VII (D) Execution of Services Authorization No. 2000-PD-001 with Architects Design Group, Inc Agenda 4-04-2000
Item VII D
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Ocoee Police DepartmentChief f
175 N. Bluford Avenue•Ocoee,FL 34761 •(407)656-1518•Fax(407)656-0218 O .�011l!'
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TO: The Honorable Mayor and Board of City Commissioners
FROM: Robert E. Mark, Chief of Police _
DATE: March 28, 2000
SUBJECT: EXECUTION OF SERVICES AUTHORIZATION NO. 2000-PD-001
STAFF REPORT
In August 1999, The Honorable Mayor and Board of City Commissions authorized contract
negotiations begin with the City and Architects Design Architectural Firm. The work in this project
generally includes: (1) Spatial Needs Assessment and Feasibility Study, (2) Site location and
Evaluation, (3) Master Planning and Design. Attached is a completed copy of the Architectural
Planning and Services Agreement which is in the City Clerk's Office awaiting the Mayor's
signature.
Also attached is a copy of the Services Authorization No. 2000-PD-001 for Spatial Needs
Assessment and Feasibility Study which has been executed by Architects Design Group, Inc. and
is in the City Clerk's Office for the Mayor's signature.
It is respectfully recommended that the Honorable Mayor and Board of City Commissioners
authorize the Mayor and City Clerk to execute Services Authorization NO. 2000-PD-001 between
Architects Design Group Incorporated and the City of Ocoee,Florida for Spatial Needs Assessment
and Feasibility Study in the amount not to exceed $22,300.
pay, _
SERVICES AUTHORIZATION
UNDER
ARCHITECTURAL AND PLANNING SERVICES AGREEMENT
for the
PLANNING AND ARCHITECTURAL SERVICES RELATED TO
THE POLICE DEPARTMENT FACILITIES
THIS SERVICES AUTHORIZATION, NO. 2000-PD-001 ("SA2000-PD-001") as of
this day of , 2000, shall constitute an addendum to the Architectural and
Planning Services Agreement by and between the CITY OF OCOEE, FLORIDA(the "City")
and ARCHITECTS DESIGN GROUP,INC.(the"Architect")for the planning and architectural
services related to the construction of the police department facilities dated the day of
, 2000 (the "Agreement")
WHEREAS,the City and Architect entered into the Agreement whereby the City retained
the Architect to provide professional planning and architectural services relating to the construction
of police department facilities within the City; and
WHEREAS, Section 1.3 of the Agreement provides that the City shall from time to time
authorize in writing the services to be performed by the Architect as set forth in the Agreement;
and
WHEREAS, the City desires that the Architect perform the planning and architectural
services for the City as set forth in this SA2000-PD-001.
NOW,THEREFORE,in consideration of the mutual covenants and promises hereinafter
set forth on the part of both parties to be kept and performed, the parties do mutually agree as
follows:
SECTION 1 - Services by the Architect
The Architect shall perform the spatial needs assessment services set forth in the Planning
Phase Services (Phase I) as described in Section 4.1.1 through Section 4.1.11 of the Agreement.
Additionally, Architect shall make a presentation to the City Commission as set forth in Section
4.1.20, provided that, such presentation shall only concern the spatial needs assessment services
set forth above.
SECTION 2 - Period of Service
The Architect shall complete the services described above within sixty(60) days after the
date this SA2000-PD-001 is executed by the City.
SECTION 3 - Compensation
Compensation by City for the services described above shall be in accordance with Article
6 of the Agreement. The services provided under this SA2000-PD-001 shall be performed for a
fixed fee of$19,300.86,plus reimbursable expenses not to exceed$3,000.00.
IN WITNESS WHEREOF, the City and Architect have executed this Services
Authorization No. SA2000-PD-001 the day and year hereinabove set forth.
ARCHITECT:
ARCHITECTS DESIGN GROUP,INC.,
a Florida corporation
Printed Name: Name:
Title:
Date:
Printed Name:
333 N. Knowles Avenue
Winter Park, Florida 32790
(SEAL)
CITY:
CITY OF OCOEE, FLORIDA
a Florida municipal corporation
By:
S. Scott Vandergrift,Mayor
Attest:
Jean Grafton, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE
THE CITY OF OCOEE, FLORIDA; CITY COMMISSION AT A
APPROVED AS TO FORM AND MEETING HELD ON
LEGALITY this day of 2000, UNDER AGENDA ITEM
,2000. NO.
FOLEY & LARDNER
By:
City Attorney
ARCHITECTURAL AND PLANNING SERVICES AGREEMENT
BY AND BETWEEN
ARCHITECTS DESIGN GROUP, INC.
AND
THE CITY OF OCOEE, FLORIDA
For Planning and Architectural Services Related to the Construction
of Police Department Facilities
006.154745.5
TABLE OF CONTENTS
ARTICLE 1 - GENERAL PROVISIONS 1
ARTICLE 2 - CITY RESPONSIBILITIES 3
ARTICLE 3 - ARCHITECT'S RESPONSIBILITIES 4
ARTICLE 4 - SCOPE OF SERVICES 4
ARTICLE 5 - TIME OF COMPLETION 16
ARTICLE 6 - PAYMENTS TO THE ARCHITECT 16
ARTICLE 7 - STANDARD OF PERFORMANCE AND WARRANTY 21
ARTICLE 8 - CHANGES IN THE WORK 21
ARTICLE 9 - INDEMNIFICATION AND INSURANCE 22
ARTICLE 10 - DISCLOSURE 24
ARTICLE 11 - AMENDMENTS 24
ARTICLE 12 - TIME OF PERFORMANCE AND SCHEDULE 25
ARTICLE 13 - PROJECT RECORDS 25
ARTICLE 14 - OWNERSHIP OF THE FINAL RECORDS 25
ARTICLE 15 - APPLICABLE LAW 25
ARTICLE 16 - SUCCESSORS AND ASSIGNS 25
ARTICLE 17 - NOTICES 26
ARTICLE 18 - TERMINATION 26
ARTICLE 19 - DISPUTE RESOLUTION PROCEDURES 27
ARTICLE 20 - ENTIRE AGREEMENT 28
ARTICLE 21 - INVALID PROVISIONS 28
t
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006.154745.5
PLANNING AND ARCHITECTURAL SERVICES AGREEMENT
BY AND BETWEEN ARCHITECTS DESIGN GROUP, INC. AND THE
CITY OF OCOEE, FLORIDA
RFQ #9901
THIS PLANNING AND ARCHITECTURAL SERVICES AGREEMENT (the
"Agreement") is made this day of , 2000 by and between
ARCHITECTS DESIGN GROUP, INC., a Florida corporation whose address is 333 N.
Knowles Avenue, Winter Park, Florida 32790 (hereinafter "Architect") and THE CITY OF
OCOEE, FLORIDA, a Florida municipal corporation whose address is 150 N. Lakeshore
Drive, Ocoee, Florida 34761-2258 (hereinafter "City").
WITNESSETH:
WHEREAS, the City issued Request for Qualifications number 9901 soliciting
qualifications for the provision of planning and architectural services relating to the City's
construction of new police facilities (the "Project"); and
WHEREAS, Architect, having specialized skills and an interest in undertaking the
Project, has timely submitted a proposal in response to the City's Request for Qualifications,
whereby Architect has offered to undertake the Project in accordance with the City's Request
for Qualifications; and
WHEREAS, the City selected and designated Architect to provide the services relating
to the Project, subject to the negotiation, preparation, approval and execution of a definitive
agreement between City and Architect; and
WHEREAS, the City and Architect are desirous of entering into such a definitive
agreement pursuant to which Architect will provide the services relating to the Project, all as
more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual obligations
contained herein the parties agree as follows:
ARTICLE 1 - GENERAL PROVISIONS
1.1. EXTENT OF AGREEMENT; DEFINITIONS:
1.1.1. Agreement. The Architect accepts the relationship of trust and
confidence established between it and the City by this Agreement. The Architect covenants
with the City to furnish its skill and judgment as an architect with specific expertise in
determining the needs and requirements necessary to construct the City's police facilities and
to cooperate with the City and the City's representatives in furthering the interests of the City.
The Architect agrees to provide the services required by this Agreement, to complete such
006.154745.5
services consistent with the City's direction and the terms of this Agreement, and in
accordance with a standard of care which is ordinarily exercised by other architects in similar
circumstances.
