Draft_Agreement_6.1.26.pdf

Contract 26-028 | Page 1

PROFESSIONAL SERVICES CONTRACT FOR LAP PROJECTS

Between

THE CITY, FLORIDA

And

>CONSULTANT

Table of Contents

1. TERM

2. PARTIES

3. NOTICES

3.1. NOTICES BY CONSULTANT TO CITY

3.3. CHANGE OR ADDRESS OF RECORD

4. CONTRACT DOCUMENTS

5. SCOPE OF SERVICES

6. DEFINITIONS

7. OBLIGATIONS OF THE CONSULTANT

7.1. LICENSES

7.2. PERSONNEL

7.3. TIMELY ACCOMPLISHMENT OF SERVICES

7.4. STANDARDS OF PROFESSIONAL SERVICE

7.5. CORRECTION OF ERRORS, OMISSIONS OR OTHER DEFICIENCIES

7.6. NOT TO DIVULGE CERTAIN INFORMATION

7.7. CONSULTANT TO REPAIR PROPERTY DAMAGE CAUSED BY THE

CONSULTANT

7.8. RESPONSIBILITY FOR ESTIMATES

7.9. PERMITS

7.10. ADDITIONAL SERVICES

7.11. TRUTH-IN-NEGOTIATIONS CERTIFICATE

7.12. COMPLETION OF TASKS

7.13. ALL DRAWINGS

7.14. ALL REPORTS

7.15. CHANGE IN STATUS

Contract 26-028 | Page 2

7.16. CONSULTANT EQUIPMENT

7.17. SUBCONSULTANTS

8. OBLIGATIONS OF THE CITY

8.1. DESIGNATION OF CITY'S PROJECT MANAGER

8.2. AVAILABILITY OF CITY INFORMATION

9. COMPENSATION

9.1. BASIC SERVICES

9.2. ADDITIONAL SERVICES

10. TIME AND SCHEDULE OF PERFORMANCE

10.1. NOTICE TO PROCEED

10.2. TIME OF PERFORMANCE

10.3. CONSULTANT WORK SCHEDULE

10.4. FAILURE TO PERFORM IN A TIMELY MANNER

11. SECURING AGREEMENT

12. CONFLICT OF INTEREST

13. ASSIGNMENT, TRANSFER AND SUB-CONTRACTS

14. APPLICABLE LAW

15. RESERVED

16. WAIVER OF BREACH

17.RESERVED

18. DUTIES AND OBLIGATIONS IMPOSED ON THE CONSULTANT

19. REPRESENTATION OF THE CITY

20. OWNERSHIP OF DOCUMENTS

21. MAINTENANCE OF RECORDS

22. HEADINGS

24. AMENDMENTS/MODIFICATIONS/CHANGES IN WORK

24.1. AMENDMENTS/MODIFICATIONS

24.2. CHANGES IN WORK

25. PROHIBITION AGAINST CONTINGENT FEES

Contract 26-028 | Page 3

26. VENUE

27. FEDERAL TERMS AND CONDITIONS

28. LAP AGREEMENT PROVISIONS

29. E-VERIFY / IMMIGRATION LAWS

30. HUMAN TRAFFICKING

31. PAYMENT

31.1. DISCOUNTS

31.2. INVOICING

31.3. METHOD OF PAYMENT

31.4. PAYMENT DISPUTE RESOLUTION

31.5. PAYMENT WHEN SERVICES ARE TERMINATED

32. INSURANCE & INDEMNIFICATION

32.1. INSURANCE COVERAGE TO BE OBTAINED – FDOT

32.2. INSURANCE CERTIFICATE(S) REQUIRED

32.3. INSURANCE COVERAGES REQUIRED (FDOT PROJECTS)

32.4. INDEMNIFICATION

33. GENERAL CONDITIONS

33.1. ANTI-TRUST

33.2. ASSIGNMENT/TRANFERS/SUBCONTRACTS

33.3. AUDITING RECORDS

33.4. BOOKS AND RECORDS

33.5. FAILURE TO ENFORCE

33.6. FORCE MAJEURE

33.7. GOVERNING LAW

33.8. NON-APPROPRIATIONS

33.9. NON-EXCLUSIVE CONTRACT

33.10. PATENTS, ROYALTIES AND COPYWRIGHTS

33.11. PERMITS, TAXES, LICENSES, ORDINANCES, AND AGREEMENTS

33.12. PROGRESS REPORTS

Contract 26-028 | Page 4

33.13. PURCHASE ORDERS

33.14. RECORD RENTENTION

33.15. SALES TAX

33.16. SCRUTINIZED COMPANIES

33.17. SEVERABILITY

34. EXHIBITS/ FORMS

A – Scope -to be inserted after negotiation

B – Fee Schedule – to be inserted after negotiations

C - "Compensation and Method of Payment"

D - "Time and Schedule of Performance"

E - "Consultants Associated Sub-Consultant(s) and Sub-Consultant(s)"

F – Reserved

G - "Truth in Negotiation Certificate"

H - "Certificate of Insurance"

I - Human Trafficking Affidavit (F.S. 787.06)

Contract 26-028 | Page 5

1. TERM

