CITY OF SEBASTIAN

NON-EXCLUSIVE PROFESSIONAL SERVICES AGREEMENT WITH

CONSULTANT NAME

This Agreement is hereby entered into this __________ day of ___________202X, by and between the City of Sebastian, 1225 Main Street, Sebastian, FL 32958 a Florida municipal corporation of the State of Florida, hereinafter referred to as CITY and CONSULTANT NAME AND CONSULTANT ADDRESS (FEIN/EIN Number XX- XXXXXX), hereinafter referred to as CONSULTANT. For and in consideration of the mutual agreements hereinafter contained, and for other good and valuable consideration, the CITY hereby retains the CONSULTANT, and the CONSULTANT hereby covenants to provide professional services as prescribed herein.

WITNESSETH:

WHEREAS, the City desires to retain the CONSULTANT to provide Professional Services as defined in Florida Statute 287.055; and

WHEREAS, the City desires to employ the CONSULTANT to support the activities, programs, and projects of the City upon the terms and conditions hereinafter set forth, and the CONSULTANT is desirous of performing and providing such goods/services upon said terms and conditions; and

WHEREAS, the CONSULTANT hereby warrants and represents to the City that it is competent and otherwise able to provide professional services to the City; and

WHEREAS, the City desires to use the expertise and knowledge of the CONSULTANT; and

WHEREAS, the CONSULTANT recognizes the importance of strict adherence to all laws, rules, and regulations, particularly regarding safety procedures and processes.

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed by and between the parties hereto as follows:

ARTICLE 1 - GENERAL IDENTIFICATION OF SERVICES

The following documents are incorporated and made part of this Agreement:

1.1 Scope of Work prepared by CITY in its Request for Qualifications XX-XX-RFQ

(Exhibit A).

1.2 Qualification Submittal for CITY prepared by CONSULTANT dated mm/dd/yyyy

(Exhibit B).

1.3 All exhibits may also be collectively referred to as the “Documents”. In the event of any conflict between the Documents or any ambiguity or missing specification or instruction, the following priority is established:

A. Specific direction from City Manager or designee

B. This Agreement and any attachments.

C. Request for Qualification Package XX-XX-RFQ

D. Qualification Submittal dated mm,dd,yyyy

1.4 All professional services provided by the CONSULTANT for the CITY shall be identified in the attached additional documents, hereby incorporated by reference:

A. Exhibit C – CONSULTANT’s Hourly Rate Schedule.

B. Exhibit D - Individual statements of work (Consultant Services Agreement (CSA)), cumulatively incorporated by reference upon execution by both parties.

1.5 No additional work shall be performed under this Agreement without written authorization from the City. The written authorization for additional services shall constitute an amendment to this Agreement.

SECTION 2 - CITY OBLIGATIONS

2.1 The CITY agrees that they shall furnish to the CONSULTANT, upon request, any data available in the CITY’S files pertaining to the work to be performed under this Agreement

SECTION 3 - PROFESSIONAL SERVICES

3.1 Upon receipt of the CSA, CONSULTANT agrees to perform professional services in accordance with the negotiated terms of this Agreement, and in accordance with accepted professional standards and practices. The CONSULTANT agrees to, without causing any delay in the project, correct any errors, oversights, or omissions and prepare any revisions at no cost to the City, that may be required because the work violates accepted professional standards and practices or if deemed to be inadequate, insufficient, or defective. This remedy shall be cumulative to all other remedies available under the Agreement.

3.2 In connection with professional services to be rendered pursuant to this Agreement and any CSA issued under this agreement, the CONSULTANT further agrees to:

A. Maintain an adequate staff of qualified personnel.

B. Comply with federal, state, county, and local laws or ordinances applicable to the work.

C. Cooperate fully with the CITY in the scheduling and coordination of all phases of the work.

D. Supervise and coordinate the work of any subconsultants.

E. Cooperate and coordinate with other CITY CONSULTANTS, as directed by the CITY.

F. Report the status of the work to the CITY upon request and hold pertinent data, calculations, field notes, records, sketches, and other projects open to the inspection of the CITY or its authorized agent at any time.

G. Submit for CITY review all design computations, sketches, and other data representative of the work’s progress and submit for CITY approval the final work product upon incorporation of any modifications requested by the CITY during any previous review. Any CITY approval of the CONSULTANT’S work shall not be deemed to diminish the CONSULTANT’S responsibilities as set forth in this Agreement.

H. Confer with the CITY during the further development and implementation of improvements for which the CONSULTANT has provided design or other services.

I. Interpret plans and other documents, correct errors and omissions and prepare any necessary revisions not involving a change in the scope of the work required, at no additional cost to the City.

J. Prior to final approval of the work by the CITY, conduct and complete a preliminary check of any documents through any review committee, third party CONSULTANT or any county, city, state or federal agency from which a permit or other approval is required. Any approval obtained from the CITY or any other agency shall not be deemed to diminish or discharge the CONSULTANT from the responsibilities set forth in this Agreement.