1.1.2. Term and Scope. This Agreement shall be for a term of three (3) years
from the effective date hereof with the City having an option to extend the Agreement for two
additional one (1) year terms, the term of this Agreement being subject to the City's rights to
terminate for convenience.
1.1.3. Coordination. Architect recognizes that the City has allocated funds
relating to a municipal project near City Hall ("Lakefront and Municipal Complex
Masterplan"). Throughout the term of this Agreement and at all phases of this Project,
Architect shall coordinate its work with the project team undertaking the Lakefront and
Municipal Complex Masterplan project.
1.2. REPRESENTATIONS AND WARRANTIES:
1.2.1. Representations and Warranties by Architect. By executing this
Agreement, Architect makes the following express representations and warranties to the City:
1.2.1.1. The Architect is professionally qualified to perform the
services contemplated by this Agreement and is licensed to practice by all public
entities having jurisdiction over the Architect and/or this Project;
1.2.1.2. The Architect shall maintain all necessary licenses,
permits or other authorizations necessary to perform the services contemplated
by the Agreement until the Architect's duties hereunder have been fully
satisfied;
1.2.1.3. The Architect is not in violation of any provision of any
law that is in any manner material to its ability to perform its obligations
hereunder; and
1.2.1.4. Architect will provide all services required to complete
the Project in accordance with the City's established guidelines, goals,
objectives, constraints, schedules and budget as well as in accordance with the
scope of services which shall include, but is not limited to, those identified
under Article 4.
1.2.2. Representations and Warranties by City.
1.2.2.1. City is a duly created and existing political subdivision of
the State of Florida, is qualified to do business under and pursuant to the laws of
the State of Florida, and has the requisite power to enter into this Agreement
and perform its obligations hereunder;
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1.2.2.2. City has duly authorized the execution and delivery hereof
and, assuming due performance by Architect, the Agreement constitutes a legal,
valid, and binding agreement of City, enforceable against City in accordance
with its terms; and
1.2.2.3. City is not in violation of any provision of any law that is
in any manner material to its ability to perform its obligations hereunder.
1.3. SERVICES AUTHORIZATION: The City shall, from time to time at its sole
discretion, authorize the Architect in writing to provide services by means of a Services
Authorization under the terms of this Agreement. A Services Authorization shall, by mutual
agreement of the parties, set forth, (1) the particular Scope of Services as set forth in Section 4
of this Agreement which are applicable, (2) the time for performance, (3) method and amount
of compensation, (4) the Deliverables, if any (which are the items to be provided to the City as
a result of the Services), and (5) the services, information and data that can be provided by the
City to the Architect.
ARTICLE 2 - CITY RESPONSIBILITIES
2.1. The City may designate a representative authorized to act on the City's behalf
with respect to the Project (the "Director"). The City or such authorized representative shall
examine documents submitted by the Architect and shall render decisions in a timely manner
and in accordance with the schedule accepted by the City. The City may obtain independent
review of the services performed by a separate engineer, architect, contractor, or cost
estimator under contract to or employed by the City. Such independent review shall be
undertaken at the City''s expense in a timely manner and shall not delay the orderly progress of
the Project.
2.2. At the Architect's request, the City agrees to make available to the Architect all
pertinent information known to be available to the City to assist the Architect in providing and
performing the required professional services. However, the Architect is ultimately
responsible for satisfying itself as to accuracy of any information provided, and, furthermore,
the Architect is responsible for bringing to the City's attention, for the City's resolution, any
material inconsistencies or errors in such information which come to the Architect's attention.
2.3. If the City observes or otherwise becomes aware of a fault or defect in the
services provided, the City shall give prompt written notice thereof to the Architect.
2.4. The City shall, at the request of the Architect, prior to execution of this
Agreement and promptly upon request thereafter, furnish to the Architect reasonable evidence
that financial arrangements have been made to fulfill the City's obligations under this
Agreement.
2.5. The City shall communicate with persons or entities employed or retained by the
Architect through the Architect, unless otherwise directed by the Architect. •
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ARTICLE 3- ARCHITECT'S RESPONSIBILITIES
3.1. The Architect shall designate a representative authorized to act on the
Architect's behalf with respect to the Project.
3.2. Planning and architectural services required by this Agreement shall be
performed by qualified engineers, architects and/or other design and planning professionals.
The contractual obligations of such professional persons or entities shall be undertaken and
performed by the Architect, or pursuant to subcontract agreements that incorporate by
reference the terms and requirements of this Agreement, including all insurance requirements.
3.3. The Architect shall provide or cause to be provided and shall pay for design
services, labor, materials, equipment and other facilities and services necessary for proper
execution and completion of the Project, whether temporary or permanent and whether or not
incorporated or to be incorporated in the Project.
3.4. The Architect shall keep the City informed of the progress and quality of the
Project.
3.5. The Architect shall pay all sales, consumer, use and similar taxes which had
been legally enacted at the time the Architect's proposal was first submitted to the City.
3.6. The Architect shall comply with and give notices required by laws, ordinances,
rules, regulations and lawful orders of public authorities relating to the Project.
3.7. The Architect shall pay royalties and license fees for patented designs, processes
or products. The Architect shall defend suits or claims for infringement of patent rights and
shall hold the City harmless from loss on account thereof, but shall not be responsible for such
defense or loss when a particular design, process or product of a particular manufacturer is
required by the City.
ARTICLE 4 - SCOPE OF SERVICES
The Architect shall provide the services necessary and appropriate for the Project.
These services to be provided by the Architect include, but are not limited to:
4.1. PLANNING PHASE SERVICES (PHASE I): After written authorization to
proceed from the City to the Architect:
4.1.1. The Architect shall consult with City and Police Department (the
"Department") to review the Project, clarify and define the City's requirements for the
Project, review available data, establish parameters for the site selection and establish a project
schedule.
4.1.2. The Architect shall conduct an analysis of the operations of the Police
Department in order to fully understand its function and operations and the respective
interaction, relationship, adjacency priorities, and potential of joint use facilities.
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4.1.3. A detailed spatial needs assessment shall be conducted, and a report
provided that addresses the current and future space and facilities needs of the Department;
future needs being defined as those anticipated for the years 2010 and 2020. The process for
obtaining this information shall consist of preparing and completing a detailed questionnaire
and conducting on-site interviews with City staff, the City's Police Chief and Department staff.
4.1.4. The Architect, as a part of this first phase, shall document the historical,
current and future staffing levels and relate them to spatial needs.
4.1.5. The Architect shall review current and future parking requirements and
include this information in the final report.
4.1.6. The Architect shall consider potential alternatives including new stand-
alone facilities and the rehabilitation of the existing facilities, including appropriate additions
and renovations.
4.1.7. The Architect shall document any potential services, in terms of
increased or decreased levels, which would potentially impact upon facility size and function
requirements.
4.1.8. All proposed facilities, in terms of spatial need, shall comply with the
Southern Building Code, all City of Ocoee, State of Florida and federal laws governing
construction including the Americans with Disabilities Act, and conform with any particular
regulations relating to police department facilities.
4.1.9. Each alternative shall reflect sufficient evaluation criteria (positive and
negative) as to provide the City with the basis of making an informed judgment. Each
alternative shall clearly reflect estimated costs associated with each.
4.1.10. The Architect shall provide approximate project development costs,
including construction equipment and furnishings and miscellaneous project costs.
4.1.11. The Architect shall provide an assessment as to the amount of land and
the number of additional sites, substations or facilities deemed necessary to accommodate the
needs of the Department.
4.1.12. Based on the results of the above-referenced spatial needs assessment and
in consultation with the City, the Architect shall select and conduct a review of the appropriate
site or sites, in order to establish appropriate criteria resulting in selection of the preferred site
or sites.
4.1.13. The Architect shall accumulate and/or prepare information on each site
consisting of:
4.1.13.1. Site surveys and documentation as to site size.
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4.1.13.2. Property zoning and zoning associated with adjacent
properties.
4.1.13.3. Documentation as to actual adjacent land uses.
4.1.13.4. In the case when a parcel contains an existing structure or
structures, a preliminary assessment to determine their appropriateness for
adaptive re-use as a law enforcement facility.
4.1.13.5. Information as to utilities serving each site, in terms of the
location, size and capacity.
4.1.13.6. Aerial photographs, illustrative of adjacent roadways,
vegetation and general development density of the area in proximity to the site.
