AGREEMENT-PROFESSIONAL_SERVICES_(2).docx

PROFESSIONALSERVICES AGREEMENT

between

CITY OF FORT MYERS, FLORIDA

and >[Provider] Table of Contents

This PROFESSIONALSERVICES AGREEMENT is made and entered into on the effective date (the date the last party signs it) between the City of Fort Myers, Florida, a municipal corporation in the STATE OF FLORIDA hereinafter referred to as the "City", and >[Provider] hereinafter referred to as the "PROVIDER".

RECITALS

WHEREAS, the City desires to obtain the Services of said Provider to provide and perform Services as further described hereinafter concerning the Project to be referred to and identified as: >[Solicitation Title and Number (title, #)], the Provider hereby agrees to provide and perform the services required and necessary to complete the services and work as set forth in these documents, and WHEREAS, the Provider hereby certifies that the Provider has been granted and possesses valid, current licenses to do business in Lee County, Florida and in the City of Fort Myers issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Services to be provided and performed by the Provider pursuant to this Agreement; and WHEREAS, the Provider has reviewed the Services required pursuant to this Agreement and is qualified, willing and able to provide, perform or acquire all such services in accordance with the provisions, conditions and terms hereinafter set forth; and WHEREAS, the selection and engagement of the Provider has been made by the City in accordance with the provisions of the Providers' Competitive Negotiation Act, Chapter 287.055, Florida Statutes, and in accordance with the provisions of the City of Fort Myers Ordinance and Procurement Policy, as approved and put into effect by the City of Fort Myers City Council, January 6, 2020, and as subsequently revised.

NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Contract shall exist between both parties consisting of:

ARTICLE 1 - DEFINITIONS

ADDITIONAL SERVICES any Additional Services that the Owner may request and authorize, in writing, which are not included in the Statement of Work of Services.

AMENDMENT/SUPPLEMENTAL AGREEMENT - A formal, written change to an executed contract that modifies, adds to, or deletes terms, conditions, Statement of Work, period of performance, pricing, or other provisions. [All Contract Amendments must be executed by authorized representatives of both the Provider and the City to be valid and enforceable. Verbal agreements or informal communications shall not be considered binding Amendments.

Used for administrative changes to Professional Services or general service contracts. Not typically used for construction Statement of Work or PO quantity changes.

APPROVAL - When applied to Approval from the City, this term shall mean Approval which is, at a minimum, evidenced by a written document authored or initialed by the City and subject to the formalities imposed by specific provisions in this Contract.

BASIC SERVICES - refers to the Professional Services set forth and required pursuant to this Agreement, and as described in further detail in the attached "Statement of Work of Services", which is attached hereto and made a part of this Agreement.

CHANGE ORDER a written document executed by both parties to this Agreement setting forth such changes to the Statement of Work of Services as may be requested and authorized in writing by the City.

CITY the City of Fort Myers, a municipal corporation within the State of Florida, its officers, officials, agents, and representatives.

CONTRACT PRICE - The total monies payable by the City to the Provider under the terms and conditions of the Contract Documents.

DAY - One (1) calendar day when used in the Contract, measured from midnight to the next midnight.

DEFECTIVE - Work that is unsatisfactory, deficient, or faulty; that fails to conform to the requirements of the Contract Documents; that does not meet applicable standards, tests, inspections, or approvals referenced in the Contract; or that has been damaged prior to final payment, unless such damage is the Agency Name's responsibility after Substantial Completion.

NOTICE TO PROCEED - A written notice given by City to the Provider (with a copy to AE, if applicable) fixing the date on which the Contract Time will commence to run and on which the Provider shall start to perform his obligations under the Contract Documents.

PROCUREMENT MANAGER - Chief Procurement Officer representing the City.

PROFESSIONAL/ARCHITECT/ENGINEER - Any individual, firm or entity, which provides design or Professional Services, whether Architectural, Engineering or surveying, and which is engaged by the Provider in providing and performing the Work for which Provider is contractually obligated, responsible and liable to provide and perform under this Contract. Each Professional shall possess all applicable, valid and current licenses necessary to do business in the State of Florida and the City for the performance of the Work. The City expressly disclaims any responsibility, liability or obligations whatsoever for or under any Contract entered between the Provider and the Professional and further states that the City shall not be responsible for any payments or any other obligations due or owing to the Professional.

