSULTANT will submit the 100% plans and Project Manual to the CITY. Desion and Permittinq - Railroad Ouffall The CONSULTANT will obtain information along proposed route, field review potential conflicts and areas to be addressed during design or construction. The CONSULTANT will attend a kick-off meeting with City staff, review route, available information. The CONSULTANT will obtain from the geotechnical subconsultant soil and groundwater information at 4 locations along the proposed pipeline, plus construction recommendations. The CONSULTANT will submit monthly progress reports to CITY during the design and permitting phase. The CONSULTANT will update the storm sewer modeling (conducted during the planning phase) to finalize pipe sizing. The CONSULTANT will prepare 90% construction plans consisting of: Cover Sheet Summary of Quantities Page 23 of 28 Key Sheet and General Notes Plan and Profile (9 Sheets, 1"=20' Scale) Cross Sections (Every 500' (+/-), 2 Sheets) Detail Sheet The CONSULTANT will prepare an opinion of probable construction cost based on the 90% construction plans. The CONSULTANT will submit the 90% drawings to CITY, attend a review meeting with CITY. The CONSULTANT will make minor revisions to plans as result of the review meeting with CITY. The CONSULTANT will schedule and attend a pre-application meeting with FDOT, prepare FDOT permit application, submit U.S. 17-92 culvert replacement plans to FDOT for approval, make revisions to plans based on FDOT review. The CONSULTANT will coordinate proposed pipe removal / abandonment and new construction along the railroad with CSX. The CONSULTANT will also prepare CSX right-of-way application, submit construction plans to CSX for approval, and make revisions to plans based on CSX review. Note: this Authorization assumes CSX will allow the CITY pipeline to be constructed along the railroad. If CSX does not allow this and substantial route changes are required (including the need for easements or right- of-way), then the substantial changes and easements will be considered to be an Additional Service not covered by the Authorization. The CONSULTANT will prepare a Project Manual consisting of front-end documents and technical specifications, and submit it to the CITY for review. The CONSULTANT will submit the plans and Project Manual to FDEP for approval under the SRF program, and make revisions based on FDEP review. The CONSULTANT will update the previously prepared Opinion of Probable Construction Cost and Project Manual. The CONSULTANT will submit the 100% plans and Project Manual to the CITY. SECTION 3 PAYMENT AND CONTRACT TIME Compensation Paid CONSULTANT The engineering fee for the services described herein shall not exceed $495,253.00, inclusive of out-of-pocket expenses. Exhibit B attached details costs associated with this work. Page 24 of 28 Invoices from the CONSULTANT to the CITY shall not be rendered more often than once monthly. Each invoice shall be properly dated, describing the services rendered, the cost of the services, the name and address of the CONSULTANT, and Purchase Order Number. The original invoice shall be sent to the CITY representative designated as follows: Mr. Tom George, Public Works Director City of Sanford P O Box 1788 Sanford, FI 32772-1788 The CiTY will make prompt monthly payments in response to the CONSULTANT's monthly statements without retention for all categories of services rendered under this Work Order and for reimbursable expenses and outside consultant costs incurred. Charges for services rendered by principals and employees as witnesses in any litigation hearing or proceeding will be computed at a rate of $1,200.00 per day or any portion thereof (but time spent in preparing to appear in any such litigation, hearing or proceeding will be negotiated in accordance with the terms of the Base Contract. If this Work Order is terminated during prosecution of the services prior to completion of the services of Section 2, payments to be made on account of that and all prior work under this Work Order shall be as defined in the Base Contract. The CONSULTANT will commence services within seven calendar days of the date of execution of this Work Order and will complete these services within a timely manner. The period of performance of the CONSULTANT's contract shall remain in force from the date of execution of this Work Order until a one-year period has elapsed, at which time compensation for services provided will be subject to re-negotiation. SECTION 4 ADDITIONAL SERVICES OF THE ENGINEER If authorized by the CITY, the CONSULTANT shall furnish or obtain from others the following additional services, or the CITY may provide these services separately or directly with the provider. Such additional services will be paid for by the CITY as defined in the Base Contract. Services due to major changes in the scope of the project or its design including, but not limited to, changes in size, complexity, character of construction or due to time delays in initiating or completion of the work. The CONSULTANT will provide limited environmental scientist services as defined in the Section 2. These services do not include preparation of detailed mitigation plans. If found to be necessary, CONSULTANT could provide additional