This Agreement will be in effect until completed effective on the date the last party signs it and ends 1) when the term is over 2) is automatically extended with the same terms and conditions until the next contract is executed by the City.

2. PARTIES

This PROFESSIONAL SERVICES AGREEMENT is made and entered into on the effective date (the date the last party signs it) between the City, Florida, a municipal corporation in the STATE OF FLORIDA hereinafter referred to as the "City", and >TBD hereinafter referred to as the "Consultant".

WHEREAS, the City desires to obtain the Professional Services of said Consultant to provide and perform Professional Services as further described hereinafter concerning the Project to be referred to and identified as: Fort Myers Downtown Pedestrian Mall and Micromobility Feasibility Study Rebid

(FDOT 451523-1-18-01), RSQ 26-028 and

WHEREAS, the Consultant hereby certifies that Consultant has been granted and possesses valid, current licenses to do business in Lee County, Florida and in the City issued by the respective State

Boards and Government Agencies responsible for regulating and licensing the Professional Services to be provided and performed by the Consultant pursuant to this Agreement; and

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

WHEREAS, the selection and engagement of the Consultant has been made by the CITY in accordance with the provisions of the Consultants' Competitive Negotiation Act, Chapter 287.055, Florida Statutes, and in accordance with the provisions of the City Ordinance and Procurement Policy, as approved and put into effect by the City Council, January 6, 2020, and as subsequently revised and as approved by

FDOT Local Agency Program.

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:

Contract 26-028 | Page 6

3. NOTICES

3.1. 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:

cfmpurchasing@fortmyers.gov, clerk@fortmyers.gov, and leg@fortmyers.gov.

Copy to:

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

3.2. NOTICES BY CITY TO CONSULTANT

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

Consultant Name: >TBD

Contact: >TBD

Address: >TBD

Phone: >TBD

Email: >TBD

3.3. 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.

4. CONTRACT DOCUMENTS

The Contract Documents, which comprise the entire agreement between the City and the Consultant concerning the Work consist of this document plus: Exhibit A-Scope of Services, Exhibit B-Fee Schedule, Exhibit C-Consultant Schedule Evaluation Guidelines Worksheet and also incorporate by reference:

addenda (if applicable), all Purchase Orders issued pursuant to the Solicitation documents, all amendments that may after the date of award be executed by the If this is a continuing contract, and the

City, Certificates of Insurance, any other Solicitation Documents.

These items constitute the entire contract/agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matters mailto:cfmpurchasing@fortmyers.gov mailto:clerk@fortmyers.gov mailto:leg@fortmyers.gov

Contract 26-028 | Page 7 set forth herein, and any such prior agreements or understandings shall have no force or effect whatever on this Agreement.

