DRAFT_AGREEMENT-2026-03-19.pdf

AGREEMENT

between

CITY OF FORT MYERS, FLORIDA

and

>Consultant

Table of Contents

1 - NOTICES

1.1. NOTICES BY CONSULTANT TO CITY

1.2. NOTICES BY CITY TO CONSULTANT

1.3. CHANGE OR ADDRESS OF RECORD

2 - AMOUNT OF THE CONTRACT

3 - CONTRACT DOCUMENTS

4 - AMENDMENTS/MODIFICATIONS/CHANGES IN WORK

5 - CONFLICT OF INTEREST

6 - CONTRACT ADMINISTRATION

7 - CONTRACT EXECUTION

8 - CONSTRUCTION PROJECT MANAGEMENT PLATFORM SOFTWARE

9 - DISCRIMINATION

10 - EMPLOYEES

10.1. QUALIFIED PERSONNEL

10.2. REMOVAL OF PERSONNEL

11 - ERRORS AND OMISSIONS

11.1. RESPONSIBILITY TO CORRECT

11.2. APPROVAL SHALL NOT RELIEVE CONSULTANT OF RESPONSIBILITY

12 - E-VERIFY

13 - FLORIDA CIVIL RIGHTS ACT (FCRA)

14 - FLORIDA PUBLIC RECORDS LAW

15 - FORCE MAJEURE

16 - FOREIGN CORPORATION

17 - GOVERNING LAW / VENUE

18 - HEADING AND TITLES

19 - HUMAN TRAFFICKING

DRAFT

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, RSQ 26-011

Draft Contract 26-011 | Page 2

20 - IMMIGRATION LAWS

21 - IMPROPER USE OF FACILITIES

22 - INDEPENDENT CONSULTANT

23 – INSURANCE AND INDEMNIFICATION / HOLD HARMLESS

23.1. INSURANCE TERMS AND CONDITIONS

23.2. INSURANCE COVERAGES REQUIRED

23.3. INSURANCE CERTIFICATE REQUIRED

23.4. INDEMNIFICATION AND HOLD HARMLESS

24 - LICENSES

25 - RESERVED

26 - NON-DISCRIMINATION

27 - OBLIGATIONS OF THE CONSULTANT

27.1. TIMELY ACCOMPLISHMENT OF SERVICES

27.2. STANDARDS OF PROFESSIONAL SERVICE

27.3. NOT TO DIVULGE CERTAIN INFORMATION

27.4. CONSULTANT TO REPAIR PROPERTY DAMAGE CAUSED BY THE CONSULTANT

27.5. RESPONSIBILITY FOR ESTIMATES

27.6. PERMITS

27.7. TRUTH-IN-NEGOTIATIONS CERTIFICATE

27.8. COMPLETION OF TASKS

27.9. ALL DRAWINGS

27.10. ALL REPORTS

27.11. CONSULTANT’S PROJECT MANAGER

27.12. PURCHASE ORDER

27.13. RECORD RETENTION

28 - OBLIGATIONS OF THE CITY

28.1. CITY’S PROJECT MANAGER

28.2. AVAILABILITY OF CITY INFORMATION

28.3. AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

28.4. ACCESS TO CITY PROPERTY

28.5. PLANS REVIEW

29 - OWNERSHIP OF DOCUMENTS

30 - PATENTS, ROYALTIES AND COPYRIGHTS

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 3

31 - PAYMENT

31.1. BASIC SERVICES

31.2. ADDITIONAL SERVICES

31.3. DISCOUNTS

31.4. INVOICING

31.5. INVOICE STATEMENTS

31.6. METHODS OF PAYMENT

31.7. PAYMENT DISPUTE RESOLUTION

32 - PERFORMANCE, TIME, AND SCHEDEULE

32.1. NOTICE TO PROCEED / PURCHASE ORDER

32.2. TIME OF PERFORMANCE

32.3. WORK SCHEDULE

32.4. TIMELY ACCOMPLISHMENT OF SERVICES

32.5. FAILURE TO PERFORM IN A TIMELY MANNER

33 - RELATIONSHIP BETWEEN THE PARTIES

34 - RESERVATION OF RIGHTS

35 - SCRUTINIZED COMPANIES

36 - SEVERABILITY

37 - TAXES

38 - TERMINATION

38.1. FOR CONVENIENCE

38.2. FOR CAUSE

38.3. NON-APPROPRIATION

39 - THIRD PARTY BENFICIARIES

40 - WAIVER OF BREACH

41 - WORK

42 – EXHIBITS

43 - ACCEPTANCE

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 4

This Agreement between the City of Fort Myers, Florida (hereafter called "City"), executing this Agreement, and >Consultant (hereafter called "Consultant").

