AGREEMENT-PROFESSIONAL_SERVICES_Non_Continuing_Contract_Final.docx

PROFESSIONAL SERVICES AGREEMENT

between

CITY OF FORT MYERS, FLORIDA

and >[Consultant] 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 >[Consultant] hereinafter referred to as the "Consultant".

RECITALS

WHEREAS, the City desires to obtain the Services of said Consultant to provide and perform Services as further described hereinafter concerning the Project to be referred to and identified as: Dean Park Residential Elevation Project, RSQ 26-072, procured through the Consultants’ Competitive Negotiation Act, Section 287.055, Florida Statutes, which is attached by reference and made part of this Contract. Consultant 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 Consultant hereby certifies that the Consultant has been granted and possesses valid, current licenses to do business in Lee County, Florida and within 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 Consultant pursuant to this Agreement; and WHEREAS, the Consultant 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 Consultant has been made by the City in accordance with the provisions of the Consultant' 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 City 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, scope, period of performance, pricing, or other provisions. All Contract Amendments must be executed by authorized representatives of both the Consultant and the City to be valid and enforceable. Verbal agreements or informal communications shall not be considered binding Amendments.

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 Consultant 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.

NOTICE TO PROCEED - A written notice given by City to the Consultant fixing the date on which the Contract Time will commence and on which the Consultant shall start to perform his obligations under the Contract Documents.

PROCUREMENT DIRECTOR OR DESIGNEE - 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 Consultant in providing and performing the Work for which Consultant 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 Consultant 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 Consultant and its employees, and all Subconsultant the Consultant may engage to provide, perform and complete the services required pursuant to the covenants, terms and provisions of this Agreement.

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

The Consultant’s Project Manager shall:

A. Possess the authority to make decisions on behalf of the Consultant 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 Consultant shall not replace the City’s Project Manager without prior written notice to and approval by the City, which shall not be unreasonably withheld.

CONSULTANT - 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 subconsultants, 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 Consultant 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 Consultant, that is contracted by the Consultant to perform a portion of the services, work, or tasks required under this Agreement. All Subconsultant must be approved in writing by the City prior to commencing any work related to this Agreement.

The Consultant shall: a) Be fully responsible for the performance, conduct, and compliance of all Subconsultant; b) Ensure that all subconsultant 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 City, regardless of any subcontracted services. Use of a Subconsultant does not relieve the Consultant of any obligation or liability under this Agreement.

ARTICLE 2 – TERM

This Agreement begins on the Effective Date and continues until Consultant has completed all Services, the City has accepted all required Deliverables, and final payment has been made, unless earlier terminated in accordance with Article 39. The anticipated completion date and milestone schedule are stated in Exhibit E.

ARTICLE 3 – CONTRACT DOCUMENTS

The Contract Documents, which comprise the entire agreement between the City and the <Consultant 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 all documents listed below:

3.1. Order of Precedence

In the event of any conflict, ambiguity, or inconsistency among the Contract Documents, the documents shall control in the following order of precedence, with the document highest in priority governing over any lower-listed document: (1) Duly executed Amendments, and Supplemental Agreements (in chronological order, most recent first); (2) This Professional Services Agreement, including all exhibits and attachments expressly incorporated herein; (3) Plans and Drawings, including approved revisions; (4) Addenda issued prior to receipt of Submittals; (5) The Solicitation (RFQ) Documents, excluding the Consultant’s proposal; (6) The Consultant’s Proposal/Submittal, excluding any terms expressly rejected by the City.

No provision of the Consultant’s Proposal shall modify or supersede the requirements of the Solicitation or Contract Documents unless expressly accepted in writing by the City in the executed Agreement or subsequent Amendment.

ARTICLE 4 – NOTICES

4.1. Notices by Consultant to City

All notices required and/or made pursuant to this Agreement to be given by the Consultant 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 Consultant

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

Consultant’s Name: >[Consultant] 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 Consultant hereby agrees to provide and perform the Professional Services required and necessary to complete the services and work as set forth in these documents.

ARTICLE 6 – CONTRACT AMOUNT AND TIME

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

City shall pay Consultant for completion of the Work in accordance with the Contract Documents in the amount not-to-exceed >($xxxx.xx).

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 Consultant 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 Consultant to the City, and a written Approval shall be secured from the Department and the Procurement Director, City Council before proceeding to execute the Work, except in an emergency endangering life or property, in which case the Consultant shall immediately proceed. No claim for extra work will be considered valid by the City unless first submitted in writing. Section 255.077, Florida Statutes, requires the City to approve or deny Consultant-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 Consultant 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 Consultant with a third party; or

9.2. the disestablishment of the Consultant 's Professional practice and the establishment of the successor Consultant.

