Contract-Services,_CCNA.pdf

PROFESSIONAL SERVICES AGREEMENT

THE CITY OF FORT MYERS

And

For the project known as

1. PARTIES

This PROFESSIONAL SERVICES AGREEMENT is made and entered into __________________________ between the City of Fort Myers, Florida, a municipal corporation in the STATE OF FLORIDA hereinafter referred to as the "CITY", and *** hereinafter referred to as the "CONSULTANT".

2. WITNESSETH

WHEREAS, the CITY desires to obtain the Professional Services of said CONSULTANT to provide and perform Professional Services as further described hereinafter concerning the Project to be referred to and identified as: *** and

WHEREAS, the CONSULTANT hereby certifies that CONSULTANT has been granted and possesses valid, current licenses to do business in Lee County, Florida and in the City issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Professional Services to be provided and performed by the CONSULTANT pursuant to this Agreement; and

WHEREAS, the CONSULTANT has reviewed the Professional 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 Consultants' 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:

3. SCOPE OF PROFESSIONAL SERVICES

CONSULTANT, hereby agrees to provide and perform the Professional Services required and necessary to complete the services and work as set forth in the scope section of the solicitation EXHIBIT "A" is attached hereto and made a part of this Agreement. In addition, the Consultants response Exhibit "B" is attached hereto and made a part of this Agreement.

4. DEFINITIONS

4.1. ADDITIONAL SERVICES

The term Additional Services shall refer to such Professional Services as the CITY may request and authorize, in writing, the CONSULTANT to provide and perform relative to this Agreement, which are not included in the Basic Services. Additional Services shall be authorized by the execution of both parties to this Agreement of either a Supplemental Agreement or a Change Order Agreement.

4.2. AMENDMENT

An agreed addition to, deletion from, correction or modification of a document or contract.

4.3. BASIC SERVICES

The term Basic Services shall refer to the Professional Services set forth and required pursuant to this Agreement, and as described in further detail in the attached Exhibit “A”, under "Scope Of Professional Services", which Exhibit “A” is attached hereto and made a part of this Agreement.

4.4. CHANGE ORDER

The term Change Order shall refer to a written document, Change Order Agreement, executed by both parties to this Agreement setting forth and authorizing changes to the agreed upon Scope Of Professional Services and Tasks, Compensation and Method of Payment, Time and Schedule of Performance, or Project Guidelines and Criteria as such were set forth and agreed to in the initial Agreement, Supplemental Agreements, or previous Change Orders issued thereto. The Change Order document, which shall be executed on a City of Fort Myers standard form, shall set forth the authorized changes to the: Scope Of Professional Services, tasks, work or materials to be performed or provided by the CONSULTANT; the compensation and method of payment; the schedule or time period for performance and completion, and the guidelines, criteria and requirements pertaining thereto.

The amount of the change in contract compensation and time set forth in any and all Change Orders executed and issued under this Agreement shall be understood and agreed by both Parties to this Agreement to be fair, equitable, adequate and complete. The changed compensation shall be understood and agreed to be the total of all costs associated with or impacted by the Change Order including, but not limited to, any and all direct costs, indirect costs and associated costs which may result from or be caused by the Change Order, and shall be understood and agreed to include a fair, equitable and adequate adjustment to cover the CONSULTANT'S general administrative and overhead costs and profit.

In the event the CITY decides to delete all, or portions, of the Scope of Services, Task(s), or Requirements set forth in the initial Agreement, Supplemental Agreements or previously authorized Change Orders, the CITY may do so by the unilateral issuance of a written Change Order to the CONSULTANT. Such a unilaterally issued Change Order shall set forth, if appropriate, (1) an agreement by both the CITY and the CONSULTANT establishing changes in the amount of compensation to be paid the CONSULTANT as a result of the deletion or decrease in services required, or (2) in the absence of such an agreement concerning compensation, the unilaterally issued Change Order shall set forth the basis to be used in subsequently considering, and reaching agreement on change(s) in the compensation to be paid the CONSULTANT.

The failure on the part of the CONSULTANT to execute a Change Order issued unilaterally by the CITY, to effect a deletion or decrease in the services required, shall have no effect on, or otherwise prevent the CITY from exercising its rights to direct the stated deletion or decrease in the services to be provided or performed by the CONSULTANT.