PROFESSIONAL SERVICES - The services, work, materials and all related professional, technical and administrative activities which are necessary to be provided and performed by the Provider and its employees, and all Subconsultants the Provider may engage to provide, perform and complete the services required pursuant to the covenants, terms and provisions of this Agreement.

PROJECT MANAGER - The Provider’s Project Manager shall be the individual designated by the Provider, in writing, who shall serve as the primary point of contact and representative of the Provider for all matters relating to the performance of services under this Agreement. The Provider’s Project Manager shall be responsible for the day-to-day management, coordination, oversight, and execution of the Provider’s obligations, including those performed by any Subconsultants or Subcontractors.

The Provider’s Project Manager shall:

A. Possess the authority to make decisions on behalf of the Provider B. Ensure timely communication and coordination with the City’s Project Manager C. Promptly address any issues affecting performance, schedule, or quality D. Be accessible and responsive during the term of the Agreement.

The Supplier title shall not replace the City’s Project Manager without prior written notice to and approval by the City, which shall not be unreasonably withheld.

PROVIDER - the individual, firm or entity offering services which, by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work, and materials, including services and/or the work of subcontractors, required under the covenants, terms and provisions contained in this Agreement.

SERVICES - all services, work, materials, and all related professional, technical, and administrative activities that are necessary to perform and complete the services required pursuant to the terms and provisions of this Agreement.

SOLICITATION - An Invitation to Bid, Request for Proposals, Request for Statement of Qualifications, or any document used to obtain submissions for the purpose of entering a contract.

STATEMENT OF WORK - A written description in a contract detailing performance expectations and deliverables between the contracting parties. After the Provider has been selected, the Statement of Work becomes the basis for the contract and must provide sufficient information to meet the entity’s needs and achieve successful outcomes, define the expectations of the parties, set price and payment schedules, and mitigate or avoid disputes.

SUBCONSULTANT - A Subconsultant is any individual, firm, partnership, corporation, or other legal entity, other than an employee of the Provider, that is contracted by the Provider to perform a portion of the services, work, or tasks required under this Agreement. All Subconsultants must be approved in writing by the City prior to commencing any work related to this Agreement.

The Provider shall: a) Be fully responsible for the performance, conduct, and compliance of all Subconsultants; b) Ensure that all Subconsultants are bound by the same terms, conditions, and obligations as set forth in this Agreement; c) Remain the sole point of contractual responsibility to the Agency Name, regardless of any subcontracted services. Use of a Subconsultant does not relieve the Provider of any obligation or liability under this Agreement.

ARTICLE 2 – TERM

This Agreement will be in effect on the effective date and shall end __ days/years later, unless Amendments have otherwise been executed.

The City has the right to cancel or terminate this contract as described in these documents.

ARTICLE 3 – CONTRACT DOCUMENTS

The Contract Documents, which comprise the entire agreement between the City and the Provider concerning the Services consist of this document plus: Attachment A-Statement of Work of Services, Attachment B-Bid Schedule/ Schedule of Values and also incorporate by reference in order of precedence:

1) Amendments created after execution of the Contract 2) This Agreement 3) Solicitation addenda and written questions/answers via OpenGov Q&A, incorporated by reference 5) Solicitation, incorporated by reference 6) Provider’s submittal, incorporated by reference 7) Certificates of Insurance, incorporated by reference.

If there is a conflict between the contract and Solicitation the more stringent applies.

ARTICLE 4 – NOTICES

4.1. Notices by Provider to City

All notices required and/or made pursuant to this Agreement to be given by the Provider to the City shall be in writing and shall be given to the following electronic email addresses of record:

procurementservices@fortmyers.gov, cc@fortmyers.gov, and legalservice@fortmyers.gov.

Copy to:

City Attorney's Office, City of Fort Myers, 2200 Second Street, Fort Myers, FL 33901

4.2. Notices by City to Provider

All notices required and/or made pursuant to this Agreement to be given by the City to the Provider shall be made in writing and shall be provided electronically to the email address below:

Provider’s Name: >[Provider] Point if Contact: >[contact] Mailing Address: >[address] Phone: >[phone] Email: >[email]

4.3. Change or Address of Record

Either party may change its address of record by written notice to the other party given in accordance with the requirements of this Article.

ARTICLE 5 - STATEMENT OF WORK OF SERVICES / WORK

The Provider hereby agrees to provide and perform the ProfessionalServices required and necessary to complete the services and work as set forth in these documents.

