Item III (F) - Approval and Authorization to Execute Agreement with Florida Power Corporation and Authorise Payment for the Purchase of this Easement in the Amount of $1755 with Funding coming from the Clarke Road ROW Acquisition Funds /14 AGENDA 10-1-91
Item III F
FOLEY & LARDNER
III NORTH ORANGE AVENUE, SUITE 1800
1.1 ORLANDO, FLORIDA 32801-2386
TELEPHONE (407) 423-7656
FACSIMILE (407) 648-1743
TAMPA, FLO DA MAILING ADDRESS: MILWAUKEE, WISCONSIN
JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN
TALLAHASSEE, FLORIDA ORLANDO, FL 32802-2193 WASHINGTON, D.C.
WEST PALM BEACH, FLORIDA ALEXANDRIA, VIRGINIA
ANNAPOLIS, MARYLAND
MEMORANDUM September 25, 1991 CHICAGO, ILLINOIS
TO The Honorable Mayor and City Commission of the
City of Ocoee
FROM Paul E. Rosenthal, Esq. , City Attorney
RE Clark Road Project/Florida Power Corporation/
Parcel 207 Easement
In connection with the Clark Road Project, it is necessary
for the City to acquire a Permanent Drainage and Utilities
Easement and a Temporary Road Construction Easement from
Florida Power Corporation. The proposed Easement is located
on land adjacent to Clark Road Parcel No. 107 which has pre-
viously been acquired in fee simple from Florida Power . The
Easement Parcel is internally referred to as Parcel No. 207 .
Originally, the City proposed to purchase Parcel No. 207
from Florida Power based upon its appraised value. It was
subsequently agreed that the appropriate procedure would be
for the City to file with Florida Power an Application for
Right-of-Way Utilization. This application was filed on
July 10 , 1991 and has now been approved by Florida Power.
Florida Power has indicated that the purchase price for the
Easement requested in the application will be $1 ,755 . 00 .
In connection with the proposed acquisition of Parcel Nos .
107 and 207, the City obtained an appraisal from Pinel &
Carpenter, Inc. The date of valuation set forth in the
appraisal is May 15 , 1991 . Parcel No. 207 was appraised
as a Permanent Drainage Easement. The Pinel & Carpenter
appraisal indicates that Parcel No. 207 has an appraised
value of $3 ,125 . 00.
Attached hereto is a proposed Easement Agreement between
Florida Power Corporation and the City of Ocoee. As indi-
cated above, the proposed purchase price for the Easement
is less than the appraised value. The Easement has been
reviewed and approved by the City Engineer and is consistent
with the requirements for the Clark Road Project.
RECOMMENDATION:
It respectfully is recommended that the City Commission ap-
6/4-
is
The Honorable Mayor and City
Commission of the City of Ocoee
Clark Road Project/Florida Power
Corporation/Parcel 207 Easement
Page Two September 25 , 1991
prove the Easement Agreement between Florida Power Corporation
and the City of Ocoee, authorizing the execution thereof by
the Mayor and City Clerk and further authorize the payment
to Florida Power Corporation of the sum of $1,755 . 00 for the
purchase of the Easement with funding coming from the Clark
Road Right-of-Way acquisition funds .
?d
Paul E. Rosenthal
per/etb
attachment
Carbon copy with attachment to:
Mr. Ellis Shapiro, City Manager
Ms. Montye Beamer, Administration Services Director
Mr. James W. Shira, City Engineer
' 0 9. 1 3. 9 1 0 1 : 1 9 PM FPO RIC 8 13-9E8-49 9 9 P O 2
•
M•4.91 8/7.4191 JLR
THIS EASEMENT AGREEMENT, Made this day of , 1991, between FLORIDA
POWER CORPORATION, a corporation of the State of Florida. whose mailing address is P.O. Box 14042, St.
Petenburg, Florida 33733, Party of the First Part, •GRANTOR• herein, and CITY OP OCOEE, FLORIDA, a
Florida Municipal Cnrr�nratinlh.Party.. OC the Bern t Pad•GR.A.brrEW herein;
WITNESSETH: That the said GRANTOR. for and In consideration of the sum of One Thousand
Seven Hundred Fifty Five Dollars (1,7SS.00) and other good and valuable considerations, in hand paid by the
GRANTEE, the receipt of which is hereby acknowledged, and in consideration of the conditions and covenants
herein contained,does hereby grant unto GRANTEE an easement and right-of-way for the sole purpose of drainage,
utilities:end rod oonctrvotion(Demotion's hereinafter collectively referred to u'uuy.,vvcutvuu') within the ful uwIng
described Easement Area in the County of Orange and State of Florida, to wit:
A 204001 wide Easement Area comprising the east 20 feet of
west 70 tett (t) of SW 1/4 of SW 1/4 of NW 1/4 of NE 1/4
of Section 21, Township 22 South, Rang* 28 East, subject to
rights-of-way of White Road and Clark Road, said 20-foot
wide Easement Ares being further identified u comprising the
west 20 feet of GRANTOR'. remaining Ocoee Substation site
lands and is generally depicted on print of sketch attached
hereto as Exhibit'A"and by this reference incorporated herein
as a part hereof.
GRANTEE shall have the right to inspect, repair and/or replace said improvements, together with all
rights and privilege reasonably necessary or convenient for the enjoyment or use thereof for the purposes herein
described. subject, however, to the following terms and conditions to which GRANTEE expressly agrees:
A. That GRANTOR expressly reserves unto itself. its summon, lessees and assigns, the continued right
to occupy and utilize the said Easement Area in any manner not inconsistent with GRANTEE'. faci ities,
B. That any costs, attorney's fees or expenses incurred by GRANTOR in construing or enforcing this
Easement Agreement shall be borne by the GRANTEE.
C. That in the event GRANTEE should remove or abandon said improvements, then the rights and
privileges herein shall cease and terminate and the Easement Area shall revert to GRANTOR In Its entirety.