If there is a conflict between the contract and solicitation the more stringent applies. The order of

Precedence is as follows:

4.1. Amendments created after execution of the Contract

4.2. Permits (if applicable), incorporated by reference

4.3. This Agreement

4.4. Solicitation addenda and written questions/answers via OpenGov Q&A

4.5. Solicitation, incorporated by reference

4.6. Consultant's submittal, incorporated by reference

5. SCOPE OF SERVICES

Consultant, hereby agrees to provide and perform the Professional Services required and necessary to complete the services and work as set forth in the SCOPE (Attachment A), attached hereto and made a part of this Agreement. In addition, the Consultant's response is incorporated by reference and made a part of this Agreement.

6. DEFINITIONS

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

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

BASIC SERVICES The term Basic Services shall refer to the Professional Services set forth and required pursuant to this Agreement, and as described in further detail in the attached Exhibit “A”, under "Scope Of

Professional Services", which Exhibit “A” is attached hereto and made a part of this Agreement.

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

Contract 26-028 | Page 8

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

CONTRACT ADMINISTRATOR shall refer to the person employed by the City to serve and act on the

City's behalf as the City’s Contract Administrator. The City Manager shall act on behalf of the City to execute any and all Supplemental Agreements(s) or Change Order(s) approved by the City and issued to the Consultant pursuant to this Agreement. The Contract Administrator, within the authority conferred by the City, acting as the City's designated representative shall issue written notification to the Consultant of any and all changes approved by the City in the Consultant's: (1) compensation (2) time and/or schedule of service delivery; (3) scope of services; and (4) any Amendment(s) or other change(s) relative to Basic

Services and Additional Services pursuant to this Agreement, or Supplemental Agreements (S), or

Change Order(s) pertaining thereto. The Contract Administrator shall be responsible for acting on the

City's behalf to administer, coordinate, interpret and otherwise manage the contractual provisions and requirements set forth in this Agreement, or any Amendment(s), Change Order(s) or Supplemental

Agreements issued there under.

Consultant shall refer to the individual or firm offering Professional Services, which by execution of this

Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants and Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all

Amendments, Supplemental Agreements, or Change Orders thereto.

LUMP SUM FEE(S) hereinafter identified as L.S., are understood and agreed to include all direct and indirect labor costs, personnel related costs, overhead and administrative costs, costs of Subconsultant(s) and/or Subconsultant(s), out-of-pocket expenses and costs, Professional Service Fee(s) and any other costs or expenses which may pertain to the services and/or work to be performed, provided and/or furnished by the Consultant shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of

Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto. as may be required and/or necessary to complete each and every task set forth in the Scope Of Professional Services, or as may be set forth in subsequent Supplemental Agreements, and/or Change Orders agreed to in writing by both parties to this Agreement.

Contract 26-028 | Page 9

NOT-TO-EXCEED FEE(S) When all, or any portion, of the Consultant compensation to provide and perform the services and work necessary and required pursuant to the Tasks set forth in Agreement

Exhibit “C”, and any Supplemental Agreements and Change Orders authorized thereto, is established to be made on a Not-To-Exceed (N.T.E.) amount basis, it is mutually understood and agreed that such compensation for each completed Task shall be made on the following basis:

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

and

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

Agreements or Change Orders authorized thereto; and

With the understanding and agreement that the City shall pay the Consultant for all such costs and expenses within the established Not-To-Exceed amount for each Task or Sub-Task subject to the

Consultant presenting an itemized and detailed invoice with appropriate supporting documentation, including payrolls, and all Subconsultant fees attached thereto to show evidence satisfactory to the City covering all such costs and expenses; and

With understanding and agreement that the Consultant invoices, and all payments to be made for all Not-

To-Exceed amounts, shall be subject to the review (including independent audit, if desired), acceptance and approval of the City; and

With the understanding and agreement that when the Consultant compensation is established on a Not-

To-Exceed basis for a specific Task(s) or Sub-Task(s), the total amount of compensation to be paid the

Consultant to cover all personnel costs, non-personnel reimbursable expenses and costs, and

