3-2.0-CCNA Agreement-Draft.docx

AGREEMENT FOR CONSULTANT SERVICES

THIS AGREEMENT, made and entered into at Tarpon Springs, Florida, this __th day of _______, 202__, by and between the CITY OF TARPON SPRINGS, a municipal corporation of the State of Florida, hereinafter referred to as “CITY’ and ______________________________, qualified in Florida as Corporation (License #_____________), hereinafter referred to as “CONSULTANT”.

WHEREAS, the CITY proposes to do certain (Description) Architect/Engineering Services.

WHEREAS, the CITY desires to engage the CONSULTANT to perform certain professional services pertinent to such work as requested in RFQ/RFP No. ________________, dated _______________, which is attached as Exhibit A and made a part hereof by reference, and in accordance with this Agreement; and

WHEREAS, the CONSULTANT desires to provide such professional services as described in the RFQ/RFP No. ____________ Scope of Services Proposal, dated _________________, which is attached as Exhibit B and made a part hereof by reference, and in accordance with this Agreement;

NOW, THEREFORE, in consideration of the premises and the mutual benefits which will accrue to the parties hereto in carrying out the terms of this Agreement, it is mutually understood and agreed as follows:

I. GENERAL SCOPE OF THIS AGREEMENT

A. The relationship of the CONSULTANT to the CITY will be that of a professional consultant, and the CONSULTANT will provide the professional and technical services required under this Agreement in accordance with acceptable engineering practices and ethical standards. No employer/employee relationships shall be deemed to be established and the CONSULTANT, its agents, and employees, shall be independent contractors at all times.

B. Professional and Technical Services: It shall be the responsibility of the CONSULTANT to work with the CITY and apprise it of solutions to design problems and the approach or technique to be used towards accomplishment of the CITY’S objectives as set forth in the Scope of Services, which is made a part of this Agreement upon execution by both parties.

C. The CONSULTANT shall be responsible for the professional quality; technical accuracy; timely completion; compliance with regulations, codes, and rules; and the coordination with all appropriate agencies of all designs, drawings, specifications, reports, and other services furnished by the CONSULTANT under this Agreement. If the CITY determines there is any breach of the standard of care in the CONSULTANT’S designs, drawings, specifications, reports and other services, the CONSULTANT shall, without additional compensation, correct or revise said breach to the satisfaction of the CITY.

D. Approval by the CITY of drawings, designs, specifications, reports, and incidental engineering work or materials furnished hereunder shall not in any way relieve the CONSULTANT of responsibility for the technical adequacy of its work. The CITY’S review, approval, or acceptance of or payment for any of the services shall not 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.

E. The CONSULTANT shall be and remain liable in accordance with applicable law for all damages to the CITY caused by the CONSULTANT’S negligent performance of any of the services furnished under this AGREEMENT.

F. The parties recognize that the CONSULTANT is an independent contractor. The CONSULTANT agrees to indemnify and hold harmless CITY, from, and against all liability and expense, including reasonable attorney’s fees, in connection with any and all claims whatsoever for personal injuries or property damage to the extent caused by the negligence, recklessness or intentionally wrongful conduct of the CONSULTANT, its agents, officers, subcontractors, employees, and independent contractors. To the extent City is allowed by Section 725.08, F.S. 2000 to require CONSULTANT to defend CITY and to the extent covered by a liability policy of CONSULTANT, CONSULTANT will defend CITY from claims against the CITY described in the preceding sentence. This includes claims made by the employees of the CONSULTANT against the CITY; and CONSULTANT hereby waives its entitlement, if any, to immunity under Section 440.11, Florida Statutes and the Workers Compensation Act. Nothing contained herein shall be construed to waive the CITY’S immunity from liability under the doctrine of sovereign immunity or Section 768.28, Florida Statutes.