4.5. CITY

The term CITY shall refer to the City of Fort Myers, Florida, a municipal corporation in the State of Florida, and any official and/or employees thereof who shall be duly authorized to act on the CITY'S behalf relative to this Agreement.

4.6. CONSULTANT

The term CONSULTANT shall refer to the individual or firm offering Professional 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 work of Sub- Consultants and Sub-Contractors, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto.

4.7. CONTRACT ADMINISTRATOR

The term Contract Administrator shall refer to the person employed by the City of Fort Myers to serve and act on the CITY'S behalf as the CITY'S Contract Administrator. The City Manager shall act on behalf of the CITY to execute any and all Supplemental Agreements(S) or Change Order(s) approved by the CITY and issued to the CONSULTANT pursuant to this Agreement. The Contract Administrator, within the authority conferred by the City of Fort Myers, acting as the CITY'S designated representative shall issue written notification to the CONSULTANT of any and all changes approved by the CITY in the CONSULTANT'S: (1) compensation (2) time and/or schedule of service delivery; (3) scope of services;

and (4) any Amendment(s) or other change(s) relative to Basic Services and Additional Services pursuant to this Agreement, or Supplemental Agreements (S), or Change Order(s) pertaining thereto. The Contract Administrator shall be responsible for acting on the CITY'S behalf to administer, coordinate, interpret and otherwise manage the contractual provisions and requirements set forth in this Agreement, or any Amendment(s), Change Order(s) or Supplemental Agreements (S) issued there under.

4.8. LUMP SUM FEE(S)

Lump Sum Fee(s), hereinafter identified as L.S., are understood and agreed to include all direct and indirect labor costs, personnel related costs, overhead and administrative costs, costs of Sub- Consultant(s) and/or Sub-Contractor(s), out-of-pocket expenses and costs, Professional Service Fee(s) and any other costs or expenses which may pertain to the services and/or work to be performed, provided and/or furnished by the CONSULTANT as may be required and/or necessary to complete each and every task set forth in the Scope Of Professional Services, or as may be set forth in subsequent Supplemental Agreements, and/or Change Orders agreed to in writing by both parties to this Agreement.

4.9. NOT-TO-EXCEED FEE(S)

When all, or any portion, of the CONSULTANT'S compensation to provide and perform the services and work necessary and required pursuant to the Tasks set forth in Agreement Exhibit “B”, and any Supplemental Agreements and Change Orders authorized thereto, is established to be made on a Not-To- Exceed (N.T.E.) amount basis, it is mutually understood and agreed that such compensation for each completed Task shall be made on the following basis:

For the actual hours necessary, required and expended by the CONSULTANT'S professional and technical personnel, multiplied by the applicable hourly rates for each classification or position as set forth to the above referenced Agreement and any Supplemental Agreements or Change Orders authorized thereto;

and

The actual necessary, required and expended non-personnel reimbursable expenses shall be included in the Professional Services cost(s) for the above referenced Agreement and any Supplemental Agreements or Change Orders authorized thereto; and

With the understanding and agreement that the CITY shall pay the CONSULTANT for all such costs and expenses within the established Not-To-Exceed amount for each Task or Sub-Task subject to the CONSULTANT presenting an itemized and detailed invoice with appropriate supporting documentation, including payrolls, and all SUB-CONSULTANT and SUB-CONTRACTOR fees attached thereto to show evidence satisfactory to the CITY covering all such costs and expenses; and

With the understanding and agreement that the CONSULTANT'S invoices, and all payments to be made for all Not-To-Exceed amounts, shall be subject to the review (including independent audit, if desired), acceptance and approval of the CITY; and

With the understanding and agreement that when the CONSULTANT'S compensation is established on a Not-To-Exceed basis for a specific Task(s) or Sub-Task(s), the total amount of compensation to be paid the CONSULTANT to cover all personnel costs, non-personnel reimbursable expenses and costs, and Sub- Consultant and Sub-Contractor costs for any such specific Task(s) or Sub-Task(s) shall not exceed the amount of the total Not-To-Exceed compensation established and agreed to for each specific Task(s) or Sub-Task(s). In the event the amount of compensation for any Task(s) or Sub-Task(s) to which the CONSULTANT is entitled on the Not-To-Exceed basis set forth above is determined to be necessary, required and actually expended and is determined to be actually less than the Not-To-Exceed amount established for the specific Task or Sub-Task, it is understood and agreed that any unexpended amount under a specific Task or Sub-Task may not be used, applied, transferred, invoiced or paid for services or work provided or performed on any other Task(s) or Sub-Task(s), unless otherwise directed by the City’s Project Manager, through an approved Change Order.