K. Following CITY’S approval of the construction documents and of the latest preliminary estimate of construction cost, when so directed and authorized by CITY, assist CITY in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction.

L. If requested, review and analyze the bids/proposals received by CITY and make a recommendation for any award based on CITY’s Procurement Ordinance.

M. Should the lowest responsible, responsive bid/proposal exceed the estimated total construction cost of the final design plans by 10% or more, at CITY’s direction, redesign the Project and/or work with CITY to reduce the costs to within the total estimated construction costs, at no additional expense to CITY. If negotiations between CITY and a Firm have not commenced within three months after completion of the Final Design Phase, or if industry-wide prices are changed because of unusual or unanticipated events affecting the general level of prices or times of delivery in the construction industry, the estimated Construction Cost set by the CONSULTANT limit may be adjusted in accordance with the applicable change in the Construction Cost Index for twenty cities from the date of completion of the final Design Phase and the date on which bids/proposals are sought, as published monthly in “Engineering News Record”. If CITY expands the Project scope and design after CONSULTANT renders the Estimated Construction Cost of the Final Design Plans, CONSULTANT shall not be responsible for any redesign without compensation.

N. Provide CITY with a list of recommended, prospective proposers.

O. Attend all pre-bid/pre-proposal conferences.

P. Recommend any addenda, through the CITY Engineer, as appropriate to clarify, correct, or change Proposal Documents. If Pre-Qualification of proposers is required as outlined in the Request for Bid/Proposal, assist CITY, if requested, in developing qualification criteria, reviewing qualifications, and recommending acceptance or rejection of the proposers.

Q. If requested, evaluate bids/proposals and bidders/proposers, and make recommendations regarding any award by CITY.

3.3 The CITY shall make decisions on all issues regarding interpretation of the construction documents, and on all other matters relating to the execution and progress of the Work after receiving a recommendation from CONSULTANT, and the CITY shall have the absolute and undisputed authority to decide any differences or conflicts between the CONSULTANT and any Firm for the City, and shall check and approve samples, schedules, shop drawings and other submissions for conformance with the concept of each Project, and for compliance with the information given by the Construction Documents. CONSULTANT shall also prepare Change Orders for the City’s consideration, assemble written guarantees required of the Firm, and review and recommend progress payments to the Firm based on each Project Schedule of Values and the percentage of Work completed. All change orders must be in writing and signed by the CITY and the other parties/party to be bound by the change order.

3.4 The CITY shall maintain a record of all change orders which shall be categorized according to the various types, causes, etc. that the CITY may determine are useful or necessary for its purpose. Among those change orders shall be change orders identified as architectural/engineering errors or omissions. It is specifically agreed that any change to the work identified as an error on the part of CONSULTANT shall be considered to be an additional cost to CITY that would not have been incurred without the error. It is further specifically agreed that the actual documented increase in construction costs or fifteen percent (15%) of the construction costs of any item categorized as an omission, whichever is less, shall be considered an additional cost to CITY that would not be incurred without the CONSULTANT’s omission. Should the sum of the two as defined above exceed five percent (5 %) of the total construction cost, CITY shall recover the full and total additional cost to CITY. To obtain such recovery, CITY shall deduct the cost to the CITY from CONSULTANT’s fee. Should additional costs incurred by CITY exceed CONSULTANT’s insurance deductible, CITY shall look to CONSULTANT and CONSULTANT’s insurer for the remaining amount of additional construction costs incurred by CITY. In executing this agreement, CONSULTANT agrees to the reasonableness of these calculations and to CITY’s right to recover the same as stated above, and CONSULTANT ensures that its insurer has been provided a copy of this provision. The recovery of additional costs to CITY under this paragraph shall not limit or preclude recovery for other separate and/or additional damages, which CITY may otherwise incur.

SECTION 3 - TIME OF COMPLETION

4.1 The time of completion shall be listed in each CSA.

4.2 A reasonable extension of time shall be granted by the CONSULTANT in the event there is a recognized delay on the part of the CITY in fulfilling its part of the Agreement, or should weather conditions, acts of God, or terrorism, or any force majeure, or hidden conditions delay performance of the CONSULTANT’s or the CITY’s duties. Extensions of time shall be the sole remedy of the CONSULTANT for such delays, and the CONSULTANT will not be entitled to any damages or any claim for extra compensation for direct costs associated with such delay;

CONSULTANT agrees that it will not be entitled to any damages or any claim for additional compensation for consequential damages of any type whatsoever for any such extensions including but not limited to damages and compensation for any direct or indirect financial damages, losses for extended corporate overhead impacted, extended project overhead impacts, project support, services, or by any other name or other legal concept, label or theory or any business damages or losses of whatever type or nature and CONSULTANT hereby knowingly waives any right to make any such claim or claims and acknowledges additional good and valuable consideration for such waiver and lack of entitlement to such damages, losses and compensation.

SECTION 5 - COMPENSATION

5.1 The CITY agrees to pay CONSULTANT for services rendered pursuant to this Agreement, all fees and other compensation computed in accordance with one or a combination of the methods outlined below, as specified in an approved Purchase Order:

A. Hourly Rate – the CONSULTANT shall be compensated at the attached Hourly Rate Schedule (Exhibit “C”) for each hour of time engaged directly in the work.