Subconsultant costs for any such specific Task(s) or Sub-Task(s) shall not exceed the amount of the total

Not-To-Exceed compensation established and agreed to for each specific Task(s) or Sub-Task(s). In the event the amount of compensation for any Task(s) or Sub-Task(s) to which the Consultant is entitled on the Not-To-Exceed basis set forth above is determined to be necessary, required and actually expended and is determined to be actually less than the Not-To-Exceed amount established for the specific Task or

Subtask, it is understood and agreed that any unexpended amount under a specific Task or Subtask may not be used, applied, transferred, invoiced or paid for services or work provided or performed on any

Contract 26-028 | Page 10 other Task(s) or Subtask(s), unless otherwise directed by the City’s Project Manager, through an approved Change Order.

PROFESSIONAL SERVICES shall refer to all of the services, work, materials and all related professional, technical and administrative activities which are necessary to be provided and performed by the

Consultant and its employees, and any and all Subconsultants the Consultant shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change

Orders thereto. may engage to provide, perform and complete the services required pursuant to the covenants, terms and provisions of this Agreement.

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

PROJECT MANAGER shall refer to the person employed or retained by the City and designated, in writing, to serve and act on the City's behalf to provide direct contact and communication between the

City and Consultant shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto. with respect to providing information, assistance, guidance, coordination, review, approval and acceptance of the Professional Services, work and materials to be provided and performed by the Consultant shall refer to the individual or firm offering

Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this

Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto.

pursuant to this Agreement and such written Supplemental Agreement(s) and Change Order(s) as are authorized. The Project Manager is not authorized to, and shall not, issue any verbal, or written, request or instruction to the Consultant that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatever the: (1) Scope of Services to be provided and performed by the Consultant ; (2) The time the Consultant is obligated to commence and complete all such services;

(3) The amount of compensation the CITY is obligated or committed to pay the Consultant shall refer to

Contract 26-028 | Page 11 the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or

Change Orders thereto.. The Project Manager shall review and make appropriate recommendations on all requests submitted by the Consultant shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of

Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto for payment of services and work provided and performed, and expense, as provided for in this Agreement and approved

Supplemental Agreement(s), Change Order(s), and Amendment(s) thereto.

SUBCONSULTANT shall refer to any individual or firm offering Professional Services which is engaged by the Consultant shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto. to assist the Consultant shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change

Orders thereto. in providing and performing the Professional Services, work and materials for which the

Consultant shall refer to the individual or firm offering Professional Services, which by execution of this

Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto. is contractually obligated, responsible, and liable to provide and perform under this Agreement. The CITY shall not be a party to, responsible or liable for, or assume any obligation whatever for any Agreement entered into between the Consultant shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and

Contract 26-028 | Page 12 materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or

Change Orders thereto. and any Subconsultant.

SUPPLEMENTAL AGREEMENT The term Supplemental Agreement shall refer to a written document executed by both parties to this Agreement setting forth and authorizing professional service tasks, which were not set forth in, and are supplemental to the Scope of Services contained in the initial Professional

Services Agreement or other Supplemental Agreements issued thereto. The Supplemental Agreement, which shall be executed on a City standard form, shall set forth the authorized supplement(s) to the:

Scope of the Professional Services tasks, work or materials to be performed or provided by the

Consultant shall refer to the individual or firm offering Professional Services, which by execution of this

Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Subconsultants, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto.; the compensation and method of payment; the schedule or time period for performance and completion; and the guidelines, criteria, or requirements pertaining thereto. The amount of the change in contract compensation and time set forth in any and all

Supplemental Agreements executed and issued under this Agreement shall be understood and agreed by both Parties to this Agreement to be fair, equitable, adequate and complete. The changed compensation shall be understood and agreed to be the total of all costs associated with or impacted by the

Supplemental Agreements including, but not limited to any costs which may result from or be caused by the Supplemental Agreements and shall be understood and agreed to include a fair, equitable and adequate adjustment to cover the Consultant's general administrative and overhead costs and profit.