4.10. PROFESSIONAL SERVICES

The term Professional Services shall refer to all of 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 any and all Sub-Consultants and Sub-Contractors the CONSULTANT may engage to provide, perform and complete the services required pursuant to the covenants, terms and provisions of this Agreement.

4.11. PROJECT

The term Project shall refer to such facility, system, program or item as described in the summary statement set forth in the Preamble on Page One (1) of this Agreement.

4.12. PROJECT MANAGER

The term Project Manager shall refer to the person employed or retained by the CITY and designated, in writing, to serve and act on the CITY'S behalf to provide direct contact and communication between the CITY and CONSULTANT with respect to providing information, assistance, guidance, coordination, review, approval and acceptance of the Professional Services, work and materials to be provided and performed by the CONSULTANT pursuant to this Agreement and such written Supplemental Agreement(s) and Change Order(s) as are authorized. The Project Manager is not authorized to, and shall not, issue any verbal, or written, request or instruction to the CONSULTANT that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatever the: (1) Scope of Services to be provided and performed by the CONSULTANT; (2) The time the CONSULTANT is obligated to commence and complete all such services; (3) The amount of compensation the CITY is obligated or committed to pay the CONSULTANT. The Project Manager shall review and make appropriate recommendations on all requests submitted by the CONSULTANT for payment of services and work provided and performed, and expense, as provided for in this Agreement and approved Supplemental Agreement(s), Change Order(s), and Amendment(s) thereto.

4.13. SUB-CONSULTANT

The term Sub-Consultant shall refer to any individual or firm offering Professional Services which is engaged by the CONSULTANT to assist the CONSULTANT in providing and performing the Professional Services, work and materials for which the CONSULTANT is contractually obligated, responsible, and liable to provide and perform under this Agreement. The CITY shall not be a party to, responsible or liable for, or assume any obligation whatever for any Agreement entered into between the CONSULTANT and any SUB-CONSULTANT.

4.14. SUB-CONTRACTOR

The term Sub-Contractor shall refer to any individual, company or firm providing other than Professional Services, which is engaged by the CONSULTANT to assist the CONSULTANT in providing and performing services, work and materials for which the CONSULTANT is contractually obligated, responsible, and liable to provide and perform under this Agreement. The CITY shall not be a party to, responsible or liable for, or assume any obligation whatever for any Agreement entered into between the CONSULTANT and any Sub-Contractor.

4.15. SUPPLEMENTAL AGREEMENT

The term Supplemental Agreement shall refer to a written document executed by both parties to this Agreement setting forth and authorizing professional service tasks, which were not set forth in, and are supplemental to the Scope of Services contained in the initial Professional Services Agreement or other Supplemental Agreements issued thereto. The Supplemental Agreement, which shall be executed on a City of Fort Myers standard form, shall set forth the authorized supplement(s) to the: Scope of the Professional Services tasks, work or materials to be performed or provided by the CONSULTANT; the compensation and method of payment; the schedule or time period for performance and completion; and the guidelines, criteria, or requirements pertaining thereto. The amount of the change in contract compensation and time set forth in any and all Supplemental Agreements executed and issued under this Agreement shall be understood and agreed by both Parties to this Agreement to be fair, equitable, adequate and complete. The changed compensation shall be understood and agreed to be the total of all costs associated with or impacted by the Supplemental Agreements including, but not limited to any costs which may result from or be caused by the Supplemental Agreements, and shall be understood and agreed to include a fair, equitable and adequate adjustment to cover the CONSULTANT'S general administrative and overhead costs and profit.

5. OBLIGATIONS OF THE CONSULTANT

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:

5.1. LICENSES

The CONSULTANT agrees to obtain and maintain throughout the period this Agreement is in effect, all such licenses as are required to do business in the State of Florida and in the City of Fort Myers, Florida, including, but not limited to, licenses required by the respective State Boards and other governmental agencies responsible for regulating and licensing the professional services provided and performed by the CONSULTANT pursuant to this Agreement.

5.2. PERSONNEL

A. QUALIFIED PERSONNEL

The CONSULTANT agrees when the services to be provided and performed relate to a Professional Service(s) which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to practice such services, to employ and/or retain only qualified personnel to be in responsible charge of all Basic Services and Additional Services to be provided pursuant to this Agreement.