B. Lump Sum Fee – At the option of the CITY, the fee for any requested portions of work may be a lump sum if mutually-agreed-upon by the CITY and the CONSULTANT, stated in a written Task Order and referenced in the issued Purchase Order.

C. Reimbursable Expenses – The CONSULTANT shall be compensated for certain work-related expenditures not covered by fees for CONSULTANT services, provided such expenditures are previously in advance expressly authorized by the CITY in writing. All basic reimbursable costs, including reproduction, deliverables, and travel, shall be included in any proposed Lump Sum Task Fee. Other requests for reimbursable expenses must be brought to the attention and approved by the CITY before the work is performed. If authorized by the CITY and upon receipt of satisfactory back-up materials, the CONSULTANT will be compensated for such reimbursable expenses.

D. At least sixty (60) days before the end of the initial contract term, the CONSULTANT may request an adjustment to the rates provided for herein to apply in the forthcoming year. Failure of the parties to agree on a new rate shall constitute a basis for issuing a Notice of Termination by the CITY.

Any proposed changes in rates by the CONSULTANT shall be subject to the prior written approval of the CITY. In the event the CONSULTANT requests a change in rate, either party may terminate this Agreement in accordance with Section 17 should the proposed rates or fees not be mutually acceptable. If the CONSULTANT fails to request a rate adjustment, the previous year’s rates shall remain in effect.

SECTION 6 - PAYMENT AND PARTIAL PAYMENTS

6.1 Subject to the CITY’S right to withhold any amounts reasonably necessary to complete or correct defective or substandard work, the CITY may make monthly payments or partial payments to the CONSULTANT for all authorized work performed during the previous calendar month under the provisions of Chapter 218, Part VII, (Local Government Prompt Payment Act), Florida Statutes. The City shall promptly pay CONSULTANT any undisputed amounts consistent with the Local Government Prompt Payment Act.

6.2 The CONSULTANT shall submit signed invoices to the CITY.

6.3 The amount of each invoice submitted shall be the amount due for all services performed to date in connection with authorized work, as certified by the CONSULTANT. Each invoice shall include any authorized reimbursable expense, accompanied by appropriate documentation.

6.4 Invoices for the work other than lump sum shall include a breakdown for each part of the work billed for each item and personnel as identified in Exhibit C.

SECTION 7 - SCHEDULE OF WORK

7.1 The CITY shall have the sole right to determine on which units or sections of the work the CONSULTANT shall proceed and in what order. Should a work revision effect a change in scope, cost or schedule of the work, the CONSULTANT shall submit such revision(s) for review and, if warranted, approval by the CITY in writing.

7.2 The CONSULTANT shall commence work within five working days after receiving the executed CSA and Purchase Order, unless otherwise directed by the Project Manager.

SECTION 8 - RIGHT OF DECISIONS

8.1 All services by the CONSULTANT shall be performed in accordance with all professional standards and practices and to the reasonable requirements of the CITY. The CITY shall make all decisions on all claims, questions, and disputes arising under this Agreement. In the event the CONSULTANT does not concur with any decision of the CITY, it must, within thirty (30) days after determination by the CITY, unless such time is extended in writing by the CITY, present written objections to the decision to the City Manager for resolution. Before taking any action to contest the CITY’s determination in a court of competent jurisdiction, the CONSULTANT must follow the appeal process established in this Agreement and provided further that the CONSULTANT strictly abides by the time deadline set forth in this paragraph; failure to do so will result in making the CITY’s decision final. During any appeal of, or objection to, the CITY’s decision, CONSULTANT shall continue to perform all work in accordance with professional standards and practices and the requirements of this Agreement.

SECTION 9 - OWNERSHIP OF DOCUMENTS

9.1 All reports, tracings, plans, maps, and/or other work products developed by the

CONSULTANT pursuant to this Agreement shall become the sole property of the CITY without restrictions or limitations upon their use. They shall be made available by the CONSULTANT at any time upon request by the CITY. When each section of work requested pursuant to this Agreement is complete, all of the above work products shall be delivered to the CITY for its use.

9.2 CONSULTANT agrees that all documents maintained and generated pursuant to this Agreement shall be subject to all provisions of Chapter 119, Florida Statutes, unless otherwise provided for by law.

9.3 It is further understood that any report, tracing, plan, map or other work product, without limitation, given by CITY to CONSULTANT pursuant to this Agreement shall at all times remain the property of CITY, shall be returned to CITY, and shall not be used by CONSULTANT for any other purpose without the express, written consent of the City Manager or appropriate designee

9.4 However, should CITY utilize the work product in connection with a project upon which CITY does not retain CONSULTANT, the CITY shall accept all responsibility for such utilization to the extent provided by law. Nothing contained in this paragraph or elsewhere in this Agreement is in any manner intended either to be a waiver of the limitation placed upon the CITY’s liability as outlined in Section 768.28, Florida Statutes, or to extend the City’s liability beyond the limits established in said Section; and no claim or award against the CITY shall include attorney fees, investigative costs, expert fees, suit costs or prejudgment interest.