4.1.14. Based upon the information obtained, the Architect shall prepare a
comparative matrix, providing criteria, on a weighted scale, that would permit each site to be
objectively evaluated.
4.1.15. Based upon the information obtained by comparing and analyzing the
three (3) alternatives, the Architect shall, in consultation with the City, select one or more of
the sites.
4.1.16. Obtain for the City, for the selected site or sites, additional site
information including a site survey, location and capacity of utilities (water, sewer,
stormwater), vegetation coverage (to be included on survey), site soils borings, site topography
and geotechnical analysis.
4.1.17. The Architect shall continue the review of the selected site and evaluate
the existing adjacent area relative to current zoning and actual land use and reflect this
information in the Master Planning Documents.
4.1.18. Based on the selected site or sites, the Architect shall prepare Master
Plan Documents illustrating:
4.1.18.1. Proposed land utilization.
4.1.18.2. The location and general configuration of "current need"
facilities.
4.1.18.3. Areas of potential expansion for future needs.
4.1.18.4. The location of vehicle access and egress by both the City
and the public.
4.1.18.5. Pedestrian areas and site circulation.
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4.1.18.6. Vehicle parking areas.
4.1.18.7. The area designed for stormwater retention.
4.1.19. The Architect shall then prepare final Master Planning Drawings
illustrative of the proposed solution and shall provide a mass model of the site(s) of sufficient
detail as to explain the concept.
4,1.20. As a part of this phase, the Architect shall make a preliminary and final
formal presentation to the City Commission. The basis of these presentations shall be to fully
explain the proposed Master Plan and to respond to and consider questions and/or
recommendations by the City and citizens of Ocoee.
4.2. DESIGN PHASE SERVICES (PHASE II): In consultation with the City, and
on the basis of the accepted study and report documents, the Architect shall determine the
general scope, extent and character of the Project. After written authorization to proceed with
the Design Phase Services as to a site, the Architect shall:
4.2.1. Make a personal examination of the proposed Project site, and, as may
reasonably be discoverable, note site conditions and impediments that pertain to or might
adversely affect the timely, efficient, and economical completion of any phase of the Project,
or the Project as a whole. The Architect shall promptly report any adverse site conditions to
the City.
4.2.2. Prepare preliminary design documents consisting of final design criteria,
preliminary drawings, outline specifications and written descriptions of the Project.
4.2.3. As a minimum, provide the City with a 50% and 90% complete
document(s) for preliminary review during the development and submission of the preliminary
design phase report. In addition, Architect will meet with the City to discuss preliminary
submittal reviews by the City.
4.2.4. Provide services to investigate existing conditions or facilities, or to
verify the accuracy of drawings or other information furnished by the City or others to-the
Architect. Such verification services shall be set forth in the applicable Services Authorization.
4.2.5. Advise the City if additional data or services are necessary for
preliminary design, and assist the City in obtaining such data and services.
4.2.6. Based on the information contained in the preliminary design documents,
submit a revised Total Project Cost estimate to the City.
4.2.7. Furnish the number of copies identified in the Services Authorization of
the above preliminary design documents, and present and review them in person with the City.
4.2.8. On the basis of the accepted preliminary design documents and the Total
Project Cost estimate, prepare for incorporation in the Construction Contract Documents final
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drawings (Drawings) to show the general scope, extent and character of the work to be
furnished and performed by the Project Contractor(s), and specifications (Specifications)
(which will be prepared in conformance with the sixteen-division format of the Construction
Specifications Institute).
4.2.9. Prepare and furnish to the City such documents and design data as may
be required by the City, so that the City may apply for approvals of such governmental
authorities as have jurisdiction over design criteria applicable to the Project. The Architect
shall also assist the City in obtaining such approvals by submitting, participating and/or leading
in negotiations with appropriate authorities, and the Services Authorization shall define the
Architect's role in this regard.
4.2.10. In conjunction with furnishing the related Drawings and Specifications to
the City, advise the City promptly, in writing, at the thirty percent (30%), sixty percent
(60%), and ninety percent (90%) completion stages of the Project, of the estimated Project
construction cost.
4.2.11. Advise the City of any significant adjustments to the latest Total Project
Cost estimate caused by changes in Project extent or design requirements or by variations in
construction costs and furnish a revised Total Project Cost estimate based on the latest
Drawings and Specifications.
4.2.12. Prepare for review and approval by the City, Invitations For Bid, Bid
Forms (where appropriate), Supplementary Conditions and assist in the preparation of other
related documents.
4.2.13. Furnish number of copies as identified in the Services Authorization of
the Drawings and Specifications and present and review them in person with the City.
4.2.14. Assist the City in advertising for and obtaining bids or negotiating
proposals for each separate prime contract for construction, materials, equipment, and
services; and, when authorized in the applicable Services Authorization, attend pre-bid
conferences.
4.2.15. Issue addenda as appropriate to interpret, clarify or expand the bidding
documents or in response to written questions received during the Bid Phase.
4.2.16. Consult with and advise the City as to the acceptability of the prime
Contractor as well as subcontractors, suppliers and other persons and organizations proposed
by the prime Contractor(s) for those portions of the work where determination of such
acceptability is required by the bidding documents.
• 4.2.17. Consult with the City concerning, and determine the acceptability of,
substitute materials and equipment proposed by the Contractor(s) when substitution is allowed
by the bidding documents.
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4.2.18. Assist the City in evaluating bids or proposals and in assembling and
awarding contracts for construction, materials, equipment and services.-
4.3. CONSTRUCTION PHASE SERVICES (PHASE III): During the
Construction Phase, the Architect shall, if requested by the City:
4.3.1. Consult with and advise the City and act as its representative as provided
in the City's Standard Construction Contract Documents (Construction Contract Documents).
The City shall have sole discretion as to the form of these contract documents, or as how they
are to be amended pursuant to any Project, or as how they may otherwise be amended from
time to time.
4.3.2. Pre-Construction Meeting. Prepare for and attend a pre-construction
meeting conducted by the City with representatives of the Contractor(s), subcontractor(s),
utility companies, etc., for the Project, as determined necessary by the City.
4.3.3. Work in Progress. In connection with observations of the work of
Contractor(s) while it is in progress:
4.3.3.1. The Architect shall make visits to the site at intervals
appropriate to the various stages of construction as the Architect deems
necessary, and in order to observe as an experienced and qualified design
professional the progress and quality of the various aspects of Contractor(s)'
work. In addition, the Architect may provide, if requested by the City in a
Services Authorization, the services of a Construction Manager and/or Field
Representative (and assistants as agreed) at the site to assist the Architect and to
provide more continuous observation of such work. Based on information
obtained during such visits and on such observations, the Architect shall
determine in general if such work is proceeding in accordance with the
Construction Contract Documents, Drawings and Specifications, and the
Architect shall inform the City on the progress of the work.
4.3.3.2. If authorized in the Services Authorization, the
Construction Manager and/or Field Representative (and any assistants) will'be
the Architect's agent or employee and under the Architect's supervision. The
duties and responsibilities of the Construction Manager and/or Field
Representative (and assistants) are set forth in the Construction Contract
Documents, or as may otherwise be agreed in a Services Authorization. Daily
Reports generated by the Construction Manager and/or Field Representative(s)
shall be in a form acceptable to the City, and shall be submitted to the City on a
weekly basis throughout the construction phase of the Project (from Notice to
Proceed through Final Acceptance of the work).
4.3.3.3. The purpose of the Architect's visits to and representation
by the Construction Manager and/or Field Representative (and assistants, if any)
at the site will be to enable the Architect to better carry out the duties and
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•
responsibilities assigned to and undertaken by the Architect during the
Construction Phase, and, in addition, by exercise of the Architect's efforts as an
experienced and qualified design professional, to provide confidence for the City
that the completed work of the Contractor(s) will conform to the Construction
Contract Documents, Drawings and Specifications and that the integrity of the
design concept as reflected in the aforesaid documents has been implemented
and preserved by the Contractor(s). The Architect shall not, however, during
such visits or as a result of such observations of the Contractor(s)' work in
progress, supervise, direct or have control over the Contractor(s)' work, nor
shall the Architect have authority over or responsibility for the means, methods,
techniques, sequences or procedures of construction selected by the
Contractor(s), for safety precautions and programs incident to the work of the
Contractor(s), or for any failure of the Contractor(s) to comply with laws, rules,
regulations, ordinances, codes or orders applicable to the Contractor(s)'
furnishing and performing their work. Accordingly, the Architect can neither
guarantee the performance of the construction contract by the Contractor(s), nor
assume responsibility for the Contractor(s)' failure to furnish and perform their
work in accordance with the Construction Contract Documents, Drawings and
Specifications.
