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HomeMy WebLinkAboutIII (D) Approval and Authorization for the Mayor and City Clerk to execute Various Continuing Contracts Agenda 12-15-98 Item III D "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER S. SCOTT VANDERGRIFT OCO@e O� �+ COMMISSIONERS CITY OF OCOEE DANNY HOWELL 1,sis.., SCOTT ANDERSON .V...._0 - 150 N.LAKESHORE DRIVE p OCOEE,FLORIDA 34761-2258SCOTT A.GLASS NANCY J.PARKER (3_3_}., (407)656-2322 CITY MANAGER 0f 0001) ELLIS SHAPIRO MEMORANDUM DATE: December 9, 1998 TO: The Honorable Mayor and Board of City Commissioners FROM: James W. Shira, P.E., City Engineer/Utilities Director SUBJECT: Surveying Services Ten surveying and mapping firms responded to our Request for Proposals. A selection committee comprised of Robert Smith, Public Works Director, Commissioner Scott Anderson and me, independently reviewed and ranked the firms. On November 2, 1998 we met to compile the rankings. The top three ranked firms were, in order, Southeastern Surveying& Mapping, Corp., Bowyer- Singleton& Assoc., Inc. and Regional Engineers, Planners & Surveyors, Inc. The committee unanimously agrees that it would be in the City's best interest to enter into continuing contracts with each of these three firms based on a common fee schedule. This would provide us with the opportunity to obtain the best value in high quality surveying services, and would ensure that such services could be provided to us as needed, regardless of time constraints. Accordingly, I recommend that the City Commission authorize staff to enter into an agreement with each of the three above listed firms, in substantial conformance with the draft agreement attached for your review, contingent on each firm agreeing to utilize a common,mutually agreeable fee schedule. I also recommend that the City Commission authorize the Mayor and City Clerk to sign these agreements upon their execution by the respective firms. JWS/jbw Attachment Oy-- ia CONTINUING SURVEYING SERVICES AGREEMENT THIS AGREEMENT is entered into this day of , 19_ by and between the City of Ocoee, Florida, a municipal corporation existing under the laws of the State of Florida(CITY), and , a Florida corporation, doing business locally at (CONSULTANT). WHEREAS, the CITY has a present need for professional surveying services; and WHEREAS, CONSULTANT warrants that it has extensive experience in providing the type of services that the CITY is particularly contracting for under this AGREEMENT (SERVICES), and the CITY has a just and reasonable cause to rely upon these warrants and the proposed SERVICES as being well-documented and well-founded; and WHEREAS, the scope of the CONSULTANT's work shall be general surveying services (PROJECT), as summarized in EXHIBIT I, below; and NOW, THEREFORE, in consideration of the mutual premises and covenants contained herein and given one party to the other, the sufficiency of which is hereby acknowledged, the parties agree as follows: A. TERM 1. Time is of the essence in this AGREEMENT, and its term shall be for one year, with a one-year option at the City's sole discretion, from the date of final execution by the CITY. B. SCOPE OF WORK 1. A general scope of work (SCOPE) has been agreed to by the parties, and is attached hereto as EXHIBIT I, and is incorporated herein by reference. 2. A specific scope of work (SCOPE) will be agreed to by the parties on a project- by-project basis, and shall be reduced to writing and agreed to by the parties before any specific project work has begun. All parties agree to abide by the provision of EXHIBIT II, attached hereto and incorporated herein by reference. 3. The CONSULTANT's services may include, but not be limited to those itemized on EXHIBIT I and shall be provided by the CONSULTANT, or its subconsultants, on a project-by-project basis after mutual agreement between the parties. The SERVICES shall be performed in accordance with the generally accepted standards of the land surveying profession. 9 1 C. FEE 1. The CITY will compensate CONSULTANT for the SERVICES as detailed in the FEES (attached hereto and incorporated herein, by reference, as EXHIBIT III), the method of compensation being calculated by a wage or salary cost times (multiplied by) a factor not to exceed 2.75 9MULTIPLIER). After application of the MULTIPLIER, the compensation shall include salary, social security, federal and state unemployment taxes, worker's compensation insurance, sick leave, vacation and holiday pay, retirement and medical insurance benefits, travel and subsistence within the Orlando area, general and administrative overhead costs, quality control, profit, and any and all incidental reproduction (exclusive of agreed-to and authorized reimbursable costs, see also Exhibit II), secretarial, and office support costs. CONSULTANT also agrees that salaries paid to personnel rendering any AGREEMENT SERVICES, shall not exceed salaries being paid by CONSULTANT to personnel performing substantially similar services for any of CONSULTANT's other clients. Furthermore, the CITY shall not be charged overtime wage rates, unless and only to the extent that the CITY may authorize such charges in writing. 