This Agreement is effective on the date the last party signs it and continues for three (3) years with one (1) two (2) year renewal option ending either upon end of term, or automatically extending with the same terms and conditions until the next contract is executed.

The Contract may be cancelled or terminated as provided in the Contract documents. Any amendments to this Contract must be in writing.

RECITALS

WHEREAS, the City desires to obtain the Services of said Consultant to provide and perform Services as further described hereinafter concerning the Project to be referred to and identified as: Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, RSQ 26-011

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

WHEREAS, the Consultant has reviewed the Services required pursuant to this Agreement and is qualified, willing and able to provide, perform or acquire all such services in accordance with the provisions, conditions and terms hereinafter set forth; and

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:

1 - NOTICES

1.1. NOTICES BY CONSULTANT TO CITY

All notices from the Consultant to the City, shall be deemed duly served if electronically transmitted to the City at the following address:

Email:

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

Copy to:

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

DRAFT

mailto:procurementservices@fortmyers.gov mailto:cc@fortmyers.gov mailto:legalservice@fortmyers.gov

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 5

1.2. NOTICES BY CITY TO CONSULTANT

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

Firm Name: >Consultant

Contact: >Contact

Firm Address: >address

Phone: >phone

Email: >email

1.3. CHANGE OR ADDRESS OF RECORD

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

2 - AMOUNT OF THE CONTRACT

The estimated contract award for the term of this contract is based on the unit pricing stated in the Fee Schedule Exhibit. No work or amounts are guaranteed.

3 - CONTRACT DOCUMENTS

The following documents are hereby incorporated into this contract. The order of precedence is as follows: 1) Amendments issued after contract execution, incorporated by reference 2) This Agreement 3) Addenda / Questions and Answers (if applicable), incorporated by reference 4) Solicitation Document , incorporated by reference 5) Consultant's submittal/proposal , incorporated by reference 6) All Purchase Orders issued under the Solicitation, incorporated by reference 7) Certificates of Insurance, incorporated by reference. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence to the order above.

4 - AMENDMENTS/MODIFICATIONS/CHANGES IN WORK

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

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

If the Consultant plans to make a claim for an increase in the contract price or an extension in the contract schedule term, it shall first give the City written notice within ten (10) calendar

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 6 days after the occurrence of the event giving rise to such a claim. This written notice shall be given by the Consultant to the City, and a written approval secured from the Department and the Procurement Manager, and Council before proceeding to execute the Work, except in an emergency endangering life or property, in which case the Consultant shall immediately proceed. No claim for extra work will be considered valid by the City unless first submitted in writing. Section 218.755, Florida Statutes, requires the City to approve or deny Consultant submitted change order quotes within 35 days. If no response is given, the quote is deemed automatically approved and payment is required upon completion. This deadline cannot be waived by contract.

Each such "Amendment", "Supplemental Agreement" or "Change Order" shall set forth a comprehensive, detailed description of: (1) the 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 - CONFLICT OF INTEREST

The award of this contract is subject to the provisions of Chapter 112, Florida Statutes. All Consultant(s) must disclose within their responses to the City the name of any officer, director, or agent who is also an employee of the City of Fort Myers. Furthermore, all Consultant(s) must disclose the name of any City employee who owns, directly or indirectly, an interest of more than five percent (5%) in the Consultant business or any of its branches. The purpose of this disclosure is to give the City the information needed to identify potential conflicts of interest for evaluation by the team members and other key personnel involved in the award of this contract. The term “conflict of interest” refers to situations in which financial or other personal consideration may adversely affect, or have the appearance of adversely affecting, an employee’s professional judgment in exercising any City duty or responsibility in administration, management, instruction, research, or other professional activities. Please submit to the City all information on any potential conflict of interest related to provision of the goods or services requested in this Solicitation.

The Consultant represents that to the best of its knowledge and belief, it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder. The Consultant further agrees that no person having any such interest shall be employed or engaged by the Consultant for said performance.