ARTICLE 6 – CONTRACT AMOUNT AND TIME

Provider shall complete all Work as specified or indicated in the Contract Documents.

6.1. Contract Amount

City shall pay Provider for completion of the Work in accordance with the Contract Documents in the amount of Contract Amount >($xxxx.xx).

6.2. Contract Time / Liquidated Damages / Tasks

6.2.1. Substantial Completion. The Work will be substantially completed within >___ calendar days from the date of the Notice to Proceed and finally completed within >____ calendar days from the date of the Notice to Proceed.

6.2.2. Liquidated Damages. For each task completion due date shown on “Compensation and Method of Payment”, agreed to by City and Provider, a penalty of $1000.00 per day will be assessed for each business day that the deliverable exceeds the agreed upon due date unless both parties agree, in writing, on or before the completion deadline date that a delay in completion of the deliverable is warranted. Each penalty shall be limited to $10,000.00. The Provider shall not be assessed as a penalty for delays due to circumstances not subject to their control.

6.2.3. Tasks. Tasks Assigned under this contract include:

ARTICLE 7 - AMENDMENTS/MODIFICATIONS/CHANGES IN WORK

Amendments to this Contract may be made upon the mutual acceptance by both parties and shall only be valid when issued in writing as a properly executed [Amendment(s), Supplemental Agreement(s), or Change Order(s)] (as defined in the "Definitions" section). In the event of any conflicts between the requirements, provisions, and/or terms of this Contract and any written Amendment(s), Supplemental Agreement(s), or Change Order(s), then the latest executed Amendment(s), Supplemental Agreement(s), and/or Change Order(s) shall take precedence.

The City, without invalidating the contract, may order changes in the Work within the general Statement of Work of the contract consisting of additions, deletions, or other revisions, the Agreement price and time being adjusted accordingly. All such changes in the Work shall be authorized by a written Amendment to the contract and shall be executed under the applicable conditions of the contract upon Approval of City Council.

If the Provider plans to make a claim for an increase in the Contract Price or an extension in the contract schedule term, it shall first give the City written notice within ten (10) calendar days after the occurrence of the event giving rise to such a claim. This written notice shall be given by the Provider to the City, and a written Approval secured from the Department and the Procurement Manager, City Council before proceeding to execute the Work, except in an emergency endangering life or property, in which case the Provider shall immediately proceed. No claim for extra work will be considered valid by the City unless first submitted in writing. Section 219.755, Florida Statutes, requires the City to approve or deny Provider-submitted Change Order quotes within 35 days. If no response is given, the quote is deemed automatically approved and payment is required upon completion. This deadline cannot be waived by contract.

Each such "Amendment", "Supplemental Agreement" or "Change Order" shall set forth a comprehensive, detailed description of: (1) the Statement of Work of the Additional Services requested; (2) the basis of compensation; and (3) the period of time and/or schedule for performing and completing said Additional Services.

ARTICLE 8 – NO THIRD-PARTY BENEFICIARIES

Both parties explicitly agree, and this Agreement states that no third-party beneficiary status or interest is conferred to, or inferred to, any other person or entity.

ARTICLE 9 - ASSIGNMENT, TRANSFER AND SUBCONTRACTS

The Provider shall not assign or transfer any of its rights, benefits, or obligations, except for transfers that result from:

9.1. the merger or consolidation of the Provider with a third party; or

9.2. the disestablishment of the Provider 's Professionalpractice and the establishment of the successor Provider. Nor shall the Provider subcontract any of its service obligations hereunder to third parties without prior written Approval of the City. The Provider shall have the right, subject to the City’s prior written Approval, to employ other persons and/or firms to serve as Subconsultant to City in connection with the Provider performing services and work pursuant to the requirements of this Agreement. The Provider must notify the Procurement Services Department of any change, complete a new vendor registration form, provide an updated W-9, provide an updated certificate of insurance, provide a new E-Verify Memorandum of Understanding, and provide written notification of such change on official company letterhead.

ARTICLE 10 – REPRESENTATION OF THE PROVIDER

In order to induce City to enter into this Agreement Provider makes the following representations:

10.1. Provider has familiarized themselves with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work.

10.2. Provider has given City written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents, and the written resolution thereof by City is acceptable to Provider.