7. OBLIGATIONS OF THE CONSULTANT

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

7.1. LICENSES

The Consultant agrees to obtain and maintain throughout the period this Agreement is in effect, all such licenses as are required to do business in the State of Florida and in the City, 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.

Contract 26-028 | Page 13

7.2. PERSONNEL

7.2.1. QUALIFIED PERSONNEL

The Consultant agrees when the services to be provided and performed relate to a Professional

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

Agreement.

7.2.2. CONSULTANT'S PROJECT MANAGER

The Consultant agrees to employ and designate, in writing, a qualified and, if required by law, a licensed professional to serve as the Consultant's Project Manager. The Consultant's Project Manager shall be authorized and responsible to act on behalf of the Consultant with respect to directing, coordinating and administering all aspects of the services to be provided and performed under this Agreement and

Amendment(s) thereto. The Consultant's Project Manager shall have the full authority to bind and obligate the Consultant on any matter arising under this Agreement and its Amendment(s) unless substitute arrangements have been furnished to the City in writing. The Consultant agrees that the

Project Manager shall devote whatever time is required to satisfactorily direct, supervise and manage the services provided and performed by the Consultant throughout the entire period this Agreement is in effect. The person selected by the Consultant to serve, as the Consultant's Project Manager, shall be subject to the prior approval and acceptance of the City.

7.2.3. 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(s) engaged by the Consultant to provide and/or perform services and/or work pursuant to the requirements of this Agreement, who the City shall request, in writing, be removed, which request may be made by the City with or without cause.

7.3. TIMELY ACCOMPLISHMENT OF SERVICES

The timely performance and completion of the required services, work and materials is vitally important to the interests of the City. Time is of the essence for all of the duties and obligations contained in this

Agreement and any Amendment(s) thereto. The City may suffer damages in the event that the

Consultant does not accomplish and complete the required services in a timely manner. The Consultant agrees to employ, engage, retain and/or assign an adequate number of personnel throughout the period of this Agreement so that all BASIC SERVICES and Additional Services will be provided, performed and

Contract 26-028 | Page 14 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.

7.4. STANDARDS OF PROFESSIONAL SERVICE

The work and/or services to be provided and/or performed by the Consultant and by any Subconsultant engaged by the Consultant as set forth in the Scope Of Professional Services, shall be done in accordance with the generally accepted standards of professional practice and in accordance with the applicable laws, rules, regulations, ordinances, codes, policies, standards or other guidelines issued by those governmental agencies which have jurisdiction over all or a portion of this project and which are in effect at the time the City approves this Agreement, or which may subsequently be changed or revised. Any subsequent change or revision to such laws, rules, regulations, ordinances, codes, standards or other guidelines which requires the Consultant to provide and/or perform work and/or services which are significantly different from that set forth in the Scope Of Professional Services, shall serve as a basis for the City to consider the development and issuance of a Change Order to provide for a change to, or Additional Services to the services set forth in the Agreement, and where applicable, additional compensation.

7.5. CORRECTION OF ERRORS, OMISSIONS OR OTHER DEFICIENCIES

7.5.1. 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(s) retained or engaged by the Consultant pursuant to this

Agreement. The Consultant shall, without additional compensation, correct, revise, or have corrected or revised any errors, omissions and other deficiencies in such data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents, and instruments, and other services, work and materials resulting from the negligent act, errors or omissions or intentional misconduct of the Consultant or any Subconsultant(s) engaged by the Consultant.

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

Neither review, approval, or acceptance by the City of data, studies, surveys, designs, specifications, Contract 26-028 | Page 15 calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and incidental Professional Services, work and materials furnished hereunder by the Consultant, or any Subconsultant(s) engaged by the Consultant, shall not in any way relieve Consultant of responsibility for the adequacy, completeness and accuracy of its services, work and materials and the services, work and materials of any and all Subconsultants engaged by the

Consultant to provide and perform services in connection with this Agreement. Neither the City's review, approval or acceptance of, nor payment for, any of the Consultant 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.