2. The total PROJECT cost shall be an upset (not-to-exceed) figure of $100,000. The CITY shall have no obligation to pay, nor CONSULTANT to incur, any expenses outside the SCOPE or SERVICES as agreed to by the parties, and the CITY shall have no obligation to reimburse CONSULTANT for performance or expenses necessary to correct any PROJECT error or defect, except to the extent that such errors or defects were caused by incomplete, mistaken, or inaccurate data, information, instructions, or other specifications or directions provided to CONSULTANT by the CITY (or its representatives). 3. CONSULTANT fully acknowledges and agrees that if at any time it performs SERVICES under this AGREEMENT that have not been fully negotiated, reduced to writing, and formally executed by both the CITY and CONSULTANT, then CONSULTANT shall perform such SERVICES without liability to the CITY, and at CONSULTANT's own risk. 4. It is understood and agreed that all SERVICES' payment (PAYMENT) shall be made by the CITY within thirty (30) calendar days of its receipt of CONSULTANT invoices, unless, within the 30-day period, the CITY, 1) notifies CONSULTANT of an objection to the PAYMENT amount, and 2) either provides CONSULTANT with a determination of the proper PAYMENT, or requests further information from CONSULTANT so that a proper PAYMENT can be derived and agreed upon by the parties. 5. The CITY's objection to the PAYMENT amount shall be accompanied by the CITY's remittance of any undisputed portion of the PAYMENT, and if the parties cannot agree on a settlement of any disputed PAYMENT, then the dispute shall be resolved pursuant to the provisions of SECTION D below. If the dispute is resolved in favor of 1 2 CONSULTANT, then the CITY shall pay CONSULTANT the amount so determined, plus one percent (1%) simple interest, per month, minus any PAYMENT amount previously paid to CONSULTANT with respect to the dispute. If it is determined that the CITY has overpaid CONSULTANT, then CONSULTANT shall, within ten (10) calendar days, refund to the CITY the overpayment amount, and interest, at one percent (1%) per month, simple interest. 6. CONSULTANT agrees that the making of any willfully false statement in any payment statement submitted to the CITY shall be grounds for the immediate termination of this AGREEMENT, and that CONSULTANT shall reimburse the CITY for the CITY's reasonable provable costs in contracting with another consultant to complete any SERVICES yet to be done, so that the PROJECT as contracted for by CONSULTANT and the CITY shall be fully (and not merely substantially) completed. The payment reimbursement shall include, but not be limited to, attorneys' fees and costs (and attorneys' fees and costs on appeal), and any SERVICES' costs and expenses greater than CONSULTANT's negotiated costs and expenses, as paid to another consultant to complete the PROJECT. 7. Upon the termination of this AGREEMENT, CONSULTANT shall prepare a final and complete payment statement for all SERVICES and reimbursable expenses incurred since the posting of the last payment statement, and through the date of termination. CONSULTANT also agrees to maintain, and to cause each of its subcontractors to maintain complete and accurate books and records (BOOKS) in accordance with sound accounting principles and standards, in a form acceptable to the CITY, and relating to all SERVICES and related costs and expenditures to the CITY that have been contracted for and paid during the life of this AGREEMENT. The BOOKS shall identify the SERVICES rendered during each month of this AGREEMENT, the date that each PROJECT expense was incurred, and whether the expense was SERVICE or reimbursable-related. 8. The BOOKS may (but need not) be kept separate and apart from CONSULTANT's other books; but the CITY shall have the right, at any reasonable time and through any of its designated agents or representatives, to inspect and audit the BOOKS for the purpose of verifying the accuracy of any payment statement. If it is established by the audit, or by any other means, that CONSULTANT has over-billed or overstated its costs, fees, or reimbursable expenses (OVERCHARGED) to the CITY, then the amount of any OVERCHARGE shall be refunded to the CITY, including interest at one percent (1%) simple interest per month, together with the CITY's reasonable and provable costs (including auditing expenses) in discovering the OVERCHARGE and effecting its repayment. 