Contract-Service,_non-CCNA.pdf

SERVICE AGREEMENT

THE CITY OF FORT MYERS

And

For the project known as

1. PARTIES

This SERVICE PROVIDER AGREEMENT is made and entered into this day of , 20__, between the CITY OF FORT MYERS, a municipal Corporation in the STATE OF FLORIDA hereinafter referred to as the "CITY", and NEW BUSINESS INC., Licensed to Conduct Business in the State of Florida, hereinafter referred to as the "PROVIDER".

2. WITNESSETH

WHEREAS, the City desires to obtain the services of said Provider as further described herein referred to as***, and, WHEREAS, the Provider hereby certifies that it has been granted and possesses valid, current licenses to do business in the State of Florida and in Lee County, issued by the respective State Board and Government Agencies responsible for regulating and licensing the services to be provided and performed by the Provider pursuant to this Agreement as required by law; and, WHEREAS, the Provider has reviewed the services required pursuant to this Agreement and is qualified, willing and able to provide and perform all such services in accordance with the provisions, conditions and terms hereinafter set forth.

NOW, THEREFORE, in consideration of the foregoing, and the terms and provisions as contained herein, the parties agree that a Contract shall exist between them consisting of the following:

3. SCOPE OF SERVICES

Provider hereby agrees to provide and perform the Services required and necessary to complete the services and work as set forth in Exhibit "A”, (including Attachments #__, etc.), which is attached and made a part of this Agreement.

4. DEFINITIONS

4.1. ADDITIONAL SERVICES

ADDITIONAL SERVICES shall mean any additional services that the City may request and authorize, in writing, which are not included in the Scope of Services.

4.2. CHANGE ORDER

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

4.3. CITY

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

4.4. PROVIDER

PROVIDER shall mean 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.

4.5. SERVICES

SERVICES shall mean 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.

5. OBLIGATIONS OF THE PROVIDER

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 following:

5.1. LICENSES

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.

5.2. STANDARDS OF SERVICE

The Provider agrees to provide and perform all services pursuant to this Agreement in accordance with generally accepted standard practice and, in accordance with the laws, statutes, ordinances, codes, rules, regulations and requirements of governmental agencies which regulate or have jurisdiction over the services to be provided and/or performed.

5.3. CORRECTION OF ERRORS, OMISSIONS OR OTHER DEFICIENCIES

A. RESPONSIBILITY TO CORRECT

In accordance with the generally accepted standards of the engineering profession, the CONSULTANT agrees to be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and other services, work and materials performed, provided, and/or furnished by the CONSULTANT or by any Sub-Consultant(s) and/or Sub-Contractor(s) retained or engaged by the CONSULTANT pursuant to this Agreement. The CONSULTANT shall, without additional compensation, correct, revise, or have corrected or revised any errors, omissions and other deficiencies in such data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents, and instruments, and other services, work and materials resulting from the negligent act, errors or omissions or intentional misconduct of the CONSULTANT or any Sub-Consultant(s) or Sub-Contractor(s) engaged by the CONSULTANT.

B. CITY'S APPROVAL SHALL NOT RELIEVE CONSULTANT OF RESPONSIBILITY

Neither review, approval, or acceptance by the CITY of data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and incidental Professional Services, work and materials furnished hereunder by the CONSULTANT, or any Sub-Consultant(s) or Sub- Contractor(s) engaged by the CONSULTANT, shall not in any way relieve CONSULTANT of responsibility for the adequacy, completeness and accuracy of its services, work and materials and the services, work and materials of any and all Sub-Consultants and/or Sub-Contractors engaged by the CONSULTANT to provide and perform services in connection with this Agreement. Neither the CITY'S review, approval or acceptance of, nor payment for, any of the CONSULTANT'S services, work and materials shall be construed to operate as a waiver of any of the CITY'S rights under this Agreement, or any cause of action it may have arising out of the performance of this Agreement.

5.4. LIABILITY-PROVIDER TO HOLD HARMLESS

CONSULTANT TO HOLD CITY HARMLESS

The Provider shall be liable and agrees to be liable for, and shall indemnify, defend, and hold the City harmless for all claims, suits, judgments or damages, losses and expenses including court costs, expert witness and professional services, and attorneys' fees arising out of the Provider’s recklessness, intentional wrongful conduct, errors, omissions, and/or negligence. The Provider shall not be liable to, nor be required to indemnify the City for any portion of damages resulting solely and exclusively from the negligence of the City, its officers, officials, employees, agents, or representatives. The foregoing shall not constitute a waiver of sovereign immunity beyond the limits set forth if Florida Statutes, Section 768.28.