G. Incorporation by Reference; Order of Precedence. This Agreement incorporates and makes a part hereof by reference the following documents: (i) the RFQ No. 230039-S-JL and Addendums No. 1, dated November 11, 2021 (“Exhibit A”), (ii) Consultant’s Certificate of Insurance required in accordance with the RFQ; and (iii) Consultant Proposal and all associated documents (collectively “Consultant Standard Terms”) dated November 22, 2021 (“Exhibit B”). Notwithstanding any term in the City Contract to the contrary, in the event of any irreconcilable conflict between the terms of these respective documents, the terms in the earlier-listed document shall prevail over conflicting terms in a subsequently listed document. In the event the Consultant issues updated to supplemented Consultant Standard Terms, and provides notice of same to City, such updates or supplements shall automatically replace or supplement the original Consultant Standard Terms.

II. DATA AND SERVICES TO BE PROVIDED BY THE CITY

The City shall provide:

A. Available plans and specifications of existing municipal owned facilities.

B. Other data and services described in the Scope of Services.

C. Payment for all legal advertisements incidental to obtaining bids or proposals from contractors.

D. Designate, in writing, an individual to act as the CITY’S representative with respect to the work to be performed under this AGREEMENT. Such person shall have the authority to exercise the rights and responsibilities of the CITY provided in this contract. Said authority includes but is not limited to: issue change orders, transmit instructions, stop work, receive information, interpret and define CITY’S policies and decisions with respect to materials, equipment, elements, and systems pertinent to the services covered by this AGREEMENT.

E. Pay all permit application filing fees.

III. TERM OF THE AGREEMENT

A. The term of the Agreement shall be from the date set forth in the introductory paragraph and continue for a period of five (5) years from the date of execution.

B. The CONSULTANT will begin work promptly after receipt of a Task Work Order (TWO).

C. The CONSULTANT’S services called for under the Agreement shall be completed in accordance with the schedule contained in the Scope of Services; provided that, if the CONSULTANT’S services are delayed for reasons beyond the CONSULTANT’S control, the time of performance shall be adjusted appropriately.

IV. GENERAL CONSIDERATIONS

A. All original sketches, reproducible Mylar drawings, computations, details, design calculations, and other documents and plans that result from the CONSULTANT’S services under this AGREEMENT shall become and remain the property of the CITY, including copyright rights, upon receipt of payment by the CONSULTANT from the CITY for services rendered in connection with preparation of said sketches, drawings, etc. Where such documents are required to be filed with governmental agencies, the CONSULTANT will furnish copies to the CITY upon request.

B. The Consultant must maintain insurance in at least the amounts required in the Request for Qualifications throughout the term of this contract. The Consultant must provide a Certificate of Insurance in accordance with Insurance Requirements, of the Request for Qualifications evidencing such coverage prior to issuance of a purchase order or commencement of any work under this Contract. Consultant shall ensure that any subcontractors or persons hired by subcontractors maintain the same level of insurance coverage as the Consultant. The Consultant shall provide cyber liability insurance, not cyber liability technology insurance. Except of professional and cyber liability, the CITY shall be endorsed to the required policy or policies as an additional insured.

C. The CITY acknowledges that the materials cited in Paragraph IV. A. above which are provided by the CONSULTANT are not intended for use in connection with any project or purpose other than the project and purpose for which such materials are prepared. Any use by the CITY of such materials in connection with a project or purpose other than that for which such materials were prepared without prior written consent and adaptation by the CONSULTANT shall be at the CITY’S sole risk, and the CONSULTANT shall have no responsibility or liability, therefore.

D. During all times that the CONSULTANT is employed on behalf of the CITY and at all times subsequent to the date of this contract, all discussions between the CITY and the CONSULTANT and all information developed or work products produced by the CONSULTANT during its employment and all matters relevant to the business of the CITY not otherwise being a matter of public record shall be deemed to be confidential. All such information and work product shall be protected by the CONSULTANT and shall not be revealed to other persons without the express written permission of the CITY. In recognition of the fact that the CONSULTANT has many clients in and about the geographical area of Tarpon Springs and in recognition of the fact that the CITY’S long-range plans may have a direct economic effect on such other clients, and future clients, the parties do hereby recognize that the need for such confidentiality is inherent in the professional relationship between the parties and is a material aspect of this contract.