9. CONSULTANT shall retain the BOOKS, and make them available to the CITY as specified above, until the later of five (5) years after the date of termination of this AGREEMENT, or five (5) years from the date of the final payment statement (of the PROJECT) prepared for the CITY, or such longer time if required by any federal, state, 3 or other governmental law, regulation, policy, or contractual or grant requirement or provision. 10. When the CITY's City Engineer/Utilities Director or his designee (DIRECTOR) has reasonable grounds for belief(or information to believe)that, 1) CONSULTANT will be unable to perform the SERVICES; or 2) a pending or meritorious claim exists against CONSULTANT or the CITY arising out of CONSULTANT's negligence or CONSULTANT's breach of any provision of this AGREEMENT; then the DIRECTOR may withhold a payment otherwise due and payable to CONSULTANT, until the DIRECTOR can confirm such belief. Any payment so withheld may be retained by the CITY for such period as it deems advisable to protect the CITY against any loss, or deprivation the CITY may incur pursuant to this Subsection; or as may be determined by any court of competent jurisdiction. This provision is intended solely for the benefit of the CITY, and no person shall have any right against the DIRECTOR or claim against the CITY by reason of the DIRECTOR's failure or refusal to withhold a payment. If the CITY's confirmation of such belief is supported by the judgement of a court of competent jurisdiction, then no interest shall be payable by the CITY on any amounts withheld under this Subsection, and this Subsection is not intended to limit or in any way prejudice any other right the CITY may have in this regard. If such belief is not confirmed, then the CITY shall remit the withheld amount to CONSULTANT, plus one percent, per month, simple interest. 11. The acceptance by CONSULTANT, its successors, or assigns, of any final payment due upon the termination of this AGREEMENT, shall constitute a full and complete release of the CITY from any and all claims, demands, or causes of action whatsoever that CONSULTANT, its successors, or assigns may have against the CITY under the provisions of this AGREEMENT. D. INDEMNIFICATION AND INSURANCE 1. CONSULTANT shall indemnify and hold harmless the CITY, its agents, employees, and elected and appointed officials, from and against all claims, damages, losses, and expenses of any sort, including attorneys' fees and costs, and attorneys' fees and costs on appeal, arising out of or resulting from any SERVICES as may be described or provided in this AGREEMENT, or in any of the PROJECT documents, that are or may be caused by any intentional misconduct or any negligent act or omission of CONSULTANT, any of its agents or subcontractors, anyone directly or indirectly employed by any of them, or anyone for whose act or acts any of them may be liable. 2. Except to the extent that an occurrence policy is not available, all insurance policies required by this AGREEMENT shall be of the occurrence (and not the claims- made) type. Upon sufficient evidence having been submitted and accepted by the CITY that occurrence-policy-coverage is not available, then CONSULTANT shall purchase, maintain, and keep in full force, effect, and good standing, such insurance (claims-made, if necessary) that is further described below, and any other insurance necessary to fully 4 II protect it from claims of the nature that are detailed below, that may arise out of, or result from, CONSULTANT's operations, performance, or SERVICES, or all of these things, or any of these things in combination, whether these things are done by CONSULTANT, any of its agents or subcontractors, anyone directly or indirectly employed by it, or anyone for whose act or acts it may be liable: a) claims under Worker's Compensation, disability benefit, or other (similar) employee benefit acts; and b) claims for damages because of bodily injury, sickness or disease, or death of any person other than its employees; and c) claims for damages (by usual and recognized personal injury liability coverage) which are sustained, 1) by any person as a result of an offense directly or indirectly related to the employment of such person by CONSULTANT, or 2)by any person; and d) claims for damages because of injury to or destruction of tangible property, including the loss of property use resulting therefrom. 