4.3.4. Defective Work. During such visits and on the basis of such
observations, the Architect shall keep the City informed of the progress of the work, shall
endeavor to guard the City against defects and deficiencies in such work, and may disapprove
of or reject the Contractor(s)' work while it is in progress if the Architect believes that such
work will not produce a completed Project that conforms generally to the Construction
Contract Documents,Drawings and Specifications or that it will prejudice the integrity of the
design concept of the Project as reflected in the Construction Contract Documents, Drawings
and Specifications. The Architect shall advise the City in a timely manner of defect(s) in the
Contractor's or Subcontractor's work, and of the action taken to have the defect(s) corrected.
4.3.5. Shop Drawings. The Architect agrees to review and approve shop
drawings, diagrams, illustrations, brochures, catalog data, schedules, and samples, results of
tests and inspections and other data which any Contractor is required to submit, but only for
conformance with the design concept of the Project and compliance with the information given
in the Contract Documents; and receive and review maintenance and operating instructions,
schedules, guarantees, bonds, and certificates of inspection which are to be assembled by the
Contractor(s) in accordance with the Contract Documents. The Architect may be allowed to
use its shop drawing stamp during review provided the format and language of the shop
drawing stamp is approved by the City prior to use.
Furthermore, the Architect agrees that it shall devise a separate tracking system for Shop
Drawings previously disapproved, or for which corrections, modifications, or changes are
necessary. The tracking system shall be both timely and efficient, and shall account for the
status and party responsible to correct all previously submitted Shop Drawings until their
complete approval and acceptance. The tracking system shall include, but not be limited to, the
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following Architect activities: subsequent to any Contractor's being ordered to start
construction work, the Architect shall transmit to the City, if required by Services
Authorization and at such frequency as defined therein, a list of Shop Drawings anticipated for
such construction contract, the names of Shop Drawings, their due dates (in accordance with
Shop Drawing schedules submitted by the Contractor(s)) required from the Contractor(s };
their dates of issue, receipt, checking, return for correction, resubmission, and approval; and
any information that will clearly provide the City with the progress of Project Shop Drawings;
provided, however, that in any event all Shop Drawings that have been submitted to the
Architect (whether for approval or reapproval) shall be reviewed and returned by the Architect
within twenty (20) days of submission.
4.3.6. Interpretations and Clarifications. The Architect shall issue necessary
interpretations and clarifications of the Drawings and Specifications and in connection
therewith prepare work directive changes and change orders as required. In addition, the
Architect shall respond, in writing, to all "Requests For Information" (RFI). All RFIs and
responses thereto shall be submitted to the City.
4.3.7. Substitutes. The Architect shall evaluate and determine the acceptability
of substitute materials and equipment proposed by the Contractor(s).
4.3.8. Inspections and Tests. The Architect shall have authority, as the City's
representative, to require special inspection or testing of the work, and shall receive and
review all certificates of inspections, testings and approvals required by laws, rules,
regulations, ordinances, codes, orders and terms of the Drawings and Specifications (but only
to determine generally that their content complies with the requirements of, and the results
certified indicate compliance with, the Drawings and Specifications) and, in addition, the
Architect shall have authority, as the City's representative, to act as initial interpreter of the
requirements of the Drawings and Specifications.
4.3.9. Applications for Payment. Based on the Architect's on-site observations
as an experienced and qualified design professional and on review of applications for payment
and the accompanying data and schedules, the Architect shall determine the amounts owing to
the Contractor(s) and recommend in writing payments to the Contractor(s) in such amounts:
such recommendations of payment will constitute a representation to the City, based on such
observations and review, that the work has progressed to the point indicated, and that, to the
best of the Architect's knowledge, information and belief, the quality of such work is generally
in accordance with the Construction Contract Documents, Drawings and Specifications (subject
to an evaluation of such work as a functioning Project upon Substantial Completion, to the
results of any subsequent tests called for in the Construction Contract Documents, and to any
qualifications stated in his recommendation), and that payment of the amount recommended is
due to the Contractor(s); but by recommending any payment, the Architect will not thereby be
deemed to have represented that continuous or exhaustive examinations have been made by the
Architect to check the quality or quantity of the work or impose on the Architect responsibility
to supervise, direct, or control such work, or for the means, methods, sequences, techniques or
procedures of construction or safety precautions or program incident thereto, or that the
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Architect has made an examination to ascertain how or for what purposes any Contractor has
used the moneys paid on account of the Contract Price, or that title to any of the work,
materials or equipment has passed to the City free and clear of any lien, claims, security
interests or encumbrances, or that the Contractor(s) have completed their work exactly in
accordance with the Contract Documents, Drawings and Specifications.
4.3.10. Review Record Drawings. If providing Construction Manager and/or
Field Representative Services, the Architect shall periodically review the Record Drawings as
prepared by the Contractor(s) and verify the accuracy and completeness thereof prior to
recommendation to the City of the release of progress payments for the work in question.
4.3.11. Track Progress of Contractor. If providing Construction Manager and/or
Field Representative Services, the Architect shall track the progress of the Contractor(s) and
submit a written report to the City, at the 30%, 60% and 90% stages of the construction (as
identified by the Contractor(s) original approved schedule) or as defined in the Services
Authorization, documenting the progress of the Contractor relative to the original approved
Schedule.
4.3.12. Minimize Claims. The Architect shall endeavor to minimize the potential
areas for Contractor claims by initiating timely, thorough, and complete communication among
the City and the design and construction contract principals; other local, state, or federal
parties (when directed by the City); or private entities that may also be involved. Upon
identification of a potential Contractor claim, the Architect shall immediately notify the City of
all data relevant to the potential Contractor claims, and of which the Architect is aware.
4.3.13.. Resolve Construction-Related Difficulties. The Architect shall report to
the City the status of all significant construction-related system operational and system quality
concerns, as well as the actions taken by the Architect to encourage effective communication
and timely resolution thereof. Once a problem area is identified, the Architect shall keep a
detailed log on the item in question, and pursue the timely resolution of that item.
4.3.14. Contractor(s)' Completion Documents. The Architect shall receive and
review maintenance operating instructions, schedules, guarantees, bonds and certificate of
inspection, tests and approvals which are to be assembled by the Contractor(s) in accordance
with the Construction Contract Documents (but such review will only be to determine that their
content complies with the requirements of, and, in the case of certificates of inspection, tests,
and approvals, the results certified will indicate compliance with the Construction Contract
Documents, Drawings and Specifications); and shall transmit them to the City with written
comments.
4.3.15. Inspections. The Architect shall conduct an inspection to determine if the
Project is substantially complete and a final inspection to determine if the Project has been
completed in general accordance with the Construction Contract Documents, Drawings and
Specifications, so that the Architect may recommend, in writing, final payment to each
Contractor, and may give written notice to the City and the Contractor(s),that the work is
acceptable (subject to any conditions, therein expressed). In addition, the Architect shall
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conduct a warranty inspection and report to the City, in writing, the results of the inspection,
including any warranty related defects identified.
4.3.16. Limitation of Responsibilities. The Architect shall not be responsible for
the acts or omissions of any Contractor, or of any subcontractor or supplier, or any of the
Contractor(s)' or subcontractor's or supplier's agents or employees or any other persons
(except the Architect's own subconsultants, employees and agents) at the site or otherwise
furnishing or performing any of the Contractor(s)' work; provided, however, that nothing
contained in Subsections 1.6.1 through 1.6.15, inclusive, shall be construed to release the
Architect from liability for failure to properly perform duties and responsibilities assumed by
the Architect.
4.3.17. Subcontractors and Subconsultants. In performing the services and to see
them to a timely, efficient, and cost-effective completion, the Architect shall have the right to
employ other firms, consultants, contractors, subcontractors, and so forth (Subconsultants).
While the City shall make no demand that the Architect hire any particular Subconsultant for
any specific Project, by acquiescing to or accepting a Subconsultant hired by the Architect, the
City does not guarantee or warrant the reliability or effectiveness of that entity's services.