Nor shall the Consultant subcontract any of its service obligations hereunder to third parties without prior written Approval of the City. The Consultant 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 Consultant performing services and work pursuant to the requirements of this Agreement. The Consultant 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 CONSULTANT

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

10.1. Consultant 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. Consultant 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 Consultant.

ARTICLE 11 – REPRESENTATION OF THE CITY

The Consultant 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 Consultant’s services or work involves administrative support services, the Consultant 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 Consultant, 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 Consultant, 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 Consultant or constitute the Consultant as an agent of the City. Consultant is and shall remain an independent Consultant, which term is generally understood and may be dictated by law.

ARTICLE 13 - OBLIGATIONS OF THE CONSULTANT

The duties and obligations imposed upon the Consultant 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 Consultant with respect to all the Basic Services and Additional Services authorized pursuant to this Agreement shall include, but not be limited to, the following:

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 Contractor does not accomplish and complete the required services in a timely manner. The Contractor 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 Contractor 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 Consultant and by any Subconsultant engaged by the Consultant 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 Consultant 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

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

13.4. Equipment (Reserved)

13.5. Inspection and Testing (Reserved)

13.6. Non-Discrimination

Consultant 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 Consultant 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 Consultant 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 Consultant.

13.9.2. The Consultant 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 Consultant 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 Consultant furnishing the City satisfactory documentation of such fees. The Consultant 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 Consultant request, assist in obtaining required signatures and provide the Consultant with all information known to be available to the City so as to assist the Consultant 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

Consultant will keep and maintain adequate records and documents applicable to the project at the Consultant's expense for a minimum of five (5) years, or the period required by applicable federal law, from date of final payment, unless the Consultant 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 Consultant or any Subconsultant to the extent that such books and records relate to the performance of the contract or any subcontract. The Consultant and its Subconsultant 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 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. Subconsultant

The Consultant 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 Consultant 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. Consultant to Repair Property Damage Caused by the Consultant The Consultant 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 Consultant, or of its Subconsultant. Consultant obligation under this sub-article does not apply to property damage caused in whole or in part by any other Consultant engaged directly by the City. If more than one Consultant is responsible for the damage, each would be responsible in proportion to their fault if only caused in part.

The City reserves the right, should the Consultant 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 Consultant, or by the Consultant reimbursing the City for all such costs and expenses.

13.13. Safety (Reserved)

13.14. Safety Data Sheets (Reserved)

13.15. Not to Divulge Certain Information

Consultant 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 Consultant 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 Consultant or any Consultant pursuant to this Agreement. The Consultant shall require all of its employees, Subconsultant, to comply with the provisions of this paragraph.

13.16. Responsibility for Estimates

In the event the services required, pursuant to this Agreement, include the Consultant preparing and submitting to the City any fees, the Consultant, 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 Consultant 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.

13.17. Consultant’s Project Manager

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

13.18. Truth-In-Negotiations Certificate

The City may request that the Consultant 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.

13.19. Quality Control (Reserved)

13.20. Completion of Tasks

Unless otherwise set forth in the Agreement, the Consultant 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 Consultant, 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 Consultant 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."

13.21. Reports

13.21.1. Progress Reports when requested by the City, the Consultant shall furnish such reports as required.

13.21.2. 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.

13.22. Drawings (Reserved)

13.23. Qualified Personnel

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

13.24. Removal of Personnel

The Consultant agrees, within thirty (30) calendar days of receipt of a written request from the City, to promptly remove and replace the Consultant's Project Manager, or any other personnel employed or retained by the Consultant, or personnel of the Subconsultant engaged by the Consultant 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 Consultant's right to terminate its employees or employees’ right to terminate their employment with the Consultant.

13.25. City’s Construction Project Management Platform Software (Reserved)

13.26. Accessibility Requirements

Deliverables – Consultant/Consultant shall ensure that all electronic deliverables provided under this Contract, including but not limited to reports, PDFs, presentations, forms, data visualizations, dashboards, online tools, and other digital or web-based content, comply with the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA. Deliverables must be provided in accessible formats compatible with commonly used assistive technologies. Consultant shall promptly remediate any accessibility deficiencies identified by the City at no additional cost and shall provide corrected deliverables within a mutually agreed-upon timeframe.

13.27. Additional Services

Should the City request the Consultant to provide and perform Professional Services for this project, which are not set forth in the Statement of Work, the Consultant 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 Consultant shall not provide or perform, nor shall the City incur or accept any obligation to compensate the Consultant 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 Consultant 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 Consultant, in writing, of the person designated to serve and act as the City’s Representative. Such notification shall be provided to the Consultant 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 Consultant has received a purchase order (PO) from Procurement Services. At times Consultant 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 Jessica McElwee and they can be reached after a NOTICE OF AWARD is issued at jmcelwee@fortmyers.gov or (239) 321-7031.