ARTICLE 11 – REPRESENTATION OF THE CITY

The Provider in providing and performing the services and work required pursuant to this Agreement, and Amendments thereto, shall only represent the City in the manner and to the extent specifically set forth in writing in this Agreement or Amendments thereto, and as provided in any written Supplemental Agreement(s), and Change Order(s) issued there under.

In the event the Provider’s services or work involves administrative support services, the Provider is not authorized to act on the City’s behalf, and shall not act on the City’s behalf, in such a manner as to result in change(s) to (1) the cost or compensation to be paid the construction Provider, or (2) the time for completing the work as required and agreed to in the construction contract, or (3) the Statement of Work of the work set forth in the construction contract documents, unless such representation is specifically provided for, set forth and authorized in this Agreement or Amendment thereto.

The City will neither assume nor accept any obligation, commitment, responsibility or liability, which may result from representation by the Provider, not specifically provided for and authorized as stated hereinabove.

ARTICLE 12 - RELATIONSHIP BETWEEN PARTIES

Nothing herein contained shall create or be construed as creating a partnership between the City and the Provider or constitute the Provider as an agent of the City. Provider is and shall remain an independent Provider, which term is generally understood and may be dictated by law.

ARTICLE 13 - OBLIGATIONS OF THE PROVIDER

The duties and obligations imposed upon the Provider by this Agreement, and the rights and remedies available hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law or statute.

The obligations of the Provider with respect to all the Basic Services and Additional Services authorized pursuant to this Agreement shall include, but not be limited to, the f

13.1. Timely Accomplishment of Services

The timely performance and completion of the required services, work and materials is vitally important to the interests of the City. Time is of the essence for all of the duties and obligations contained in this Agreement and any Amendment thereto. The City may suffer damages in the event that the Provider does not accomplish and complete the required services in a timely manner. The Provider agrees to employ, engage, retain and/or assign an adequate number of personnel throughout the period of this Agreement so that all Basic Services and Additional Services shall be provided, performed and completed in a timely and diligent manner throughout. Failure to complete the work as contained in "Time and Schedule of Performance" form, shall be a consideration in determination of Provider responsibility in any future request for contract services.

13.2. Standards of Professional Service

The work and/or services to be provided and/or performed by the Provider and by any Subconsultant/Subconsultant engaged by the Provider as set forth in the Statement of Work of Professional Services, shall be done in accordance with the generally accepted standards of Professional practice and in accordance with the applicable laws, rules, regulations, ordinances, codes, policies, standards or other guidelines issued by those governmental agencies which have jurisdiction over all or a portion of this project and which are in effect at the time the City approves this Agreement, or which may subsequently be changed or revised. Any subsequent change or revision to such laws, rules, regulations, ordinances, codes, standards or other guidelines which requires the Provider to provide and/or perform work and/or services which are significantly different from that set forth in the Statement of Work of Professional Services, shall serve as a basis for the City to consider the development and issuance of a Change Order to provide for a change to, or Additional Services to the services set forth in the Agreement, and where applicable, additional compensation.

13.3. Conflicts, Errors, or Discrepancies

Provider has given City written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents, and the written resolution thereof by City is acceptable to Provider.

13.4 – 13.5. Reserved

13.6. Non-Discrimination

Provider certifies that they shall:

13.6.1. Implement an employment nondiscrimination policy prohibiting discrimination in the performance of the contract in the hiring, discharging, promoting or demoting, matters of compensation, or any other employment-related decision or benefit on account of actual or perceived race, ethniCity, color, religion, national origin, gender, disability, age, military status, sexual orientation, gender identity, gender expression, or marital or familial status.

13.6.2. Not discriminate in the performance of the contract on account of actual or perceived race, ethnicity, color, religion, national origin, gender, disability, age, military status, sexual orientation, gender identity, gender expression, or marital or familial status.

13.6.3. Provide a harassment-free workplace, with any allegation of harassment to be given priority attention and action by management.

13.6.4. Incorporate the foregoing requirements in all subcontracts related to its contract with the City.

13.7. Name Change

If a firms changes its legal business structure through a merger, acquisition, or sale; has a legal name change, a change in principal location of conducting business; a change in status with the Secretary of State filing, a change in officers, or any other change that affects the structure of the business; a change in the level of service being offered, the nature of the products or service offered; or any deviation from what was presented by the firm to the City when being considered for this contract; the firm shall immediately notify the City's Procurement Services Department at procurementservices@fortmyers.gov.