Breach of such confidential relationship shall be deemed to have damaged the CITY, and the parties do hereby agree that actual and punitive damages may be assessed against the CONSULTANT for the breach of such confidential relationship.

E. In further recognition of the fact that the CONSULTANT may represent other clients in the geographic area of Tarpon Springs and that the professional relationship with such clients may represent a conflict in its professional relationship with the CITY, the CONSULTANT agrees to confer with the CITY prior to agreeing to perform professional services for other persons, firms, corporations, or political entities within the City of Tarpon Springs and, as to any other political subdivision, for any activities within the State of Florida, that in any way affect the interests of the CITY. The CONSULTANT agrees to reveal all such proposed professional relationships to the CITY and to refuse such employment with other private or public entities in the event that the CITY deems there to be a substantial potential for a conflict of interest to arise from such relationships.

F. The CONSULTANT agrees to cooperate with the CITY and other CONSULTANTS providing services to the CITY in accomplishing work that may require joint efforts to accomplish the CITY’S goals. This cooperation, when requested by the CITY, will include but not be limited to:

1. Sharing technical information developed under contract with the CITY.

2. Joint meetings for project coordination.

3. Establish lines of communication.

V. COMPENSATION

A. When a service is to be compensated for on a time charge basis, the CITY will compensate the CONSULTANT based upon the actual hourly salary rate of the individual(s) involved, times a multiplier factor of ______, which will be incorporated into the Agreement.

B. Services in addition to those described in the Scope of Services shall be compensated in accordance with a negotiated lump sum or time charges with established hourly rates.

METHOD I – LUMP SUM

Lump Sum Amount Wherever possible, the Scope of Services for Services, Projects, or Programs shall be thoroughly defined and outlined prior to its authorization. The CITY and CONSULTANT shall mutually agree to a Lump Sum amount for services to be rendered and a detailed scope of services.

METHOD II – TIME CHARGES

Computation of Time Charges – When a service is to be compensated for on a time charge basis, the CONSULTANT will submit an estimated cost to the CITY for prior approval. It is anticipated that the total cost to the CITY for the performance of time charge services including, but not limited to time charges, professional associates, and other direct costs will not exceed the estimated costs; and the CONSULTANT agrees to use its good faith effort to perform said work within said estimated costs. If, as the actual work progresses, the CONSULTANT has reason to believe that the cost for the task will be greater than estimated, The CONSULTANT shall notify the City in writing to that effect, giving the revised estimate of such cost for said work and, upon acceptance by the CITY in writing, the revised estimate shall become the estimated cost which the CONSULTANT will use in good faith effort not to exceed. The CONSULTANT is precluded from submitting increases in the estimated cost thirty (30) days prior to the agreed upon completion date of the task. The CITY shall not be obligated to reimburse the CONSULTANT for cost incurred in excess of the estimated costs set forth above.

C. Sub-contractual services shall be invoiced at the actual fees paid by the CONSULTANT with no mark-up in fees. Sub-contractual services will be approved by the CITY prior to performance of the sub-contractual work.

D. Reimbursable expenses shall be invoiced at the actual expenditures incurred by the CONSULTANT, if provided in the authorized ADDITIONAL SERVICES AUTHORIZATION as follows:

1. Expense of transportation and lodging (not to exceed the limits in accordance with the CITY Travel Policy), long distance calls and telegrams, and fees paid for securing approval of authorities having jurisdiction over the project.

2. Expenses of reproductions, postage, and handling of Drawings and Specifications including duplicate sets at the completion of each ADDITIONAL SERVICES AUTHORIZATION for the CITY’S review and approval.