7.6. NOT TO DIVULGE CERTAIN INFORMATION

Consultant agrees, during the term of this Agreement, not to divulge, furnish or make available to any third person, firm, or organization, without City's prior written consent, or unless incident to the proper performance of Consultant obligations hereunder, or in the courts of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the services to be rendered by Consultant or any Consultant(s) pursuant to this Agreement. Consultant shall require all of its employees, Subconsultant to comply with the provisions of this paragraph.

7.7. CONSULTANT TO REPAIR PROPERTY DAMAGE CAUSED BY THE CONSULTANT

Consultant agrees to promptly repair and/or replace, or cause to have repaired and/or replaced, at its sole cost and expense and in a manner acceptable to and approved by the City, any property damage arising out of, or caused by, the willful misconduct or negligent acts of the Consultant, or of its Subconsultant.

Consultant obligation under this sub-article does not apply to property damage caused in whole or in part by any other Consultant engaged directly by the City.

The City reserves the right, should the Consultant fail to make such repairs and/or replacement within a reasonable period of time, to cause such repairs and/or replacement to be made by others and for all costs and expenses associated with having such repairs and/or replacement done to be paid for by the

Consultant, or by the Consultant reimbursing the City for all such costs and expenses.

7.8. RESPONSIBILITY FOR ESTIMATES

In the event the services required, pursuant to this Agreement, include the Consultant preparing and submitting to the City any fees, the Consultant, by exercise of their experience and judgement, shall develop its best cost estimates and shall be held accountable, responsible, and liable for the accuracy, completeness, and correctness of any and all such cost estimates within the level of accuracy defined by

Contract 26-028 | Page 16 the Association for the Advancement of Cost Engineering (AACE) International for the current project stage. For purposes of the Liability Provisions of this Article only, the Consultant estimate(s) shall be considered valid and effective for a period of six (6) months from the date of the City's acceptance of the estimate(s).

7.9. PERMITS

The Consultant will be responsible for preparing all required applications and other supportive information necessary to assist the City in submitting for and obtaining all reviews, approvals and permits, with respect to the Consultant design, drawings and specifications required by any governmental body having authority over the project. The Consultant will be similarly responsible for preparing all required applications and other supportive information necessary to assist the City in submitting for and obtaining any renewals and/or extensions of reviews, approvals or permits that may be required while this

Agreement is in effect. The City shall, at the Consultant request, assist in obtaining required signatures and provide the Consultant with all information known to be available to the City so as to assist the

Consultant in the preparation and the City's subsequent submittal of any original, renewal or extension of required reviews, approvals or permits.

7.10. ADDITIONAL SERVICES

Should the City request the Consultant to provide and perform Professional Services for this project, which are not set forth in the Scope, the Consultant agrees to provide and perform such Additional

Services as may be agreed to in writing by both parties to this Agreement.

Such Additional Services shall constitute a continuation of the Professional Services covered under this

Agreement and shall be provided and performed in accordance with the covenants, terms, and provisions set forth in this Agreement and Amendment(s) thereto.

Additional Services shall be administered and authorized as "Supplemental Agreements" or "Change

Orders" under the Agreement. The Consultant shall not provide or perform, nor shall the City incur or accept any obligation to compensate the Consultant for any Additional Services unless, and until, a written "Supplemental Agreement" or "Change Order" shall have been agreed to and executed by both parties.

Each such "Supplemental Agreement" or "Change Order" shall set forth a comprehensive, detailed description of: (1) the Scope of the Additional Services requested; (2) the basis of compensation; and (3) the period of time and/or schedule for performing and completing said Additional Services.

Contract 26-028 | Page 17

7.11. TRUTH-IN-NEGOTIATIONS CERTIFICATE

The City may request that the Consultant execute a Truth-in-Negotiations Certificate ("Certificate"), in a form attached. The Certificate shall state that wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time this Agreement is executed. The original contract price and any additions thereto shall be adjusted to exclude any significant sums by which the

City determines the contract price was increased due to inaccurate, incomplete or non-current wage rates of other factual unit costs.