3. The insurance required by this Subsection shall be written for not less than the limits of liability specified below, or required by law, whichever is greater, and shall include contractual liability insurance as applicable to CONSULTANT's obligations under Subsection 2, above: a) Worker's Compensation and Employer's Liability: (present Florida statutory limit) b) Comprehensive General Liability Bodily Injury: $1,000,000 Property Damage: $250,000 c) Business Automobile Liability: $500,000 per occurrence 4. CONSULTANT shall also purchase, maintain, and keep in full force, effect, and good standing, a professional liability/errors and omissions insurance policy having minimum limits of Five Hundred Thousand and No/100 Dollars ($500,000.00), with a maximum deductible of One Hundred Thousand and No/100 Dollars ($100,000.00). The errors and omissions policy shall be in effect and shall insure against the CONSULTANT's negligent acts, errors or omissions on this PROJECT, and, furthermore, CONSULTANT shall include the CITY as an additional insured under the policy terms and conditions, if at any time during the life of this AGREEMENT CONSULTANT's policy would allow such an inclusion to be made. 5. If the terms, conditions, or amount of the coverage of any of the insurance policies defined, outlined, or referred to above are (or become) unacceptable to the CITY for any reason at any time during the life of this AGREEMENT, then CONSULTANT shall, upon thirty (30) calendar days' prior written notice from the CITY, revise its insurance 5 coverage or obtain additional coverage (INSURANCE REVISION) to satisfy the CITY's demand that CONSULTANT's coverage be changed. CONSULTANT may request that the CITY reimburse it for a mutually agreeable amount or portion of the INSURANCE REVISION costs, if any, but the CITY's good-faith refusal of such a request shall not absolve CONSULTANT of any of its AGREEMENT duties or obligations. 6. INSURANCE CERTIFICATES, evidencing all insurance coverages referred to in this SECTION, shall be filed (or be on file) with the CITY's Human Resources Department (HRD) at least ten (10) calendar days before the final execution of this AGREEMENT. The INSURANCE CERTIFICATES shall be fully acceptable to HRD in both form and content, and shall provide and specify that the related insurance coverage shall not be reduced, materially modified, or canceled (COVERAGE CHANGE) without at least thirty (30) calendar days' prior written notice having been given to the CITY. CONSULTANT shall have five (5) calendar days following such COVERAGE CHANGE to file an Insurance Certificate with HRD, demonstrating that the particular coverage has either been reinstated or has been provided through another insuror(s) that is(are) acceptable to the CITY. Failure of CONSULTANT to obtain the CITY's approval, or to satisfy the CITY in this matter of INSURANCE CERTIFICATES, shall be grounds for termination of the AGREEMENT as specified below. It is also understood and agreed that it is CONSULTANT's sole burden and responsibility to coordinate activities between itself, the CITY, and CONSULTANT's insuror(s) so that the INSURANCE CERTIFICATES are acceptable to and accepted by HRD within the time limits described in this Paragraph. 7. The CITY shall be listed as an additional insured on all insurance coverage required by this AGREEMENT, except Worker's Compensation and Professional Liability. Furthermore, all insurance policies pertaining to the SERVICES to be performed under this AGREEMENT shall memorialize that CONSULTANT's, or its subcontractor's, or all of these entities' insurance (PRIMARY INSUREDS), including that applicable to CITY as an additional insured, shall apply on a primary basis, and that any other insurance maintained by the CITY shall be in excess of and shall not contribute to or be commingled with the PRIMARY INSUREDS' insurance. 8. CONSULTANT shall, upon five (5) days' written request from the CITY, deliver copies (or make copies available to the CITY) of any or all insurance policies that are required in this AGREEMENT. If CONSULTANT fails, 1) to deliver or make such copies available to the CITY, b)to make any INSURANCE REVISION, c) to obtain new insurance or have a previous insurance policy reinstated or renewed, d) in any other regard to obtain insurance coverage sufficient to meet the terms and conditions of this AGREEMENT, then the CITY may, at its sole option, terminate this AGREEMENT pursuant to the terms and conditions of SECTION E, below. 9. To the extent that the CITY has paid (and not suffered damages or liability for) the SERVICES, CONSULTANT agrees to correct all errors and other defects in its written work, or SERVICES, or by any and all of its subcontractors, at CONSULTANT's 6 sole cost and expense. CONSULTANT shall be fully liable to the CITY for all damages arising from such errors or other defects, for the negligent acts or omissions or the intentional acts or omissions of CONSULTANT and its employees, and for the negligent acts or omissions or the intentional acts or omissions of any and all subcontractors or their employees that CONSULTANT may utilize at any time during the life of this AGREEMENT. 10. The CITY shall, to the extent provided by Florida law, indemnify and hold harmless CONSULTANT, its agents, employees, and officials, from and against all claims, damages, losses, and expenses arising out of or resulting from the negligent performance or intentional misconduct of the CITY as provided herein. 