D. That all of GRANTEE'. operations, activities and equipment used within the Easement Area beneath
or In proximity to any of GRANTOR': electric facilities shall, at all time*, be in strict compliance with applicable
provisions of the National Electrical Safety Code (NESC) and the Occupational Safety and Health Act of 1971
(OSHA). GRANTEE Is further notified and hereby agrees to so notify any of GRANTEE's employees, agents,
contractors, representatives or other persons engaging in GRANTEE's activities upon said Easement Area with
GRANTEE's knowledge and under GRANTEE's supervision or control, that extreme caution is necessary around
all of GRANTOR':electrical facilities,supporting structures,anchor guys or related appurtenances,and in the event
of any damages or injuria, GRANTEE shall immediately report the nature and extent thereof to GRANTOR'.
nearest local office. GRANTEE further notes specifications pertaining to necessary precautions and requirements
within GRANTOR'. right-of-way strip. Said specifications attached hereto and marked Exhibit 'H'.
INI L INITIAL
09 . 1 3. Si. O 1 : 1 9PM FPO RE B 13-866-4996 P 0 3
H. That GRANTOR shall not be liable fora dams •
from C3RAN'TOR's caatinued use and oav of the � to GRfiN1'EE s utilization hoe/seem resulting
cause undue damage m GRANTEE'S utilizatitia Easement Area; GRANTOR, however, shall not willfully
L That GRANTOR'S Transmission Rights-of-Way Inspector (i.e., Mr. Terry Wbttear or his designated
alternate, telephone 113/ 866-5109, St. Petersburg) shall be notified by GRANTEE at least 48 hours prior to
GRANTEE% commencing initial activities within the Easement Area.
J. That GRANTEE shall be responsible for clean up of any and all spills that may occur within
GRANTOR'S right-of.way strip. Such spills must be reported to GRANTOR immediately.
K. That GRANTEE shall not use a dragline or cable type crane within GRANTOR'S Easement Area.
L That GRANTEE shall adhere to provisions in NESC regarding clearances between ground level and
electric condueton. Ground elevation must not be increased more than mo feet (2'),
M. That if the utilization area is fenced GRANTEE shall install a sixteen toot (16') gate in the fence
making that portion of the right-of-way strip accessible. Gate should have a lock installed by GRANTOR.
N. That GRANTEE shall assume the sole duty, responsibility and obligation of mowing and otherwise
maintaining the surface of the portion of the Easement Area in a condition at least as good as the surrounding area.
0. That the entire disturbed area within the Easement Area,shall be restored by GRANTEE to a condition
at least as good as that which existed prior to construction.
P. That upon completion of operations. GRANTEE shall notify GRANTOR', Transmission Rights-of-
Way Inspector heretofore mentioned in above Paragraph I for inspection of the Easement Area.
Q. That GRANTEE shall furnish ORANTOR with a set of as built drawings within thirty days of final
construction.
R. That nothing contained in this grant of easement or contemplated is intended to or shall increase
GRANTOR's liability kr rsonal injury or death or for any property damage,and it is hereby expressly understood
and agreed by the G (a) that GRANTOR does not assume any such additional liability, (b) that liability
arising out of the use and occupancy of the Easement Area by GRANTEE, and GRANTEE': employees, agents,
contractors, or any representative, is hereby assumed by GRANTEE and shall be at the sole and exclusive risk of
GRANTEE, (c) that GRANTEE shall answer and satiety to GRANTOR': satisfaction any and all complaints, (4)
that GRANTEE shall to the extent of Section T6&28,Florida Statutes,protect,defend, hold harmless and indemnify
GRANTOR from and against any and all actions, claims, damages and/or las, including costs and attorneys fees,
occasioned by or growing out of any actual or claimed usage or condition of the Easement Area arising in any
manner whatsoever, directly or indirectly by reason of this grant of easement to GRANTEE for the use and
occupugc 4t QMNTDR'111mmiva by mem', tit employee", spats, u.mt..,.t,,.0 V, *vN,G,caucrve, ante
(e)that GRANTEE covenants not to interfere with GRANTOR's facilities in any manner whatsoever and shall fully
indemnify GRANTOR from any and all lase, as in Section '(d)' above resulting from such interference.
S. That upon GRANTEE'S breach of any condition contained herein, this Easement Agreement after
writtennotlecation by GRANTOR to GRANTEE of such breach, and upon failure of GRANTEE to remedyor
remove such breach within a period of S working days after receipt of such written notification, shall becomnull
and void and all grams and rights contained herein shall thereupon immediately terminate and revert to the
GRANTOR in absolute, it being expressly understood and agreed that the GRANTEE shall be liable for any and
all losses as mentioned to Paragraph 'R'above occurring up to the effective date of such termination. GRANTEE
further covenants to reimburse GRANTOR for any monies expended before or after termination by GRANTOR
to return the Easement Area to its original condition.
Page 2 of 3 Pages
INITIAL l 'ftA9
09. 1 3. 91 01 : 1 9PM FPO RE 81. 3-888-4898 PO4
•
T. That this Agreement is personal to GRAMME and shall not be sniped or transfIrfed In whole or in
part without the express written consent of ORANTOR.
IN WITNESS WHEREOF. the aforesaid Parties have caused these presents to be signed in their
respective names by their proper officers thereunto duly authorized and their nwpectivve corporate seals to be
hereunto affixed and attested, all as of the day and yest first above written.
Signed, sealed and delivered FLORIDA POWER CORPORATION
in the presence of: (as GRANTOR)
By
Vies President
Attest:
Assistant Secretary
APPROVED:
ATTEST: CITY OF OCOEE. FLORIDA
las Grafton, City Clerk Lester Dabbs, Ir., Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA
APPROVED AS TO FORM AND LEGALITY
this day of , 1991.
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON , 1991
UNDER AGENDA ITEM NO.
