Contract 2020-075ADocuSign Envelope ID: 1FF1CFB6-213C-4A03-9A2E-ECF789EF48A2
#2020-75-A
CONTINUING SERVICES AND AGREEMENT FOR
TRAFFIC TRANSPORTATION AND ENGINEERING CONSULTANT SERVICES
THIS AGREEMENT is made and entered into as of this day of 2020,
by and between the CITY OF CLERMONT, FLORIDA, a municipal corporation er the laws
of the State of Florida whose address is: 685 W. Montrose Street, Clermont, Florida, (hereinafter
referred to as "CITY") and S&ME, INC., whose address is: 1615 Edgewater Drive, Suite 200,
Orlando, FL 32804, (hereinafter referred to as "CONSULTANT").
WITNESSETH
WHEREAS, the CITY is in need of qualified and licensed CONSULTANT services related to various
municipal projects;
WHEREAS, the CITY, in accordance with Section 287.055, Florida Statutes, solicited proposals for
professional services as more fully described and set forth in Traffic and Transportation Engineering
Consultant Services, RFQ 20-006; and
WHEREAS, the CONSULTANT submitted a proposal to provide said services and has represented
to CITY that it is qualified and desires to perform said services in accordance with the terms and
conditions contained herein, and all applicable law and professional standards;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties covenant and agree as follows:
1.0 TERM
1.1 This Agreement is to become effective upon execution by both parties, and shall remain in
effect for a three (3) year term, unless terminated as provided for herein. Additionally, the
parties agree that the term may be extended upon mutual Agreement for periods of one (1)
year, but such option to extend may only be utilized three (3) times unless authorized by
the City Council for additional extensions.
1.2 The term of any task authorization/work order, as described in Section 2 hereof shall be as
set forth in such task authorization/work order, and all of the terms and conditions of this
Agreement shall survive until completion of all task authorizations/work orders.
2.0 DESCRIPTION OF SERVICES
2.1 It is expressly understood and acknowledged that nothing herein shall obligate or guarantee
to CONSULTANT any Agreement or task authorization and CITY expressly reserves the
right to exercise its option to issue any such Agreements to any qualified firm or entity in
accordance with all applicable laws, ordinances, policies and/or regulations.
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2.2 The CITY shall make request of CONSULTANT to provide traffic and transportation
engineering consultant services and other related consulting services on a task basis. The
CITY will communicate with CONSULTANT, verbally or in writing, a general description
of the task to be performed. The CONSULTANT will generate a detailed Scope of Work
document, prepare a Schedule, add a not -to -exceed -budget to accomplish the task, and send
the thus developed "Task Proposal" to the CITY. If a site visit by CONSULTANT is
needed to generate the scope document, CONSULTANT shall request approval prior to
visiting the site. The CITY will review the proposal, and if the description is mutually
acceptable, the parties will enter into a written "task authorization or work order". The
Scope of Services generally to be provided by the CONSULTANT shall be as provided
and contemplated by the CITY in that certain Traffic and Transportation Engineering
Consultant Services, RFQ 20-006, and CONSULTANT'S response thereto, which are
expressly incorporated herein and made a part hereof as if restated.
CONSULTANT shall not be authorized to proceed until the CITY has issued a Notice to
Proceed to the CONSULTANT. Upon receipt of the signed Task Authorization and a
Notice to Proceed from the CITY, the CONSULTANT shall perform the services set forth
in the task authorization/work order.
3.0 CHANGES IN THE SCOPE OF WORK
3.1 CITY may make changes in the services at any time by giving written notice to
CONSULTANT. If such changes increase (additional services) or decrease or eliminate
any amount of work, CITY and CONSULTANT will negotiate any change in total cost or
schedule of modifications. If the CITY and CONSULTANT approve any change, the task
authorization/work order will be modified to reflect the changes; and CONSULTANT shall
be compensated for said services in accordance with the terms of Article 5.0 herein. All
change orders shall be authorized in writing by CITY' S and CONSULTANT'S designated
representatives.
3.2 All task authorizations/work orders and amendments thereto shall be performed in strict
accordance with the terms of this Agreement insofar as they are applicable.
4.0 SCHEDULE
4.1 CONSULTANT shall perform services in conformance with the mutually agreed upon
schedule set forth in the negotiated task authorization/work order. CONSULTANT shall
complete all authorized services in a timely manner and will keep CITY fully informed of
the status of work on a reasonable basis in relation to the scope of the project, but a
minimum, shall provide to CITY a progress and status report once every two weeks.
