Draft_AE_Agreement.pdf

ARCHITECT/ENGINEERING AGREEMENT

THIS ARCHITECT/ENGINEERING AGREEMENT (“Agreement”), made and entered into this day of , (“Execution Date”), by and between the City of St. Petersburg, Florida (“City”) and (“A/E”).

NOW THEREFORE in consideration of the promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the A/E agree as follows:

SECTION 1.0 – DEFINITIONS

1.1 “A/E” means .

1.2 “A/E Representative” means any employee, agent, subcontractor, subconsultant, consultant, or other representative of the A/E.

1.3 “City” means City of St. Petersburg, Florida.

1.4 “City’s Project Manager” means the individual designated in a Task Order (as defined herein) as the City’s Project Manager.

1.5 “Day(s)” or “day(s)” means calendar days, unless otherwise set forth in this Agreement.

1.6 “Deliverables” means all data, reports, design calculations, studies, permit documents, correspondence, design documents, the construction documents, construction cost estimates, and all other materials produced and developed by the A/E pursuant to this Agreement.

1.7 “Force Majeure Event” means an act of God, fire, explosion, power failure, flood, public health emergency, strike, labor troubles, riot or civil disturbance, war, terrorism, sabotage, insurrection, blockade, or embargo or other reason of like nature not the fault of the party.

1.8 “Funding Agency” means any State or Federal Agency that provide funding to the

City for any Project.

1.9 “Parties” means the City and the A/E.

1.10 “Project” means the project identified in a Task Order.

1.11 “Scope of Services” means those services set forth in Section 4.0 and a Task Order that are required to be performed by the A/E in accordance with the terms and conditions of this Agreement.

1.12 “Task Order” means a written document that specifically describes the Project services to be provided by the A/E, a schedule or timeline for completion of such services, the lump sum or not to exceed fees and costs for such services and any other terms and conditions required by the City for such services, and any amendments to such Task Order (to the extent such Task Order amendments are permitted pursuant to Section 18).

1.13 “Work” means all the engineering design services to prepare construction plans for roadway improvements, sidewalk improvements, traffic and signal improvements, and various complete streets elements. The Work may also include surveying services at the election of the City.

SECTION 2.0 – TERM OF AGREEMENT

2.1 The initial term of this Agreement commences on the Execution Date and remains in effect for one year. The Agreement automatically renews for successive one (1) year periods unless either party sends the other a notice of non-renewal at least thirty (30) days prior to the expiration of the then current term; provided, however, that if this Agreement has not previously expired, it expires at the end of the fourth renewal term (i.e., five (5) years after the Execution Date).

2.2 Notwithstanding Section 2.1 above, this Agreement remains in effect for the period necessary for the A/E to complete Project services pursuant to a Task Order issued prior to the expiration of the Term of this Agreement (all services pursuant to a Task Order must be for the same Project as required by Section 18.2); provided, however, that any Project services performed five (5) years after the Execution Date or later are not eligible for federal aid reimbursement.

2.3 References in this Agreement to “Term” include the initial term of this Agreement and all renewal terms.

2.4 Terms and conditions of this Agreement remain in effect and unchanged during renewal terms unless there is a Contract Adjustment (as defined herein) in accordance with Section 18.

2.5 Nothing in this section limits or affects the City’s right to terminate this Agreement

(and all services being performed pursuant to Task Orders) in accordance with the termination section set forth in this Agreement.

SECTION 3 .0 – REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS

3.1 The A/E is professionally qualified to provide the Scope of Services and is licensed to practice architecture or engineering in the State of Florida by all public entities having jurisdiction over the A/E and the Project.

3.2 The A/E is responsible for design services required by this Agreement.

3.3 The A/E shall maintain all necessary licenses, permits or other authorizations necessary to act as the A/E and which are required to provide the Scope of Services during the Term.

3.4 The A/E will become familiar with the Project site(s) and the local conditions under which the Project(s) will be designed, constructed, and operated.

3.5 The A/E shall exercise that degree of care and skill ordinarily exercised by members of the same profession and shall perform the Scope of Services using reasonable skill and judgment in accordance with sound business, ethical and professional standards.

3.6 The A/E represents that it has or will secure, at its own expense, all personnel required to perform the Scope of Services required by this Agreement.

3.7 The A/E warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the A/E to solicit or secure this Agreement and that A/E has not paid or agreed to pay any person, company corporation, individual, or firm, other than a bona fide employee working solely for the A/E any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement.

3.8 The A/E acknowledges that the A/E is responsible for the acts and omissions

(including negligent, reckless or intentionally wrongful acts and omissions) of any A/E Representative in the performance of the Scope of Services required by this Agreement.

3.9 The A/E accepts the relationship of trust and confidence established between it and the City by this Agreement. The A/E covenants with the City to cooperate to furnish professional efforts during the Term of this Agreement that are consistent with reasonable professional practices and the best interest of the City.