9.5 COURT APPEARANCE, CONFERENCES AND HEARINGS

This Agreement shall obligate CONSULTANT to prepare for and appear in litigation on behalf of CITY involving any dispute arising out of any work performed or services provided under this Agreement, all at no cost to the City.

CONSULTANT shall also confer with CITY, its attorneys and experts, during the performance of the Services regarding the interpretation of this Agreement, the correction of errors and omissions, the preparation of any necessary revisions to correct errors and omissions, or the clarification of service requirements, all at no cost to the CITY. Work by CONSULTANT, as a result of litigation, beyond the scope of the original work, shall be considered an additional service that shall be paid in accordance with Section 5 of this Agreement.

SECTION 10 - REUSE OF DOCUMENTS

10.1 The CONSULTANT may not retain, reuse, and/or copy data or work products developed by the CONSULTANT for the CITY without express written permission of the City Manager’s Office. The CONSULTANT will, upon request, provide the CITY additional copies of reports, tracings, plans, maps, and/or other work products produced pursuant to this Agreement at the cost of reproduction and not for the cost of labor.

SECTION 11 – NOTICES

11.1 Any notices, reports or other written communications from the CONSULTANT to the CITY shall be considered delivered when received via electronic mail (email), posted by certified mail, and/or delivered in person to the CITY.

11.2 The CITY’S representative will be

PROCUREMENT MANAGER: CITY MANAGER

Jessica Graham, CPPB, FCCM Brian Benton City of Sebastian City of Sebastian 1225 Main Street 1225 Main Street Sebastian, FL 32958 Sebastian, FL 32958

11.3 Any notices, reports or other communications from the CITY to the CONSULTANT shall be considered delivered three (3) days after being posted by U.S. mail to the CONSULTANT at the last address left on the file with the CITY. The CONSULTANT’S representative will be:

CONSULTANT:

SECTION 12 - AUDIT RIGHTS

12.1 The CITY or any of its duly authorized representatives reserves the right to audit the records of the CONSULTANT related to this Agreement at any reasonable time during the prosecution of the work included herein, and for a period of five (5) years after termination of the date of the contract, or as otherwise extended by law

12.2 The CONSULTANT agrees to provide copies of any records necessary to substantiate payment requests to the CITY as may be requested by the CITY, solely at the cost of reproduction. CONSULTANT agrees to maintain all books, documents, papers, accounting records, and other evidence pertaining to work performed under this Agreement.

12.3 As federal funds are used for work under this Agreement, the Comptroller General of the United States, or any of his duly authorized representatives, shall have access to any books, documents, papers, and records of CONSULTANT which are directly pertinent to work performed under this Agreement, for purposes of making audit, examination, excerpts, and transcriptions

SECTION 13 – PUBLIC RECORDS

13.1 The CONSULTANT’S records as related to performance of work under this Agreement are considered public record and must be made available to the public.

A request to inspect or copy public records relating to the CITY’s contract with the CONSULTANT must be made directly to the CITY. If the CITY does not possess the requested records, the CITY shall immediately notify the CONSULTANT of the request, and the CONSULTANT must provide the records to the CITY or allow the records to be inspected or copied within a reasonable time. If the CONSULTANT does not comply with the CITY’s request for records, the CITY shall enforce the contract provisions in accordance with the contract. A CONSULTANT who fails to provide the public records to the public agency within a reasonable time may be subject to penalties under §119.10. The CITY is a public agency subject to Chapter 119, Florida Statutes. The CONSULTANT shall comply with Florida’s Public Records law. Specifically, the CONSULTANT shall:

A. Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform this service.

B. Provide the public agency with access to public records 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 that are confidential and exempt from public record requirements are not disclosed except as authorized by law; and

D. Meet all requirements for retaining public records and transfers to the City, at no cost, all public records in possession of the CONSULTANT upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the City.

13.2 The failure of the CONSULTANT to comply with the provisions set forth in this section shall constitute a material breach of Agreement and shall be cause for immediate termination of the Agreement.

13.3 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 CONTRACT, CONTACT JEANETTE

WILLIAMS, THE CUSTODIAN OF PUBLIC RECORDS AT:

CITY CLERK

1225 MIAN STREET

SEBASTIAN, FL 32958

TELEPHONE: 772-388-8215

EMAIL: CityHallPublicRecordsRequest@cityofsebastian.org

SECTION 14 – SUB-CONSULTING

14.1 The CONSULTANT shall not assign or transfer any work under this Agreement without the express written approval of the CITY. The CONSULTANT shall cause the name(s) of any subconsultant firms responsible for major portions (or separate specialty) of the work to be inserted in the pertinent documents or data.