B. 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 Consultants Project Manager. The Consultants 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 services to be provided and performed under this Agreement and Amendment(s) thereto. The Consultants 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 services 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 Consultants Project Manager, shall be subject to the prior approval and acceptance of the CITY.

C. 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 Consultants Project Manager, or any other personnel employed or retained by the CONSULTANT, or personnel of the Sub-Consultant(s) or Sub-Contractor(s) 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

5.3. 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(s) thereto. The CITY may suffer damages in the event that the CONSULTANT does not accomplish and complete the required services in a timely manner. The CONSULTANT 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 will be provided, performed and completed in a timely and diligent manner throughout. Failure to complete the work as contained in Exhibit "A", FORM 2 Time and Schedule of Performance, shall be a consideration in determination of CONSULTANT responsibility in any future request for contract services.

5.4. STANDARDS OF PROFESSIONAL SERVICES

The work and/or services to be provided and/or performed by the CONSULTANT and by any Sub- Consultant(s) and/or Sub-Contractor(s) engaged by the CONSULTANT as set forth in the Scope 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 Scope 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.

5.5. 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.

In the performance of the services to be provided in accordance with Exhibit “A” and as set forth in subsequent Supplemental Agreements and Change Orders, CONSULTANT may be required to rely upon data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and/or other services, work and materials performed and subsequently provided or furnished to the CONSULTANT by the CITY or others on behalf of the CITY. CONSULTANT shall rely and utilize this information without independent review or verification as to its accuracy and completeness unless otherwise provided for in Exhibit “A” and subsequent Supplemental Agreements, and Change Orders.

5.6. LIABILITY

CONSULTANT TO HOLD CITY HARMLESS

The CONSULTANT will indemnify and hold harmless the agency, and its officers and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the design professional and other persons employed or utilized by the design professional in the performance of the contract.

The CONSULTANT shall not be liable to, nor be required to indemnify the CITY for any portions of damages arising solely and exclusively from the negligence of the CITY. The foregoing shall not constitute a waiver of sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28.

5.7. 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'S 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 Sub-Consultant(s) or Sub-Contractor(s) pursuant to this Agreement. CONSULTANT shall require all of its employees, Sub-Consultant(s) and Sub- Contractor(s) to comply with the provisions of this paragraph.

5.8. CONSULTANT TO REPAIR PROPERTY DAMAGE CAUSED BY THE CONSULTANT

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 willful misconduct or negligent acts of the CONSULTANT, or of its Sub- Consultant(s) and/or Sub-Contractor(s). This CONSULTANT'S obligation under this sub-article does not apply to property damage caused in whole or in part by any other Consultant or Contractor engaged directly by the CITY.

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.

5.9. RESPONSIBILITY FOR ESTIMATES

A. In the event the services required pursuant to this Agreement include the CONSULTANT preparing and submitting to the CITY, cost estimates, the CONSULTANT, by exercise of his or her experience, effort, knowledge and judgment, shall develop such cost estimates as are set forth herein, or as may be required under the Agreement and shall be held accountable, responsible, and liable for the accuracy, completeness, and correctness of any and all such cost estimates.

Because CONSULTANT has no control over the cost of labor and materials or over competitive bidding or market conditions, CONSULTANT cannot and does not guarantee that bids or negotiated prices will not vary from any opinion of probable costs prepared by CONSULTANT. For purposes of the Liability Provisions of this Article only, the CONSULTANT'S estimate(s) shall be considered valid and effective for a period of six (6) months from the date of the CITY'S acceptance of the estimate(s).

B. The cost estimate(s) of CONSULTANT or Sub-Consultant(s) engaged by CONSULTANT, for the appraisal or valuation of property or easements, or the estimate(s) of damages or costs associated with the acquisition of property or easements are exempted from the provisions of Article 3.09.

C. Estimates for Construction Projects

1. CONSTRUCTION COST ESTIMATE

A construction cost estimate for purposes of this Agreement is an estimate prepared on the basis of well-defined engineering/architectural data and on detailed information set forth in specifications, designs or drawings which are to be used as a basis for obtaining bids or price proposals for constructing the project. This type of estimate is considered to be accurate within plus or minus ten percent of the cost of the construction of the project. The accuracy and reliability of a Construction Cost Estimate is vital to the CITY'S interests because it may be used for such purposes as, but not limited to the following; budgeting, obtaining, allocating or obligating funds for the project; evaluating and determining the reasonableness and acceptableness of bids or price proposals for construction projects; or establishing the assessment amounts for Special Assessment Districts.