environmental scientist services including preparation of mitigation plans. Page25of 28 Provide through subconsultants land acquisition boundary surveys, title searches, or other specialist services including real estate or right-of-way agents, project or construction management, and bookkeeping or accounting services, if these services are subsequently determined advisable during the course of work, they may be considered for authorization as an additional service under the Base Contract or separately provided by the CITY. Except as otherwise provided herein, services or additional costs associated with revising previously accepted studies, reports, or other documents prepared by the CONSULTANT when such revisions are due to causes beyond the CONSULTANT's control. Additional services resulting from public protests, administrative hearings, or similar matters. Preparing to serve and/or serving as an Expert Witness for the CiTY in any litigation, public hearing, condemnation proceeding, right-of-way or easement acquisition or negotiation, or other legal / administrative proceeding. Additional engineering services required by revisions to regulations (after the date of this Authorization) as applicable to the Florida Department of Environmental Protection, the St. Johns River Water Management District, Corps of Engineers, Seminole County, FDOT, or other regulatory agency requirements. Additional services in connection with the project including services normally furnished by the CITY and services not otherwise provided for in this Work Order. Bidding and construction engineering and inspection services shall be provided under separate Work Order. Section 5 CITY Responsibilities The CITY will: Advise the CONSULTANT of his requirements for the project and designate a person to act as the CITY's representative with respect to the work to be performed under this Authorization, and such person shall have complete authority to transmit instructions, receive information, interpret and define the CITY's policies and decisions pertinent to the work covered by this Authorization. Obtain and provide data requested that is reasonably available on the project along with operational and maintenance requirements and easement and right-of-way requirements. Guarantee access to and make all provisions for the CONSULTANT to enter upon public and private lands as required for the CONSULTANT to perform his work under this Authorization. Page 26 of 28 Make facilities accessible for inspection, including opening of manholes if needed to survey pipeline inverts and sizing, and flagging the horizontal location of CITY owned utilities. Examine ail studies, reports, sketches, schedules, and other documents presented by the CONSULTANT and render decisions pertaining thereto within a reasonable time so as not to delay the work of the CONSULTANT. Assist in obtaining approval of all governmental authorities having jurisdiction over the project, and such approvals and consents from such other individuals or bodies as may be necessary for completion of the Project. Furnish or direct the CONSULTANT in writing to provide at the CITY's expense, any sub-consultant services not designated in Section 2, if advised by the CONSULTANT and CITY concurs that they are necessary. Provide such legal, accounting, financial and insurance counseling services as may be required for the project, and such auditing services as the CITY may require. Give prompt written notice to the CONSULTANT whenever the CITY observes or otherwise becomes aware of any defect in the Project. SECTION 6 General Conditions Since the CONSULTANT has no control over the cost of labor, materials, or equipment or over any construction Contractor's method of determining prices, any opinion of probable construction cost which may be provided in the services of this Authorization are made on the basis of his experience and qualifications and represent his best judgment as a design professional familiar with the construction industry, but the CONSULTANT cannot and does not guarantee that bids or the construction cost will not vary from opinions of probable cost prepared by him. Similar limitations apply to construction schedules reviewed or prepared by the CONSULTANT. The CITY and the CONSULTANT each binds himself and his partners, successors, executors, administrators and assigns to the other party of this Authorization and to partners, successors, executors, administrators, and assigns of such other party in respect to all covenants of this Work Order. Nothing herein shall be construed as creating any personal liability on the part of any officer or agency of any public body which may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the CITY and the CONSULTANT. The CONSULTANT agrees to initiate work promptly upon receipt of authorization to proceed and to prosecute the work in an expeditious and timely manner until the Project is completed. Page 27 of 28 IN WITNESS WHEREOF, the parties hereto have made and executed this Authorization the day and year first above written. CITY: (ATTEST & SEAL) 8anet Dougherty - City~--~lerk g nford, Florida CONSULTANT: ~EST ~ SEAL) Lin'~a' M-. Gardner- 8ecretaryfTreasurer CPH Engineers, Inc. D~vid A. Gierach, P.E. - President Page 28 of 28 00% $%, 000