13.8. Patents, Royalties and Copyrights

The Provider shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work, and if to the actual knowledge of the City, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by the City in the Contract Documents.

13.9. Licenses, Permits

13.9.1. The Provider agrees to obtain and maintain throughout the terms of this Agreement all such licenses as are required to do business in the State of Florida and in Lee County, Florida, including, but not limited to, licenses required by the respective State Boards and other governmental agencies responsible for regulating and licensing the services provided and performed by the Provider.

13.9.2. The Provider shall be responsible for preparing all required applications and other supportive information necessary to assist the City in submitting for and obtaining all reviews, Approvals and permits, with respect to the Provider design, drawings and specifications required by any governmental body having authority over the project. Any fees required for such reviews, Approvals or permits shall be covered by a check issued by the City and made payable to the respective governmental body upon the Provider furnishing the City satisfactory documentation of such fees. The Provider shall be similarly responsible for preparing all required applications and other supportive information necessary to assist the City in submitting for and obtaining any renewals and/or extensions of reviews, Approvals or permits that may be required while this Agreement is in effect. The City shall, at the Provider request, assist in obtaining required signatures and provide the Provider with all information known to be available to the City so as to assist the Provider in the preparation and the City's subsequent submittal of any original, renewal or extension of required reviews, Approvals or permits.

13.10. Record Retention

Provider will keep and maintain adequate records and documents applicable to the project at the Provider's expense for a minimum of five (5) years from date of final payment, unless the Provider is notified in writing by the City of the need to extend the retention period. Books and accounts shall be open to investigation upon request.

The City shall be entitled to audit the books and records of a Provider or any Subconsultant/Subconsultants to the extent that such books and records relate to the performance of the contract or any subcontract. The Provider and its Subconsultant/Subconsultants shall retain and maintain financial records and other records relating to the contract for a period of five (5) years from the date of final payment under the contract and by the Subconsultant/Subconsultants for a period of five (5) years from the date of final payment under the subcontract or such longer period as may be required by law, whichever is later, pursuant to Florida Public Records Law Chapter 119. If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 5-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 5-year period, whichever is later.

13.11. Subconsultants

The Provider shall perform all of its obligations and functions under the Contract by means of its own employees, or by a duly qualified Subconsultant, which is approved in advance by the City. In the event a Subconsultant is employed, the Provider shall continuously monitor the Subconsultant’s performance, shall remain fully responsible to ensure that the Subconsultant performs as required and itself perform or remedy any obligations or functions, which the Subconsultant fails to perform properly.

13.12. Provider to Repair Property Damage Caused by the Provider The Provider agrees to promptly repair and/or replace, or cause to have repaired and/or replaced, at its sole cost and expense and in a manner acceptable to and approved by the City, any property damage arising out of, or caused by, the misconduct or negligent acts of the Provider, or of its Subconsultant. Provider obligation under this sub-article does not apply to property damage caused in whole or in part by any other Provider engaged directly by the City.

The City reserves the right, should the Provider fail to make such repairs and/or replacement within a reasonable period of time, to cause such repairs and/or replacement to be made by others and for all costs and expenses associated with having such repairs and/or replacement done to be paid for by the Provider, or by the Provider reimbursing the City for all such costs and expenses.

13.13. Not to Divulge Certain Information

Provider agrees, during the term of this Agreement, not to divulge, furnish or make available to any third person, firm, or organization, without City's prior written consent, or unless incident to the proper performance of Provider obligations hereunder, or in the courts of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the services to be rendered by Provider or any Provider pursuant to this Agreement. The Provider shall require all of its employees, Subconsultant, to comply with the provisions of this paragraph.

13.14. Responsibility for Estimates

In the event the services required, pursuant to this Agreement, include the Provider preparing and submitting to the City any fees, the Provider, by exercise of their experience and judgement, shall develop its best cost estimates and shall be held responsible and liable for the accuracy, completeness, and correctness of any and all such cost estimates within the level of accuracy defined by the Association for the Advancement of Cost Engineering (AACE) International for the current project stage. For the purposes of the Liability Provisions of this Article only, the Provider estimate shall be considered valid and effective for a period of six (6) months from the date of the City's acceptance of the estimate.