4.4. ADDITIONAL SERVICES: The City may, at its sole discretion, provide the
Architect with a Services Authorization to furnish or obtain (from others) Additional Services
of the following types which are not considered normal or customary Basic Services, as
described above. These additional services may include, but are not limited to, the following:
4.4.1. Preparation of applications and supporting documents (in addition to
those furnished under Basic Services) for private or governmental grants, loans or advances in
connection with the Project; preparation or review of environmental assessments and impact
statements; review and evaluation of the effect on the design requirements of the Project of any
statements and documents prepared by others; and assistance in obtaining approvals of
authorities having jurisdiction over the anticipated environmental impact of the Project.
4.4.2. Services resulting from significant changes in the previously approved
extent of the Project or its design including, but not limited to, changes in size, complexity;the
City's schedule, or character of construction or method of financing; and revising previously
accepted studies, reports, design documents or Construction Contract Documents when such
revisions are due to causes beyond the Architect's control.
4.4.3. Providing measured drawings, renderings or models for the City's or the
Architect's use.
4.4.4. Preparing documents for alternate bids requested by the City for the
Contractor(s)' work which is not executed, or documents for out-of-sequence work.
4.4.5. Investigations involving detailed consideration of operations,
maintenance and overhead expenses; Value Engineering during the course of design; cash flow
and economic evaluations not envisioned in a preliminary consulting report; rate schedules and
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appraisals; assistance in obtaining financing for the Project; processes available for licensing
and assisting the City in obtaining process licensing; detailed quantity surveys of material,
equipment and labor; and audits or inventories required in connection with construction
performed by the City.
4.4.6. Furnishing services of independent professional associates and
consultants for other than Basic Services (which include, but are not limited to, customary
civil, structural, mechanical, environmental, architectural, transportation, stormwater,
irrigation, landscaping, and electrical engineering); and for providing data or services beyond
those described as Basic Services, herein.
4.4.7. Services resulting from the award of more than one prime contract for
construction, materials, equipment or services for the Project, and services resulting from the
arranging for performance by persons (other than the prime Contractors) of services for the
City and administering the City's contracts for such services.
4.4.8. Services during out-of-town travel required of the Architect, other than
visits to the site or the City's office which are necessary for the performance of Basic Services.
4.4.9. Providing any type of field surveys for design purposes and engineering
surveys and staking to enable the Contractor(s) to proceed with their work; and providing other
special field surveys.
4.4.10. Where applicable, and with approval of the City, preparation of
operating and maintenance manuals; protracted or extensive assistance in the utilization of any
equipment or system (such as initial start up, testing, adjusting and balancing); and training
personnel for operation and maintenance.
4.4.11. Preparing to serve (or serving) as a consultant or witness for the City in
any litigation, arbitration or other legal or administrative proceeding involving the Project
(except for assistance in consultations included as part of Basic Services).
4.4.12. Services in connection with change orders to reflect changes requested
by the City, and making revisions to Drawings and Specifications occasioned thereby.
4.4.13. Preparing for the City, on request, a set of reproducible record prints of
signed and sealed Drawings showing those changes made during the construction process. Such
prints shall be based on the marked-up prints, drawings and other data furnished by the
Contractor(s) to the Architect and which the Architect considered significant (Record
Drawings). If the City requests the original Record Drawings so prepared by the Architect, the
Architect may have them delivered to a printer that will not unreasonably delay the delivery of
the record drawings. It is anticipated that the printer may deliver to the Architect a copy of the
original reproducible mylars. Both the original and copy of the original reproducible mylars
will be at no cost to the City. The City agrees to receive the original reproducible record
drawings directly from the printer. The City will acknowledge, in writing to the Architect, its
receipt of the original reproducible mylars. This receipt, however, shall not be construed as the
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City's acceptance or waiver of any errors or omissions, or both of these things, that may be
contained in the signed and sealed Record Drawings themselves. Upon receipt of the original
reproducible mylars, the City agrees that, as the Architect has not retained a reproducible copy
of the documents, the Architect will not produce further copies of these documents for the
City.
4.4.14. Additional or extended service during construction made necessary by,
(1) work damaged through means beyond control of the Architect, (2) a significant amount of
defective or neglected work of the Contractor(s) not resulting from the inadequate performance
of the Architect under the terms of the Agreement, (3) prolongation of contract time of any
prime Contractor by more than thirty (30) days, (4) acceleration of the progress schedule
involving Services beyond normal working hours, and (5) default by the prime Contractor(s).
4.4.15. Services after completion of the Construction Phase, such as inspections
during any guarantee period and reporting observed discrepancies under guarantees called for
in any construction contract for the Project.
4.4.16. Assistance in the preparation of ordinances.
4.4.17. Assistance in the preparation of agreements between the City and others
(including, but not limited to, other units of government, developers, districts, and
authorities).
4.4.18. Special studies, reports, investigations or analyses.
4.4.19. Services in connection with any partial utilization of any part of the
Project by the City prior to Substantial Completion.
4.4.20. Evaluating an unreasonable or extensive number of claims submitted by
the Contractor(s) or others in connection with the work, such unreasonableness and
extensiveness to be at the City's request and determination.
4.4.21. The filing of a written Status Report with the City concerning, 1) a
description of the Services performed and completed to a date certain, 2) the results of sfich
Services and work (i.e., their relation to the total Project Work, the percentage of Project
Services then completed), and 3) any other observations or comments that the Architect
believes or should reasonably believe will affect the successful completion of the Project, or
that should otherwise be brought to the City's attention. The frequency of such reports shall be
set forth in each Services Authorization.
4.4.22. Additional services in connection with the Project not otherwise defined
in the Basic Services, or as described elsewhere herein, and including but not limited to start-
up services that shall be defined in the appropriate Services Authorization.
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ARTICLE 5 - TIME OF COMPLETION
5.1. Architect shall complete all Phase I services on or before the date specified in
each Services Authorization.
5.2. Architect shall complete all Phase II services on or before the date specified in
each Services Authorization.
5.3. Architect shall complete all Phase III services on or before the date specified in
each Services Authorization.
ARTICLE 6 - PAYMENTS TO THE ARCHITECT
6.1. GENERAL:
6.1.1. The City will pay the Architect for the services as detailed in each of the
Architect's narrative monthly invoices (Invoices), and in accordance with the schedule of Fees
and reimbursable expenses as provided in each Services Authorization. The invoices shall be in
a format approved by the Project Manager.
6.1.2. The Architect fully acknowledges and agrees that if at any time it
performs services on a Project contemplated by the parties, such services which have not been,
a) fully negotiated, reduced to writing, and formally executed by both the City and Architect;
b) or reduced to writing by the City and signed by the City; then the Architect shall perform
such services without liability to the City, and at the Architect's own risk.
6.1.3. For other than lump-sum contracts, the City shall only be obligated to
pay for those services that the Architect can demonstrate are reasonable, provable, and within
the Scope of Services of any Services Authorization.
6.1.4. The City has established a maximum multiplier of 2.92 to be applicable
to the Wage Cost Multiplier method of compensation, as set forth below.
6.2. METHODS OF COMPENSATION: Within the Services Authorization
associated with each Project, the City and the Architect may agree on, but shall not be limited
to, one of the methods of compensation outlined in this Section. If a different method of
compensation is to be used, the Services Authorization will set forth the basis for such
compensation.
6.2.1. Wage Cost Multiplier
6.2.1.1. General. One method of compensation shall be calculated
by a wage or salary cost times (multiplied by) an actual audited overhead factor
(Wage Cost Multiplier); provided, however, that in no instance shall the factor
exceed 2.92 (Multiplier). Reimbursable expenses shall be compensation times a
factor of 1.0, and Subconsultants times a factor of up to 1.1. Reimbursable
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expenses include the pass-through costs incurred by the Architect. After
application of the Multiplier, the personnel costs shall include:
a. Salary
b. Social Security
c. Federal and State Unemployment Taxes
d. Worker's Compensation Insurance
e. Sick Leave
f. Vacation and Holiday Pay
g. Retirement and Medical Insurance Benefits
h. General and Administrative Overhead Costs
i. Quality Control (to ensure normal standard of
care)
j. Profit
k. Incidental Reproduction and Secretarial (not
attributable to a specific Project)
1. Office Support Costs (including accounting work
necessary for the maintenance of Project billings)
6.2.1.2. Wage Cost Multiplier for Construction Phase Services on
Major Projects. (This Subsection shall apply to assignments which require one
or more full-time field personnel assigned to a Project.) The City shall pay the
Architect an amount based on the direct salaries and wages of office and field
personnel times (multiplied by) the applicable factor as set forth below,'for
services rendered by officers, principals, and employees assigned to the Project;
plus reimbursable expenses times a factor 1.0; plus the cost of Subconsultants
times a factor of up to 1.1. The factors to be applied to direct salaries and wages
are as follows:
Factor
Office Services, defined as personnel Max 2.92
assigned to and based in the Architect's
regular places of business
Field Services, defined as personnel Max 2.92
assigned to and based in a furnished field
office which is provided by, (1) the
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construction Contractor, (2) the City, or
(3) by the Architect as a reimbursable
expense.