If Consultant, for itself and on behalf of its Subconsultant/Subcontractor, is about to engage in representing another client, which it in good faith believes could result in a conflict of interest with the work being performed by Consultant or such Subconsultant/Subcontractor under this Agreement, then it will promptly bring such potential conflict of interest to the City's attention, in writing. The City will then advise the Consultant, in writing, within ten (10) calendar days as to the period-of-time required by the City to determine if such a conflict of interest exists. If the City determines that there is a conflict of interest, Consultant or such Subconsultant/Subcontractor shall decline the representation upon written notice by the City.

If the City determines that there is no such conflict of interest, then the City shall give its written consent to such representation. If Consultant or Subconsultant/Subcontractor accepts

DRAFT

https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0200-0299/0218/Sections/0218.755.html https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0100-0199/0112/0112.html

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 7 such a representation without obtaining the City's prior written consent, and if the City subsequently determines that there is a conflict of interest between such representation and the work being performed by Consultant or such Subconsultant/Subcontractor under this Agreement, then the Consultant or Subconsultant/Subcontractor agrees to promptly terminate such representation. Consultant shall require each of such Subconsultant/Subcontractor to comply with the provision of this Section.

Should the Consultant fail to advise or notify the City, as provided hereinabove, of representation which could, or does, result in a conflict of interest, or should the Consultant fail to discontinue such representation, the City may consider such failure as justifiable cause to terminate this Agreement.

6 - CONTRACT ADMINISTRATION

This agreement shall be administered on behalf of the City of Fort Myers.

7 - CONTRACT EXECUTION

The City and Consultant each binds themselves, their partners, successors, assigns and legal representatives to the other party hereto, their partners, successors, assigns and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Document.

8 - CONSTRUCTION PROJECT MANAGEMENT PLATFORM SOFTWARE

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

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

9 - DISCRIMINATION

The Consultant for itself, its successors in interest, and assigns as part of the consideration thereof, does hereby covenant and agree that in the furnishing of services to City hereunder, no person on the grounds of race, national origin, religion, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. Consultants who are uncertain of their obligations regarding MBE for this project must obtain a copy of all relevant federal, state or other grantor’s guidelines from the Fort Myers Procurement Services Department. The failure of the Consultant to adhere to relevant guidelines shall subject the Consultant to any sanctions, which may be imposed upon the City.

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 8

10 - EMPLOYEES

10.1. QUALIFIED PERSONNEL

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

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

10.2. REMOVAL OF PERSONNEL

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

11 - ERRORS AND OMISSIONS

11.1. 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 Subconsultant/Subcontractor 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 Subconsultant/Subcontractor engaged by the Consultant.

11.2. APPROVAL SHALL NOT RELIEVE CONSULTANT OF RESPONSIBILITY

The City’s review, approval, or acceptance of any data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, or any other documents, instruments, or incidental professional services, work, and materials provided by the Consultant or any Subconsultant/Subcontractor engaged by the Consultant shall not relieve the Consultant of its responsibilities. Specifically, the Consultant

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 9 remains fully responsible for the adequacy, completeness, and accuracy of all services, work, and materials it provides. This responsibility also extends to all services, work, and materials provided by any Subconsultant/Subcontractor engaged by the Consultant under this Agreement.

Neither the City's review, approval or acceptance of, nor payment for, any of the Consultant 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.

12 - E-VERIFY

During the term of this Contract, the Consultant shall fully comply with Florida Statute Sec.

448.095, which includes but is not limited to, registering with and utilizing the U.S. Department of Homeland Security’s E-Verify system to verify the work authorization status of all new employees and requiring an affidavit from any Subcontractor/Subconsultants stating that the Subcontractor/Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees stating that the Subcontractor/Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees and does not employ, contract with or subcontract with an unauthorized alien.

13 - FLORIDA CIVIL RIGHTS ACT (FCRA)

The Consultant shall comply with provisions of Florida Statutes Chapter 760 the Florida Civil Rights Act (FCRA), that protects individuals from discrimination in employment, housing, and public accommodations based on characteristics such as race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

14 - FLORIDA PUBLIC RECORDS LAW

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

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

14.1. Keep and maintain public records required by the public agency to perform the service.

14.2. Upon request from the public agency’s custodian of public records, provide the public agency 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 in this chapter or as otherwise provided by law.