5.5. NOT TO DIVULGE CERTAIN INFORMATION

Provider agrees, not to divulge, any non-public information to any third person, firm, or organization, without the City’s prior written consent, unless required by law. Provider shall require all its employees and subcontractor(s) to comply with the provisions of this paragraph.

5.6. 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 accountable, responsible, and liable for the accuracy, completeness, and correctness of any and all such fees to the extent provided.

5.7. ADDITIONAL SERVICES

Should the City request the Provider to provide and perform services under this Agreement which are not set forth in Exhibit "B", the Provider agrees to provide and perform such Additional Services as may be agreed to in writing by both parties.

Additional Services shall be administered and executed as "Change Order(s)" to the purchase order. 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 a Change Order or revised purchase order is received by the Provider.

6. COMPENSATION AND METHOD OF PAYMENT

6.1. BASIC SERVICES

The City shall pay the Provider for all requested and authorized services rendered by the Provider and completed in accordance with the requirements, provisions, and/or terms of this Agreement as set forth in Exhibit "A", which is attached and made a part of this Agreement.

6.2. ADDITIONAL SERVICES

The City shall pay the Provider for all Additional Services that have been requested and authorized by the City in accordance with the terms for compensation and payment of said Additional Services as stated on the change order or revised purchase order.

6.3. METHOD OF PAYMENT

A. MONTHLY STATEMENTS

The Provider’s invoice shall be itemized to correspond to the basis of compensation as set forth in the purchase order or change order. The Provider’s invoice shall show the Purchase Order number and contain a breakdown of charges, description of service(s) and work provided and/or performed.

B. PAYMENT SCHEDULE

The City shall issue payment to the Provider within forty-five (45) calendar days after receipt of an invoice from the Provider in an acceptable form and containing the requested breakdown, detailed description, and documentation of charges. Should the City object or take exception to the amount of any Provider’s invoice, the City shall notify the Provider of such objection or exception within the forty-five (45) calendar day payment period. If such objection or exception remains unresolved at the end of forty-five (45) calendar day period, the City shall withhold the disputed amount and make payment to the Provider of the amount not in dispute. Payment of any disputed amount will be resolved by the mutual agreement of the parties to this Agreement in accordance with a dispute resolution procedure established pursuant to the Florida Local Government Prompt Payment Act, F.S. 218.70 et seq.

6.4. PAYMENT WHEN SERVICES ARE TERMINATED FOR CONVENIENCE BY THE CITY

In the event of termination of this Agreement at the convenience of the City, the City shall compensate the Provider for: (1) all services performed prior to the effective date of termination; (2) reimbursable expenses then due; and (3) reasonable expenses incurred by the Provider prior to the termination of services by submitting required documentation to the City.

6.5. NON-APPROPRIATIONS

The City’s obligation to pay under this Agreement is contingent upon City’s annual appropriation of funds for such purpose. The non-appropriation of funds in any fiscal year shall immediately relieve both parties of their respective obligations, as of the last day for which funds have been appropriated. The City shall endeavor to provide prompt written notice to the Provider upon determining that sufficient funds will not be budgeted and appropriated for this Agreement.

7. TIME AND SCHEDULE OF PERFORMANCE

7.1. Term of Contract

This Agreement will be in effect for a term of up to NO VALUE effective on the date the last party signs it and ends 1) when the term is over 2) is automatically extended with the same terms and conditions until the next contract is executed by the City.

7.2. PURCHASE ORDER

Following the execution of this Agreement by both parties, and after the Provider has complied with the insurance and E-Verify requirements, the City shall issue the Provider a Purchase Order. Upon issuance of the Purchase Order the Provider shall provide services in a timely and diligent manner to completion.

7.3. TIME OF PERFORMANCE

Should the Provider be delayed in completing their obligations under this Agreement as a result of causes beyond the control of the Provider and not due to their fault or neglect, the Provider shall notify the City, in writing, within two (2) calendar days after the commencement of such delay, stating the cause(s) and requesting an extension. Upon receipt of the Provider’s request for an extension, the City shall grant the extension if the City determines the delay(s) encountered by the Provider, is due to unforeseen causes and not attributable to their fault or neglect.