3.10 The A/E is responsible for the professional quality, technical accuracy and the coordination of all Deliverables furnished, produced and developed by the A/E under this Agreement.

3.11 The A/E acknowledges that the City reserves the right to enter into agreements with other firms or entities to assist the City with its review of the Deliverables, any Project component(s), and the Work.

3.12 The A/E acknowledges that the A/E shall prepare design Deliverables that can be constructed within the City’s budget for construction, which will be determined by the City in its sole and absolute discretion. The A/E shall monitor costs during the design of the Project and shall advise the City’s Project Manager immediately of any deviations from the City’s budget for construction. If at any time a cost estimate exceeds the City’s budget for construction, the A/E shall submit to the City’s Project Manager a written explanation for the reasons for the overage and identify all options available to the City to bring the estimate back within the budget for construction. The City, in its sole and absolute discretion, will determine the option to be followed.

3.13 The A/E represents and warrants that it has the right to access and use all equipment, services, software, computer models, data, routines, technology, other intellectual property incident to providing the Scope of Services required by this Agreement (collectively, the “Intellectual Property”). The A/E is responsible for any infringement or claim of infringement of any patent, trademark, copyright, trade secret, or other proprietary interest arising out of the A/E’s use of the Intellectual Property.

3.14 The A/E hereby makes all certifications required under Florida Statute section

287.135 (Scrutinized Companies) and 20.055 (Agency Inspector General). A/E is hereby notified of the provisions of Section 287.133(2)(a) (Public Entity Crimes), Florida Statutes, related to prohibitions on persons or affiliates who have been placed on the convicted vendor list following a conviction for a public entity crime.

SECTION 4.0 – SCOPE OF SERVICES

4.1 The professional services to be performed by the A/E are to be on a continuing basis as directed by the City for design activities for construction projects where construction costs are projected at four million dollars ($4,000,000) or less, in accordance with the Scope of Services set forth in Appendix A, for projects listed in Appendix C or other projects identified by the City. Nothing herein may be construed to guarantee A/E any work under this Agreement.

4.2 The detailed services that the A/E shall perform for the City will be set forth in a Task Order, which will, after execution by the A/E and the City, be incorporated and made a part of this Agreement. A Task Order may only be amended in strict accordance with this Agreement.

4.3 Task Order assignments for FDOT projects will be made among qualified firms and will be awarded to the most qualified firm for the project based on qualifications identified during the solicitation process and the professional staffing availability at the time of the assignment. A separate evaluation will be conducted prior to each Task Order assignment. Pricing will not impact an assignment.

4.4 Each Project requires a separate Task Order. Each Task Order must be approved by the Funding Agency (if required) prior to the City authorizing work under a Task Order. Notwithstanding Section 18.1, a Task Order may not be amended to add an additional Project or to substitute the original Project with a different Project.

4.5 If the detailed services are for (i) design or construction of a new Qualified Municipal Building (as defined in Chapter 2, Article 5, Division 5 of the St.

Petersburg City Code), (ii) Substantial Modification (as defined in Chapter 2, Article 5, Division 5 of the St. Petersburg City Code) of an existing Qualified Municipal Building, or (ii) design or construction of a new Qualified City Infrastructure Project (as defined in Chapter 2, Article 5, Division 5 of the St. Petersburg City Code), A/E agrees to be subject to and shall comply with the applicable requirements for incorporating sustainable design and construction practices, as those requirements are set forth in Chapter 2, Article V, Division 5 of the St. Petersburg City Code, as may be amended from time to time (“collectively “Green Certification Requirements”). The applicable Green Certification Requirements are incorporated into this Agreement as A/E’s obligations under this Agreement.

Without limiting the generality of the foregoing, A/E shall appoint a qualified person and shall provide the required documentation in accordance with the applicable Green Certification Requirements

SECTION 5.0 – CITY’S RESPONSIBILITIES

5.1 The City shall provide all available information regarding the Project to the A/E and shall provide direction to the A/E consistent with the terms and conditions of this Agreement.

5.2 The City will evaluate the A/E’s performance upon completion of each Task Order.

SECTION 6.0 – COMPENSATION; INVOICE

6.1 Provided that the A/E faithfully performs its obligations contained in a Task Order and subject to other terms and conditions of this Agreement, the City hereby agrees to pay the A/E the lump sum or not to exceed amount set forth in a Task Order, which amount must be calculated pursuant to the fees and costs set forth in Appendix B. Such fees and costs set forth in Appendix B are inclusive of all out-of-pocket expenses, including but not limited to transportation, lodging, meals, materials, and documents required by this Agreement. The total fees and costs paid to the A/E for all work and services performed pursuant to this Agreement (as set forth in a Task Order(s)) during the Term of this Agreement may not exceed one million five hundred thousand dollars ($1,500,000).