14.2 The CONSULTANT shall be fully responsible to CITY for all acts and omissions of any officers, representatives, agents, employees, or subconsultants of CONSULTANT. Subconsultants of CONSULTANT shall have appropriate general liability, professional liability and workers’ compensation insurance, or be covered by CONSULTANT’s insurance. CONSULTANT shall furnish CITY with appropriate proof of insurance and releases from all subconsultants in connection with the work performed in amounts required

SECTION 15 - CONTINGENT FEES

15.1 The CONSULTANT warrants that he or she 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. The CONSULTANT 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. For any breach or violation of this provision, the CITY shall have the right to terminate this Agreement, without liability, and, at its discretion, to deduct from the contract price or amounts due to CONSULTANT or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration and any damages related to the breach of the provision and shall report the details of such breach or violation to the proper legal authorities where and when appropriate.

SECTION 16 - DURATION OF AGREEMENT

16.1 The initial term of the Agreement is for three (3) years. The Agreement may be renewed by the parties for two (2) additional one (1) year terms if agreed to in mailto:CityHallPublicRecordsRequest@cityofsebastian.org writing at least thirty days before the end of the initial term.

SECTION 17 – NOTICE OF DEFICIENCY

17.1 When the CONSULTANT is notified in writing of a fault, deficiency or error in the Work, the CONSULTANT shall, within ten (10) of notification, at the CITY’s option, either: 1) re-perform such portions of the Work to correct such fault, defect or error, at no additional cost to the CITY, or 2) refund to the CITY, any amounts paid by the CITY that are attributable to such portions of the faulty, defective or erroneous Work, including the costs for re-performance of the work provided by other

CONSULTANTS.

SECTION 18 – TERMINATION FOR CAUSE/DEFAULT

18.1 CITY May Terminate for Convenience: The CITY retains the right to terminate this

Agreement, without cause, with thirty (30) days prior written notice. In the event of such termination for convenience, the CONSULTANT’s recovery against the City shall be limited to that portion of the Contract Price earned through the termination date, together with any retainage withheld and demobilization costs incurred. The CONSULTANT, however, shall not be entitled to any other or further recovery against the City, including, but not limited to, any other form of payment or damages not explicitly set forth herein or any anticipated or lost profits on portions of Work not performed.

18.2 CITY May Terminate for Cause: The City may terminate this Agreement following ten (10) days’ notice and an opportunity to cure upon the occurrence of any one or more of the following default events:

A. If the CONSULTANT commences a voluntary bankruptcy action or a bankruptcy petition is filed against the CONSULTANT under any chapter of any Bankruptcy Code, or if the CONSULTANT takes any equivalent or similar action by filing a petition under any federal or state law relating to the bankruptcy or insolvency.

B. If the CONSULTANT makes a general assignment of its assets or receivables for the benefit of creditors.

C. If a trustee, receiver, custodian, or agent of the CONSULTANT is appointed under applicable law or under Contract, whose appointment or authority to take charge of the property of the CONSULTANT is to enforce a lien against such property or for the general administration of such property for the benefit of the CONSULTANT’s creditors.

D. If the CONSULTANT persistently fails to perform the Work as required by the Contract Documents, including but not limited to failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the progress schedule as it may be revised from time to time.

E. If the CONSULTANT disregards local, state, or federal laws or regulations.

F. If the CONSULTANT otherwise violates any provisions of this Agreement.

18.3 Effective Immediately: This Contract will terminate immediately and absolutely if any one or more of the following reasons: (i) In the event the CONSULTANT is required to be certified or licensed as a condition precedent to providing goods and services, the revocation or loss of such license or certification may result in immediate termination of the Contract effective as of the date on which the license or certification is no longer in effect; (ii) The City of Sebastian determines that the actions, or failure to act, of the CONSULTANT, its agents, employees or subCONSULTANTs have caused, or reasonably could cause, life, health or safety to be jeopardized; (iii) The CONSULTANT fails to comply with confidentiality laws or provisions; and/or (iv) The CONSULTANT furnished any statement, representation or certification in connection with the Contract or the bidding process which is materially false, deceptive, incorrect or incomplete.

18.4 CITY’s Rights After Termination for Cause:

A. Following termination for cause, the CONSULTANT may be excluded from the Premises. The CITY may take possession of the Work and of all the CONSULTANT’s tools, appliances, construction equipment, and machinery at the site and use them without liability to the CITY for trespass or conversion and incorporate them in the Work, and all materials and equipment stored at the site or for which the CITY has paid the CONSULTANT but which are stored elsewhere, and finish the Work as the CITY may deem expedient. In this instance, the CONSULTANT shall not be entitled to receive any further compensation until the Work is finished.

B. The liability of the CONSULTANT following termination for cause shall extend to and include the total amount of any sums paid, expenses and losses incurred, damages sustained, and obligations assumed by the City in good faith under the belief that such payments or assumptions were necessary or required in completing the Work and providing labor, materials, equipment, supplies, and other items therefor or re-letting the Work, and in settlement, discharge or compromise of any claims, demands, suits, and judgments about or arising out of the Work hereunder.