14.2. Availability of City Information

14.2.1. Project Guidelines and Criteria

Guidelines to the Consultant 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 Consultant’s request, the City agrees to provide to the Consultant, at no cost, all pertinent information known to be available to the City to assist the Consultant 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 Consultant, to meet and/or consult with the Consultant on matters pertaining to the services to be provided and performed by the Consultant. The City further agrees to respond within a reasonable period-of-time to written requests submitted by the Consultant.

14.4. Access to City Property

The City agrees to provide the Consultant with access within a reasonable period of time to City property, facilities, buildings and structures, to enable the Consultant 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 Consultant'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 Contractor 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

Following the execution of this Agreement by both parties, and after the Consultant has complied with the insurance requirements set forth hereinafter, the City shall issue the Consultant a Written Notice to Proceed. Following the issuance of such Notice to Proceed, the Consultant shall be authorized to commence work, and the Consultant 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. Work must begin within 15 days of receipt of the Notice to Proceed.

15.2. Time of Performance

Should the Consultant 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 Consultant, or its Subconsultant(s) and not due to their fault or neglect, the Consultant 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 Consultant’s time of performance. Upon receipt of the Consultant’s request for an extension of time, the City will determine with the Consultant, within 7 days, the length of extension and legitimacy of cause.

15.3. Work Schedule (Reserved)

15.4. Failure to Perform in a Timely Manner

Notwithstanding anything to the contrary in paragraph "Consultant Work Schedule" above, should the Consultant 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 Consultant, withhold any or all payments due and owing to the Consultant, not to exceed the amount of the compensation for the work in dispute, until such time as the Consultant 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 DELAY (RESERVED)

ARTICLE 17 – INSURANCE

17.1. Insurance Terms and Conditions

17.1.1. The Contractor shall obtain and maintain such insurance as will protect the City from: (1) claims under workers' compensation laws, disability benefit laws, or other similar employee benefit laws; (2) claims for damages because of bodily injury, occupational sickness or disease or death of his or her employees including claims insured by usual personal injury liability coverage; (3) claims for damages because of bodily injury, sickness or disease, or death of any person other than his employees including claims insured by usual personal injury liability coverage; and (4) from claims for injury to or destruction of tangible property including loss or use resulting there from; any or all of which claims may arise out of, or result from, the services, work and operations carried out pursuant to and under the requirements of this Agreement, whether such services, work and operations be by the Contractor, its employees, or by any Subcontractor/Subcontractors, or anyone employed by or under the supervision of any of them, or for whose acts any of them may be legally liable.

17.1.2. Subcontractor/Subcontractors. Unless expressly specified otherwise in this solicitation, a Contractor and its Subcontractor/Subcontractors of any tier will be required at their own expense to maintain in effect at all times during the performance of the work insurance coverages with limits not less than those set forth below with insurers and under forms of policies satisfactory to the City. It shall be the responsibility of the Contractor to maintain the required insurance coverages and to assure that Subcontractor/Subcontractors maintain required insurance coverages at all times. Failure of a Contractor to maintain adequate coverage shall not relieve it of any contractual responsibility or obligation. The requirements specified herein as to types, limits, and City’s approval of insurance coverage to be maintained by a Contractor and its Subcontractor/Subcontractors are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the Contractor and its Subcontractor/Subcontractors under a contract. Any insurance carried by the City that may be applicable shall be deemed to be excess insurance and the Contractor's insurance primary for all purposes despite any conflicting provision in the Contractor's policies to the contrary.

17.1.3. The Contractor shall obtain, have, and maintain during the entire period of this Agreement, all such insurance policies as are set forth and required herein.

17.1.4.The insurance coverage to be obtained by the Contractor, as set forth in Agreement for: (1) Worker's Compensation; (2) Commercial General Liability; (3) Commercial Automobile Liability; and (4) Professional Liability is understood and agreed to cover any and all of the services or work set forth in Exhibit “A” of this Agreement, or in any and all subsequently executed Change Orders, or Supplemental Agreements. If the total amount of insurance coverage established in, and required by, a Change Order or Supplemental Agreement exceeds the amount of insurance coverage carried by the Contractor, then the Contractor shall be required and expected to acquire such additional insurance, and the compensation established for the Change Order, or Supplemental Agreement, shall include consideration of any additional premium cost incurred by the Contractor to obtain such additional insurance coverage.

17.1.5. The purchasing of any insurance on the behalf of the City shall not waive any defense under Sovereign Immunity.

17.1.6. Additional Insureds. All insurance coverages furnished under a contract except Workers’ Compensation, Employers’ Liability and any Professional Liability Policy shall include the City and its officers, elected officials, and employees as additional insureds with respect to the activities of the Contractor and its Subcontractor/Subcontractors. The City shall not by reason of their inclusion under these policies incur liability to the insurance carrier for payment of premium for these policies.

If this solicitation is funded in whole or in part by the Florida Department of…