6.2 The A/E shall invoice the City on a monthly basis and the City shall pay the A/E within twenty (20) business days after receipt of such invoice (provided the A/E is in compliance with the terms and conditions of this Agreement). The monthly invoice must be in the form and contain the detail required by the City’s Project Manager. In the event of a conflict between this section and the Local Government Prompt Payment Act, the Local Government Prompt Payment Act controls.

6.3 The not-to-exceed amount set forth in a Task Order may be increased only in strict accordance with this Agreement. Nothing in this Agreement may be construed as placing any obligation on the City to pay any fees and costs to the A/E incurred beyond the lump sum or not to exceed amount set forth in a Task Order or any amendment thereto without the Parties following the Contract Adjustments (as defined herein) procedure set forth in Section 18 of this Agreement.

SECTION 7.0 - NON-COMPENSATED SERVICES

7.1 The A/E will not be compensated for any services required to correct errors, omissions, or deficiencies in the Deliverables furnished, produced and/or developed by the A/E or any A/E Representative.

7.2 The A/E will not be compensated for any services required to bring any

Deliverable(s) in compliance with applicable Laws (e.g., Americans with Disabilities Act and Florida Building Code) in effect at the time such Deliverable(s) was provided to the City in accordance with this Agreement.

7.3 If all responsive and responsible bids for the construction of the applicable roadway improvements, sidewalk improvements, traffic and signal improvements, or various complete streets elements for which the Work has been completed exceed the City’s budget for construction by more than ten percent (10%), the A/E is responsible for all fees and costs associated with modifying any and all Deliverables in order for the City to obtain a responsive and responsible bid within its budget for construction and for all fees and costs for assisting the City in rebidding the Project.

SECTION 8.0 – INDEMNIFICATION

8.1 To the extent provided by law, the A/E shall indemnify, defend and hold harmless the City and the State of Florida, Department of Transportation ("Department"), including the City’s and the Department's officers, agents, and employees, against any actions, claims, or damages arising out of, relating to, or resulting from negligent or wrongful act(s) of the A/E, or any of its officers, agents, or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by the A/E, hereunder.

8.2 The foregoing indemnification shall not constitute a waiver of the Department’s or the City’s sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28. Nor shall the same be construed to constitute agreement by the A/E to indemnify the City for negligent acts or omissions of the City, its officers, agents, or employees, or third parties. Nor shall the same be construed to constitute agreement by the A/E to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, or employees, or third parties.

This indemnification shall survive the termination of this Agreement.

8.3 The provisions of this section are independent of, and will not be limited by, any insurance required to be obtained by the A/E pursuant to this Agreement or otherwise obtained by the A/E.

SECTION 9.0 – INSURANCE

9.1 The A/E shall maintain the following types and amounts of insurance throughout the Term of this Agreement at its own expense:

9.1.1 Commercial General Liability insurance in an amount of at least One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate in occurrences form. This policy must include coverage for bodily injury, property damage, personal and advertising injury, products and completed operations, and contractual liability under this Agreement. This policy shall also include contractual liability coverage that provides and pays for a defense for all claims or demands covered by A/E’s indemnification obligations under this Agreement and that is in an amount sufficient to cover the A/E’s indemnification obligations under this Agreement.

9.1.2 Commercial Automobile Liability insurance of One Million Dollars ($1,000,000) combined single limit covering all owned, hired and non-owned vehicles.

9.1.3 Workers’ Compensation insurance as required by Florida law and Employers’ Liability Insurance in an amount of at least One Hundred Thousand Dollars ($100,000) each accident, One Hundred Thousand Dollars ($100,000) per employee, and Five Hundred Thousand Dollars ($500,000) for all diseases.

9.1.4 Errors and Omissions or Professional Liability insurance appropriate to the A/E’s profession with a minimum limit of One Million Dollars ($1,000,000) per occurrence. If coverage is on a “Claims-Made” basis, it must include a retroactive date of coverage beginning no later than the Execution Date and an extended reporting period of at least 90 days.

9.1.5 U.S. Longshore and Harbor Worker's Act Insurance including Jones Act and Maintenance and Cure Coverage with limits as required by Federal Law, for projects assigned to the A/E that are on or adjoining navigable water.

9.1.6 Protection & Indemnity Insurance including Marine Liability, Wreckage Removal and Crew Coverage with a limit of $2,000,000 per occurrence are required when A/E by itself or through a subcontractor utilizes any type of water vessel whether it be owned, non-owned, leased or hired to perform the Scope of Services for the Project.

9.1.7 Pollution/Environmental Liability Insurance with a limit of $2,000,000 per occurrence shall be required when the A/E by themselves or through a subcontractor utilizes any type of a water vessel whether it be owned, non-owned, leased or hired to perform the Scope of Services for the Project.