Should CONSULTANT fall behind the agreed upon schedule, it shall employ such
resources so as to comply with the agreed upon schedule at no additional cost to the CITY.
4.2 No extension for completion of services shall be granted to CONSULTANT without
CITY'S prior written consent, except as provided in Sections 3.1 and 20.0 herein.
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5.0 METHOD OF PAYMENT FOR SERVICES AND EXPENSES
5.1 DEFINITIONS:
5.1.1 The "CONSULTANT's Professional Services Fee Schedule" as set forth in Exhibit
"A", attached hereto and incorporated herein, are used as a basis for payment for
services pursuant to Paragraphs 2.0 and 3.0. These fee schedules shall include
wages, salaries, taxes, insurance, overhead and profit. The hourly salary rates set
forth in the Fee Schedule are firm for the initial term of the contract (3 years), but
are subject to an equitable adjustment that is to be negotiated prior to the renewal
of the Agreement. Any adjustments to the Fee Schedule must be mutually agreed
to by the CITY and CONSULTANT.
5.1.2 The "CONSULTANT's Reimbursable Expenses Schedule" as set forth in Exhibit
"B", attached hereto and incorporated herein, as provided by the CONSULTANT,
is used as the basis for payment for actual costs of all reimbursable expenses
incurred in connection with the services rendered.
Reimbursable expenses are limited to: printing, travel (not ordinary to the project)
and the purchase of specialized software or equipment specific to the task
authorization, which are directly in connection with the project and been pre -
approved by the City. Said reimbursable expenses shall be passed through at a cost
factor of 1.0.
5.1.3 The "Deliverables" are defined as plans, reports, findings, specifications, or
anything else that is the end product or work performed by the CONSULTANT or
the CITY. CONSULTANT shall, within such time constraints as may be set forth
in the work order, submit to CITY the deliverables as identified in the work order;
and CONSULTANT shall, upon completion of all work, submit to the CITY all
information developed in the course of the consulting services. CONSULTANT
shall, upon request by CITY and upon completion or termination of this Agreement,
deliver to CITY all material furnished to CONSULTANT, provided the CITY
identifies those materials in writing.
5.2 PAYMENT/COMPENSATION:
CITY agrees to pay or compensate the CONSULTANT for the professional services
performed on each task authorization/work order as set forth in the applicable task
authorization/work order.
5.2.1 Times of Payments: CONSULTANT shall submit statements for services,
additional services rendered and for reimbursable expenses incurred upon
completion and delivery to CITY of the authorized traffic and transportation
engineering report and analysis as set forth in the applicable Task Authorization/Work
Order. All statements will be based upon CONSULTANT'S actual manpower
expended and actual expenses incurred for the services provided.
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5.2.2 As a condition precedent to receiving payment, CONSULTANT shall have been
authorized to proceed by CITY, shall not be in default of any of the terms and
conditions of this Agreement and shall provide to CITY an invoice. The invoice
shall be forwarded to CITY, upon delivery of the report or analysis and signed by
an authorized representative of CONSULTANT related to the applicable task
authorization/work order. The invoice shall include a statement identifying the
services provided for the specific task authorization/work order.
5.2.3 All invoices submitted for compensation shall include a statement by
CONSULTANT that states as follows:
"This statement sets forth only actual time spent by the firm's employees and does
not contain any unit billing, multipliers, or other devices that permit payment for
more than actual time spent."
5.2.4 CITY shall pay all valid, approved, and undisputed invoices within thirty (30) days
of receipt from CONSULTANT. In the event that CITY disputes any invoice
submitted, it shall advise CONSULTANT, in writing, and said invoice shall not be
deemed due and payable under this Agreement. Neither the CITY'S review,
approval or acceptance of, nor payment for, any services provided hereunder shall
be construed to operate as a waiver of any rights under this Agreement and the
CONSULTANT shall be liable to CITY for any and all damages to CITY caused
by the CONSULTANT'S negligent or wrongful performance of any of the services
furnished under this Agreement.
5.3 Other Provisions Concerning Payments:
5.3.1 In the event of termination by CITY under Section 19.0 during the performance of
the services, payments due CONSULTANT up to the point of termination,
including payments for services rendered, and all costs incurred shall constitute
total payment for such services.