11. Furthermore, except where caused by the negligence or intentional misconduct of the CITY, CONSULTANT agrees to promptly repair, at its sole cost and expense and in a manner acceptable to the CITY, any damage caused by CONSULTANT or any of its subcontractors, or by any of their respective employees, to CITY property, or to any improvements or property located thereon; provided, however, that if such damage arises out of the performance of the SERVICES by any of the subcontractors pursuant to this AGREEMENT, then CONSULTANT shall be obligated under this Paragraph to repair such damage that arises out of the negligent acts, or omissions, or intentional misconduct of CONSULTANT or any such subcontractor, as detailed here and as further specified above, and elsewhere in this AGREEMENT. 12. The CITY shall have the express right to question CONSULTANT's billing and invoice and payment-receipt procedures at any time during the life of this AGREEMENT, and for the statutorily (or contractually-) provided time thereafter, and at no time, if the CITY does in fact question these procedures, shall the CITY be alleged or claimed to have breached its AGREEMENT contractual obligations. 13. All remedies provided in this AGREEMENT shall be deemed cumulative and additional, and not in lieu or exclusive of each other or of any other remedy available to either party, at law or in equity. E. SETTLEMENT OF CLAIMS 1. The location for settlement of any and all claims, controversies, or disputes, arising out of or relating to any part of this AGREEMENT, or any breach hereof, shall be Orange County, Florida. F. TERMINATION 1. The CITY may terminate this AGREEMENT at its convenience, upon fifteen(15) days' prior written notice to CONSULTANT. In the event of the termination of this AGREEMENT, any liability of one party to the other arising out of any SERVICES rendered, or any act or event occurring prior to the termination, shall not be terminated or released. 7 2. In addition to any other termination provisions that may be provided in this AGREEMENT, the CITY may terminate this AGREEMENT in whole or in part if CONSULTANT substantially fails to perform any obligation under this AGREEMENT and does not remedy the failure within fifteen (15) calendar days after receipt by CONSULTANT or written demand from the CITY so to do; unless, however, the nature of the failure is such that it cannot, in the exercise of reasonable diligence, be remedied within fifteen (15) calendar days, in which case CONSULTANT promptly takes and diligently pursues such actions as are necessary therefor. CONSULTANT may terminate this AGREEMENT if the CITY substantially fails to perform any obligation under this AGREEMENT, and does not remedy the failure within fifteen (15) calendar days after receipt of written demand from CONSULTANT to do so, unless, however, the nature of the failure is such that it cannot, in the exercise of reasonable diligence, be remedied within fifteen (15) calendar days, in which case the CITY shall have such time as is reasonably necessary to remedy the failure, provided it promptly takes and diligently pursues such actions as are necessary therefor. 3. Upon the termination of this AGREEMENT, the CITY shall pay CONSULTANT for SERVICES actually rendered and contracted for under this AGREEMENT, and those reasonable and provable expenses actually incurred by CONSULTANT for SERVICES prior to the effective date of termination. Such payments, however, shall be, 1) reduced by an amount equal to any additional costs incurred by the CITY as a result of the termination (if the AGREEMENT is terminated for cause by the CITY), or 2) increased by an amount equal to the reasonable and provable expenses incurred by CONSULTANT (to conclude its SERVICES) that are directly attributable to the termination, and for which CONSULTANT is not otherwise compensated (if the AGREEMENT is terminated for the convenience of the CITY). G. MATERIALS AND DATA 1. All data, inspector's reports, job files, test reports, contract plans and specifications used to record as-built (or other) conditions, copies of shop drawings, construction photographs, cost control and scheduling data, computer printouts, contractor's submittals, summaries, memoranda (WRITTEN WORK); and any and all other WRITTEN WORK, documents, instruments, information, and materials prepared or accumulated by CONSULTANT especially for the SERVICES rendered hereunder; shall be the sole property of the CITY. The CITY may reuse the WRITTEN WORK at no additional cost, and the CITY shall be vested with all rights of whatever kind and however created that may be in existence thereto; provided, however, that CONSULTANT shall in no way be liable or legally responsible to anyone for the CITY's additional use of any WRITTEN WORK on another project, and the CITY shall indemnify CONSULTANT for and from any claims made against CONSULTANT arising out of such use, except in those instances where CONSULTANT is reemployed by the CITY for the reuse of any material or data described in this SECTION. 