FOLEY & LARDNER
City Attorney
Pap 3 of 3 Paps
INITIAL 1 I INITIAL I
O 9. 1 3. 9 1 0 1 : 1 9 PM FPO RE 6 1 3-9 6 6-4 9 9 6 P 0 5
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LEGEND
. 2011ADE CITY EASEMENT STRIP
----- Z4" WATERMAN
`� EXHIBIT"A" ,
,- Florida Power +1 �
. 'f..-' Corporation CITY of oc
OEE
_ DRAWN BY:w. 4121.9011
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[iITIAL] INI
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09, 1 3. 9 1 O 1 : 1 9PM FPO RE 6 13-666-4996 OE
BEE� ZEI� BEQYIBBMI3�iIY
for permanent drainage and utility easement
1. That other the GRANTOR`S facilities, no overhead wires, poles, light standards, dumpsters, signs,
buildings,structures or obstacles shall be looted, constructed or installed within the Easement Arca without
written approval by GRANTOR
2. That all eXavadons for GRANT'EE'S utilization shall be a minimum of twenty-five feet(25')from the nearest
edge of GRAN1'OR's transmission structures or guying.
3. That any shrubbery planted by GRANTEE within the Easement Area shall be of a variety not maiming 12'
in height at /natality.
4. That any and all piping, culverts and able installed by GRANTEE within the Easement Area shall have
sufficient earth cover to prevent breakage due to the operation of GRANTOR': vehicles and heavy
equipment within the right-of-way.
S. That GRANTEE agrees that no refueling operations take place within the right-of-way.
6. That no parking or storage shall occur under or near GRANTOR'S facilities during construction.
7. That GRANTEE agrees to furnish and install permanent markers showing the location of the underground
radiates within the Ea ement Area. Said markers shall be GRANTEE'S responsibility at all times.
8. That GRANTEE is to sod. not seed any areas in the proposed easement where existing grass cover is
damaged as soon as practicaL
[INITIAL 1
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INITIAL' w INITIAL ant' A IL la IPI ago�' W M.
EXHIBIT "C"
D1-
FOLEY & LARDNER
III NORTH ORANGE AVENUE, SUITE 1800
ORLANDO, FLORIDA 32801-2386
TELEPHONE (407) 423-7656
FACSIMILE (407) 648-1743
TAMPA, FLORIDA MAILING ADDRESS: MILWAUKEE, WISCONSIN
JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN
TALLAHASSEE, FLORIDA ORLANDO, FL 32802-2193 WASHINGTON, D.C.
WEST PALM BEACH, FLORIDA ALEXANDRIA, VIRGINIA
ANNAPOLIS, MARYLAND
MEMORANDUM September 25 , 1991 CHICAGO, ILLINOIS
TO Mr. James W. Shira, City Engineer, City of Ocoee
FROM : Paul E. Rosenthal, Esq. , City Engineer
RE Clark Road Project/Florida Power Corporation
Parcel No. 207
Attached hereto is the original of a memorandum to
the Mayor and City Commission recommending that
Easement Parcel No. 207 be purchased from Florida
Power Corporation at a purchase price of $1 ,755 .00 .
This is below the appraised value . I have request-
ed that Jean Grafton place this item on the agenda
for City Commission approval . If the memorandum
is acceptable, please forward the original to Jean
Grafton.
Please note that the proposed Florida Power Easement
contains special conditions regarding work within
the Easement area and adjacent to the Florida Power
Corporation site. It is necessary that this special
information be brought to the attention of the City
contractor in order to assure compliance.
If you have any questions, please give me a call .
OLIA.9
Paul E. Rosenthal
per/etb
enc.
,,, ,
D 1., ,,
SEP 2 5 1991 1�V 1
AGREEMENT
THIS AGREEMENT, is made and entered this day of
, 1991, by and between the City of Ocoee, a political
subdivision of the State of Florida, whose address is City of
Ocoee, 150 N. Lakeshore Drive, Ocoee, FL 34761 , hereinafter called
the "CITY", and PDR Architects, Inc. , duly authorized to conduct
business in the State of Florida, whose address is 200 W. Welbourne
Ave. , Winter Park, FL 32789, hereinafter called the "ARCHITECT".
WITNESSETH: •
In consideration of the mutual terms and conditions,
promises, covenants and payments hereinafter set forth, CITY and
ARCHITECT agree as follows:
SECTION 1. SERVICES. The CITY does hereby retain the
ARCHITECT to furnish professional services and perform those tasks
outlined in "Scope of Work", attached hereto as Exhibit "A" and
made a part hereof, as specifically set out in Work Orders to be
issued under this Agreement. This Agreement standing alone does
not authorize the performance of any Work or require the CITY to
place any orders for Work. The CITY reserves the right to contract
with other parties for professional services within the scope of
this Agreement when it is determined to be in the best interests of.
the CITY to do so.
SECTION 2. TIME FOR COMPLETION.
(a) The services to be rendered by ARCHITECT shall be
commenced, upon receipt of Work Orders to be issued hereunder, and
shall be completed within the time specified therein. In the event
ARCHITECT is unable to complete services because of delays
resulting from untimely review and approval by CITY and other
governmental authorities having jurisdiction over the Project and
such delays are not the fault of ARCHITECT, CITY shall grant a
reasonable extension of time for completion of Work upon timely
written request for same which shall be given by ARCHITECT to the
CITY not later than 48 hours after such occurrence.
(b) Should the CITY determine that significant benefits
PAGE 1
would accrue from expediting an otherwise established time schedule
for completion of services under a given Work Order, that Work
Order may include a negotiated payment incentive or schedule of
incentives, based on time savings.
SECTION 3. AUTHORIZATION FOR SERVICES.
(a) Authorization for performance of professional
services by the ARCHITECT shall be in the form of Work Orders
issued by the CITY. The Work Order shall describe the Project, the
services required, and shall establish the method of payment. All
Work Orders for Projects will be issued under and shall incorporate
the terms of this Agreement. Negotiations pertaining to the
services to be performed by the ARCHITECT for each Work Order will
be undertaken between ARCHITECT and a committee selected by the
Board of City Commissioners.