14.3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration

DRAFT

https://www.flsenate.gov/Laws/Statutes/2021/Chapter760/PART_I https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 10 of the contract term and following completion of the contract if the Consultant does not transfer the records to the public agency.

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

If the Consultant has questions regarding the application of Chapter 119, Florida Statutes, to the Consultant's duty to provide public records relating to this contract, contact the City's Custodian of Public Records at c/o City Clerk, (239) 321-7042, jgravitt@fortmyers.gov 2200 Second Street., Fort Myers, FL 33901.

15 - FORCE MAJEURE

Neither party shall be held liable for any damages or delays in performance caused by events beyond their reasonable control. Such events include, but are not limited to, acts of God, strikes, lockouts, wars, acts of terrorism, riots, actions or orders of governmental authorities, extraordinary weather conditions, natural disasters, pandemics, or other unforeseen events that could not have been reasonably anticipated or prevented by either party. Each party agrees to notify the other promptly of any such event that may cause a delay in performance.

16 - FOREIGN CORPORATION

In accordance with F.S. 607.1501, and provided an exemption is not available, a foreign corporation may not transact business in Florida until it obtains a certificate of authority from the Florida Department of State. Foreign corporations may submit responses prior to obtaining a certificate of authority from the Florida Department of State. A foreign corporation must be in compliance with F.S. 607.1501, prior to entering into a Contract with the City.

17 - GOVERNING LAW / VENUE

Any contract entered into as a result of this solicitation shall be deemed to be under and shall be governed by, and construed according to, the laws of the State of Florida. Any litigation

DRAFT

mailto:jgravitt@cityftmyers.com https://www.flsenate.gov/Laws/Statutes/2021/0607.1501 https://www.flsenate.gov/Laws/Statutes/2021/0607.1501

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 11 arising out of this contract shall be commenced in the State and Federal Courts of Lee County, Florida. The Consultant shall comply with all applicable federal, state, and local laws in the performance of work under the contract.

18 - HEADING AND TITLES

The headings and titles used for the Articles, Sections, Exhibits, Attachments, Phases, or Tasks in this Agreement are provided solely for convenience. They shall not be interpreted as altering, expanding, limiting, or affecting the meaning, intent, interpretation, or scope of any part of this Agreement.

19 - HUMAN TRAFFICKING

Effective July 1, 2024, pursuant to §787.06(13)(a), Florida Statutes, when a contract is executed, renewed, or extended between a nongovernmental entity and a governmental entity, the nongovernmental entity must provide the governmental entity with an affidavit signed by an officer or a representative of the nongovernmental entity under penalty of perjury attesting that the nongovernmental entity does not use coercion for labor or services. Prior to contract execution, extension or renewal, the nongovernmental entity shall complete and submit the form under the attachment section.

20 - IMMIGRATION LAWS

The City will not intentionally award City Contracts to any Consultant who knowingly employs unauthorized alien workers, constituting a violation of the Employment Provisions contained in 8 U.S.C. Section 1324 a(e) Section 274a(e) of the Immigration and Nationality Act (“INA”).

The City may not consider employment by any Consultant of unauthorized aliens a violation of Section 274a(e) of INA. Such violation by the recipient of the employment provisions contained in Section 274a(e) of the INA shall be grounds for unilateral cancellation of the contract by the City.

Consultant attests that they are fully compliant with all applicable Immigration Laws (specifically to the 1986 Immigration Act and Subsequent Amendments).

21 - IMPROPER USE OF FACILITIES

The Consultant will not use, nor suffer or permit any person to use in any manner whatsoever, City facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Consultant or if the City or its authorized representative shall deem any conduct on the part of the Consultant to be objectionable or improper, the City shall have the right to suspend the Contract of the Consultant. Should the Consultant fail to correct any such violation, conduct, or practice to the satisfaction of the City within twenty-four (24) hours after receiving notice of such violation, conduct, or practice, such suspension may continue until the violation is cured. The Consultant further agrees not to commence operation during the suspension period until the violation has been corrected to the satisfaction of the City.

https://www.flsenate.gov/Laws/Statutes/2025/787.06

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 12

22 - INDEPENDENT CONSULTANT

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

23 – INSURANCE AND INDEMNIFICATION / HOLD HARMLESS

23.1. INSURANCE TERMS AND CONDITIONS

23.1.1. The Consultant shall obtain and maintain such insurance as will protect the City from:

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

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

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

23.1.4.The insurance coverage to be obtained by the Consultant, as set forth in Agreement for:

(1) Worker's Compensation; (2) Commercial General Liability; (3) Commercial Automobile Liability; and (4) Professional Liability is understood and agreed to cover any and all of the services or work set forth in Exhibit “A” of this Agreement, or in any and all subsequently executed Change Orders, or Supplemental Agreements. If the total amount of insurance coverage established in, and required by, a Change Order or Supplemental Agreement exceeds

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 13 the amount of insurance coverage carried by the Consultant, then the Consultant shall be required and expected to acquire such additional insurance, and the compensation established for the Change Order, or Supplemental Agreement, shall include consideration of any additional premium cost incurred by the Consultant to obtain such additional insurance coverage.

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

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

If this solicitation is funded in whole or in part by the Florida Department of Transportation, they will be included as an additional insured on all insurance certificates.

23.1.7. Waiver of Subrogation. The Consultant and its Subcontractor/Subcontractors shall require their insurance carriers, with respect to all insurance policies, to waive all rights of subrogation against the City, its officers, elected officials, agents, and employees and against other Consultant and Subcontractor/Subcontractors.

23.2. INSURANCE COVERAGES REQUIRED

Insurance will be provided by the Consultant. If required, the awarded Consultant (and its Subcontractors to the same extent and on the same terms as set forth below for Consultant) shall maintain the following coverages and furnish the certificate of insurance on the policies and renewals thereof which indicate that insurance coverage has been obtained meeting the requirements of the contract.

23.2.1. Comprehensive Automobile Liability

This insurance shall be written in comprehensive form and shall protect the Consultant and the additional insureds against all claims for injuries to members of the public and damage to property of others arising from the use of motor vehicle and shall cover operation on or off the site of all motor vehicles licensed for highway use, whether they are owned, non-owned, or hired. The liability limits shall not be less than:

23.2.1.1. Minimum limits of $1,000,000 combined single limit liability.

23.2.1.2. Coverage shall include owned vehicles, hired, leased, non-owned vehicles, employee non-ownership.

23.2.1.3. Reserved

23.2.1.4. Notice of Cancellation and/or Restriction - The policy must be endorsed to provide the City with thirty (30) days prior written notice of cancellation and/or restriction.

23.2.2. Commercial General Liability

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This insurance shall be an “occurrence” type policy written in comprehensive form and shall protect the Consultant and the additional insureds against all claims arising from bodily injury, sickness, disease, or death of any person or damage to property of the City or others arising out of any act or omission of the Consultant or its agents, employees, or Subcontractors. This policy shall also include protection against claims insured by usual bodily injury liability coverage, a “contractual liability” endorsement to insure the contractual liability assumed by the Consultant under its contract with the City, and “Completed Operations and Products Liability” coverage (to remain in force for 2 years after final payment and subsequent to project completion). If the Consultant’s work, or work under its direction, requires blasting, explosive conditions, or underground operations, the comprehensive general liability coverage shall contain no exclusion relative to blasting, explosion, collapse of structures, or damage to underground property. The liability limits shall not be less than:

23.2.2.1. Minimum limits of $1,000,000 per occurrence combined single limit; $1,000,000 aggregate. This shall include premises and/or Operations, Independent Consultants, and Subcontractors and/or Completed Operations, Broad Form Property Damage, and a Contractual Liability Endorsement.

23.2.2.2. Contractual coverage applicable to this specific Agreement including any hold harmless and/or such indemnification agreement excluding professional acts.

23.2.2.3. Reserved.

23.2.2.4. Notice of Cancellation and/or Restriction - The policy must be endorsed to provide the City with thirty (30) days prior written notice of cancellation and/or restriction.

23.2.3. Workers Compensation and Employer’s Liability

This insurance shall protect the Consultant against all claims under applicable state worker’s compensation laws. The Consultant shall also be protected against claims for injury, disease, or death of employees that, for any reason, may not fall within the provisions of a worker’s compensation law. This policy shall include an “all states” or “other states” endorsement.

Exemption certificates shall be accepted if valid during the term of the contract, but only for those eligible corporate officers pursuant to Chapter 440 of the Florida Statutes. Proof of workers’ compensation coverage must still be provided for all employees, Subcontractors not eligible for exemption. The liability limits shall not be less than:

23.2.3.1. Employer's Liability with a minimum limit per accident in accordance with statutory requirements, or a minimum limit of $1,000,000 for each accident which limit is greater.