13.15. Provider’s Project Manager

The Provider agrees to employ and designate, in writing, a qualified and, if required by law, a licensed Professional to serve as the Provider's Project Manager. The Provider's Project Manager shall be authorized and responsible to act on behalf of the Provider with respect to directing, coordinating and administering all aspects of the work to be provided and performed under this Agreement and Amendment(s) thereto. The Provider's Project Manager shall have the full authority to bind and obligate the Provider on any matter arising under this Agreement and its Amendment(s) unless substitute arrangements have been furnished to the City in writing. The Provider agrees that the Project Manager shall devote whatever time is required to satisfactorily direct, supervise and manage the work provided and performed by the Provider throughout the entire period this Agreement is in effect. The person selected by the Provider to serve as the Provider's Project Manager shall be subject to prior Approval and acceptance of the City.

13.16. Truth-In-Negotiations Certificate

The City may request that the Provider execute a "Truth-in-Negotiations Certificate". The Certificate shall state that wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time this Agreement is executed. The original Contract Price and any additions thereto shall be adjusted to exclude any significant sums by which the City determines the Contract Price was increased due to inaccurate, incomplete or non-current wage rates of other factual unit costs.

13.17. Completion of Tasks

Unless otherwise set forth in the Agreement, the Provider shall be responsible for providing and performing whatever services, work, equipment, material, personnel, supplies, facilities, transportation and administrative support that are necessary and required to complete all of the tasks set forth in the section entitled "Statement of Work of Services" and Supplemental Agreements and Change Orders authorized. The compensation to be paid the Provider, as set forth in "Compensation and Method of Payment" and Supplemental Agreements and Change Orders authorized thereto, shall be understood and agreed to adequately and completely compensate the Provider for providing or performing whatever services, work, equipment, material, personnel, supplies, facilities, transportation and administrative support that are necessary and required to complete the tasks set forth in the 'Project Details' and Supplemental Agreements and Change Orders authorized thereto as stated above."

13.19. Reports

13.19.1. Progress Reports when requested by the City, the Provider shall furnish such reports as required.

13.19.2. All reports and documents written for the City shall be submitted in an electronic format that is completely compatible to the City's software. All photos, exhibits, graphs, tables, etc. contained within any report or document shall be provided separately in a file format compatible to the City's software

13.19. All Drawings

All drawings for the City shall be submitted in an electronic format that is completely compatible to the City's software.

13.20. Qualified Personnel

The Provider agrees that any work to be performed relate to a work which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to engage in such work, to employ and/or retain only qualified personnel to be in responsible charge of all work to be provided pursuant to this Agreement.

The Provider shall employ people to work at the City’s facilities who are neat, clean, well-groomed and courteous.

13.21. Removal of Personnel

The Provider agrees, within thirty (30) calendar days of receipt of a written request from the City, to promptly remove and replace the Provider's Project Manager, or any other personnel employed or retained by the Provider, or personnel of the Subconsultant engaged by the Provider to provide and/or perform services and/or work pursuant to the requirements of this Agreement, who the City shall request, in writing, be removed, which request may be made by the City with or without cause. However, notwithstanding the above, nothing herein shall interfere with the Provider's right to terminate its employees or employees’ right to terminate their employment with the Provider.

13.22. Reserved

13.23. City’s Construction Project Management Platform Software For project archival purposes, the City will utilize 3rd-party Construction Project Management Platform software. The Platform is used to manage design document packages, construction documents (change orders, ASls, RFls, RFPs, field orders, field reports/observations, consultant reports/observations, etc.), project financials, invoice management, quality/safety reports, close-out documents, and other project-related documents for records retention purposes.

The Consultant shall use the Platform and shall be provided access and training to accomplish document posting, distribution, and archiving for the purposes of review, comments, approval, periodic billings, and other project processes involving multiple parties (e.g. A/E teams, City stakeholders and departments, 3rd party consultants, etc.).

13.24. Additional Services

Should the City request the Provider to provide and perform Professional Services for this project, which are not set forth in the Statement of Work, the Provider agrees to provide and perform such Additional Services as may be agreed to in writing by both parties to this Agreement.

Such Additional Services shall constitute a continuation of the Professional Services covered under this Agreement and shall be provided and performed in accordance with the covenants, terms, and provisions set forth in this Agreement and Amendment thereto.