Reimbursable expenses shall be as defined in Subsection 6.3, with the following
additions and clarifications:
1. The cost of communications services and equipment for Field Personnel,
including but not limited to pagers, mobile radios, base station radios, and field
office telephones.
2. The cost of transportation equipment for field personnel based on the cost to
lease the vehicle(s), plus the estimated cost of insurance, fuel, and maintenance.
The Architect shall submit a Transportation Equipment Schedule showing the
number, types, and monthly cost of vehicles to be assigned to the Project as a
part of the Architect's cost proposal. The Architect shall invoice the City
monthly for the cost of transportation equipment in accordance with the
Transportation Equipment Schedule, which shall be part of the Services
Authorization for the Project.
6.2.2. Lump Sum. For services rendered, the City shall pay the Architect a
lump-sum fee, including or excluding reimbursable expenses as mutually agreed upon and set
forth in the Services Authorization. The Architect will invoice the City monthly, based upon
the Architect's estimate of the portion of the total services actually completed at the time of
billing.
6.3. REIMBURSABLE EXPENSES: "Reimbursable Expenses" means the actual,
necessary and reasonable expenses incurred directly or indirectly in connection with the Project
for: transportation and subsistence incidental thereto for travel outside Orange and Seminole
Counties; obtaining bids or proposals from Contractor(s); furnishing and maintaining field
office facilities; toll telephone calls and telegrams; reproduction of reports, Drawings and
Specifications, and similar Project-related items; as provided in the City's Policy and
Procedure Manual.
6.4. PAYMENTS BY OWNER: All services' payment (Payment) shall be made by
the City to the Architect within thirty (30) calendar days of the City's receipt of Architect's
Invoice (Payment Period), unless, within the Payment Period, the City, 1) notifies the
Architect of an objection to the Payment amount, and 2) either provides the Architect with a
determination of the proper Payment, or 3) requests further information from the Architect so
that a proper Payment can be derived and agreed upon by the parties.
6.5. PAYMENT WITHHELD: When the City has reasonable ground for belief, or
information to believe that, 1) the Architect will be unable to perform the services under any
Services Authorization within the related Project Term; or 2) a meritorious claim exists against
the Architect or the City arising out of the Architect's negligence or the Architect's breach of
any provision of this Agreement or any Services Authorization; then the City may withhold a
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Payment otherwise due and payable to the Architect; provided, however, that the City shall not
unreasonably withhold other Services Authorization payments that may not otherwise be in
dispute. 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 that the City may incur pursuant to
this Subsection, or as may be determined by a court of competent jurisdiction. This provision
is intended solely for the benefit of the City, and no person shall have any right against the
City or claim against the City by reason of the City's failure or refusal to withhold a Payment.
Interest [one percent (1%) simple interest, per month] shall only be payable by the City, on
any amounts withheld under this provision if the City has acted unreasonably. This provision is
not intended to limit or in any way prejudice any other right the City may have in this regard,
or any right or defense that the Architect might choose to exercise against the City.
6.6. RECORDS: The Architect also agrees to maintain, and to cause each
Subconsultant to maintain, complete and accurate books and records (Books) in accordance
with sound accounting principles and standards, and relating to all services and the Project,
and the related costs and expenditures to the City that have been contracted for and paid during
the life of any Specific Authorization. The Books shall identify the services rendered during
each month of the Services Authorization, the date that each Project expense was incurred, and
whether the expense was Service or reimbursable-related. These Books shall be maintained for
five (5) years following Final Payment; or five (5) years following termination of any Services
Authorization; whichever is the longer of these times.
6.7. LATE PAYMENT: If the City fails to make any payment due the Architect for
services and expenses within forty-five (45) days after receipt of the Architect's invoice
therefor, the amounts due the Architect shall include a charge at the rate of one percent (1%)
per month simple interest from the thirtieth (30th) day, and, in addition the Architect may,
after giving seven (7) calendar days' prior written notice to the City, suspend services under
this Agreement until the Architect has been paid, in full, amounts due it for services and
expenses. Any portion of an invoice that is objected to or questioned by the City in accordance
with Subsection 5.4 shall not be considered due for the purposes of this Subsection.
6.8. OVERTIME: Overtime will be paid by the City only if authorized in advance
by the City for work to be performed to meet a particular deadline for which there is
insufficient time to accomplish the task during normal hours, through no fault of the Architect.
6.9. SCOPE, COST AND FEE ADJUSTMENT:
6.9.1. General. The Architect or the City may at any time notify the other of
requested changes to the Scope of Services as set forth in a Services Authorization. The
notification shall state the Scope modification and an adjustment of the cost estimate and fee
specified in the subject Services Authorization to reflect such modification. The cost and fee
adjustment due to modification in the Scope of Services may be calculated utilizing the same
method of compensation applicable to the Services Authorization prior to the Scope
modification. The Architect and the City understand that, unless the cost and fee adjustment is
within a previously approved budget, any change to the Scope of Services must be approved or
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authorized by the Ocoee City Commission. If the cost and fee adjustment is within a previously
approved budget for changes to the Scope of Services for the overall Project, the change may
be approved by the City.
6.9.2. Scope Reduction. The City shall have the sole right to reduce (or
eliminate, in whole or in part) the Scope of any Project at any time and for any reason, upon
written notice to the Architect specifying the nature and extent of the reduction. In such event
the Architect shall be fully compensated for the services already performed, including payment
as defined in Section 5 of all Project-specific fee amounts due and payable prior to the effective
date stated in the City's notification of the reduction and for a maximum of five (5) days'
demobilization costs. The Architect shall also be compensated for the services remaining to be
done and not reduced or eliminated on the Project.
6.9.3. Scope Suspension. The City may, at any time and for any reason, direct
the Architect to suspend work (in whole or in part) under this Agreement. Such direction shall
be in writing, and shall specify the period during which services shall be stopped. The
Architect shall resume its services upon the date specified, or upon such other date as the City
may thereafter specify in writing. The period during which the services are stopped by the City
shall be added to the applicable Services Authorization term; provided, however, that any work
stoppage not approved or caused by the actions or inactions of the City shall not give rise to
any claim against the City by the Architect. The City agrees to compensate the Architect for its
reasonable and provable costs attributable to any delay approved or caused by the actions or
inactions of the City.
6.10. SALES TAX: Under present Florida law, the City is exempt from sales taxes
imposed upon professional services when the City purchases such services directly. The City
agrees to pay actual taxes (exclusive of any multiplier) imposed upon the Architect, for City
Projects, for the Architect's purchase of subconsultant services, or materials, except for
qualified sales for resales. The City and the Architect .agree that this Subsection may be
modified by Services Authorization, in the event of future changes to Florida law that affect
the parties, terms, or conditions of this Agreement.
6.11. TERMINATION: Upon the termination of this Agreement, the Architect 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.
The final Payment Statement shall be subject to all of the provisions described in Section 5.
6.12. FINAL PAYMENT: The acceptance by the Architect, its successors, or
assigns, of any final Payment due upon the termination of this Agreement or any Services
Authorization, shall constitute a full and complete release of the City from any and all claims
or demands regarding further compensation for authorized services rendered prior to such
Final Payment that the Architect, its successors, or assigns have or may have against the City
under the provisions of this Agreement, unless otherwise previously and properly filed
pursuant to the provisions of this Agreement, or in a court of competent jurisdiction. This
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•
Subsection does not affect any other portion of this Agreement that extends obligations of the
parties beyond Final Payment.