23.2.3.2. Notice of Cancellation and/or Restriction - The policy must be endorsed to provide the City with thirty (30) days prior written notice of cancellation and/or restriction.

23.2.3. Professional Liability

The Consultant shall also purchase, maintain, and keep in full force, effect, and good standing, a professional liability/errors and omissions insurance policy having minimum limits of $1,000,000, with a maximum deductible of $100,000 per claim and in the annual aggregate, or the Consultant shall provide the City with policy coverage wherein

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 15 the insurer agrees to pay claims (up to the limits of coverage), and will thereafter recover the deductible from the insured Consultant. The errors and omissions policy shall be in effect and shall insure the Consultant(s) performance on City projects. 1. A minimum limit of $1,000,000 per claim and in the aggregate. 2. Should the Professional Liability Insurance Policy issued pursuant to the above requirements and limits be written, so as to provide an applicable deductible amount, or other exclusion or limitation as to the amount of coverage to be provided within the minimum coverage limits set forth above, the City shall hold the Consultant responsible and liable for any such difference in the amount of coverage provided by the insurance policy. In the event of any such deductible amount, exclusion or limitation, the Consultant shall be required to provide written documentation that is acceptable to the City establishing that the Consultant has the financial resources readily available to cover damages, injuries and/or losses which are not covered by the policy's deductible amounts, exclusions and/or limitations as stated above. Pending above changes, approved.

It is highly recommended that the Consultant confers with their respective insurance carriers or brokers to determine, in advance of their submission, the availability and cost of this required insurance and related endorsement.

23.3. INSURANCE CERTIFICATE REQUIRED

23.3.1. Certificates of Insurance. Prior to commencing work at the jobsite, and as a condition precedent to the Consultant and their Subcontractors initiation of performance, the Consultant and its Subcontractor shall furnish the City with certificates of insurance as evidence that policies providing the required coverage and limits of insurance are in full force and effect. The certificates shall provide that any company issuing an insurance policy for the work under a contract provide not less than 30 days advance notice in writing to the City prior to cancellation, termination, or material change of any policy of insurance (except for notice of non-payment of premium for which not less than 10 days advance notice in writing shall be required). In addition, the Consultant shall immediately provide written notice to the City upon receipt of notice of cancellation of an insurance policy or a decision to terminate an insurance policy. All certificates of insurance shall clearly state that all applicable requirements have been satisfied, including certification that the policies are of the “occurrence” type. Certificates of insurance for a Consultant and Subcontractor-furnished insurance and notices of any cancellations, terminations, or alterations of such policies shall be mailed to the Procurement Services at the address set for delivery of the Solicitation.

23.3.2. All such insurance certificates shall be in a form and underwritten by insurance companies acceptable to the City and licensed in the State of Florida.

23.3.3. Each Certificate of Insurance submitted to the City shall be original and shall be executed by an authorized representative of the insurance company affording coverage.

23.3.4. Each Certificate of Insurance shall specifically include all of the following:

23.3.4.1. The name and type of policy and coverages provided; and

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23.3.4.2. The amount or limit applicable to each coverage provided and the deductible amount, if any, applicable to each type of insurance coverage being provided; and

23.3.4.3. The date of expiration of coverage; and

23.3.4.4. The designation of the City, both as an additional insured to the GL & AL on a primary and non-contributory basis, and as a certificate holder. (This requirement is exempted for Professional Liability Insurance and for Workers' Compensation Insurance); and

23.3.4.5. A specific reference to this Agreement and the Project to which it pertains. (This requirement may be exempted for Professional Liability Insurance); or In the event the Consultant has, or expects to enter into an agreement for Professional Services other than those provided for in this Agreement; the Consultant may elect to submit a Certificate of Insurance containing the following statement:

"This policy covers the services or work provided or performed by the Named Insured for any and all projects undertaken for the City pursuant to one or more written Professional Services Agreements, or written Supplemental Agreements or Change Orders thereto, and the limit of liability shown shall not be intended or construed as applying to only one project."

23.3.5. Upon receipt and approval of such a Certificate of Insurance, a separate Certificate of Insurance will not be required for each separate agreement.