3. Expense of overtime work requiring higher than regular rates, when authorized by the city.

4. Expense of models for the CITY’S use.

5. Expense of computer time.

E. Total Compensation for all services and expenses shall not exceed the upset limit listed upon each ADDITIONAL SERVICES AUTHORIZATION without written approval.

F. If the CITY determines that any price for services, however calculated, provided by the CONSULTANT, including profit, negotiated in connection with this AGREEMENT or any cost reimbursable under this AGREEMENT was increased by any significant sums because the CONSULTANT or any subcontractor furnished incomplete or inaccurate cost or pricing data, then such price or cost or profit shall be reduced accordingly and the ADDITIONAL SERVICES AUTHORIZATION shall be modified in writing to reflect such reduction.

VI. PAYMENT

Payments for Basic Services, Sub-contractual Services, and Reimbursable Expenses as defined in Section V shall be made not later than 45 days from presentation of the Engineer’s itemized report and invoice and approval of the Project Manager designated by the CITY, unless additional time for processing is required. The CONSULTANT shall submit monthly invoices or other periodic invoices required in the ADDITIONAL SERVICES AUTHORIZATION, including a report of work completed during the respective invoice period. The report shall be adequate in detail to describe work progress (% complete for each task) and written summaries of work completed. No payment request shall exceed the value of the work and services performed by the CONSULTANT under the Scope of Services or ADDITIONAL SERVICES AUTHORIZATION. The Parties will follow the provisions of the Florida Prompt Payment Act, §218.735, hereby incorporated by reference with respect to invoices, responses, dispute resolution and payment timing.

VII. RECORDS

The Consultant shall comply with all applicable requirements contained in the Florida Public Records Law, including but not limited to any applicable provisions in Florida Statutes § 119.0701. Pursuant to that statute, the Consultant shall and any subconsultants:

(a) Keep and maintain public records required by the City to perform the Services provided hereunder.

(b) Upon request from the City’s custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law.

(c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law for the duration of the term of this Agreement and following completion of this Agreement if the Consultant does not transfer the records to the City.

(d) Upon completion of the Agreement, transfer, at no cost, to the City all public records in the possession of the Consultant or keep and maintain public records required by the City to perform the service. If the Consultant transfers all public records to the City upon completion of the Agreement, the Consultant shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Consultant keeps and maintains public records upon completion of the Agreement, it shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City’s custodian of public records, in a format that is compatible with the information technology systems of the City.

If the Consultant fails to comply with the requirements in this Section, the City may enforce these provisions in accordance with the terms of this Agreement. If the Consultant fails to provide the public records to the City within a reasonable time, it may be subject to penalties under Florida Statutes § 119.10.

IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, THE CONSULTANT SHOULD CONTACT THE CITY’S CUSTODIAN OF PUBLIC RECORDS: BY TELEPHONE(727.942.5614), E-MAIL (cityclerk@ctsfl.us), OR MAIL: CITY OF TARPON SPRINGS, OFFICE OF THE CITY CLERK, 410 NORTH RING AVENUE, TARPON SPRINGS, FLRODIA 34689.

VIII. PERSONNEL

A. The CONSULTANT represents that it has or will secure, at its own expense, qualified personnel required in performing the services under this AGREEMENT. All work shall be performed under the direction of an engineer registered under State and local law to perform such services. Key project personnel will be identified for each project and expected to perform the work assignment as can reasonably be expected. No person who is serving sentence in a penal or correctional institution shall be employed on work under this Agreement.

B. The CONSULTANT covenants that neither it nor any of its professional employees assigned to the Engineer of Record “Project” or any TWO to which this AGREEMENT pertains presently has any interest in and shall not acquire any interest, direct or indirect, in any business, firm, material supplier, equipment supplier, service supplier, or sub-contractor or any other person, firm, or corporation supplying any real property, personal property, or service, to the accomplishment of the work contemplated by the Project in any phase or portion of the Project. The CONSULTANT and each and all professional employees assigned to the Project will give a certification to the CITY not later than five calendar days after the AGREEMENT is executed.