Notwithstanding anything above to the contrary, in that event that all responsive and responsible bids exceed the final opinions of probable construction costs prepared by CONSULTANT by more than ten percent (10%), the CONSULTANT and CITY shall: (1) agree in writing to increase such opinion of probable costs; or (2) authorize negotiating or re-bidding of such work within a reasonable time; or (3) cooperatively review the overall scope of the project, the established guidelines and criteria of the project, the final plans and specifications of the project, and other construction documents and identify and mutually agree in writing to modify applicable parts of said scope, guidelines and criteria, plans and specifications, or other construction documents accordingly to effect the CITY obtaining a lowest priced bid which does not exceed the above mentioned CONSULTANT'S final opinion of probable construction costs by more than ten percent (10%). If required, compensation for the CONSULTANT'S services specific to action (1), (2), or (3) above shall be included in the compensation amount agreed upon for the final design of the Project. The obligation to provide such services, if required, will be the limit of the CONSULTANT'S responsibility in this regard and CONSULTANT shall be entitled to payment for all other services in accordance with this Agreement and will not otherwise be liable for damages attributable to the lowest proposal or bid exceeding the final opinion of probable construction costs. Any such modifications made by the CONSULTANT shall not conflict with the functional or operational requirements established by the CITY for the project and set forth in the Agreement or Supplemental Agreement(s) or Change Order(s) issued thereto, nor shall any such modifications conflict with established rules, regulations, requirements or professional standards pertaining to the design, specifications or drawings prepared by the CONSULTANT, nor shall such modifications adversely affect the safe use or operation of the constructed project.

For determination of compliance with the accuracy requirement established for the Construction Cost Estimate prepared by the CONSULTANT, the amount of the Construction Cost Estimate submitted by the CONSULTANT shall be adjusted from the date the Construction Cost Estimate was received by the CITY until the date bids or price proposals are received by the CITY, by applying the percent change in the "20 Cities Cost Index" as published in the ENR (formerly Engineering News-Record), a McGraw-Hill, Inc. publication.

5.10. PERMITS

The CONSULTANT will 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'S design, drawings and specifications required by any governmental body having authority over the project. Any fees required for such reviews, approvals or permits will 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 will 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'S 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.

5.11. ADDITIONAL SERVICES

Should the CITY request the CONSULTANT to provide and perform Professional Services for this project, which are not set forth in Exhibit “A”, 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(s) 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 Scope 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.

5.12. TRUTH-IN-NEGOTIATIONS CERTIFICATE

The CITY may request that the CONSULTANT execute a Truth-in-Negotiations Certificate ("Certificate"), in a form attached as FORM 5. 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.

5.13. 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 Agreement Exhibit “A” entitled "Scope Of Professional Services" and Supplemental Agreements and Change Orders authorized. The compensation to be paid the CONSULTANT, as set forth in Agreement FORM 1, (including Attachment 1), entitled "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 Agreement Exhibit “A” and Supplemental Agreements and Change Orders authorized thereto as stated above."

5.14. AFFIRMATIVE ACTION BY CONSULTANT WHEN ENGAGING SUB-CONSULTANTS

City of Fort Myers City Code Section 38-125 (Ordinance No. 3126) sets a goal of Fifteen (15%) percent of the monies actually spent for contractual services for the purpose of entering into contracts with certified Minority Business Enterprises. Accordingly, the CONSULTANT is encouraged, when selecting or engaging the services of sub-consultants or sub-contractors pursuant to this Agreement, to spend Fifteen (15%) percent of the amount of compensation established in this Agreement and in subsequent Supplemental Agreements and Change Orders authorized thereto for the engagement of the services of certified Minority Business Enterprise Sub-Consultants or Sub-Contractors.

In furtherance of this statutory goal, the CITY expects the CONSULTANT to take affirmative action towards achieving this goal. "Affirmative Action", as used herein, shall constitute a good faith effort by the CONSULTANT to achieve the stated goal of engaging certified Minority Business Enterprise Sub- Consultants or Sub-Contractors to provide or perform services and/or work pursuant to the Scope Of Services required under this Agreement. Efforts taken by the CONSULTANT to assist the CITY in meeting this statutory goal must be documented in detail, records of Sub-Consultants or Sub-Contractors contacted maintained, including negotiation efforts, and written Agreements maintained for services or work awarded to Sub-Consultants or Sub-Contractors.