(b) ARCHITECT will provide, during negotiation of each
Work Order, the estimated phased-time/payout schedule for services
to be rendered.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) The CITY will pay the ARCHITECT, for services
performed under each Work Order, a total fixed-fee sum reflecting
the appropriate percentage as indicated in subparagraph (c) (1 ) of
this Section 4 of the TOTAL FEE for each of the two projects
referenced in Exhibit "A" to this agreement. In the case of
Additional Services, payment will be limited by the "not-to-exceed"
amount indicated on the Work Order. No payments will be made to
ARCHITECT in excess of the not-to-exceed amount regardless of
actual hours worked towards completion of the authorized services.
Payments shall be made to the ARCHITECT when requested as Work
progresses, but not more than once monthly for services furnished.
(b) Upon approval of such payment requested by the
ARCHITECT, CITY agrees that it will make its best efforts to pay
ARCHITECT within thirty (30) calendar days of receipt of
ARCHITECT's invoice for ninety percent (90%) of the total shown to
be due on the invoice unless CITY determines the Work is
substantially complete and the amount retained is considered to be
PAGE 2
in excess, in which case, the CITY may, at its discretion, release
the retainage. Each Work Order shall be treated separately for
retainage purposes and retainage shall be released at the
completion of each separate Work Order.
(c) Basic Services. The TOTAL FEE for the City Hall
Project, as indentified in Exhibit "A" to this Agreement shall be
FIFTY-SEVEN THOUSAND THREE HUNDRED AND NO/100 DOLLARS ($57,300.00) .
The TOTAL FEE for the Police Station Project, as identified in
Exhibit "A" to this Agreement shall be THIRTY-EIGHT THOUSAND TWO
HUNDRED AND NO/100 DOLLARS ($38,200.00) . ARCHITECT may invoice
amount due based on percentage of total Work Order services
actually performed and completed. Unless a Work Order specifically
indicates otherwise, the percentage of the TOTAL FEE for each phase
of the projects identified in Exhibit "A" of this Agreement shall
be the percentage indicated in subparagraph (1 ) immediately below.
(1) Unless otherwise indicated in the applicable Work
Order, a separate Work Order shall be issued for each of the
following phases of the two projects identified in Exhibit "A" to
this Agreement. The percentage of the TOTAL FEE listed above for
each phase of the two projects is as follows:
Phase Percentage
Plan Finalization/Site Plan 9%
Development
Schematic Design 10%
Design/Development 19%
Construction Documents 38%
Bid/Negotiation 5%
Construction Administration 19%
100%
(d) Reimbursable Expenses. The City shall reimburse the
Architect for the actual cost of Document printing as identified in
each separate Work Order. There are no other reimbursable expenses
under this Agreement.
(e) Additional Services. Services which are referred to
as "Additional Services" and outside the Scope of Work, as
described in Exhibit "A" of this Agreement, must be approved in
writing by the CITY. CITY shall compensate ARCHITECT for such
services on an hourly rate basis as follows:
PAGE 3
PRINCIPAL $105
PROJECT MANAGER $ 75
ARCHITECT $ 65
DRAFTSMAN $ 45
CLERICAL $ 28
or such additional services may be negotiated at a fixed price.
The hourly rates set forth above may be renegotiated annually at
the request of either party. Where the services of subconsultants
are required to complete such Additional Services, the actual cost
of such subconsultant service, without mark-up of invoices, shall
be compensated to ARCHITECT by CITY. The cost to ARCHITECT of
coordinating such subconsultant efforts shall be included in the
authorization for ARCHITECT's hourly services.
SECTION 5. GENERAL TERMS OF PAYMENT.
(a) Upon satisfactory completion of Work required under
Work Orders issued hereunder or any supplements thereto, and, upon
acceptance of the Work by the CITY, the ARCHITECT may invoice the
full final amount of compensation provided for under the terms of
this Agreement less amount already paid by the CITY. The CITY
shall make its best efforts to pay the ARCHITECT within thirty (30)
days of receipt of such invoice. If construction is involved,
final payment to the ARCHITECT shall be made by the CITY within
sixty (60) calendar days of CITY's acceptance of the fully executed
Certificate of Contract Completion for the Construction Contract.
(b) The CITY may perform, or cause to have performed, an
audit of the records of the ARCHITECT after final payment to
support final payment under any Work Order issued hereunder. This
audit shall be performed at a time mutually agreeable to the
ARCHITECT and the CITY subsequent to the close of the final fiscal
period in which the last Work is performed. Total compensation to
the ARCHITECT may be determined subsequent to an audit as provided
for in this Section, and the total compensation so determined shall
be used to calculate final payment to the ARCHITECT. Conduct of
this audit shall not delay final payment as required by Paragraph
(a) of this Section.
(c) In addition to the above, if federal, state, or
county funds are used for any Work under the Agreement, the
PAGE 4
Comptroller General of the United States or of the State of Florida
or of the County of Orange, or any representatives, shall have
access to any books, documents, papers, and records of the
ARCHITECT which are directly pertinent to Work performed under this
Agreement for purposes of making audit, examination, excerpts, and
transcriptions. The stipulations contained in any federal, state,
or county grant pertaining to ARCHITECT will be adhered to by the
ARCHITECT. Copy of such grants shall be furnished to ARCHITECT.
(d) The ARCHITECT agrees to maintain all books,
documents, papers, accounting records and other evidences
pertaining to Work performed under this Agreement in such a manner
as will readily conform to the terms of this Agreement and to make
such materials available at all reasonable times during the
Agreement period and for three (3) years from the date of final
payment under the contract for audit or inspection as previously
provided. Separate accounting books or records must be maintained
for each Work Order. Incomplete or incorrect entries in such books
and records may be grounds for disallowance by CITY of amounts due
based upon such entries.
(e) In the event any audit or inspection conducted
reveals any overpayment by the CITY under the terms of the
Agreement, ARCHITECT shall refund such overpayment to the CITY
within thirty (30) days of notice by the CITY.
(f) Payment will be mailed to ARCHITECT at:
PDR Architects, Inc.