5.3.2 Records of CONSULTANT's Salary Costs and Expenses pertinent to
CONSULTANT'S compensation under this Agreement will be kept in accordance
with generally accepted accounting principles. These records will be made
available to CITY for audit upon request by CITY. Copies will be made available
to CITY on request prior to final payment for CONSULTANT'S services.
5.3.3 A separate invoice must be submitted for each individual task authorization.
Invoices must show a breakdown of the number of hours worked by each person
charging time to the task authorization, hourly salary cost and any reimbursable
expenses, if applicable.
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6.0 RIGHT TO INSPECTION
6.1 CITY or its agents shall at all times have the right to review or observe the services
performed by CONSULTANT.
6.2 No inspection, review, or observation shall relieve CONSULTANT of its responsibility
under this Agreement.
7.0 PROGRESS MEETING
CITY'S designated Project Manager, at his or her reasonable discretion, may request and
hold progress meetings, during the term of any task authorization entered into under this
Agreement. CONSULTANT'S Project Manager and all other appropriate personnel shall
attend such meetings as designated by CITY'S Project Manager.
8.0 SAFETY
8.1 CONSULTANT agrees to comply with CITY'S published safety standards while on the
property of CITY. A copy of these standards is provided in Exhibit "C", attached hereto
and incorporated herein.
8.2 CONSULTANT shall have full responsibility and assume all liability for the safety and
supervision of its employees while performing services provided hereunder.
9.0 REASONABLE ACCESS
During the term of this Agreement, CITY shall grant CONSULTANT reasonable access
to the CITY'S premises for purposes of fulfilling its obligations under this Agreement.
10.0 INSURANCE AND HOLD HARMLESS/INDEMNIFICATION
CONSULTANT and/or any CITY approved subcontractors or sub CONSULTANTS shall
maintain in force during the term of this Agreement, at its own expense, insurance as set
forth below and shall be bound by the terms of the Hold Harmless/Indemnification
provisions expressed therein.
Worker's Compensation — as required by applicable state statute.
Commercial General Liability - $1,000,000 per occurrence for bodily injury, including
death and property damage and $2,000,000 in the aggregate. The General Liability policy
shall include the commercial form, contractual liability and independent contractor's
coverage.
Automobile Liability - $1,000,000 combined single limit for bodily injury and property
damage. The Automobile Liability policy shall include the business form, owned, hired
and non -owned coverage.
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Professional Liability E&O - $1,000,000 each claim and in the aggregate.
Property Coverage — Property coverage in limits sufficient to remedy the loss, and/or loss
of use of, valuable papers and records, and any other property of the party utilized in
connection with the City.
The General Liability and Automobile Liability shall each contain an endorsement naming
the City as an additional insured as to any liability arising out of insured parry's
performance pursuant to this Agreement. The Worker's Compensation and Employer's
Liability coverage shall contain an endorsement waiving subrogation as against the City.
Indemnification — Consultant shall indemnify and hold harmless the Client and its
employees from any liability, settlements, loss of costs of any kind, whether actual or
threatened, (including reasonable attorney's fees and cost of defense) to the extent caused
by the negligent act, error or omission of CONSULTANT in the performance of services
under this Agreement.
11.0 COMPLIANCE WITH LAWS AND REGULATIONS
CONSULTANT shall comply with all requirements of federal, state and local laws, rules,
regulations, standards, and/or ordinances applicable to the performance of this Agreement.
12.0 REPRESENTATIONS
12.1 CONSULTANT represents that the services provided hereunder shall conform to all
requirements of this Agreement, RFQ 20-006 and CONSULTANT'S response thereto;
shall be consistent with recognized and sound professional engineer practices and
procedures; and shall conform to the customary standards of care, skill, and diligence
appropriate to the nature of the services rendered.
12.2 CONSULTANT represents that the personnel furnishing such services shall be qualified
and competent to perform the services assigned to them and that such guidance given by
and the recommendations and performance of such personnel shall reflect their
professional knowledge and judgment.
12.3 Subject to the provisions of this Section, should CONSULTANT breach the warranties set
forth herein, CITY shall have such remedies as may be provided at law or equity.