IX. SUSPENSION, CANCELLATION OR ABANDONMENT

This AGREEMENT may be terminated in whole or in part in writing by the CITY for its convenience, provided, that the CONSULTANT is given:

(1) not less than ten (10) calendar days written notice (delivered by certified mail, return receipt requested) of intent to terminate and

(2) an opportunity for consultation with the CITY prior to termination.

In the event the project described in the Scope of Services, or the Services of the CONSULTANT called for under any ADDITIONAL SERVICES AUTHORIZATION is or are suspended, cancelled, or abandoned by the CITY, the CONSULTANT shall be given five days prior written notice of such action and shall be compensated for the professional services provided and reimbursable expenses incurred up to the date of suspension, cancellation, or abandonment.

Upon receipt of a cancellation action, the CONSULTANT shall (1) promptly discontinue all services affected (unless the notice directs otherwise) and (2) deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by the CONSULTANT in performing this AGREEMENT, whether completed or in process together with all other material and property belonging to the CITY and in the CONSULTANT’S possession. The CITY may take over the work and prosecute the same to completion by agreement with another party or otherwise.

X. MISCELLANEOUS

a. This Agreement, together with the documents incorporated by reference, constitutes the entire agreement between the Parties and supersedes any prior understanding or agreement between the Parties, either verbal or written, respecting the same subject.

b. No delay or failure to exercise a right under this Agreement shall impair such right or shall be construed to be a waiver thereof, but such right may be exercised from time to time and as often as deemed expedient. The failure of one Party at any time to require performance by the other Party of any term in this Agreement shall in no way affect the right of the demanding Party thereafter to enforce same. Nor shall waiver by one Party of any breach of any term of this Agreement by the other Party be taken or held to be a waiver of any succeeding breach of such term or as a waiver of any term itself. To be effective, any waiver shall be in writing and signed by the Party granting such waiver. Any such waiver shall be limited to the particular right so waived and shall not be deemed to waive any other right under this Agreement.

c. No assignment of this Agreement or any right or responsibility occurring under this Agreement, shall be made in whole or in part by the Consultant without the express written consent of the City. The City shall have the right to approve or deny, with or without cause, any proposed or actual assignment by the Consultant. Any assignment of this Agreement made by the Consultant without the express written consent of the City shall be null and void and shall be grounds for the Town to declare a default of this Agreement.

d. The laws of the State of Florida shall govern the rights, obligations, duties and liabilities of the Parties to this Agreement and shall govern the interpretation of this Agreement. Any and all legal or equitable actions necessary to enforce this Agreement shall be held and maintained solely in the state and federal courts in and for Pinellas County, Florida. Venue shall lie exclusively in Pinellas County.

e. In any civil, administrative, bankruptcy, or other proceeding concerning this Agreement, each Party shall pay all of their own costs, attorneys’ fees and expenses, including all costs, fees, and expenses incurred in any administrative hearing, trial, appeal, and mediation, notwithstanding the outcome of those proceedings. Each Party hereby waives any award of attorney fees it might otherwise recover as the prevailing Party in such proceedings.

f. The Consultant shall at all times comply with all laws now in effect or hereafter enacted, which are applicable in any way to the Consultant’s officers, employees, agents, or subcontractors, or the delivery of the Consultant’s Services to City.

g. In case any provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions thereof, and this Agreement shall remain operative and binding on the Parties.

h. Nothing contained herein shall be deemed or construed by the Parties, or by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that nothing contained herein, nor any acts of the Parties, shall be deemed to create any relationship between the Parties other than the relationship of independent contractors.