C. If, after notice of termination of CONSULTANT for default under Section

18.2 above, it is determined for any reason that CONSULTANT was not in default, or that its default was excusable, or that the City did not have the right to terminate the CONSULTANT, then such termination shall be deemed a termination for convenience. The CONSULTANT’s remedies shall be the same and limited to those afforded under Section 18.1.

18.5 If the CONSULTANT commits a default due to its insolvency or bankruptcy, the following shall apply:

A. Should this Agreement be entered into and fully executed by the parties, and funds have been released to the CONSULTANT by the City (Debtor) files for bankruptcy, the following shall occur:

a. In the event the CONSULTANT files a voluntary petition under 11 U.S.C. 301 or 302, or an order for relief is entered under 11 U.S.C.

303, the CONSULTANT shall acknowledge the extent, validity, and priority of the lien recorded in favor of the City. The CONSULTANT further agrees that in the event of this default, the City shall, at its option, be entitled to seek relief from the automatic stay provisions in effect under 11 U.S.C. 362. The City shall be entitled to relief from the automatic stay under 11 U.S.C. 362(d)(1) or (d)(2), and the CONSULTANT agrees to waive the notice provisions in effect under 11 U.S.C. 362 and any applicable Local Rules of the United States Bankruptcy Court. The CONSULTANT acknowledges that such waiver is done knowingly and voluntarily.

b. Alternatively, if the City does not seek stay relief or is denied, the City shall be entitled to monthly adequate protection payments within the meaning of 11 U.S.C. 361. The monthly adequate protection payments shall each be in an amount determined by the Note and Mortgage executed by the CONSULTANT in favor of the City.

c. In the event the CONSULTANT files for bankruptcy under Chapter 13 of Title 11, United States Code, in addition to the preceding provisions, the CONSULTANT agrees to cure any amounts in arrears over a period not to exceed twenty-four (24) months from the date of the confirmation order. Such payments shall be made in addition to the regular monthly payments required by the Note and Mortgage. Additionally, the CONSULTANT shall agree that the City is oversecured and, therefore, entitled to interest and attorney’s fees under 11 U.S.C. 506(b). Such fees shall be allowed and payable as an administrative expense. Further, in the event the CONSULTANT has less than five (5) years of payments remaining on the Note, the CONSULTANT agrees that the treatment afforded to the claim of the City under any confirmed plan of reorganization shall provide that the remaining payments shall be satisfied in accordance with the Note and that the remaining payments or claim shall not be extended or amortized over a longer period than the time remaining under the Note.

B. Should this Agreement be entered into and fully executed by the parties, and the funds have not been forwarded to the CONSULTANT, the following shall occur:

a. In the event the CONSULTANT files a voluntary petition under 11 U.S.C. 301 or 302, or an order for relief is entered under 11 U.S.C.

303, the CONSULTANT acknowledges that the commencement of a bankruptcy proceeding constitutes an event of default under the terms of this Agreement. Further, the CONSULTANT acknowledges that this Agreement constitutes an executory contract within 11 U.S.C. 365. The CONSULTANT acknowledges that this Agreement cannot be assumed under 11 U.S.C. 365(c)(2) unless the City expressly consents in writing to the assumption. In the event the City consents to the assumption, the CONSULTANT agrees to file a motion to assume this Agreement within ten (10) days after receipt of written permission from the City, regardless of whether the bankruptcy proceeding is pending under Chapter 7, 11, or 13 of Title 11 of the United States Code. The CONSULTANT further acknowledges that this Agreement cannot be assigned under 11 U.S.C. 365(b)(1).

18.6 Should the CITY terminate the CONSULTANT’s services, the termination shall not affect any rights of the CITY against the CONSULTANT then existing or which may after that accrue. Any retention or payment of money due to the CONSULTANT by the CITY will not release the CONSULTANT from liability.

18.7 CONSULTANT understands and agrees that the CITY may immediately terminate this contract upon written notice if the CONSULTANT is found to have submitted a false certification or any of the following occurs concerning the CONSULTANT or a related entity: (i) for any contract for goods or services in any amount of monies, it has been placed on the Scrutinized Companies that Boycott Israel List, or is engaged in a boycott of Israel, or (ii) for any contract for goods or services of one million dollars ($1,000,000) or more, it has been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or it is found to have been engaged in business operations in Cuba or Syria.

18.8 The CONSULTANT has no right, authority, or ability to terminate the Work except for wrongful withholding of any payments due to the CONSULTANT from the CITY.

SECTION 19 – INDEMNIFICATION

19.1 For other and additional good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the CONSULTANT, including but not limited to the CONSULTANT’s officers, officials, employees, representatives, agents, CONSULTANT’s officers, subconsultants and their officers, and assigns, (hereinafter CONSULTANT) hereby agrees to indemnify, and hold harmless the City of Sebastian, including but not limited to its officers, public officials, and employees (hereinafter CITY) against liability, loss, costs, damages, expenses, claims or actions, including but not limited to reasonable attorney’s fees for trials and appeals and expert’s fees and costs that the City may incur arising wholly or in part due to negligent or deliberate act, error or omission of CONSULTANT in the execution, performance or non-performance or failure to adequately perform CONSULTANT’S obligation(s) pursuant to this Agreement. This indemnification shall survive the termination of this Agreement.