12.4 Without limiting the generality of the foregoing, if the CONSULTANT completes its
services under any task authorization entered into hereunder, and the CONSULTANT'S
services are non -complying, or otherwise improperly performed and CITY notifies
CONSULTANT in writing that an error, omission or noncompliance has been discovered
in CONSULTANT'S services, CONSULTANT shall, at the option of CITY: a) correctly
re -perform such non -complying, or otherwise improperly performed services at no
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additional cost to CITY; b) refund the amount paid by CITY attributable to such non-
complying, or otherwise improperly performed services; or c) if CONSULTANT fails to
take action under a) above, at CONSULTANT'S sole expense, otherwise cure or have
cured any such non -complying, or otherwise improperly performed services.
12.5 The only representations made by CONSULTANT are those expressly enumerated in this
provision. Any other statements of fact or descriptions expressed in the Agreement or any
attachments thereto, shall not be deemed to constitute a warranty of the work or any part
thereof.
13.0 GUARANTEE AGAINST INFRINGEMENT
CONSULTANT guarantees that all services provided under this Agreement shall be free from
claims of patent, copyright, and trademark infringement. Notwithstanding any other provision of
this Agreement, CONSULTANT shall indemnify and hold harmless CITY, its officers, directors,
employees, agents, assigns, and servants from and against any and all liability, including expenses,
legal or otherwise, for actual infringement of any patent, copyright, or trademark resulting from
the use of any goods, services, or other items provided under this Agreement. Notwithstanding
the foregoing, CONSULTANT may elect to provide non -infringing services.
14.0 DOCUMENTS
14.1 Upon CITY'S or its designated Project Manager's request, at any time during the term of
this Agreement or upon completion or termination of this Agreement, CONSULTANT
shall provide CITY or its designated Project Manager with a copy of all documents and
electronic files prepared by CONSULTANT under this Agreement or any Task
Authorization hereunder. CITY understands that re -use of any documents for any other
purposes, shall be at the CITY'S own risk.
14.2 The parties acknowledge that the CITY is a Florida municipal corporation and subject to
the Florida Public Records Law, therefore, to the extent applicable to it, CONSULTANT
agrees to comply with the terms thereof with regard to any and all documents related to the
CITY.
14.3 Drawings, specifications, reports, program, manuals, calculations, supporting design
documentation or other documents, including all documents on electronic media, provided
by the CONSULTANT or their sub -consultants, prepared under this Agreement shall be
come property of the CITY. Conformed documents, record documents and final written
documents shall be provided electronically in a form specified by the CITY. The CITY
agrees to release CONSULTANT from any liability that may result from the re -use of
documents or modifications thereof, by the CITY of its representatives for any other
purpose other than the original intent of this Agreement, without written authorization by
the CONSULTANT. CONSULTANT will retain all common law, statutory, and other
reserved rights, including the copyright thereto.
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15.0 ASSIGNMENT
15.1 CONSULTANT shall not assign or subcontract this Agreement, any task authorization
hereunder, or any rights or any monies due or to become due hereunder without the prior,
written consent of CITY.
15.2 If, upon receiving written approval from CITY, any part of this Agreement is subcontracted
by CONSULTANT, CONSULTANT shall be fully responsible to CITY for all acts and/or
omissions performed by the subcontractor as if no subcontract had been made.
15.3 If CITY determines that any subcontractor is not performing in accordance with this
Agreement, CITY shall so notify CONSULTANT who shall take immediate steps to
remedy the situation.
15.4 If any part of this Agreement is subcontracted by CONSULTANT, prior to commencement
of any work by the subcontractor, CONSULTANT shall require the subcontractor to
provide CITY and its affiliates with insurance coverage as set forth by the CITY' S Risk
Management.
16.0 INDEPENDENT CONSULTANT
At all times during the term of this Agreement, CONSULTANT shall be considered an
independent CONSULTANT.
17.0 CONFLICT OF INTEREST
CONSULTANT shall not undertake any task on behalf of the CITY where CONSULTANT has a
conflict of interest arising out of a part or present professional relationship with another client.
The CONSULTANT shall notify the CITY in writing of any conflict of interest or potential
conflict of interest should arise.
18.0 DEFAULT
If during the term of this Agreement, CONSULTANT shall be in default of any of the material
provisions of this Agreement, CITY may suspend its performance hereunder until such
delinquency or default has been corrected; provided, however that no suspension shall be effective
unless and until CITY gives written notice of the default to CONSULTANT with at least ten (10)
days to cure such default. If CONSULTANT fails to correct such delinquency or default within
thirty (30) days of suspension by CITY, CITY may terminate this Agreement.