The Pollution/Environmental Liability Insurance shall cover sudden and gradual pollution conditions including the discharge, release, or escape of fumes, vapors, smoke, acids, alkalis, asbestos, toxic chemicals, liquids or gases, waste materials, or other contaminants, irritants, or pollutants into or upon any structure, land, body of water, or atmosphere. Coverage shall include bodily injury, property damage, loss of use of tangible property whether or not it has not been physically injured or destroyed, cleanup and remediation costs, penalties or fines, and defense costs including costs incurred in the investigation or adjustment of the claim. Coverage may be provided by a stand-alone policy or by endorsement(s) to one of A/E’s other policies. Coverage shall be provided both for the use of pollutants on site and during transit. If the policy is on a claims-made basis, it must include the retroactive date of coverage and shall be maintained for at least two (2) years past the date that the Work is completed.

9.1.8 All of the A/E’s insurance policies, except Workers’ Compensation and Errors and Omissions or Professional Liability, must name the Indemnified Parties and the Department as additional insureds.

9.1.9 All policies must provide that the City will be provided notice at least thirty

(30) days prior to any cancellation, reduction or material change in coverage.

9.2 The A/E shall provide the City with Certificates of Insurance on a standard ACORD form, or similar form acceptable to the City, reflecting all required coverage. At the City’s request, the A/E shall provide copies of current policies with all applicable endorsements.

9.3 All insurance required must be on a primary and noncontributory basis and must be provided by responsible insurers licensed in the State of Florida and rated at least A- in the then current edition of AM Best’s Rating Services, or similar rating agency acceptable to the City.

9.4 If the insurance carried by the A/E has broader coverage than required in this Agreement, then that broader coverage, including but not limited to additional insured requirements, is deemed to be the requirement in this Agreement. If the A/E’s insurance limits are greater than the minimum limits set forth herein, then the A/E’s insurance limits are deemed to be the required limits in this Agreement.

9.5 The A/E hereby waives all subrogation rights of its insurance carriers in favor of the Indemnified Parties. This provision is intended to waive fully, and for the benefit of the Indemnified Parties, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier.

9.6 The City reserves the right to change or alter the above insurance requirements as it deems necessary.

SECTION 10.0 – OWNERSHIP OF DELIVERABLES

10.1 The City solely owns all Deliverables, including the copyright and all other associated intellectual property rights, produced and developed by the A/E pursuant to the terms and conditions set forth in this Agreement. A/E shall submit all Deliverables to the City prior to the City issuing final payment to A/E.

10.2 The City acknowledges that the Deliverables are not intended or represented to be suitable for revision by the City, or others, for purposes other than for the Scope of Services which said Deliverables were prepared. Any reuse or modification of the Deliverables without written verification or adaptation by the A/E for the specific purpose intended will be at the City's sole risk and the A/E will not be liable or responsible for any claims arising from the City’s reuse or modification of the Deliverables without written verification or adaptation by the A/E.

SECTION 11.0 – SUBCONTRACTS

11.1 The A/E may hire or use subcontractors or subconsultants in connection with the performance of the A/E’s obligations under this Agreement. Unless context clearly indicates otherwise, the terms “subcontractor” and “subconsultant” are interchangeable in this Agreement, and the terms “subcontract agreement” and “subconsulting agreement” are likewise interchangeable in this Agreement.

11.2 The A/E shall give advance notification to the City’s Project Manager of any proposed subcontract agreement or any change to any existing subcontract agreement. Such advance notice must include the following:

11.2.1 A description of the supplies or services called for by the subcontract or change to an existing subcontract.

11.2.2 Identification of the proposed subcontractor and an explanation of why and how the proposed subcontractor was selected.

11.2.3 The proposed subcontractor price.

11.3 The A/E is responsible for negotiating the terms and conditions of each subcontract agreement; provided, however, that the City’s Project Manager will review all subconsultant direct and indirect cost rates and fixed fees in the subcontract agreement for compliance with the federal cost principles. The A/E is also solely responsible for ensuring that each subcontractor acts in a manner consistent with and in accordance with the terms and conditions of this Agreement. The A/E’s retention of a subcontractor does not relieve the A/E of any of its duties, obligations, or representations under this Agreement. The A/E shall require each subcontractor to (i) obtain the same types and amount of insurance and comply with all insurance provisions that are required of the A/E pursuant to this Agreement (unless otherwise approved by the City in writing) and (ii) include the following indemnification in all contracts with subcontractors who perform work in connection with this Agreement:

11.3.1 To the extent provided by law, the A/E shall indemnify, defend and hold harmless the City and the State of Florida, Department of Transportation ("Department"), including the City’s and the Department's officers, agents, and employees, against any actions, claims, or damages arising out of, relating to, or resulting from negligent or wrongful act(s) of the A/E, or any of its officers, agents, or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by the A/E hereunder.