200 W. Welbourne Ave.
Winter Park, FL 32789
SECTION 6. CHANGES IN SCOPE OF WORK. CITY or ARCHITECT
may request changes that would increase, decrease, or otherwise
modify the scope of work to be provided under this Agreement. Such
changes and method of compensation must be agreed upon in writing
by written Change Order to this Agreement prior to any deviation
from the terms of this Agreement, including the initiation of any
extra Work. Such changes, when properly executed, shall become an
Amendment to this Agreement. Written Change Orders shall be in
form and content acceptable to the CITY.
PAGE 5
SECTION 7. RESPONSIBILITY OF THE ARCHITECT.
(a) The ARCHITECT shall be responsible for the
professional quality, technical accuracy and the coordination of
all designs, drawings, specifications, and other services furnished
by the ARCHITECT under this Agreement. The ARCHITECT shall,
without additional compensation, correct or revise any errors or
deficiencies in his designs, drawings, specifications, and other
services.
(b) Neither the CITY's review, approval or acceptance
of, nor payment for, any of the services required shall be
construed to operate as a waiver of any rights under this Agreement •
or of any cause of action arising out of the performance of this
Agreement and the ARCHITECT shall be and remain liable to the CITY
in accordance with applicable law for all damages to the CITY
caused by the ARCHITECT's negligent performance of any of the
services furnished under this Agreement.
(c) In the event that arbitration or litigation becomes
necessary for any reason with regard to the terms of this
Agreement, the prevailing party shall be due the cost and expense
of this action including, but not limited to, court or abitration
cost, interest and reasonable attorneys' fees.
(d) The rights and remedies of the CITY, provided for
under this Agreement, are in addition to any other rights and
remedies provided by law.
SECTION 8. OWNERSHIP OF DOCUMENTS. All plans,
drawings, reports and specifications that result from the
ARCHITECT's services under this Agreement shall become the property
of the CITY. The ARCHITECT shall retain possession of the
originals of all documents. ARCI-IITECT shall provide reproducible
sepias of all documents to the CITY.
SECTION 9. REUSE OF DOCUMENTS.
(a) Wherever and whenever applicable, all documents
including drawings and specifications furnished by ARCHITECT
pursuant to Work Orders issued under this Agreement, may be reused
for future projects to provide capability of prototype design.
PAGE 6
(b) Should the CITY determine that significant benefits
would accrue from such reuse, Work Order(s) will be negotiated on
that basis.
(c) CITY shall have the right to reuse the documents,
drawings and specifications and contract with other parties, not
the ARCHITECT. Such reuse will be without need of written approval
of the ARCHITECT, however, the City shall, to the extent permitted
by law, indemnify the Architect who shall not be held
professionally responsible for any such reuse.
(d) If the CITY elects to reuse the documents and engage
the professional services of ARCHITECT for construction of future
buildings, ARCHITECT agrees to perform said services for a mutually
agreed upon fixed fee to be negotiated under each Work Order which
shall not exceed three percent (3%) of the Estimated Construction
Cost of the project. If issuance of any Work Order shall require
that a Clerk-of-the-Works be employed pursuant to the Scope of
Work, compensation for his/her services shall be negotiated as part
of that Work Order. If any modifications are required to site
adapt the documents, compensation for such work shall be negotiated
and be additional to the fee limitation set forth above.
SECTION 10. TERMINATION.
(a) The CITY may, by written notice to the ARCHITECT,
terminate this Agreement or any Work Order issued hereunder, in
whole or in part, at any time, either for the CITY's convenience or
because of the failure of the ARCHITECT to fulfill his Agreement
obligations. Upon receipt of such notice, the ARCHITECT shall:
( 1 ) immediately discontinue all services affected
(unless the notice directs otherwise) ; and
(2) deliver to the CITY all data, drawings, specifications,
reports, estimates, summaries, and such other information and
materials as may have been accumulated by the ARCHITECT in
performing this Agreement, whether completed or in process.
(b) If the termination is for the convenience of the
CITY, the ARCHITECT shall be paid its compensation for services
performed to the date of termination.
PAGE 7
(c) If the termination is due to the failure of the
ARCHITECT to fulfill his Agreement obligations, the CITY may take
over the work and prosecute the same to completion by Agreement or
otherwise. In such case, the ARCHITECT shall be liable to the CITY
for reasonable additional costs occasioned to the CITY thereby
including, but not limited to, all consequential damages arising
from ARCHITECT's breach and all Attorneys' fees and expenses
incurred as a result of any action or proceeding, litigation or
arbitration, if applicable, arising therefrom.
(d) If, after notice of termination for failure to
fulfill Agreement obligations, it is determined that the ARCHITECT
had not so failed, the termination shall be deemed to have been
effected for the convenience of the CITY. In such event,
adjustment in the Agreement price shall be made as provided in
Paragraph (b) of this Section and such adjustment in Agreement
price shall be deemed to be the sole remedy of the ARCHITECT.
(e) The rights and remedies of the CITY provided in this
clause are in addition to any other rights and remedies provided by
law or under this Agreement.
( f) The ARCHITECT shall have the right to terminate for
failure of the CITY to fulfill its Agreement obligations and all
other rights and remedies otherwise available to ARCIIITECT under
law.
SECTION 11. EQUAL OPPORTUNITY EMPLOYMENT. ARCIIITECT
agrees that it will not discriminate against any employee or
applicant for employment for Work under this Agreement because of
race, color, religion, sex, age or national origin and will take
affirmative steps to insure that applicants are employed and
employees are treated during employment without regard to race,
color, religion, sex, age or national origin. This provision shall
include, but not be limited to, the following: employment,
upgrading, demotion or transfer; recruitment advertising; layoff or
termination; rates of pay or their forms of compensation; and
selection for training, including apprenticeship.
SECTION 12. NO CONTINGENT FEES. ARCIIITECT warrants that
PAGE 8
it has not employed or retained any company or persons, other than
a bona fide employee working solely for the ARCHITECT to solicit or
secure this Agreement and that it has not paid or agreed to pay any
person, company, corporation, individual or firm, other than a bona
fide employee working solely for ARCHITECT, any fee, commission,
percentage, gift, or other consideration contingent upon or
resulting from the award or making of this Agreement. For the
breach or violation of this provision, CITY shall have the right to
terminate the Agreement without liability, and, at its discretion,
to deduct from the contract price, or otherwise recover, the full
amount for such fee, commission, percentage, gift or consideration.