23.3.5.1. An identifying statement indicating the identification of any services or work that is included in, or required under, the Scope of Services set forth in Exhibit “A” that is specifically excluded or exempted from coverage under the provisions, terms, conditions or endorsements of the Consultant's insurance policies. A statement which indicates any and all deductible amounts applicable to each type of insurance coverage required. In the absence of any such statements of deductible amount, or coverage statement of exclusions or exemptions, the City will proceed with the understanding, stipulation, and condition that there are no deductible amounts, or exclusions or exemptions to the insurance coverage provided.

23.3.5.2. Name of the Project and/or Project Number should be clearly indicated.

23.3.5.3. Each Certificate of Insurance shall be issued by an insurance agent and/or agency duly authorized to do so by, and on behalf of, the insurance company affording the insurance coverage indicated on each Certificate of Insurance.

23.3.5.4. If the initial or any subsequently issued Certificate of Insurance expires prior to completion of the work or termination of this Agreement, it is the Consultant's responsibility to furnish the City a renewal or replacement Certificate of Insurance, including all endorsements, not later than thirty (30) calendar days prior to the date of their expiration. Failure of the Consultant to provide the City with such renewal certificates shall be considered justification for the City to terminate this Agreement.

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23.3.6. It is vitally important that all insurance coverages required under this Agreement be in effect throughout the entire period of this Agreement. If any of the insurance coverages required by this Agreement should reach the date of expiration indicated on the Certificate of Insurance on record with the City, without the City having received satisfactory evidence in the form of a Certified Binder or a Certificate of Insurance, that the required insurance coverage has either been renewed or replaced, then the Consultant, unless notified in writing by the City to continue, shall therefore automatically and without further notice from the City, stop performing all previously authorized services and work until such date as the City shall receive and approve satisfactory documentation that the expired insurance coverage has been renewed or replaced. During any time period that the Consultant fail to comply with the insurance requirements set forth in the Agreement, the City shall not be required to make, nor shall it make payment on any invoices submitted by the Consultant. Payment for any such invoices shall be made promptly by the City after the City receives and approves the renewal or replacement Certificates of Insurance. During any time that the Consultant's services or work is suspended, as provided above, for failure to comply with the insurance requirements set forth in the Agreement, the Consultant shall not be entitled, as a result of such suspension, to any additional compensation or time to provide and perform the required services or work.

23.4. INDEMNIFICATION AND HOLD HARMLESS

The Consultant shall indemnify and hold harmless the City, 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 Consultant and other persons employed or utilized by the Consultant in the performance of the contract. This indemnification provision shall in no way be limited by any financial responsibility or insurance requirements and shall survive the termination of this Agreement. It is the specific intent of the parties hereto that the foregoing indemnification complies with Section 725.08, Florida Statutes, as amended. Consultant expressly agrees that it will not claim, and waives any claim, that this indemnification violates Section 725.08, Florida Statutes, as amended. Nothing contained in the foregoing indemnification shall be construed as a waiver of any immunity or limitation of liability the City may have under the doctrine of sovereign immunity or Section 768.28, Florida Statutes.

24 - LICENSES

The Consultant agrees to 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.

25 - RESERVED

26 - NON-DISCRIMINATION

Consultant certifies that they will:

26.1. Implement an employment nondiscrimination policy prohibiting discrimination in the performance of the contract in the hiring, discharging, promoting or demoting, matters of

Mechanical, Electrical, Plumbing, and Fire Protection Design and Support Engineering Services Continuing Contract, Draft Contract 26-011 | Page 18 compensation, or any other employment-related decision or benefit on account of actual or perceived race, ethnicity, color, religion, national origin, gender, disability, age, military status, sexual orientation, gender identity, gender expression, or marital or familial status;

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

26.3. Provide a harassment-free workplace, with any allegation of harassment given priority attention and action by management;

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

27 - OBLIGATIONS OF THE CONSULTANT

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

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

27.1. TIMELY ACCOMPLISHMENT OF SERVICES

The timely performance and completion of the required services, work and materials is vitally important to the interests of the City. Time is of the essence for all of the duties and obligations contained in this Agreement and any Amendment thereto. The City may suffer damages in the event that the 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 "Time and Schedule of Performance" form, shall be a consideration in determination of Consultant responsibility in any future request for contract services.

27.2. STANDARDS OF PROFESSIONAL SERVICE

The work and/or…