11.3.2 The foregoing indemnification shall not constitute a waiver of the Department’s or the City’s sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28. Nor shall the same be construed to constitute agreement by the A/E to indemnify the City for negligent acts or omissions of the City, its officers, agents, or employees, or third parties. Nor shall the same be construed to constitute agreement by the A/E to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, or employees, or third parties. This indemnification shall survive the termination of this agreement.”

11.4 The A/E may not change a subcontract agreement without the prior written consent of the City’s Project Manager and FDOT. Any consent of the City’s Project Manager and FDOT does not relieve the A/E from any obligations under this Agreement and does not constitute a waiver of any of the City’s rights under this Agreement. The City’s Project Manager may, at its discretion, ratify in writing any such subcontract which will constitute the consent of the City’s Project Manager as required by this Section 11.4.

11.5 To ensure compliance with 49 CFR 26.29, the A/E shall pay all subcontractors and subconsultants for satisfactory performance of the subcontract agreement or subconsulting agreement no later than thirty (30) days after the A/E’s receipt of payment under this Agreement.

SECTION 12.0 – DISPUTES

12.1 Except as otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement, which is not disposed of by a supplemental agreement, will be decided by the City’s Project Manager, who shall provide a written decision to the A/E. The decision of the City’s Project Manager is final and conclusive, unless within fifteen (15) days from the date of receipt of such copy, the A/E mails or otherwise furnishes to the City’s Project Manager a written notice of dispute.

12.2 In the event a decision of the City’s Project Manager is the subject of a dispute, such dispute may be settled by appropriate legal proceeding or, if the Parties mutually agree in writing, through arbitration or administrative process. Pending any binding arbitrative or administrative decision, appeal, or judgment referred to in this Section or the settlement of any dispute arising under this Agreement, the

Parties shall proceed diligently with the performance of this Agreement.

12.3 Each party is responsible for its own costs and expenses, including legal fees, of any arbitration, administrative proceedings, appeal or suit prosecuted by either party.

SECTION 13.0 – SUSPENSION OF SERVICES

13.1 The City’s Project Manager may, at any time, by written order to the A/E, require the A/E to suspend, delay, or interrupt all or any part of the Scope of Services required by this Agreement. Any such order must be specifically identified as a suspension of services order (“Suspension of Services Order”). Upon receipt of a Suspension of Services Order, the A/E shall forthwith comply with its terms and immediately cease incurrence of further costs and fees allocable to the services covered by the Suspension of Services Order during the period of stoppage of services. This includes the involvement of any and all subcontractual relationships.

13.2 If a Suspension of Services Order issued under this Section is canceled, the A/E shall resume the Scope of Services within fifteen (15) days after a Suspension of Services Order is canceled. If an adjustment to the Scope of Services or any other term and condition of this Agreement is required due to a suspension of services pursuant to this Section, the Parties shall follow the Contract Adjustments (as defined herein) procedure as described in Section 18 of this Agreement. Failure to agree to any Contract Adjustments constitutes a dispute concerning a question of fact pursuant to Section 12.

13.3 If a Suspension of Services Order is not canceled and this Agreement is terminated by the City for convenience, the City shall pay the A/E costs and fees for services performed up to the effective date of termination, provided such costs and fees are owed to the A/E pursuant to this Agreement. The A/E shall provide the City all completed or partially completed Deliverables prior to the receipt of payment for services performed up to the effective date of termination. The foregoing payment constitutes A/E’s sole compensation in the event of termination of this Agreement and the City will have no other liability to the A/E related to termination of this Agreement. Without limiting the generality of the foregoing, the City will have no liability to the A/E for lost profits or lost opportunity costs in the event of termination of this Agreement.

SECTION 14.0 – TERMINATION

14.1 TERMINATION FOR CONVENIENCE

14.1.1 The performance of the Scope of Services under this Agreement may be terminated in whole or in part by the City whenever for any reason the City’s Project Manager determines that such termination is in the best interest of the City. Additionally, the City may terminate this Agreement as provided in Florida Statute section 287.135 (Scrutinized Companies) and 448.095 (Employment Eligibility). Termination will be effective fifteen (15) days after delivery to the A/E of a notice of termination specifying the extent to which performance of Scope of Services under this Agreement is terminated.

14.1.2 Upon receipt of the notice of termination, the A/E shall, unless the notice of termination directs otherwise, immediately discontinue performance of the Scope of Services required by this Agreement and shall proceed to promptly cancel all existing orders and contracts insofar as such orders or contracts are chargeable to this Agreement.

14.1.3 The City shall pay the A/E costs and fees for services performed up to the effective date of termination, provided such costs and fees are owed to the A/E pursuant to this Agreement. The A/E shall provide the City all completed or partially completed Deliverables prior to the receipt of payment for services performed up to the effective date of termination. The foregoing payment constitutes A/E’s sole compensation in the event of termination of this Agreement by the City for convenience and the City will have no other liability to the A/E related to termination of this Agreement by the City for convenience. Without limiting the generality of the foregoing, the City will have no liability to the A/E for lost profits or lost opportunity costs in the event of termination of this Agreement by the City for convenience.