19.0 TERMINATION
Notwithstanding any other provision of this Agreement, CITY may, upon written notice to
CONSULTANT, terminate this Agreement if. a) without cause and for convenience upon thirty
(30) days written notice to CONSULTANT b) CONSULTANT is adjudged to be bankrupt; c)
CONSULTANT makes a general assignment for the benefit of its creditors; d) CONSULTANT
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fails to comply with any of the conditions of provisions of this Agreement; or e) CONSULTANT
is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon
performance of this Agreement, without prejudice to any other right or remedy CITY may have
under this Agreement. In the event of such termination, CITY shall be liable only for the payment
of all unpaid charges, determined in accordance with the provisions of this Agreement, for work,
properly performed and accepted prior to the effective date of termination.
20.0 FORCE MAJEURE
Any delay or failure of either party in the performance of its required obligations hereunder shall
be excused if and to the extent caused by acts of God: fire; flood; windstorm; explosion; riot; war;
sabotage; strikes; extraordinary breakdown of or damage to CITY'S affiliates' generating plants,
their equipment, or facilities; court injunction or order; federal and/or state law or regulation; order
by any regulatory agency; or cause or causes beyond the reasonable control of the parry affected;
provided that prompt notice of such delay is given by such party to the other and each of the parties
hereunto shall be diligent in attempting to remove such cause or causes. If any circumstances of
Force Majeure remain in effect for sixty (60) days, either party may terminate this Agreement.
21.0 GOVERNING LAW & VENUE
This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance
with the laws of the State of Florida. Venue shall be Lake County, Florida, or the United States
District Court in and for the Middle District of Florida.
22.0 HEADINGS
Paragraph headings are for the convenience of the parties only and are not to be construed as part
of this Agreement.
23.0 SEVERABILITY
In the event any portion or part of this Agreement is deemed invalid, against public policy, void,
or otherwise unenforceable by a court of law, the parties shall negotiate an equitable adjustment
in the affected provision of this Agreement. The validity and enforceability of the remaining parts
thereof shall otherwise be fully enforceable.
24.0 WAIVER AND ELECTION OF REMEDIES
24.1 Waiver by either party of any terms, condition, or provision of this Agreement shall not be
considered a waiver of that term, condition, or provision in the future.
24.2 No waiver, consent, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by a duly authorized representative of each parry
hereto.
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25.0 THIRD PARTY RIGHTS
Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than
CITY and CONSULTANT.
26.0 PROHIBITION AGAINST CONTINGENT FEES
CONSULTANT warrants that it has not employed or retained any company or person, other than
a bona fide employee working solely for the CONSULTANT, to solicit or secure this 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 the CONSULTANT, any fee, commission,
percentage, gift, or other consideration contingent upon or resulting from the award or making of
this Agreement.
27.0 ENTIRE AGREEMENT
Except as otherwise state, this Agreement, including the schedules, attachments, appendixes and
exhibits attached hereto, constitutes the entire Agreement between CITY and CONSULTANT
with respect to the services specified and all previous representations relative thereto, either written
or oral, are hereby annulled and superseded.
28.0 SOVEREIGN IMMUNITY
Nothing contained in the Agreement shall be construed as a waiver of the CITY' S rights to
sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the
CITY' S potential liability under state or federal law.
29.0 NOTICE
Any notices required to be given by the terms of this Agreement shall be delivered by hand or
mailed, postage prepaid to:
CITY: City of Clermont
Attn: Darren Gray, City Manager
685 West Montrose Street
Clermont, Florida
CONSULTANT: S&ME, Inc.
Attn: Leonard E. Arnold Jr., Vice President
1615 Edgewater Drive, Suite 200
Orlando, FL 32804
Either party may change the name of the person receiving notices and the address at which notices
are received by so advising the other party in writing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this AL day of
�r�4c•� 2020.
City of lermont
Gail L. Ash, Mayor
City Clerk
S&ME, Inc.
�—DocuSlgned by:
(,t,ln C' Qvu al d
(Signature)
Lennie Arnold vice President
(Name & Title Printed or Typed)
Attest:
Corporate Secretary
(Name Printed or Typed)
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