ARTICLE 7 - STANDARD OF PERFORMANCE AND WARRANTY
7.1. PERFORMANCE:
7.1.1. Responsibility to Correct. The Architect agrees to be responsible for the
professional quality, technical adequacy and accuracy, timely completion, and the coordination
of all data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings,
photographs, reports, memoranda, other documents and instruments, and other services, work
and materials performed, provided, and/or furnished by the Architect or by any consultant(s)
retained or engaged by the Architect pursuant to this Agreement. The Architect shall, without
additional compensation, correct or revise any errors, omissions or other deficiencies in such
data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, and
instruments, and other services, work and materials resulting from the negligent act, errors or
omissions or intentional misconduct of Architect or any consultant(s).
7.1.2. City's Approval Shall Not Relieve Architect of Responsibility. Neither
review, approval, or acceptance by the City of data, studies, surveys, designs, specifications,
calculations, estimates, plans, drawings, photographs, reports, memoranda, other documents
and instruments, and incidental professional services, work and materials furnished hereunder
by the Architect or any consultant(s) engaged by the Architect, shall in any way relieve
Architect of responsibility for the adequacy, completeness and accuracy of its services, work
and materials and the services, work and materials of any and all consultant(s) engaged by the
Architect to provide and perform services in connection with this Agreement. Neither the
City's review, approval or acceptance of, nor payment for, any of the Architect's services,
work and materials shall be construed to operate as a waiver of any of the City's rights under
this Agreement, or any cause of action it may have arising out of the performance of this
Agreement.
7.2. DEFICIENCIES: After discovery of any defects or deficiencies in the work
provided, City shall notify Architect in writing within a reasonable time after such discovery,
and Architect shall proceed promptly to make such modifications and corrections as are
necessary. If, after proper notice, Architect fails to promptly comply with the terms of the this
section, City may have the defects corrected and Architect shall be liable for the cost thereof.
ARTICLE 8 - CHANGES IN THE WORK
8.1. CHANGE ORDERS:
8.1.1. The City may order changes in the scope of services of this Agreement
with subsequent adjustments to the Phase I price, the Phase II price or the Phase III price
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•
and/or the completion date. All such changes shall be authorized by a Change Order signed by
the City before the change is implemented.
8.1.2. A Change Order is a written order to the Architect signed by the City,
issued after the execution of this Agreement, authorizing a change in the Project, the
Architect's fee, or the completion date.
8.2. MINOR CHANGES: The City will have authority to order minor changes in
the scope of services not involving an adjustment in price or an extension of the completion
date and not inconsistent with the intent of this Agreement.
8.3. OBLIGATION TO PROCEED WITH SERVICES: In all cases under this
Article, Architect shall:
8.3.1.1. diligently proceed with obtaining estimates on schedule
and cost changes and
8.3.1.2. continue to provide services where not in conflict with a
dispute over a Change Order.
ARTICLE 9 - INDEMNIFICATION AND INSURANCE
9.1. INDEMNIFICATION AND REPAIR OF DAMAGE:
9.1.1. The Architect shall indemnify, hold harmless, and defend the City, its
representatives, employees, and elected and appointed officials, from and against all claims,
damages, losses, and expenses of any sort, including reasonable attorney's fees and costs, and
reasonable attorney's fees and costs on appeal, arising out of or resulting from any services as
may be described or provided in this Agreement, any Service Authorization, or in any of the
project documents, caused by any intentional misconduct or negligent act or omission of the
Architect, any of its agents, employees or subconsultants, or anyone for whose act or acts any
of them may be liable. Architect deems and acknowledges that $500.00 of the amount paid to
Architect under this Agreement is in consideration for this and all other indemnifications given
by Architect. For purposes of compliance with Florida law, Architect acknowledges that this
provision shall be deemed a part of the project specifications or the bid documents.
9.1.2. The City shall, to the extent provided by Florida law, indemnify, hold
harmless, and defend the Architect, its agents, employees, and officials, from and against all
claims, damages, losses, and expenses, including attorney's fees and all costs, and attorney's
fees and costs on appeal, arising out of or resulting from the negligent performance or
intentional misconduct of the City as provided under this Agreement and caused by the City,
any of its subconsultants, anyone directly or indirectly employed by it, or anyone for whose
acts it may be liable.
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9.2. INSURANCE:
9.2.1. The Architect shall purchase, maintain, and keep in full force, effect,
and good standing, such insurance that is further described below, and any other insurance
necessary to fully protect it from claims of the nature that are detailed below, that may arise
out of, or result from, the Architect's operations, performance, or services, or all of these
things, or any of these things in combination ("Architect's Operations"), whether the
Architect's Operations are by the Architect, any of its agents or subconsultants, or anyone for
whose act or acts it may be liable. The architect's insurance carrier shall be licensed to do
business in the State of Florida and shall have an A.M. Best Rating of A- VI or better.
1. Claims under Worker's Compensation, disability benefit, or other (similar) employee
benefit acts; and
2. Claims for damages because of bodily injury, sickness or disease, or death of any
person other than its employees; and
3. Claims for damages for personal injury; and
4. Claims for damages because of injury to or destruction of tangible property, including
the loss of property use resulting therefrom.
9.2.2. 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 the Architect's obligation under this
Section:
1. Worker's Compensation and Employer's Liability (present Florida statutory limit)
2. Comprehensive General Liability
Bodily Injury $1,000,000
Property Damage $1,000,000
3. Business Automobile Liability $1,000,000 per occurrence
9.2.3. The Architect 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 $1,000,000.00, with a maximum deductible of $100,000.00 or, the
Architect shall provide the City with policy coverage wherein the insurer agrees to pay claims
(up to the limits of coverage), and will thereafter recover the deductible from the insured-
Architect. The errors and omissions policy shall be in effect and shall insure the Architect's
performance on City projects.
9.2.4. Insurance Certificates, evidencing all insurance coverages referred to in
this Section, shall be filed (or be on file) with the City at least ten (10) calendar days before the
final execution of this Agreement. The Insurance Certificates shall be fully acceptable to the
City in both form and content, and shall provide and specify that the related insurance
coverage shall not be canceled ("Coverage Change") without at least thirty (30) calendar days
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prior written notice having been given to the City. The Architect further agrees that no
material modification or reduction shall be made to any insurance policy coverage referred to
in this Agreement, unless the Architect gives written notice to the City [within seven (7)
calendar days of the Architect's having been given notice by the insurer] of such material
modification or reduction. "Material modification" shall mean but not be limited to, reduction
in the limit of liability by endorsement to the policy during the policy period, change and types
of claims payable, or any other change that significantly reduces the coverage originally
provided in the policy's terms. The Architect shall have thirty (30) calendar days following
such Coverage Change to file an Insurance Certificate with the City, demonstrating that the
particular has either been reinstated, or has been provided through another insurer(s) that
is(are) acceptable to the City. Failure of the Architect 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. It is also understood and agreed that it is the Architect's sole burden and
responsibility to coordinate activities between itself, the City, and the Architect's insurer(s) so
that the Insurance Certificates are acceptable to and accepted by the City within the time limits
described in this Section.
9.2.5. The City shall be listed as an additional insured on all insurance
coverage required by this Agreement, except Worker's Compensation and Professional
Liability errors and omissions insurance. Furthermore, all other insurance policies pertaining
to the services to be performed under this Agreement shall memorialize that the Architect's, or
the Architect's subconsultant's, or all of these entities' ("Primary Insureds") insurance, 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 Insured's insurance.
9.2.6. The Architect shall, upon thirty (30) days' written request from the City,
deliver copies to the City of any or all insurance policies that are required in this Agreement.
ARTICLE 10 - DISCLOSURE
The Architect warrants that it has not employed or retained any company or person,
other than a bona fide employee working solely for the Architect to solicit or secure this
Agreement and that it was not paid or agreed to pay any person, company, corporation
individual or firm, other than a bona fide employee working solely for the Architect, any fee,
commission, percentage, gift, or other compensation contingent upon or resulting from the
award or making of the Agreement.
ARTICLE 11 - AMENDMENTS
No Amendments or variation of the terms or conditions of this Agreement shall be valid.
unless in writing and signed by the parties. The City reserves unto itself sole authority to
execute and authorize the issuance of change order(s), directives, or other documents to the
Architect which impact on or change the Agreement time or price.
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ARTICLE 12 - TIME OF PERFORMANCE AND SCHEDULE
The Architect agrees to complete the services required pursuant to this Agreement
within the time period(s) for completion of the various phases of the scope of services set forth
and described in this Agreement.