19.2 Nothing contained in this paragraph or elsewhere in this Agreement is in any manner intended either to be a waiver of the limitation placed upon the City’s liability as outlined in Section 768.28, Florida Statutes, or to extend the City’s liability beyond the limits established in said Section. No claim or award against the City shall include attorney fees, investigative costs, expert fees, suit costs, or pre-judgment interest. This section shall not prevent the City from taking corrective action against the CONSULTANT.

SECTION 20 – INSURANCE

20.1 The CONSULTANT and its subconsultants, assignees, and suppliers will be required to procure and maintain, at their own expense and without cost to the CITY, until final acceptance by the CITY of all products or services covered by the Agreement, the following types of insurance in the following minimum amounts:

A. Commercial General Liability: The CONSULTANT shall provide minimum limits of $1,000,000.00 each occurrence, $1,000,000.00 annual aggregate combined single limit for bodily injury and property damage liability. This shall include premises/operations, independent CONSULTANT, products, completed operations, broad form property damage, personal and advertising injury, and contractual liability, specifically confirming and insuring the indemnification and hold harmless clause of the contract. This policy of insurance shall be considered primary to and not contributing to any insurance maintained by the City of Sebastian and shall name the City of Sebastian as additional insured. The policy of insurance shall be written on an “occurrence” basis and form.

B. Automobile Liability Insurance: CONSULTANT shall provide minimum limits of liability of $1,000,000.00 each accident, combined single limit for bodily injury and property damage. This shall include coverage for:

a. Owned Automobiles

b. Hired Automobiles

c. Non-Owned Automobiles

C. Professional Liability Insurance: Professional liability insurance with a minimum limit of $1,000,000.00 each occurrence, $2,000,000.00 annual aggregate with respect to negligent acts, errors, or omissions in connection with professional services to be provided under this Agreement. The deductible for each claim must not exceed $5,000.00. The consultant represents that it is financially responsible for the deductible amount.

D. Workers' Compensation Coverage: Full and complete Workers' Compensation Coverage, including coverage for Employer’s Liability, as required by State of Florida law, shall be provided. Should the Named Vendor utilize a Professional Employer Organization, said Vendor acknowledges and agrees that all employees sent to the City of Sebastian MUST be included on that PEO roster.

E. Umbrella/ Excess Liability: The contractor shall provide umbrella/excess coverage with limits of no less than $1,000,000.00 excess of Commercial General Liability, Automobile Liability and Employers Liability. **This coverage is optional if the Consulting Firm has $2,000,000 General Aggregate under the Commercial General Liability Policy. **

F. Insurance Certificates: The City of Sebastian is to be specifically included on all certificates of insurance (with exception to Workers Compensation and Professional Liability) as additional insured. Waiver of Subrogation is required for Commercial General Liability and Automobile Liability. All certificates must be received prior to commencement of service/work. In the event the insurance coverage expires prior to the completion of this contract, a renewal certificate shall be issued thirty (30) days prior to said expiration date. The certificate shall provide a thirty (30) day notification clause in the event of cancellation or modification to the policy.

20.2 All insurance carriers shall be rated (A) or better by the most recently published

A.M. Best Rating Guide. Unless otherwise specified, it shall be the responsibility of the CONSULTANT to ensure that all subconsultants comply with the insurance requirements set forth in this Agreement. The City may request a copy of the insurance policy according to the nature of the project. City reserves the right to accept or reject the insurance carrier.

20.3 CONSULTANT shall obtain insurance on an “occurrence” basis if such insurance is available at commercially reasonable premium costs. Any insurance on a “claim made” basis shall be maintained for at least three (3) years after acceptance of the Work.

SECTION 21 - QUALITY CONTROL

21.1 The CONSULTANT shall provide a high level of quality control and accuracy. The

CITY may request additional data collection or reanalysis of data at no expense to the CITY. If the original data collected and/or data analysis is found to be accurate and reasonable, the CONSULTANT shall be compensated for the additional work in accordance with Section 5 of this Agreement.

21.2 The CONSULTANT acknowledges that the CITY may periodically evaluate the CONSULTANT’S performance and that the evaluation may be used by the CITY in determining the CONSULTANT’S qualifications for future contracts with the

CITY.

SECTION 22 - REPRESENTATIONS

22.1 CONSULTANT represents that it is able to furnish all services, labor, equipment, and materials necessary and as may be required in the performance of this Agreement and all services performed under this Agreement shall be performed in a professional manner suitable to the CITY.

22.2 CONSULTANT represents, with full knowledge that CITY is relying upon these representations when entering into this Agreement with CONSULTANT, that CONSULTANT has the professional expertise, experience, and manpower to perform the services described in this Agreement.

22.3 CONSULTANT shall be responsible for technically deficient designs, reports, or studies after the date of final acceptance of the Services by CITY. CONSULTANT shall, upon the request of CITY, promptly correct or replace all deficient work due to its errors and/or omissions without cost to CITY. CONSULTANT shall also be responsible for all damages resulting from CONSULTANT’s deficient documents.