8 • 2. The CITY acknowledges that the WRITTEN WORK is not intended for use in connection with any project or purpose other than the PROJECT, and the purpose for which the WRITTEN WORK was therefore prepared. Any use by the CITY of the WRITTEN WORK in connection with a project or purpose other than the PROJECT, without the prior written consent of CONSULTANT, shall be at the CITY's sole risk, and CONSULTANT shall have no responsibility or liability related thereto. 3. In the event of termination of this AGREEMENT prior to CONSULTANT's satisfactory completion of all the SERVICES described or alluded to herein, CONSULTANT shall promptly furnish the CITY, at no additional cost or expense, one (1) copy of the following items (DOCUMENTS), any or all of which may have been produced prior to and including the date of termination: data, specifications, calculations, estimates, plans, drawings, construction documents, photographs, summaries, reports, memoranda; and any and all other documents, instruments, information, and materials (whether or not completed) prepared or accumulated by CONSULTANT, or by any CONSULTANT subcontractor, in rendering the SERVICES described herein, and not previously furnished to the CITY by CONSULTANT pursuant to this AGREEMENT. The DOCUMENTS shall be the sole property of the CITY, and the CITY shall be vested with all rights provided therein of whatever kind and however created. CONSULTANT shall also require that all such Subcontractors agree in writing to be bound by the provisions of this Paragraph. H. ASSIGNMENT AND DELEGATION 1. The CITY and CONSULTANT bind themselves and their partners, successors, executors, administrators, and assigns, to the other party of this AGREEMENT in respect to all duties, rights, responsibilities, obligations, provisions, conditions, and covenants of this AGREEMENT; except that CONSULTANT shall not assign, transfer, or delegate its rights or duties, or both of these things, in this AGREEMENT without the prior written consent of the CITY. The CITY has the absolute right to withhold such consent at its convenience, and, furthermore, if CONSULTANT attempts to assign, transfer, or delegate its rights or duties in violation of these provisions without the CITY's consent, then the CITY may terminate this AGREEMENT as a breach of contract by CONSULTANT and a failure by CONSULTANT to substantially perform its obligations hereunder, and any such CONSULTANT assignment shall be null, void, and of no legal effect whatsoever. THIRD PARTY BENEFICIARY 1. Nothing herein shall be construed as creating any personal liability on the part of any officer, appointed or elected official, or agent of any public body which may be a party hereto, nor shall it be construed as giving any rights or benefits herein to anyone other than to the CITY and CONSULTANT. 9 J. LOCAL, STATE, AND FEDERAL OBLIGATIONS 1. CONSULTANT, for itself, its delegates, successors-in-interest, and its assigns, and as a part of the consideration hereof, does hereby covenant and agree that, 1) in the furnishing of services to the CITY hereunder, no person shall be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in regard to this AGREEMENT on the grounds of such person's race, color, creed, national origin, religion or sex; and 2) CONSULTANT shall comply with all other requirements imposed by any and all applicable local, state, and federal rules, regulations, or guidelines, and as such rules, regulations, or guidelines may be from time to time amended. In the event of a breach of any of the nondiscrimination covenants described in this Paragraph, the CITY shall have the right to terminate this AGREEMENT, without liability, as described above. 2. CONSULTANT and its employees shall promptly observe, comply with, and execute the provisions of any and all present and future federal, state, and local laws, rules, regulations, requirements, ordinances, orders, guidelines, and directions, which may pertain or apply to the SERVICES that may be rendered hereto, or to the wages paid by CONSULTANT to its employees. CONSULTANT shall also require all its subcontractors to comply with the provisions of this Paragraph. 3. CONSULTANT shall, during the life of this AGREEMENT, procure and keep in full force, effect, and good standing all necessary licenses, registrations, certificates, permits, and other authorizations as are required by local, state, or federal law, in order for CONSULTANT to render its SERVICES as described herein. CONSULTANT shall also require all subcontractors to comply with the provisions of this Paragraph. 