7.12. COMPLETION OF TASKS

Unless otherwise set forth in the Agreement, the Consultant shall be responsible for providing and performing whatever services, work, equipment, material, personnel, supplies, facilities, transportation and administrative support that are necessary and required to complete all of the tasks set forth in the section entitled "Scope of Services" and Supplemental Agreements and Change Orders authorized. The compensation to be paid the Consultant, as set forth in "Compensation and Method of Payment" and

Supplemental Agreements and Change Orders authorized thereto, shall be understood and agreed to adequately and completely compensate the Consultant for providing or performing whatever services, work, equipment, material, personnel, supplies, facilities, transportation and administrative support that are necessary and required to complete the tasks set forth in the SCOPE OF SERVICES and

Supplemental Agreements and Change Orders authorized thereto as stated above."

7.13. ALL DRAWINGS

All drawings for the City shall be submitted in an electronic format that is completely compatible to the

City's software.

7.14. ALL REPORTS

All reports and written documents for the City will be submitted in an electronic format that is completely compatible to the City's software. All photos, exhibits, graphs, tables, etc. contained within any report or document will be provided separately in a file format compatible to the City's software.

7.15. CHANGE IN STATUS

If a firms changes its legal business structure through a merger, acquisition, or sale; has a legal name change, a change in principal location of conducting business; a change in status with the Secretary of

State filing, a change in officers, or any other change that affects the structure of the business; a change in the level of service being offered, the nature of the products or service offered; or any deviation from what was presented by the firm to the CITY when being considered for this contract; the firm will immediately notify the City's Procurement Services Department at cfmpurchasing@fortmyers.gov mailto:cfmpurchasing@fortmyers.gov

Contract 26-028 | Page 18

7.16. CONSULTANT EQUIPMENT

The Consultant is solely responsible for all damage or loss by fire, theft or otherwise, to materials, tools, equipment, and consumables, left on City property by the Consultant.

7.17. SUBCONSULTANTS

The Consultant shall perform all of its obligations and functions under the Contract by means of its own employees, or by a duly qualified subcontractor, which is approved in advance by the City. In the event a subcontractor is employed, the Consultant shall continuously monitor the subcontractor’s performance, shall remain fully responsible to ensure that the subcontractor performs as required and itself perform or remedy any obligations or functions, which the subcontractor fails to perform properly.

8. OBLIGATIONS OF THE CITY

8.1. DESIGNATION OF CITY'S PROJECT MANAGER

The City agrees, after the execution of this Agreement, to promptly advise the Consultant, in writing, of the person designated to serve and act as the City’s Project Manager pursuant to the provisions of section "Subconsultant" of this Agreement. Such notification shall be provided to the Consultant by the

City’s Contract Administrator.

An authorized representative of the City or Project Manager (the “Project Manager”) may be assigned to oversee all assigned work for adherence to projected schedules, as well as the quality of work from the start date through the project’s completion. All work is subject to inspection throughout the life of the project and before the submittal of final payment.

All services will be approved by the Project Manager. All work modifications require written approval by the Project Manager. No work will proceed until authorized by the City’s Project Manager and the

Consultant has received a purchase order (PO) from Procurement Services. At times Consultant will meet the Project Manager at the worksite, at no cost, to verify information, requirements, make recommendations, or verify specifications.

The Project Manager assigned to this Solicitation is Carl Karakos and they can be reached after a

NOTICE OF AWARD is issued at ckarakos@fortmyers.gov or (239) 771-0483.

8.2. AVAILABILITY OF CITY INFORMATION

8.2.1. PROJECT GUIDELINES AND CRITERIA

Guidelines to the Consultant regarding requirements the City has established, or suggests relative to the

Project including, but not limited to, such items as: goals, objectives, constraints, and any special financial, budgeting, space, site, operational, equipment, technical, construction, time and scheduling

Contract 26-028 | Page 19 criteria are set forth in FORM 4, entitled "Project Guidelines and Criteria", which is attached hereto and made a part of this Agreement.