14.2 TERMINATION FOR DEFAULT

14.2.1 The City may terminate this Agreement upon written notice to the A/E in the event the A/E defaults on any of the terms and conditions of this Agreement and such failure continues for a period of thirty (30) days following notice from the City specifying the default; provided, however, that the City may immediately terminate this Agreement, without providing the A/E with notice of default or an opportunity to cure, if the City determines that the A/E has failed to comply with any of the terms and conditions of this Agreement related to insurance coverage.

14.2.2 In the event of termination of this Agreement pursuant to Section 14.2, the City will not be obligated to make any further payment to the A/E hereunder until such time as the City has determined all costs, expenses, losses and damages which the City may have incurred as a result of such default by the A/E, whereupon the City will be entitled to set off all costs (including the cost to cover if the City procures similar services from another architect/ engineer), expenses, losses and damagers so incurred by the City against any amount due A/E under this Agreement.

14.3 Nothing contained in this Section 14.0 may be construed as limiting the City’s rights and remedies in the event of termination of this Agreement.

SECTION 15.0 – PROHIBITED INTEREST

15.1 No appointed or elected official or employee of the City may have any interest, direct or indirect, in this Agreement or the proceeds thereof.

SECTION 16.0 – FINDINGS CONFIDENTIAL

16.1 Subject to the requirement of Florida laws regarding public records and Section

22.0 of this Agreement, all Deliverables produced or developed by the A/E or any City data available to the A/E pursuant to this Agreement may not be made available to any individual or organization, other than any A/E’s Representative by the A/E without prior written consent from the City.

SECTION 17.0 – GENERAL PROVISIONS

17.1 Should any section or portion of any section of this Agreement be rendered void, invalid or unenforceable by any court of law for any reason, such determination will not render void, invalid or unenforceable any other paragraph or portion of this Agreement.

17.2 Each party to this Agreement that is not an individual represents and warrants to the other party that (i) it is a duly organized, qualified and existing entity authorized to do business under the laws of the State of Florida, and (ii) all appropriate authority exists so as to duly authorize the person executing this Agreement to so execute the same and fully bind the party on whose behalf he or she is executing.

17.3 The A/E shall make no assignment of any of its rights, duties, or obligations under this Agreement without the City’s prior written consent, which consent may be withheld by City Council in its sole and absolute discretion. Any assignment in violation of this section is void and of no effect.

17.4 This Agreement must be interpreted and construed in accordance with the laws of the State of Florida and this Agreement inures to and is binding upon the Parties, their successors and assigns. Venue for any action brought in state court must be in Pinellas County, St. Petersburg Division. Venue for any action brought in federal court must be in the Middle District of Florida, Tampa Division, unless a division is created in St. Petersburg or Pinellas County, in which case the action must be brought in that division. The Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction.

17.5 The A/E shall comply with all applicable federal, state, and local laws, ordinances, rules and regulations, the federal and state constitutions, and orders and decrees of any lawful authorities having jurisdiction over the matter at issue (collectively, “Laws”), including those related to licensing and permitting, the Americans with Disabilities Act, the Florida Building Code, Equal Employment Opportunity Provisions of Title VII of the Civil Rights Act of 1964 (78 Stat. 252), the Regulations of the Department of Commerce (15 CFR, Part 8), Florida Statute section 448.095 (Employment Eligibility), and Florida laws regarding public records. The A/E shall also comply with the City’s policies and procedures, executive orders and any technical standards provided to the A/E by the City.

17.6 This Agreement has been prepared by the City and reviewed by the A/E and its professional advisors. The City, A/E and A/E’s professional advisors believe that this Agreement expresses their agreement and that it should not be interpreted in favor of either the City or the A/E or against the City or the A/E merely because of their efforts in preparing it.

17.7 The headings are for convenience only and do not control or affect the meaning or construction of any of the provisions of this Agreement.

17.8 The A/E shall keep accurate books, records and documentation related to this Agreement at the address for delivery of notices set forth in this Agreement. All such books, records and documentation must be kept by the A/E and must be open to examination, audit and copying by the City during the Term of this Agreement and continuing after termination or expiration for the longer of (i) five

(5) years after the City issues final payment or (ii) the retention periods set forth in the most recent General Records Schedule GS1-SL for State and Local Government Agencies. The A/E shall bear the costs associated with the retention of books, records and documentation. Nothing in this section 17.8 may be construed to allow destruction of records that may be required to be retained longer by the statutes of the State of Florida.

17.9 All obligations and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement, including but not limited to those obligations and rights related to indemnification, survive such expiration or earlier termination.

17.10 This Agreement may be amended only in writing executed by the Parties.

17.11 This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, whether oral or written, between them.

17.12 Each appendix and Task Order to this Agreement, including attachments to an appendix or Task Order and materials referenced in an appendix or Task Order, is an essential part hereof and is incorporated herein by reference.