SECTION 13. CONFLICT OF INTEREST. ARCHITECT agrees that
it will not contract for or accept employment for the performace of
any work or services with any individual, business, corporation or
government unit that would create a conflict ofinterest in the
performance of its obligations pursuant to this Agreement with
CITY.
SECTION 14. ASSIGNMENT. This Agreement, or any interest
herein, shall not be assigned, transferred, or otherwise
encumbered, under any circumstances, by Lhe parties hereto without
prior written consent of the opposite party and only by a document
of equal dignity herewith. However, this Agreement shall run to
the Ocoee City Government and its successors.
SECTION 15. SUDCONSULTANTS/SEPARATE CONSULTANTS If the
ARCHITECT desires to employ Subconsultants in connection with the
performance of its Services hereunder:
(a) Any proposed Subconsultants shall be submitted to
CITY for written approval prior to ARCHITECT entering into a
Subconsultant Agreement.
(b) ARCHITECT shall coordinate the services and work
product of any Subconsultants, and remain fully responsible under
the terms of this Agreement. ARCHITECT shall be and remain
responsible for the professional quality, technical accuracy and
the coordination of all designs, drawings, specifications and other
services furnished by ARCHITECT or its Subconsultants. ARCHITECT
PAGE 9
shall, without additional compensation, correct or revise any
errors or deficiencies in the designs, drawings, specifications or
other services produced pursuant to this Agreement.
(c) Any Subconsultant Agreement shall be in writing and
shall reflect the terms of this Agreement and require the
Subconsultant to assume performance of ARCHITECT's duties
commensurately with ARCHITECT's duties to CITY under this
Agreement, it being understood that nothing herein shall in any way
relieve ARCHITECT from any of its duties under this Agreement.
ARCHITECT shall provide the CITY with copies of all Subconsultant
Agreements upon request of the CITY.
(d) ARCHITECT shall cooperate at all times with CITY and
its other consulting engineers or design professionals, and
cooperate and coordinate with, and incorporate the Work product of,
any Separate ARCHITECT, consulting engineer or design professional
retained by the CITY, in any fashion appropriate or necessary to
facilitate the design and construction of the Project within the
Project Construction Budget and Schedule.
SECTION 16. INDEMNIFICATION OF CITY.
(a) To the fullest extent permitted by law, the
ARCHITECT shall indemnify, hold harmless and defend the CITY, its
agents, servants, and employees, or any of them, from and against
all claims, damages, losses, and expenses, including but not
limited to attorneys' fees and other legal costs such as those for
paralegal, investigative, and legal support services, and the
actual costs incurred for expert witness testimony, arising out of
or resulting from the performance of services required under this
Agreement, provided that same is caused in whole or in part by the
error, omission, negligent act, conduct, or misconduct of
ARCHITECT, its agents, servants, employees, or Subconsultants. In
accordance with Florida Statutes, Section 725.06, adequate
consideration has been provided to the ARCHITECT for this
obligation, the receipt and sufficiency of which is hereby
specificlly acknowledged. Nothing herein shall be deemed to affect
the rights, privileges, and immunities of the CITY as set forth in
PAGE 10
Section 768.28, Fl. Statutes. In claims against any person or
entity indemnified under this section by an employee of the
ARCHITECT or its agents or Subconsultants, anyone directly or
indirectly employed by then or anyone for whose acts they may be
liable, the indemnification obligation under this section shall not
be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the ARCHITECT or its
agents or Subconsultants, under Workers' Compensation acts,
disability benefits acts, or other employee benefit acts.
(b) The execution of this Agreement by ARCHITECT shall
obligate ARCHITECT to comply with the foregoing indemnification
provision; however, the collateral obligation of insuring this
indemnity must be complied with as set forth below.
(c) The CITY will require that any contractor,
performing work in connection with drawings and specifications
produced under this Agreement, agree to hold harmless, indemnify
and defend CITY and ARCHITECT, their consultants and each of their
officers, agents, and employees from any and all liability claims,
losses, or damages arising out of the contractor's (or
subcontractor's) negligence in the performance of the work
described in construction contract documents, but not including
liability that may be due to the sole negligence of the CITY, the
ARCHITECT, their consultants, or their officers, agents, and
employees.
SECTION 17. INSURANCE. ARCHITECT shall provide, pay
for, and maintain in force at all times during the services to be
performed, such insurance, including Workers' Compensation
insurance, Employer's Liability insurance, Comprehensive General
Liability insurance, and Professional Liability insurance as will
assure to CITY the protection contained in the foregoing
Indemnification undertaken by ARCHITECT. The Comprehensive General
Liability policy shall clearly identify the foregoing
indemnification as insured under this Section.
Such policy or policies shall be issued by United States
Treasury or approved companies authorized to do business in the
PAGE 11
State of Florida, and having agents upon whom service of process
may be made in Orange County, Florida. ARCHITECT shall
specifically protect CITY by naming CITY as a named insured under
the Comprehensive General Liability Insurance policy hereinafter
described and shall clearly reference the foregoing indemnification
provision.
(a) Professional Liability Insurance. The limits of
liability provided by such policy shall be no less than ONE MILLION
AND NO/100 DOLLARS ($1 ,000,000.00) to insure and hold harmless the
CITY under the indemnification specified in Section 16. The City
will accept FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00)
from Architect, ONE MILLION AND NO/100 DOLLARS ($1 ,000,000.00) from
the Mechanical & Electrical Consultant and FIVE HUNDRED THOUSAND
AND NO/100 DOLLARS ($500,000.00) from the Structural Consultant.
Coverage of such policies shall be cumulative. All policies shall
name the City as additional insured.