i. This Agreement only provides rights and remedies for the City and Consultant. Notwithstanding anything else contained herein, this Agreement does not provide any rights or remedies for any other Person. There are no third-party beneficiaries under this Agreement.

j. Pursuant to Florida Statutes § 287.135, the Consultant is not eligible to enter into, or renew, this Agreement if:

(i) The Consultant is on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with activities in the Iran Petroleum Energy Sector List (as identified in Florida Statutes § 215.473);

(ii) The Consultant engages in business operations in Cuba or Syria; or

(iii) The Consultant is on the Scrutinized Companies that Boycott Israel List (as identified in Florida Statutes § 215.4725), or is engaged in a boycott of Israel.

By entering into this Agreement, the Consultant certifies that it is not on the Scrutinized Companies with Activities in Sudan List, the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or the Scrutinized Companies that Boycott Israel List, and that it is not engaged in a boycott of Israel. The Consultant acknowledges that it will execute a certification to this effect at the time it executes this Agreement.

k. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.

l. Compliance with Labor and Immigration Laws The Contractor shall comply with all Applicable Laws concerning the protection and rights of employees, including but not limited to equal employment opportunity laws, minimum wage laws, immigration laws, the Americans with Disabilities Act, and the Fair Labor Standards Act.

Immigration Compliance; E-Verify. Contractor acknowledges that it is responsible for complying with the provisions of the Immigration Reform and Control Act of 1986, U.S.C. § 1324, et seq., and regulations relating thereto. Failure to comply with the above statutory provisions shall be considered a material breach and shall be grounds for immediate termination of this Agreement. The Contractor’s employment of unauthorized aliens is a violation of § 274(e) of the Federal Immigration and Employment Act. The Contractor shall utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired during the term of this Agreement, and shall require the same verification procedure of any Subcontractors authorized by the City. Pursuant to Florida Statutes § 448.095(2), beginning January 1st 2021, Contractor shall register with and use the E-Verify system to verify the work authorization status of all newly hired employees. Contractor’s contract with the City cannot be renewed unless, at the time of renewal, Contractor certifies in writing to the City that it has registered with and uses the E-Verify system. If Contractor enters into a contract with a subcontractor, the subcontractor must provide the contractor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien and Contractor shall maintain a copy of such affidavit for the duration of the contract. If Contractor develops a good faith belief that any subcontractor with which it is contracting has knowingly violated Florida Statutes § 448.09(1) (making it unlawful for any person knowingly to employ, hire, recruit, or refer, either for herself or himself or on behalf of another, for private or public employment within the state, an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States) Contractor shall terminate the contract with the subcontractor. If the City develops a good faith belief that Contractor has knowingly violated Florida Statutes § 448.09(1) (making it unlawful for any person knowingly to employ, hire, recruit, or refer, either for herself or himself or on behalf of another, for private or public employment within the state, an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States) City shall terminate this contract. Pursuant to Florida Statutes § 448.095(2)(c)(3), termination under the above-circumstances is not a breach of contract and may not be considered as such.

Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same instrument. This Agreement may be executed by electronic signature technology and such electronic signature shall act as the Parties' legal signatures on this Agreement and shall be treated in all respects as an original handwritten signature.

IN WITNESS WHEREOF, THE CITY HAS CAUSED THESE PRESENTS TO BE EXECUTED IN ITS NAME BY ITS City Manager, and Attested and its official Seal to be hereunto affixed by its City Clerk, and the CONSULTANT has hereunto set its hand and Seal, the day and year first written above.

APPROVED BY THE CITY OF TARPON SPRINGS on the __ day of _________, 202__.

CITY OF TARPON SPRIINGS Firm Name_______________

By:_______________________________ By:__________________________ John Koulianos, Mayor

ATTESTED ATTESTED

By:_______________________________ By:_________________________ City Clerk Consultant’s Witness

APPROVED AS TO FORM:

By:_______________________________ City Attorney