4. CONSULTANT agrees that at such time as the local, state, or federal agencies modify their grant procedures in order for the CITY or CONSULTANT to qualify for local, state, or federal funding for the SERVICES to be rendered by CONSULTANT, then CONSULTANT shall consent to and make such modifications or amendments immediately. If CONSULTANT is unable to comply with applicable local, state, or federal laws and regulations governing the grant of such funds for SERVICES to be rendered herein, then the CITY shall have the right, by written notice to CONSULTANT, to terminate this AGREEMENT without liability, as outlined above. Furthermore, if CONSULTANT's compliance with such laws, regulations, rules or procedures causes a material change to a term or condition of this AGREEMENT, then the CITY agrees, upon sufficient proof of material changes as may be presented to it by CONSULTANT, to amend all related CITY/CONSULTANT contractual obligations, and to revise such contract budgets accordingly. 5. CONSULTANT shall pay all license fees and royalties, and assume all costs incident to the use, in the performance of the Work, of any invention, design process, product, or device which is the subject of patent rights or copyrights held by others. CONSULTANT also agrees that any invention, design, process, product, device, proprietary system, or proprietary process for which an approval (of any type) may be 10 necessary, shall have been secured by CONSULTANT before the onset of this AGREEMENT. CONSULTANT shall indemnify and hold harmless the CITY, its agents, employees, and elected and appointed officials, from and against all claims, damages, losses, and expenses (including attorneys' fees and costs, and attorneys' fees and costs on appeal) arising out of any infringement of patent rights, copyrights, or proprietary rights incident to the use in the performance of the SERVICES, and shall defend, at the CITY's option, all such claims in connection with any alleged infringement of such rights. K. NOTICE All notices required to be given to CONSULTANT hereunder shall be in writing, and shall be given by hand-delivery or United States mail, postage prepaid, addressed to: All notices required to be given to the CITY shall be in writing, and shall be given by hand-delivery or United States mail,postage prepaid, addressed to: CITY OF OCOEE 150 North Lakeshore Drive Ocoee, Florida 34761 L. Either party may changes its address, for the purposes of this Paragraph, by written notice to the other party given in accordance with the provisions of this Paragraph. M. ENTIRE AGREEMENT, EFFECTIVE DATE, AMENDMENTS, ENFORCEABILITY 1. This AGREEMENT, including the EXHIBITS hereto, constitutes the entire AGREEMENT between the parties, and shall supersede and replace all prior agreements or understandings, written or oral, relating to the matters set forth herein. 2. This AGREEMENT shall also be of full force and effect upon its date of execution by the CITY, and shall supersede any and all contractual arrangements that may have been in effect between the CITY and CONSULTANT, for these (or any related) SERVICES, before that time. 3. This AGREEMENT may be amended or modified by a writing of import equal to this AGREEMENT, and as duly authorized and executed by the parties. 4. The validity, interpretation, construction, and effect of this AGREEMENT shall be in accordance with and governed by the laws of the State of Florida, only. In the event any provision hereof is determined to be unenforceable or invalid, such unenforceability 11 or invalidity shall not affect the remaining provisions of this AGREEMENT, which shall remain in full force and effect. To that extent, this AGREEMENT is deemed severable. N. HEADINGS 1. The headings of the SECTIONS of this AGREEMENT are for the purpose of convenience only, and shall not be deemed to expand, limit, or modify the provisions contained in such SECTIONS. O. GENERAL CONSIDERATIONS 1. CONSULTANT hereby waives any claim against the CITY, its elected or appointed officials, officers, agents, or employees, for any loss of anticipated profits caused by any suit or proceedings brought by any third party directly or indirectly attacking the validity of this AGREEMENT or any part thereof; or by any judgement or award in any suit or proceeding declaring this AGREEMENT null, void, or voidable, or delaying the same, or any part thereof, from being performed. 