17.13 No term or condition of this Agreement will be deemed waived, and no breach of this Agreement excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent.

17.14 In the event that either party is delayed in the performance of any act or obligation pursuant to or required by this Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation will be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay extends beyond the duration specified in such notice, additional notice must be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use best efforts to rectify any condition causing such delay and shall cooperate with the other party to overcome any delay that has resulted.

17.15 The A/E shall not take any action that will result in a lien being placed against the City or to any services or Deliverables being provided to the City. In the event the City is placed on notice of an intent to lien or placed on notice of a lien by the A/E or any A/E Representative, the A/E will take immediate action at the A/E's expense to respectively prevent or remove and discharge the lien.

17.16 Subject to the requirements of Florida public records Laws, neither party may use the other party's name in conjunction with any endorsement, sponsorship, or advertisement without the prior written consent of the named party.

17.17 The obligations of the City as to any funding required pursuant to this Agreement are limited to an obligation in any given year to budget, appropriate and pay from legally available funds, after monies for essential City services have been budgeted and appropriated, sufficient monies for the funding that is required during that year. Notwithstanding the foregoing, the City is not be prohibited from pledging any legally available non-ad valorem revenues for any obligations heretofore or hereafter incurred, which pledge will be prior and superior to any obligation of the City pursuant to this Agreement.

17.18 A/E shall make all Deliverables available to the City upon request. All Deliverables will be considered public records unless they are exempt from disclosure under Florida laws regarding public records.

17.19 Time is of the essence of this Agreement and each of its provisions.

17.20 This Agreement consists of this document, all appendices referenced herein, and the following forms (collectively, “FDOT Forms”): FDOT Form #375-040-84 (LAP Terms for Federal-Aid Contracts); FDOT Form #375-030-30 (FDOT Truth-in- Negotiations); FDOT Form #275-030-11 (DBE Bid Package Information); FDOT Form #375-030-32 (FDOT Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion); FDOT Form #375- 030-33 (FDOT Certification for Disclosure of Lobbying Form); FDOT Form #375- 030-34 FDOT Disclosure of Lobbying Activities); FDOT Form #375-030-83 (Professional Services Commitment Form). Except as otherwise set forth in section 17.24, in the event of an inconsistency or conflict the following order of precedence governs: (i) this Agreement, exclusive of the appendices and a Task Order and the attachments to and materials referenced in an appendix or Task Order, (ii) the appendices to this Agreement, exclusive of the attachments to and materials referenced in an appendix; (iii) a Task Order, exclusive of the attachments to and materials referenced in a Task Order; (iv) the attachments to and materials referenced in the an appendix or Task Order; and (v) the FDOT Forms.

17.21 For purposes of this Agreement, any required written permission, consent, acceptance, approval, or agreement by the City means the approval of the Mayor or his authorized designee, unless otherwise set forth in this Agreement or unless otherwise required to be exercised by City Council pursuant to the City Charter or applicable Laws.

17.22 The A/E shall maintain a drug free workplace.

17.23 The A/E shall not discriminate because of race, color, religion, gender, national origin, marital status, age, disability, sexual orientation, genetic information or other protected category.

17.24 The A/E shall comply with Local Agency Program Federal-Aid terms for

Professional Services Contracts set forth in Appendix D when applicable. In the event of a conflict between the terms and conditions contained in Appendix D and any other provision of this Agreement, the terms and conditions contained in Appendix D will control where applicable.

17.25 This Agreement may be executed in any number of counterparts, each of which is deemed to be an original, and such counterparts collectively constitute a single original Agreement. Additionally, each party is authorized to sign this Agreement electronically using any method authorized by applicable law or City policy, including any of the following: (i) a typed name on an electronic document; (ii) an image of a physical signature sent via email, fax, or other electronic transmission method; (iii) clicking a button to indicate agreement or acceptance in an electronic signature system; or (iv) a handwritten signature that is digitally captured on a touch device such as a tablet or smartphone.

SECTION 18.0 – CONTRACT ADJUSTMENTS

18.1 Either party may propose additions, deletions or modifications to the Scope of

Services, a Task Order or the other terms and conditions of this Agreement (e.g., A/E’s project manager or key personnel required pursuant to Section 21 of this Agreement), (“Contract Adjustments”) in whatever manner such party determines to be reasonably necessary for the proper completion of the services. Contract Adjustments will be effectuated through written amendments to this Agreement or by an amendment to the Task Order signed by authorized representatives of the Parties and shall be approved by FDOT prior to execution.

18.2 There may be no modification of the lump sum or not-to-exceed amount set forth in a Task Order on account of any Contract Adjustment made necessary or appropriate as a result of the mismanagement, improper act, or other failure of the A/E or any A/E Representative to properly perform their obligations and functions under this Agreement.