7.4. FAILURE TO PERFORM IN A TIMELY MANNER

Should the Provider fail to commence, provide, perform, and/or complete any of the services 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 their obligations in such a manner as to get back on schedule in accordance with the time and schedule of performance requirements as set forth in this Agreement.

8. ASSIGNMENT, TRANSFER AND SUB-CONTRACTS

The Provider shall not assign or transfer any of its rights, benefits, or obligations, except for transfers that result from: (1) the merger or consolidation of Provider with a third party; or (2) the disestablishment of the Provider’s professional practice and the establishment of the successor Provider. Nor shall the Provider sub-contract 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 sub-contractors to Provider in connection with the Provider performing services and work pursuant to the requirements of this Agreement. The Provider must notify the City Procurement Services Division 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.

9. APPLICABLE LAW

This Agreement shall be governed by Federal, State, and Local laws, rules, regulations, and ordinances.

10. NON-DISCRIMINATION

The Provider for itself and its successors as part of the consideration does hereby agree that in furnishing services to the City, no person on the grounds of race, color, religion, sexual orientation, gender identity, national origin, handicap, or sex shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. Should Provider authorize another person, with the City’s prior written consent, to provide services to the City, Provider shall undertake the obligations contained in this Section.

11. INSURANCE

11.1. Minimum Requirements

Minimum insurance requirements are listed in the solicitation document.

12. OWNERSHIP AND TRANSFER OF DOCUMENTS

The parties acknowledge and agree that all provisions of the Florida Public Records Law, Chapter 119, are and shall be binding and always enforced with regard to all action and activities under this Agreement. Provider recognizes that in contracting with the City, it has the burden of complying with the Florida Public Records Laws, Chapter 119, for any documents related to this agreement. Nothing in this Agreement shall prohibit or restrict or create any liability on the City for complying in good faith with the Florida Public Records Law, Chapter 119 of the Florida Statutes:

To the extent that Provider may meet the definition of a “contractor” as defined by Section 119.0701, Florida Statutes, it will:

A. keep and maintain public records required by the City to perform the contracted services;

B. upon request from the City’s custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time;

C. ensure that public records that are confidential or exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term and following completion of the Agreement if the Provider does not transfer the records to the City;

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

IF THE PROVIDER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA

STATUTES, TO THE PROVIDER’S DUTY TO RETAIN AND PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CITY’S CUSTODIAN OF PUBLIC RECORDS AT (239) 321-7045, E-MAIL TO PUBLICRECORDS@CITYFTMYERS.COM, POST OFFICE BOX 2217, FORT MYERS, FLORIDA, 33902-2217.

13. MAINTENANCE OF RECORDS

The Provider will keep and maintain adequate records and supporting documentation applicable to all of the services, provided pursuant to the requirements of this Agreement. Said records will be retained by the Provider for a minimum of five (5) years from the date of termination of this Agreement, or for such period as required by law.

The City and its authorized agents shall, with reasonable prior notice, have the right to audit, inspect and copy all such records and documentation as often as the City deems necessary during the period of this Agreement, and during the period as set forth in the paragraph above; provided, however, such activity shall be conducted only during normal business hours of the Provider and at the expense of the City.

14. HEADINGS

The headings of the Articles, Sections, Exhibits, and Attachments as contained in this Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions contained in such Articles, Section, Exhibits and Attachments.

15. ENTIRE AGREEMENT

This Agreement, including referenced Exhibits and Attachments hereto, constitutes the entire Agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matters set forth herein, and any such prior agreements or understandings shall have no force or effect whatever on this Agreement.

The following listed documents, which are made a part of, are attached to and are acknowledged, understood and agreed to be an integral part of this Agreement:

A. FORM 1 entitled "COMPENSATION AND METHOD OF PAYMENT"

B. FORM 2 entitled "TIME AND SCHEDULE OF PERFORMANCE"

C. FORM 3 entitled "CONSULTANT'S ASSOCIATED SUB-CONSULTANT(S) AND SUB-

CONTRACTOR(S)”

D. FORM 4 entitled "PROJECT GUIDELINES AND CRITERIA"

E. FORM 5 entitled "TRUTH IN NEGOTIATION CERTIFICATE"

F. FORM 6 entitled "MINORITY BUSINESS ENTERPRISE"

G. FORM 7 entitled "INSURANCE". (Containing copies of applicable Certificates of Insurance(s) and supporting endorsement(s)

H. EXHIBIT A SOLICITATION DOCUMENTS

I. EXHIBIT B RESPONDENT’S SUBMITTAL

16. NOTICES AND ADDRESS OF RECORD

16.1. NOTICES BY CONSULTANT TO CITY

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:

• cfmpurchasing@cityftmyers.com

• cityclerk@cityftmyers.com

• leg@cityftmyers.com

16.2. NOTICES BY CITY TO CONSULTANT

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:

16.3. 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.