Payment in full by CITY for services performed does not constitute a waiver of this representation.

22.4 All services performed by CONSULTANT shall be to the satisfaction of CITY. In cases of disagreement or ambiguity, Section 8 of this Agreement shall govern all questions, difficulties, and disputes of whatever nature that may arise under this Agreement. If a resolution cannot be reached, the provisions of Section 18 shall apply.

SECTION 23 - TRUTH-IN-NEGOTIATIONS

23.1 In accordance with the provisions of Section 287.055, Florida Statutes, the CONSULTANT agrees to execute a truth-in-negotiations certificate and agrees that the original contract price and any additions may be adjusted to exclude any significant sums by which the contract price is increased due to inaccurate, incomplete unit costs.

SECTION 24 - INTEREST OF MEMBERS OF CITY AND OTHERS

24.1 No officers, members or employees of the CITY, and no members of its governing body, and no other public official of any other governmental entity, who exercise any functions or responsibilities in the review or approval of the undertaking or carrying out of this project, shall participate in any decision relating to this Agreement that affects their personal interest, or shall have any personal or pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof.

SECTION 25 - INTEREST OF CONSULTANT

25.1 The CONSULTANT covenants that it presently has no conflict of interest and shall not acquire any interest, direct or indirect, that shall conflict in any manner or degree with the performance of services required to be performed under this Agreement. The CONSULTANT further covenants that in the performance of this Agreement, no person having such interest shall be employed by the

CONSULTANT.

SECTION 26 - INDEPENDENT CONSULTANT

26.1 CONSULTANT and its employees, agents, and subconsultants shall be deemed to be independent and not CITY agents or employees. CONSULTANT, its employees or agents, Firms, and subconsultants shall not attain any rights or benefits under CITY’s Personnel Rules and Regulations or Pension Systems nor any rights generally afforded to CITY’s classified or unclassified employees.

CONSULTANT, its agents, employees, or subconsultants shall not be deemed entitled to the Florida Workers’ Compensation benefits as a CITY employee.

SECTION 27 - OTHER PROVISIONS

27.1 Title and paragraph headings are for convenient reference and are not a part of this Agreement.

27.2 No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing.

27.3 Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida by a court of competent jurisdiction, such provision, paragraph, sentence, word or phrase shall be deemed modified in order to conform with Florida law or any order entered by such court. If not modifiable to conform to such law or order, then it shall be deemed severable and, in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect.

27.4 The parties hereby waive the right to a trial by jury in any action, proceeding or counterclaim brought or filed by either of them against the other.

27.5 The rights of the parties hereto shall be construed and be subject to the jurisdiction of the courts in accordance with the laws of the State of Florida.

27.6 Venue for any litigation arising out of this Agreement shall be in Indian River County, Florida.

27.7 There are no third-party beneficiaries intended to be bound by or to enforce this Agreement.

27.8 The CONSULTANT shall utilize the U.S. Department of Homeland Security’s E- Verify system, in accordance with the terms governing use of the system, to verify employment eligibility of all new employees hired by the CONSULTANT during the term of the Contract and shall expressly require any subconsultants performing work or providing services pursuant to the Contract to likewise utilize the U.S.

Department of Homeland Security’s E-Verify system to verify employment eligibility of all new employees hired by the subconsultants during the contract term.

27.9 PUBLIC ENTITY CRIMES –Firm acknowledges and agrees to the following: A person or affiliate who has been placed on the Convicted Vendor List following a conviction for a public entity crime may not submit a proposal on a contract to provide any goods or services to a public entity, may not submit a proposal on a contract with a public entity for the construction or repair of a public building or public work, may not submit proposals for leases of real property to a public entity, may not be awarded or perform work as a Successful Firm, supplier, subconsultant, or CONSULTANT under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017 Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the Convicted Vendor List (Section 287.133, Florida Statutes).

SECTION 28 - LIMITATION OF LIABILITY

28.1 The CITY desires to enter into this Agreement only if, in so doing, the CITY can place a limit on the CITY’s liability for any cause of action arising out of this Agreement. For other and additional good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, CONSULTANT expresses its willingness to enter into this Agreement with the knowledge that the CONSULTANT’s recovery from the CITY to any action or claim arising from the Agreement is limited to a maximum amount of the contract value less the amount of all funds actually paid by the CITY to CONSULTANT pursuant to this Agreement.

28.2 This section shall not prevent the CITY from taking court action it deems necessary against, including but not limited to, the CONSULTANT, its subconsultants, assignees, suppliers and employees.

SECTION 29 - ENTIRETY OF AGREEMENT

29.1 This writing, together with documents referenced herein, embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein. No alteration, change, or modification of the terms of this Agreement shall be valid unless made in writing, signed by both parties, and added as an addendum to this Agreement.

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

IN WITNESS WHEREOF, the parties hereto have made and executed this agreement on the respective dates under each signature: the City through its City…