The CONSULTANT, upon receipt of a written request by the CITY, shall within ten (10) calendar days thereafter, submit to the CITY copies of records and supporting documentation to show evidence of its affirmative action efforts to achieve the above stated goal.

The CONSULTANT is encouraged to contact the City of Fort Myers Procurement Services, or the Minority Business Enterprise Program Coordinator, for information and assistance regarding the CITY'S Minority Business Enterprise Certification Program and listing of certified Minority Business Enterprises.

5.15. ALL DRAWINGS

All drawings for the CITY shall be submitted in both hard copy and electronic form in a format that is completely compatible to the CITY's software.

5.16. ALL REPORTS

All reports and written documents for the CITY will be submitted in both hard copy and electronic form in a format that is completely compatible to the CITY’S software. All photos, exhibits, graphs, tables, etc.

contained within any report or document will be provided separately in a file format compatible to the CITY’S software.

5.17. CHANGE IN STATUS

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 will immediately notify the CITY of said changes in writing to the office of Procurement Services, 2200 Second Street, City of Fort Myers, Florida 33901.

6. OBLIGATIONS OF THE CITY

6.1. DESIGNATION OF PROJECT MANAGER

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 Project Manager pursuant to the provisions of section "Sub-Consultant" of this Agreement. Such notification shall be provided to the CONSULTANT by the City’s Contract Administrator.

6.2. AVAILABILITY OF CITY INFORMATION

A. 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 FORM 4, entitled "Project Guidelines and Criteria", which FORM 4 is attached hereto and made a part of this Agreement.

B. CITY TO PROVIDE PERTINENT REFERENCE MATERIAL

At the CONSULTANT'S request, the CITY agrees to provide to the CONSULTANT, at no cost to the CONSULTANT, all pertinent information known to be available to the CITY to assist the CONSULTANT in providing and performing the required professional 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.

6.3. AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

The CITY agrees that the Contract Administrator and the Project Manager 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.

6.4. ACCESS TO CITY PROPERTY

The CITY agrees, with reasonable prior written notice given by the CONSULTANT, 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 Professional 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.

6.5. PLAN REVIEWS

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 thereto. The review does not relieve the CONSULTANT from responsibility for errors or omissions or from responsibility for having the design comply with the provisions of all codes having jurisdiction.

7. COMPENSATION AND METHOD OF PAYMENT

7.1. BASIC SERVICES

The CITY shall pay the CONSULTANT for all requested and authorized Basic Services rendered hereunder by the CONSULTANT and completed in accordance with the requirements, provisions, and/or terms of this Agreement or its Amendment(s) and accepted by the CITY in accordance with the provisions for compensation and payment of said Basic Services set forth and prescribed in FORM 2, entitled "Compensation and Method of Payment", which FORM 2 is attached hereto and made a part of this Agreement, or on the basis of such changes to the established compensation as may be mutually agreed to by both parties to this Agreement as evidenced by a written Supplemental Agreement or Change Order executed by both parties.

7.2. ADDITIONAL SERVICES

The CITY shall pay the CONSULTANT for all such Additional Services as have been requested and authorized by the CITY and agreed to, in writing, by both parties to this Agreement and which have been rendered as Additional Services by the CONSULTANT and completed in accordance with the requirements, provisions, and/or terms of this Agreement or its Amendments, and accepted by the CITY in accordance with the provisions for compensation and payment of said Additional Services, as set forth and prescribed in FORM 1, entitled "Compensation and Method of Payment", which FORM 1 is attached hereto and made a part of this Agreement, or on the basis of such changes to the established compensation as may be mutually agreed to by both parties to this Agreement as evidenced by a written Supplemental Agreement or Change Order executed by both parties.

7.3. METHOD OF PAYMENT

A. MONTHLY STATEMENTS

The CONSULTANT shall be entitled to submit not more than one invoice statement to the CITY each calendar month covering services rendered during the preceding calendar month. The CONSULTANT'S invoice statement(s) shall be itemized to correspond to the basis of compensation as set forth in the Agreement, or Supplemental Agreement(s) and/or Change Order(s), there under. The CONSULTANT'S invoice statements shall contain a breakdown of charges, description of service(s) and work provided and/or performed, and where appropriate, supportive documentation of charges consistent with the basis of compensation set forth in the Agreement, or in Supplemental Agreement(s), and/or Change Order(s) there under.