(b) Comprehensive General Liability Insurance. The
limits of liability provided by such policy shall be no less than
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) to insure
and hold harmless the CITY pursuant to the indemnification
specified in Section 16, for which ARCHITECT is not insured under
the terms of its Professional Liability Insurance above specified
in Section 17(a) . Such insurance coverage shall include, but not
be limited to, the following:
(1) Public Liability Insurance shall protect
ARCHITECT, its agents and employees from claims for damages for
personal injury including accidental or wrongful death, as well as
property damage, which may arise from performance or services under
this Agreement. The limits of liability provided by such policy or
policies shall be no less than ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) for injuries, including accidental or
wrongful death, to any one person, and subject to the same limit
for each person an amount not less than TWO HUNDRED THOUSAND AND
NO/100 DOLLARS ($200,000.00) for any one occurrence.
(2) Property Damage Insurance. ARCHITECT shall carry
PAGE 12
liability limits of at least ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) for damages for any one claim and TWO HUNDRED
THOUSAND AND NO/100 DOLLARS ($200,000.00) for damages for any one
occurrence.
(c) ARCHITECT shall provide to CITY a copy of all
insurance policies required by this Section showing that CITY has
been named as additional insured under such policies, or, in the
alternative, a certificate evidencing that the required additional
endorsement has been obtained under such policies. Such policies
shall be provided by an insurer acceptable to the CITY and the
deductible amounts of such policies shall also be subject to
acceptance by the CITY.
SECTION 18. REPRESENTATIVE OF CITY AND ARCHITECT.
(a) It is recognized that questions in the day-to-day
conduct of performance pursuant to this Agreement will arise. The
CITY hereby designates the representative identified under
"NOTICES" as the employee to whom all communications pertaining to
the day-to-day performance of the Agreement shall be addressed.
The designated representative shall have the authority, as CITY's
coordinator for this Agreement, to transmit instructions, receive
information, and interpret and define the CITY's policy and
decisions pertinent to the work covered by this Agreement.
Individual coordinators for specific Projects shall be named in
each Work Order issued.
(b) ARCHITECT shall, at all times during the normal work
week, designate or appoint one or more representatives of ARCHITECT
who are authorized to act in behalf of ARCHITECT regarding all
matters involving the conduct of the performance pursuant to this
Agreement and shall keep CITY continually advised of such
designation in writing.
(c) For purposes of this Agreement only, designated
ARCHITECT representative is: James M. Dorsey, President.
SECTION 19. ALL PRIOR AGREEMENTS SUPERSEDED.
(a) This document incorporates and includes all prior
negotiations, correspondence, conversations, agreements, or
PAGE 13
understandings applicable to the matters contained herein and the
parties agree that there are no commitments, agreements, or
understandings concerning the subject matter of this Agreement that
are not contained in this document. Accordingly, it is agreed that
no deviation from the terms hereof shall be predicated upon any
prior representations or agreements whether oral or written.
(b) It is further agreed that no modifications,
amendment or alteration in the terms or conditions contained herein
shall be effective unless contained in a written document executed
with the same formality and of equal dignity herewith.
SECTION 20. NOTICES. Whenever either party desires to
give notice unto the other, it must be given by written notice,
sent by registered United States mail, with return receipt
requested, addressed to the party for whom it is intended, at the
place last specified, and the place for giving of notice shall
remain such until it shall have been changed by written notice in
compliance with the provisions of this paragraph. For the present,
the parties designate the following as the respective places for
giving of notice, to-wit:
FOR CITY OF OCOEE
Montye Beamer
Director of Administrative Services
City of Ocoee
150 N. Lakeshore Drive
Ocoee, FL 34761
FOR ARCHITECT
James M. Dorsey, AIA, RIBA
President
PDR Architects, Inc.
200 W. Welbourne Ave.
Winter Park, FL 32789
IN WITNESS WHEREOF, the parties hereto have made and
executed this Agreement on the respective dates under each
signature: CITY OF OCOEE through its BOARD OF CITY COMMISSIONERS,
signing by and through its Mayor, authorized to execute same by
Board action of the st day of , 1991, and
signing by and through its President, duly
authorized to execute same.
PAGE 14
ATTEST:
By. ,
Date: V 9.t4,11
ATTEST: BOARD OF CITY COMMISSIONERS
CITY OF OCOEE, FLORIDA
By:
Date:
For the use and reliance
of City of Ocoee only.
Approved as to form and
legal sufficiency.
City Attorney
SCOPE OF WORK
SECTION 1. GENERAL. ARCHITECT shall perform
professional services, upon authorization and as hereinafter
stated, for the following proposed projects:
(a) City Hall
(b) Police Station
SECTION 2. BASIC SERVICES. The ARCHITECT's Basic
Service for each project shall consist of any or all of the five
(5) phases described below, as determined by the CITY, and shall
include all required structural, mechanical, and electrical
engineering services necessary to achieve a complete project, along
with landscape architectural services when specifically authorized.
2.1 Phases.
(a) Program Finalization/Site Plan Development
Phase
(b) Schematic Design/Design Development.
(c) Construction Documents Phase.
(d) Bid/Negotiation Phase.
(e) Construction Administration.
The Program Finalization/Site Plan Development Phase, if
needed, will be addressed as a specific Work Order.
2.2 Schematic and Design/Development Phase.
(a) Based on the mutually agreed upon Program, the
ARCHITECT shall prepare Schematic Design Studies consisting of
drawings and other documents illustrating the scale and
relationship or Project components for approval by the CITY.
(b) Any renovation work shall include:
(1 ) Survey of salvageable items to be either
reused in the renovation work or reused by the CITY for replacement
where required as the CITY determines.
(2) As negotiated for each Project, identify
limits of demolition of all items affecting the Work.
(3) Renovation design work shall be
aesthetically compatible with existing structure.
EXHIBIT A-1
(c) The ARCHITECT shall submit to CITY a Statement
of Probable Contruction Cost based on area, volume or other unit
costs.
(d) The ARCHITECT shall prepare from the approved
Schematic Design Studies, for approval by the CITY, the Design
Development Documents consisting of drawings and other documents to
fix and describe the size and character of the entire Project as to
structural, mechanical, and electrical systems, materials, and such
other essentials as may be appropriate.
(e) The ARCHITECT shall submit to CITY a further
Statement of Probable Completion Cost, including estimated payout
schedule.