2. CONSULTANT warrants that it has not employed or retained any company or person, other than bona fide personnel working solely for CONSULTANT, to solicit or secure this AGREEMENT, and that it has not paid, or agreed to pay, or given or offered any fee, commission, percentage, gift, loan, or any thing of value (VALUE) to any person, company, corporation, individual, or firm, other than bona fide Personnel working solely for CONSULTANT, in consideration for, or contingent upon, or resulting from the award or making of this AGREEMENT. It is absolutely understood and agreed to by CONSULTANT that, for the breach or violation of this Paragraph, the CITY shall have the right to terminate this AGREEMENT without liability and at its sole discretion, and to deduct from the contract price, or to otherwise recover, the full amount of any Value. 3. It is agreed by CONSULTANT that the AGREEMENT price, and any additions thereto, shall be adjusted to exclude any significant sums (plus interest at one percent [1%] simple interest per month on the sums) by which the CITY determines that the price was increased due to inaccurate, incomplete, or inapplicable wage rates or other costs. The CITY may make such adjustments for five (5) years following the termination of this AGREEMENT. 4. Any Person or affiliate, as defined in 287.133 of the Florida Statutes, shall not be allowed to contract with the CITY, nor be allowed to enter into a subcontract for work on this Agreement, if such a person or affiliate has been convicted or a public entity crime within three (3) years of the date this Agreement was advertised for proposals, or if such person or affiliate was listed on the State's convicted vendor list, within three (3) years of the date this Agreement was advertised, whichever time period is greater. A public entity crime means a violation of any state or federal law with respect to and directly related to the transaction of business with any public entity or agency (federal, state or local), involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, forgery, 12 falsification of records, receiving stolen property or material misrepresentation. Any Agreement with the CITY obtained in violation of this Section shall be subject to termination for cause. A Subconsultant who obtains a subcontract in violation of this Section shall be removed from the Project and promptly replaced by a Subconsultant acceptable to the City. IN WITNESS WHEREOF, this AGREEMENT has been fully executed on behalf of the parties hereto by its duly authorized representatives, as of the date first written above. CITY OF OCOEE By: S. Scott Vandergrift, Mayor ATTEST: Jean Grafton, City Clerk APPROVED AS TO FORM AND LEGALITY for the use and reliance of the City of Ocoee, Florida, only. City Attorney WITNESSES: By: Print Name: Title: 13 STATE OF FLORIDA ) COUNTY OF ORANGE ) PERSONALLY APPEARED before me, the undersigned authority, , [ ] well known to me or [ ] who has produced his/her as identification, and known by me to be the of the corporation named above, and acknowledged before me that he/she executed the foregoing instrument on behalf of said corporation as its true act and deed, and that he/she was duly authorized to do so. WITNESS my hand and official seal this day of , 199 . NOTARY PUBLIC Print Name: My Commission Expires: 14 EXHIBIT I SCOPE OF SERVICES The CONSULTANT shall perform all survey services in accordance with Florida Statutes §472 and §177, Florida Administrative Code 61 G 17-6 and City of Ocoee Codes. These services shall include but not be limited to: 1. As-Built Surveys: Horizontal and vertical location of constructed improvements. 2. Boundary Surveys: Perimeters of parcels for locations,platting or dividing. 3. Construction Layout: Horizontal and vertical measurements for construction. 4. Control Surveys: Horizontal and vertical positions for support of subordinate surveys or mapping. 5. Hydrographic Surveys: Data relating to bodies of water. 6. Mean High Water Line Surveys: F.S. §177, Part II Surveys. 7. Quantity Surveys: Measurements to determine quantity. 8. Right-of-Way Surveys: Strip of land for travel, drainage and utilities, etc. 9. Specific or Special Purpose Surveys: A specific purpose not defined by any other type. 10. Topographic Surveys: Horizontal and vertical spatial relations of selected man- made and/or natural features on or below the earth's surface. 11. Providing survey data on diskettes in the most recent version of Autocad software FORMAT, together with COGO information in a format compatible with the City of Ocoee's requirements. 12. Advise, assistance and possible court and administrative hearing appearance(s) regarding future legal matters. 15 EXHIBIT II SERVICES AUTHORIZATION As detailed in Article B, the City may authorize the CONSULTANT to proceed with a project, without negotiating and executing a formal Amendment or Services Authorization to the existing AGREEMENT, provided that any such project has been authorized in writing by the City Engineer/Utilities Director. The City reserves the right to modify this list at any time, and to authorize other City of Ocoee personnel to contract with the CONSULTANT for the services and projects that are contemplated in this AGREEMENT. 16