The CONSULTANT'S invoice statement(s) shall be itemized to correspond to the basis of compensation as set forth in the Agreement, or Supplemental Agreement(s), Change Order(s), and/or Work Order(s) thereunder.

The CONSULTANT'S invoice statements shall be itemized of charges, description of service(s) and work provided and/or performed, and where appropriate, supportive documentation of charges consistent with the basis of compensation set forth in the Agreement, or in Supplemental Agreement(s), Change Order(s), and/or Work Order(s) thereunder.

B. PAYMENT FOR SERVICES PERFORMED

The CITY shall pay the CONSULTANT for services performed using either of the following methods, or using a combination thereof:

1. The CITY shall pay the CONSULTANT, on the basis of services completed, for tasks set forth in Exhibits "A" and FORM 1, as evidenced by work products such as reports, drawings, specifications, etc., submitted by the CONSULTANT and accepted by the CITY. No payments shall be made for CONSULTANT'S Work-in-Progress until service items, for which payment amounts have been established and set forth in this Agreement, have been completed by the CONSULTANT and accepted by the CITY. A minimum of thirty-three and one-third (33 1/3%) percent shall be completed prior to first payment being made, provided services performed are on schedule. Whenever an invoice statement covers services for which no work product is required to be furnished by the CONSULTANT to the CITY, the CITY reserves the right to retain five percent (5%) of the amount invoiced until such service requirements are fully completed.

2. The CITY shall pay the CONSULTANT for services performed for tasks set forth in Exhibits "A" and FORM 1, on the basis of an invoice statement covering CONSULTANT'S Work-in- Progress expressed as a percentage of the total cost of the service and/or work required for each task invoiced in this manner. A copy of all material shall be submitted with pay estimate. All such Work-in-Progress percentages are subject to the review and approval of the CITY. The decision of the CITY shall be final as to the Work-in-Progress percentages paid. Payment by the CITY for tasks on a Work-in-Progress percentage basis shall not be deemed or interpreted in any way to constitute an approval or acceptance by the CITY of any such service or Work-in-Progress. The CONSULTANT shall be responsible for correcting, redoing, modifying or otherwise completing the services and work required for each task before receiving final, full payment whether or not previous Work-in-Progress payments have been made. All tasks to be paid for on a Work-in-Progress percentage basis shall be agreed to by both parties to the Agreement and to be paid in this manner shall be identified in FORM 1 with the notation (WIPP). Only tasks so identified will be paid on a Work-in-Progress percentage basis. The CITY reserves the right to retain five percent (5%) of the amount invoiced until such service requirements are fully completed.

C. PAYMENT SCHEDULE

The CITY shall issue payment to the CONSULTANT within forty-five (45) calendar days after receipt of an invoice statement from the CONSULTANT in an acceptable form and containing the requested breakdown and detailed description and documentation of charges, including percentage of completion per item. Should the CITY object or take exception to the amount of any CONSULTANT'S invoice statement, the CITY shall notify the CONSULTANT of such objection or exception within twenty-seven (27) calendar days after the date on which the payment request or invoice is stamped as received. If such objection or exception remains unresolved at the end of ten (10) calendar day period, the CITY shall withhold the disputed amount and make payment to the CONSULTANT of the amount not in dispute. Payment of any disputed amount, or adjustments thereto, shall be made within thirty (30) calendar days of the date such disputed amount is resolved by mutual agreement of the parties to this Agreement.

D. NON-APPROPRIATION

The parties acknowledge that appropriation of funds is a governmental function which the City cannot contractually commit itself in advance to perform and this Agreement does not constitute such commitment. The CITY’S obligation to pay under this Agreement is contingent upon CITY’S annual appropriation of funds for such purpose, and the non-appropriation of funding for such purpose in any fiscal year shall immediately relieve both parties of their respective obligations hereunder, as of the last day for which funds have been appropriated. The CITY shall endeavor, upon determining that sufficient funds will not be budgeted and appropriated in any fiscal year under this Agreement, to provide prompt written notice to the CONSULTANT of such event.

8. TIME AND SCHEDULE OF PERFORMANCE

8.1. 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.

8.2. 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.