(f) The ARCHITECT shall prepare from the approved
Design Development Documents, for approval by the CITY,
Construction Documents setting forth in detail the requirements for
the construction/completion of the Project, including the necessary
bidding information, and shall assist in the preparation of bidding
documents using CITY'S standard General Conditions which include
form of Agreement. The ARCHITECT shall provide to CITY one ( 1)
reproducible plus five (5) copies of drawings and specifications.
(g) The ARCHITECT shall advise the CITY of any
adjustments to previous Statements of Probable Completion Cost
indicated by changes in requirements or general market conditions.
(h) The ARCHITECT shall assist the CITY or its
designee in filing the required documents for the approval of
governmental authorities having jurisdiction over the Project.
( i) The ARCHITECT shall plan the expansion and
redevelopment of the Municipal Complex as not to interfere with the
normal working functions of the Ocoee City Hall and Police Station.
2.3 Bidding Negotiation Phase. The ARCHITECT, following
the CITY's approval of the Contruction Documents and of the latest
Statement of Probable Cost, shall assist the CITY in obtaining bids
or negotiated proposals, and in awarding and preparing contracts.
2.4 Construction/Administration Phase.
(a) The Construction Phase will commence with the
EXHIBIT A-2
award of the Construction Contract and will terminate when the
Certificate of Occupancy of the completed structure is issued or
when final acceptance of all materials or services has been made by
the CITY, whichever occurs last.
(b) The ARCHITECT, as the representative of the
CITY, during construction, shall advise and consult with the CITY
and all of the CITY's instructions to the Contractor shall be
issued through the ARCHITECT.
(c) The ARCHITECT shall, at all times, have access
to the Work wherever it is in preparation or progress.
(d) The ARCHITECT and/or professional
subcontractors, shall make periodic visits on the average of three
(3) days per week (each Work Order to identify the number of hours
per week) to the site to familiarize himself generally with the
progress and quality of the Work, and to determine in general if
the Work is proceeding in accordance with the Contract Documents.
On the basis of his/her on-site observations as an architect,
he/she shall endeavor to guard the CITY against defects and
deficiencies in the work of the Contractor. Subject to the
conditions set forth in clause 2.4(e) , the ARCHITECT shall not be
required to make exhaustive or continuous on-site inspections to
check the quality or quantity of the Work. The ARCHITECT shall not
be responsible for construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in
connection with the Work; nor shall he be responsible for the
Contractor's failure to carry out the Work in accordance with the
Contract Documents. However, nothing herein contained shall be
construed to relieve ARCHITECT of its obligation to ascertain
whether all work performed by Contractor is in accordance with the
Contract Documents, and to advise Contractor and CITY within a
reasonable period of time, when, in its opinion, Work is not being
performed in accordance with the Contract Documents.
(e) ARCHITECT shall provide a full-time "Clerk-of-
the-Works" if requested and authorized by CITY in a separate Work
Order. The duties and responsibilities of the ARCIIITECT's
EXHIBIT A-3
"Clerk-of-the-Works" (i.e. ARCHITECT's Project Representative)
shall be specifically addressed in each Work Order requiring such
services and shall be consistent with AIA Document B352.
Compensation will be as agreed upon in each Work Order requiring
such services.
(f) Based on such observations at the site and on
the Contractor's Applications for Payment, the ARCHITECT shall
determine the amount owing to the Contractor and shall issue
Certificates for Payment in such amounts. The issuance of a
Certificate for payment shall constitute a representation by the
ARCHITECT to the CITY, based on the ARCHITECT's observations at the
site and the data comprising the Application for payment, that the
Work has progressed to the point indicated; that to the best of the
ARCHITECT's knowledge, information and belief, the quality of the
Work is in accordance with the Contract Documents (subject to an
evaluation of the Work for conformance with the Contract Documents
upon Substantial Completion, to the results of any subsequent tests
required by the Contract Documents, to minor deviations from the
Contract Documents correctable prior to completion, and to any
specific qualifications stated in the Certificate of Payment) ; and
that the Contractor is entitled to payment in the amount certified.
(g) The ARCHITECT shall have authority to reject
Work which does not conform to the Contract Documents. Whenever,
in his/her reasonable opinion, he/she considers it necessary or
advisable to insure the proper implementation of the intent of the
Contract Documents, he/she will have authority to require special
inspection or testing of any Work in accordance with the provisions
of the Contract Documents whether or not such Work be then
fabricated, installed, or completed.
(h) The ARCHITECT shall review and approve shop
drawings, samples, and other submissions of the Contractor for
conformance with the Design Concept of the Project and for
compliance with the information given in the Contract Documents.
(i) The ARCHITECT shall prepare Change Orders for
CITY approval prior to actual performance of work. ARCHITECT shall
EXHIBIT A-4
>t
1•
have authority to order minor changes in work not involving
adjustment to Contract Sum or Time Extension of Contract Documents.
(j) The ARCHITECT shall conduct inspections to
determine the Dates of Substantial Completion and final completion,
shall receive and review written guarantees and related documents
assembled by the Contractor, and shall issue a final Certificate
for Payment.
(k) The ARCHITECT shall not be responsible for the
acts or omissions of the Contractor, or any Subcontractors, or any
of the Contractor's or Subcontracators' agents or employees, or any
other persons performing any of the Work.
(1) Nothing contained in this Agreement shall be
read or interpreted to give ARCHITECT authority to arbitrate
differences between the CITY and the Contractor. No opinions or
decisions of the ARCHITECT shall be binding on CITY. Such opinions
shall be advisory only and carry no presumption of correctness in
any proceedings on any dispute between the CITY and the Contractor.
2.5 Services Detail. More detailed identifications of
services to be rendered may be specified in each Work Order issued.
2.6 Consultation. The ARCHITECT agrees to meet with
CITY at reasonable times and with reasonable notice. Times will be
defined under specific work orders.
SECTION 3. ADDITIONAL SERVICES. Such Additional
Services as may be authorized in any Work Order issued hereunder
shall be detailed in such Work Order.
END OF EXHIBIT A