Additional Services shall be administered and authorized as "Supplemental Agreements" or "Change Orders" under the Agreement. The Provider shall not provide or perform, nor shall the City incur or accept any obligation to compensate the Provider for any Additional Services unless, and until, a written "Supplemental Agreement" or "Change Order" shall have been agreed to and executed by both parties.

Each such "Supplemental Agreement" or "Change Order" shall set forth a comprehensive, detailed description of: (1) the Statement of Work of the Additional Services requested; (2) the basis of compensation; and (3) the period of time and/or schedule for performing and completing said Additional Services.

The duties and obligations imposed upon the Provider by this Agreement, and the rights and remedies available hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law or statute.

ARTICLE 14 – OBLIGATION’S OF THE CITY

14.1. Designation of City’s Representative

The City agrees, after the execution of this Agreement, to promptly advise the Provider, in writing, of the person designated to serve and act as the City’s Representative. Such notification shall be provided to the Provider by the City’s Contract Administrator.

All services will be approved by the City’s Representative. All work modifications require written Approval by the City’s Representative. No work will proceed until authorized by the City’s Representative and the Provider has received a purchase order (PO) from Procurement Services. At times Provider will meet the City’s Representative at the worksite, at no cost, to verify information, requirements, make recommendations, or verify specifications.

The City’s Representative assigned to this project is >[NAME] and they can be reached after a NOTICE OF AWARD is issued at >[Contact Email] or >[Contact Phone].

14.2. Availability of City Information

14.2.1. Project Guidelines and Criteria

Guidelines to the Provider regarding requirements the City has established, or suggests relative to the Project including, but not limited to, such items as: goals, objectives, constraints, and any special financial, budgeting, space, site, operational, equipment, technical, construction, time and scheduling criteria are set forth in "Project Guidelines and Criteria" is attached and made a part of this Agreement.

14.2.2. City to Provide Pertinent Reference Material

At the Provider’s request, the City agrees to provide to the Provider, at no cost, all pertinent information known to be available to the City to assist the Provider in providing and performing the required services. Such information may include, but not be limited to: previous reports, plans, drawings and specifications, maps; property, boundary, easement, right-of-way, topographic, reference monuments, control points, plats and related survey data; data prepared, or services furnished by others to the City such as sub-surface investigations, laboratory tests, inspections of natural and man-made materials, property appraisals, studies, designs and reports.

14.3. Availability of City's Designated Representatives

The City agrees that the City Representative shall be available within a reasonable period of time, with reasonable prior notice given by the Provider, to meet and/or consult with the Provider on matters pertaining to the services to be provided and performed by the Provider. The City further agrees to respond within a reasonable period-of-time to written requests submitted by the Provider.

14.4. Access to City Property

The City agrees to provide the Provider with access within a reasonable period of time to City property, facilities, buildings and structures, to enable the Provider to provide and perform the required Services and work pursuant to this Agreement. Such rights of access shall not be exercised in such a manner, or to such an extent, as to impede or interfere with City operations, or the operations carried on by others under a lease, or other contractual arrangement with the City, or in such a manner as to adversely affect public health and safety. Such access may, or may not be, within the Provider's normal office and/or field workdays and/or work hours.

14.5. Plans Review

If applicable, Plan reviews by City staff is only for conformance with the design concept of the project and for compliance with the information given in the contract documents, and shall not extend to means, methods, techniques, sequences, or procedures of construction or to safety precautions or programs incident. The review does not relieve the Provider from responsibility for errors or omissions or from responsibility for having the design comply with the provisions of all codes having jurisdiction.

ARTICLE 15 – TIME AND SCHEDULE OF PERFORMANACE

15.1. Notice to Proceed / Purchase Order

Following the execution of this Agreement by both parties, and after the Provider has complied with the insurance requirements set forth hereinafter, the City shall issue the Provider a Written Notice to Proceed. Following the issuance of such Notice to Proceed, the Provider shall be authorized to commence work, and the Provider thereafter shall commence work promptly and shall carry on all such services and work as may be required in a timely and diligent manner to completion.

15.2. Time of Performance

Should the Provider be obstructed or delayed in the execution or completion of its obligations under this Agreement and its Amendment(s), as a result of causes beyond the control of the Provider, or its Subconsultant(s) and not due to their fault or neglect, the Provider shall notify the City, in writing, within five (5) calendar days after the commencement of such delay, stating the cause(s) and requesting an extension of the Provider’s time of performance. Upon receipt of the Provider’s request for an extension of time, the City will determine with the Provider, within 7 days, the length of extension and legitimacy of cause.