17. TERMINATION

This Agreement will terminate once the agreement is fully satisfied and accepted by the CITY. This Agreement may also be terminated by the CITY at its convenience, or due to the fault of the CONSULTANT, by the CITY giving thirty (30) days written notice to the CONSULTANT.

mailto:cfmpurchasing@cityftmyers.com mailto:cityclerk@cityftmyers.com mailto:leg@cityftmyers.com

If the CONSULTANT is adjudged bankrupt or insolvent; if it makes a general assignment for the benefit of its creditors; if a trustee or receiver is appointed for the CONSULTANT or for any of its property; if it files a petition to take advantage of any debtor's act or to reorganize under the bankruptcy or similar laws; if it disregards the authority of the CITY'S designated representatives; if it otherwise violates any provisions of this Agreement; or for any other just cause, the CITY may, without prejudice to any other right or remedy, and after giving the CONSULANT a thirty (30) calendar day written notice, terminate this Agreement.

In addition to the CITY'S contractual right to terminate this Agreement in its entirety, as set forth above, the CITY may also, at its convenience, stop, suspend, supplement or otherwise change all, or any part of, the Scope Of Professional Services, as set forth in Exhibit "A", or the Project Guidelines and Criteria, as set forth in Form 4, or as such may be established by Supplemental Agreement or Change Order. The CITY shall provide written notice to the CONSULTANT in order to implement a stoppage, suspension, supplement or change.

The CONSULTANT may request that this Agreement be terminated by submitting a written notice to the CITY dated not less than thirty (30) calendar days prior to the requested termination date and stating the reason(s) for such a request. However, the CITY reserves the right to accept, or not accept, the termination request submitted by the CONSULTANT, and no such termination request submitted by the CONSULTANT shall become effective unless, and until, CONSULTANT is notified, in writing, by the CITY of its acceptance.

CONSULTANT TO DELIVER MATERIALS ON TERMINATION

Upon termination, the CONSULTANT shall deliver to the CITY all papers, drawings, models, and other material in which the CITY has exclusive rights by virtue hereof or of any business done, or services or work performed or provided by the CONSULTANT on behalf of the CITY.

18. AMENDMENTS/MODIFICATIONS

Modifications to the terms and provisions of this Agreement shall only be valid when issued in writing as a properly executed amendment or change order. In the event of any conflicts between the requirements, provisions, and/or terms of this Agreement and any written change orders the change order shall take precedence.

19. VENUE

Venue for any administrative and/or legal action arising under this Agreement shall be in Lee County, Florida.

20. 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.

21. ACCEPTANCE

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement on the dates shown below to be effective the day and year first shown above.

SIGNATURE PAGE TO FOLLOW

CITY OF FORT MYERS, FLORIDA

a Municipal Corporation ATTEST:

By:______________________________ _________________________________

Kevin B. Anderson, Mayor Mary Hagemann, CMC, City Clerk

Date:__________________________________

By:____________________________________

Marty K. Lawing, City Manager

Date:__________________________________

APPROVED AS TO FORM:

Grant Williams Alley, City Attorney

Company Witnesses

Witness

____________________________ By:_________________________________________

Authorized Signer Name

Name:______________________ Title: _______________________________________

____________________________ Date:_______________________________________

Name:______________________

CORPORATE SEAL

Attachments:

C - FORM 1-COMPENSATION AND METHOD OF PAYMENT

D - FORM 2-TIME AND SCHEDULE OF PERFORMANCE

E - FORM 3-CONSULTANT’S ASSOCIATED SUB-CONSULTANT(S) AND SUB-CONTRACTOR(S)

F - FORM 4-PROJECT GUIDELINES AND CRITERIA

G - FORM 5-TRUTH IN NEGOTIATION CERTIFICATE

H - FORM 6-MINORITY BUSINESS ENTERPRISE PROGRAM

I - FORM 7-CERTIFICATE OF INSURANCE FORM