18.3 Notwithstanding anything to the contrary contained in this Agreement, there will be no change in the fees and costs set forth in Appendix B or the lump sum or not to exceed amount set forth in a Task Order except through a written amendment to this Agreement or by an amendment to the Task Order signed by authorized representatives of the Parties.

SECTION 19.0 – NOTICE

19.1 Unless and to the extent otherwise provided in this Agreement, all notices, demands, requests for approvals and other communications which are required to be given by either party to the other must be in writing and will be deemed given and delivered on the date delivered in person, upon the expiration of five (5) days following the date mailed by registered or certified mail, postage prepaid, return receipt requested to the address provided below, or upon the date delivered by overnight courier (signature required) to the address provided below.

CITY:

City of St. Petersburg Engineering and Capital Improvements Department P. O. Box 2842 St. Petersburg, FL 33731 Attention:

Phone:

Fax: (727) 892-5476 Email:

A/E:

Attention:

Phone:

Fax:

Email:

19.2 Either party may change its authorized representative or address for receipt of notices by providing the other with written notice of such change. The change will become effective five (5) days after receipt by the non-changing party of the written notice of change. Unless otherwise agreed to by the Parties in writing, electronic submission of notices does not relieve either party of the requirement to provide notice in writing as required in Section 19.1 above.

SECTION 20.0 - SCHEDULE

20.1 The A/E shall perform the Scope of Services in accordance with the schedule set forth in a Task Order. Such schedule may be revised by the City’s Project Manager after consultation with the A/E.

SECTION 21.0 – PERSONNEL

21.1 The A/E shall assign the key personnel identified in a Task Order to perform the

Scope of Services in accordance with this Agreement. The A/E shall not, without the City’s prior written consent, transfer, reassign, redeploy or otherwise remove any key personnel; provided, however, that removal of any key personnel due to their incapacity or termination will not constitute a violation of this Section. If any of the key personnel are incapacitated or are terminated, the A/E shall, within ten

(10) days, replace such person with another person approved by the City and that is at least as well qualified as the person who initially performed that person’s role.

The A/E shall provide for a transition period of at least one (1) week (or such shorter period of time approved by the City) during which time any key personnel being replaced shall familiarize their replacement(s) with the work required to be performed by the replacement(s). The A/E will be solely responsible for all costs associated with replacement of key personnel. Without limiting the generality of the foregoing, if any change in key personnel causes a delay, the A/E will be solely responsible for any and all of its increased costs associated with such delay.

21.2 The City may require the A/E to replace any persons performing the Scope of

Services, including but not limited to any A/E Representative, whom the City determines is not performing the Scope of Service to the City’s satisfaction. Before a written request is issued, authorized representatives of the City and the A/E will discuss the circumstance. Upon receipt of a written request from an authorized representative of the City, the A/E shall proceed with the replacement. The replacement request will include the required replacement date and the reason for the replacement. The A/E shall use its best efforts to effect the replacement in a manner that does not degrade service quality. This Section will not be deemed to give the City the right to require the A/E to terminate a person’s employment.

Rather, this Section is intended to give the City only the right to require that the A/E discontinue using persons in the performance of the Scope of Services under this Agreement.

SECTION 22.0 – PUBLIC RECORDS

22.1 The A/E shall (i) keep and maintain public records (as defined in Chapter 119, Florida Statutes) required by the City to perform the services pursuant to this Agreement; (ii)Upon request from the City Clerk’s Office, provide the City (at no cost to the City) with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided under Florida laws regarding public records or other applicable Laws; (iii) ensure that public records in the A/E’s possession that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by applicable Laws for the Term and after the expiration or earlier termination of this Agreement; and (iv) after the expiration or earlier termination of this Agreement, at the City’s request, either transfer, at no cost, to the City all public records in the A/E’s possession within ten (10) days following the City’s request and/or keep and maintain any public records required by the City to perform the services pursuant to this Agreement. If the A/E transfers all public records to the City upon the expiration or earlier termination of this Agreement, the A/E shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the A/E keeps and maintains public records upon the expiration or earlier termination of this Agreement, the A/E shall meet all applicable requirements for retaining public records in accordance with this Agreement and all applicable Laws. At the City's request, A/E shall provide all electronically stored public records to the City in a format approved by the City.

00711335XX-XX-XX 19

22.2 IF THE A/E HAS QUESTIONS REGARDING THE APPLICATION OF

CHAPTER 119, FLORIDA STATUTES, AS TO A/E’S DUTY TO

PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,

CONTACT THE CITY CLERK’S OFFICE (THE CUSTODIAN OF

PUBLIC RECORDS) AT (727) 893-7448,

CITY.CLERK@STPETE.ORG, OR 175 FIFTH ST. N., ST.

PETERSBURG FL 33701.

22.3 Nothing contained herein may be construed to affect or limit the A/E’s obligations including but not limited to A/E’s obligations to…