15.3. Provider Work Schedule

The Provider shall be required, as a condition of this Agreement, to prepare and submit to the City, on a monthly basis, commencing with the issuance of the Notice to Proceed, a Provider’s Work Schedule. Said Schedule shall be updated at each pay request. The Work Schedule shall set forth the time and manpower scheduled for all of the various phases and/or tasks required to provide, perform and complete all of the services and work required for completion of the various phases, and/or tasks of the project services set forth and described in this Agreement, pursuant to this Agreement in such a manner that the Substantial Completion ’s planned and actual work progress can be readily determined. The Provider’s Work Schedule of planned and actual work progress shall be updated and submitted by the Provider to the City on a monthly basis.

15.4. Timely Accomplishment of Services

The timely performance and completion of the required services, work and materials is vitally important to the interests of the City. Time is of the essence for all of the duties and obligations contained in this Agreement and any Amendment thereto. The City may suffer damages in the event that the Provider does not accomplish and complete the required services in a timely manner. The Provider agrees to employ, engage, retain and/or assign an adequate number of personnel throughout the period of this Agreement so that all Basic Services and Additional Services shall be provided, performed and completed in a timely and diligent manner throughout.

15.5. Failure to Perform in a Timely Manner

Notwithstanding anything to the contrary in paragraph "Provider Work Schedule" above, should the Provider fail to commence, provide, perform and/or complete any of the services and work required pursuant to this Agreement in a timely and diligent manner, the City may consider such failure as justifiable cause to terminate this Agreement. As an alternative to termination, the City at its option, may, upon written notice to the Provider, withhold any or all payments due and owing to the Provider, not to exceed the amount of the compensation for the work in dispute, until such time as the Provider resumes performance of his obligations in such a manner as to get back on schedule in accordance with the time and schedule of performance requirements set forth in the Agreement, or any Supplemental Agreement(s), or Change Order(s) or Amendment(s) issued thereto.

ARTICLE 16 –NOTICE OF CLAIM; WAIVER OF REMEDIES; NO DAMAGE FOR DELAYARTICLE 15 – RESERVED

16.1. Notice of Claims

16.1.1. The City's liability to Provider for any claims arising out of or related to the subject matter of this contract, whether in contract or tort, including, but not limited to, claims for extension of construction time, for payment by the City of the costs, damages or losses because of changed conditions under which the work is to be performed, or for additional work, shall be governed by the following provisions:

16.1.1.1. All claims must be submitted as a Request for Change Order in the manner as provided herein;

16.1.1.2. The Provider must submit a Notice of Claim to City and to the Engineer within 20 days of when the Provider was or should have been aware of the occurrence of the event giving rise to the claim; and

16.1.1.3. Within 10 days of submitting its Notice of Claim, the Provider shall submit to the City its Request for Change Order, which shall include a written statement of all details of the claim, including a description of the work affected. The Provider agrees that the City shall not be liable for any claim that the Provider fails to submit as a Request for Change Order as provided in this paragraph.

16.1.2. After receipt of a Request for Change Order, the City, in consultation with the Engineer, shall deliver to the Provider its written determination of the claim. As to matters subject to the determination by the City (not actions for breach of contract or tort) the City's written decision shall be final unless the Provider, within thirty (30) days of the Provider's receipt of the City's determination, delivers to the City a written objection thereto. If, after good faith efforts to resolve the matter, the parties are unable to agree, the matter shall be submitted to arbitration pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association.

16.2. Remedies and No Damages for Delay

For work the Provider performs with its own forces, and in addition to the adjustments provided for in "Fee", the Provider's exclusive remedy for delays in performance of the construction caused by events beyond its control, except for delays claimed to be caused by or attributable to the City or the Engineer, including claims based on breach of contract or negligence, shall be a claim submitted in compliance with (1) above, for an extension of the scheduled construction time. In the event of a change in such work, the Provider's claims for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus 5% for profit. Except as set forth herein, the Provider expressly agrees that the foregoing constitutes its sole and exclusive remedies for delays and changes in such work and eliminate any other remedies for claiming an increase in the Contract Price, delays, changes in the work, damages, losses or additional compensation.

ARTICLE 17 – INSURANCE

17.1. Insurance Terms and Conditions

17.1.1. The…