ARTICLE 13 - PROJECT RECORDS
All records relating in any manner whatsoever to the Project, or any designated portion
thereof, which are in the possession of the Architect or the Architect's consultants, shall be
made available to the City for inspection and copying upon written request of the City.
Additionally, said records shall be made available, upon request by the City, to any state,
federal or other regulatory authorities and any such authority may review, inspect and copy
such records. Said records include, but are not limited to, all plans, digital files, specifications,
submittals, correspondence, minutes, memoranda, tape recordings, videos, computer files, or
other writings which document the various projects, their design, and construction. Said
records expressly include those documents reflecting the time expended by the Architect and its
personnel in performing the obligations of this Agreement and the records of expenses incurred
by the Architect in its performance under said Agreement, but excluding percentage markups,
fixed rates, published schedules, or agreed lump sum amounts. The Architect shall maintain
and protect these records for no less than three (3) years after final completion of the
Agreement, or for any longer period of time as may be required by applicable law.
ARTICLE 14 - OWNERSHIP OF THE FINAL RECORDS
All records, designs, reports and other work produced by Architect, including all
digital files relating to reports, designs, plans and specifications under the scope of services
shall become and be the sole property of the City.
ARTICLE 15 - APPLICABLE LAW
This Agreement shall be interpreted, instructed and governed according to the laws of
the State of Florida without reference to its conflict of laws provisions and the ordinances ynd
regulations of the City of Ocoee, Florida.
ARTICLE 16 - SUCCESSORS AND ASSIGNS
The Architect shall not assign its rights hereunder, excepting its right to repayment, nor
shall it delegate any of its duties hereunder without the written consent of the City. Subject to
the provisions of the immediately preceding sentence, each party hereto binds itself, its
successors, assigns and legal representatives to the other and to the successions, assigns and
legal representatives of such other party. Furthermore, Architect shall immediately notify City
of any offer to purchase or sell Architect.
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ARTICLE 17 - NOTICES
All notices required and/or made pursuant to this Agreement to be given by either party
shall be made in writing and shall be given by the United States Postal Service first class mail
service, postage prepaid, addressed to the following addresses of record:
To the City: THE CITY OF OCOEE, FLORIDA
150 N. Lakeshore Drive
Ocoee, Florida 34761-2258
To the Architect: ARCHITECTS DESIGN GROUP, INC.
333 N. Knowles Avenue
Winter Park, Florida 32790
ARTICLE 18 - TERMINATION
18.1. TERMINATION FOR CAUSE:
18.1.1. If Architect defaults or persistently fails or neglects to carry out its
obligations in accordance with this Agreement or pursuant to any applicable Supplemental Task
Authorization issued under this Agreement, City may give written notice that Architect is in
default and that City intends to terminate this Agreement. If Architect fails to correct the
default(s) or, if such default(s) cannot practicably be cured within five (5) days, fails to
diligently commence to correct the default(s)., City may, without prejudice to any other
remedy, make good such deficiencies and charge Architect the reasonable cost thereof or, at
City's option, may terminate the employment of Architect. In the event of such termination,
Architect shall assign over to City any agreements, at City's sole discretion, that Architect may
have with any said consultant, independent consultant, or independent contractor or any other
agreement Architect may have with a third party concerning the performance of any of the
services required hereunder. Further, in the event of any such termination, Architect shall turn
over to the City all plans, specifications, submittals, correspondence, minutes, memoranda,
tape recordings, videos, or other writings which document the various projects, their design,
and construction materials and equipment that would have been incorporated into the Project.
18.1.2. In the event City terminates this Agreement for cause pursuant to
the provisions above, and it is later determined that such termination was improper or not
justified, then the termination shall be deemed and treated as a termination for convenience
and, as Architect's sole and exclusive remedy, Architect shall be compensated by City in the
same manner as prescribed below for a termination for convenience.
18.2. TERMINATION BY CITY FOR CONVENIENCE: City may, without
cause, order Architect in writing to suspend, delay or interrupt its services for such a period of
time as City may determine. In the event of termination or suspension of this Agreement for
the convenience of the City, then City shall give a minimum of thirty (30) days notice and will
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compensate the Architect only for (1) all services performed prior to the effective date of the
termination, on a prorata basis; and (2) reasonable direct and actual expenses incurred by the
Architect in effecting the termination of services.
ARTICLE 19 - DISPUTE RESOLUTION PROCEDURES
19.1. MANDATORY PRE-SUIT NEGOTIATION AND MEDIATION:
19.1.1. As a condition precedent to the filing of any suit or other legal
proceeding, the parties shall endeavor to resolve claims, disputes or other matters in question
by negotiation followed, if necessary, by mediation. Any negotiation meeting may be
convened by any party and initiated by serving a written request for same on the other party.
Any negotiation meeting thus convened by City shall be attended by (a) Architect's senior
management with full authority to resolve all aspects of the dispute in question without further
consultation, and such other employees, as Architect may select, and (b) by City's senior
management who shall be fully prepared and authorized to completely resolve all matters in
dispute subject to all applicable rules and policies of the State of Florida, the City of Ocoee,
Florida, and applicable state law.
19.1.2. If the claim, dispute or other matter in question is not resolved by
negotiation, then, as a further condition precedent to the filing of any suit or other legal
proceeding, the parties shall endeavor to resolve claims, disputes or other matters in question
by mediation. Mediation shall be initiated by any party by serving a written request for same
on the other party. The parties shall, by mutual agreement, select a mediator within fifteen
(15) days of the date of the request for mediation. If the parties cannot agree on the selection
of a mediator, then the City shall select the mediator who, if selected solely by the City, shall
be a mediator certified by the Supreme Court of Florida. Unless the party's statute of
limitations to file a suit or other legal proceeding will expire or otherwise be compromised, no
suit or other legal proceeding shall be filed until the mediator declares an impasse, which
declaration in any event, shall be issued by the mediator not later than sixty (60) days after the
initial mediation conference.
19.2. VENUE SELECTION: The parties agree that the exclusive and proper venue
for any collection, enforcement or other action arising out of or under this Agreement, the
Project and/or any Supplemental Task Authorization shall be brought in the Circuit Court of
The Ninth Judicial Circuit in and for Orange County, Florida.
19.3. ATTORNEYS' FEES: In the event that either party seeks to enforce this
Agreement by way of legal action, and the matter is placed in the hands of an attorney, then
the prevailing party shall recover its attorneys' fees and paralegal fees and the court shall
determine the amount of such fees and allow recovery to said prevailing party in entering a
judgment. The parties agree that entitlement to attorneys' fees under this Agreement shall be
deemed to include all appellate attorneys' fees.
19.4. CONTINUED PERFORMANCE DURING DISPUTE RESOLUTION:
Unless otherwise directed by the City, Architect expressly agrees not to cease, suspend or slow
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performance of the services rendered hereunder during the pendency of any dispute resolution
procedure initiated pursuant to this Agreement. It is understood and agreed, notwithstanding
the existence of any dispute or the commencement of any dispute resolution procedure
hereunder, that Architect shall comply with all obligations of this Agreement and City's
written instructions of continued performance with respect to any matter in dispute.
ARTICLE 20 - ENTIRE AGREEMENT
This Agreement constitutes the entire and exclusive agreement between the parties and
supersedes any and all prior communications, discussions, negotiations, understandings, or
agreements.
ARTICLE 21 - INVALID PROVISIONS
The invalidity or unenforceability of any particular provision of this Agreement shall
not affect the other provisions hereof, and the Agreement shall be constructed in all respects as
if such invalid or unenforceable provisions were omitted.
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IN WITNESS WHEREOF,the parties hereto have hereunto set their hand and seals, or
caused these presents to be signed by their proper officers on the day and year first written above.
ARCHITECT:
ARCHITECTS DESIGN GROUP, INC.,
a Florida corporation
Printed Name: Name:
Title:
Date:
Printed Name:
333 N. Knowles Avenue
Winter Park, Florida 32790
(SEAL)
CITY:
CITY OF OCOEE, FLORIDA
a Florida municipal corporation
By:
S. Scott Vandergrift, Mayor
Attest:
Jean Grafton, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE
THE CITY OF OCOEE, FLORIDA; CITY COMMISSION AT A
APPROVED AS TO FORM AND MEETING HELD ON
LEGALITY this day of 2000, UNDER AGENDA ITEM
, 2000. NO.
FOLEY & LARDNER
By:
City Attorney
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