8.2.2. CITY TO PROVIDE PERTINENT REFERENCE MATERIAL

At the Consultant request, the City agrees to provide to the Consultant, at no cost to the Consultant, all pertinent information known to be available to the CITY to assist the Consultant in providing and performing the required professional services. Such information may include, but not be limited to:

previous reports; plans, drawings and specifications; maps; property, boundary, easement, right-of-way, topographic, reference monuments, control points, plats and related survey data; data prepared or services furnished by others to the CITY such as sub-surface investigations, laboratory tests, inspections of natural and man-made materials, property appraisals, studies, designs and reports.

8.2.3. AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

The City agrees that the Contract Administrator and the Project Manager shall be available within a reasonable period of time, with reasonable prior notice given by the Consultant, to meet and/or consult with the Consultant on matters pertaining to the services to be provided and performed by the

Consultant. The City further agrees to respond within a reasonable period-of-time to written requests submitted by the Consultant.

8.2.4. ACCESS TO CITY PROPERTY

The City agrees, with reasonable prior written notice given by the Consultant, to provide the Consultant with access within a reasonable period of time to City property, facilities, buildings and structures, to enable the Consultant to provide and perform the required Professional Services and work pursuant to this Agreement. Such rights of access shall not be exercised in such a manner, or to such an extent, as to impede or interfere with City operations, or the operations carried on by others under a lease, or other contractual arrangement with the City, or in such a manner as to adversely affect public health and safety. Such access may, or may not be, within the Consultant(S) normal office and/or field workdays and/or work hours.

8.2.5. PLAN REVIEWS

Plan reviews by City staff is only for conformance with the design concept of the project and for compliance with the information given in the contract documents, and shall not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions or programs

Contract 26-028 | Page 20 incident thereto. The review does not relieve the Consultant from responsibility for errors or omissions or from responsibility for having the design comply with the provisions of all codes having jurisdiction.

9. COMPENSATION

9.1. BASIC SERVICES

The City shall pay the Consultant for all requested and authorized Basic Services rendered hereunder by the Consultant and completed in accordance with the requirements, provisions, and/or terms of this

Agreement or its Amendment(s) and accepted by the City in accordance with the provisions for compensation and payment of said Basic Services set forth and prescribed in "Compensation and

Method of Payment", which is attached hereto and made a part of this Agreement, or on the basis of such changes to the established compensation as may be mutually agreed to by both parties to this Agreement as evidenced by a written Supplemental Agreement or Change Order executed by both parties.

9.2. ADDITIONAL SERVICES

The City shall pay the Consultant for all such Additional Services as have been requested and authorized by the City and agreed to, in writing, by both parties to this Agreement and which have been rendered as

Additional Services by the Consultant and completed in accordance with the requirements, provisions, and/or terms of this Agreement or its Amendments, and accepted by the City in accordance with the provisions for compensation and payment of said Additional Services, as set forth and prescribed in "Compensation and Method of Payment", which is attached hereto and made a part of this Agreement, or on the basis of such changes to the established compensation as may be mutually agreed to by both parties to this Agreement as evidenced by a written Supplemental Agreement or Change Order executed by both parties.

10. TIME AND SCHEDULE OF PERFORMANCE

10.1. NOTICE TO PROCEED

Following the execution of this Agreement by both parties, and after the Consultant has complied with the insurance requirements set forth hereinafter, the City shall issue the Consultant a Written Notice to

Proceed. Following the issuance of such Notice to Proceed, the Consultant shall be authorized to commence work, and the Consultant thereafter shall commence work promptly and shall carry on all such services and work as may be required in a timely and diligent manner to completion.

10.2. TIME OF PERFORMANCE

The Consultant agrees to complete the services required pursuant to this Agreement within the time period(s) for completion of the various phases and/or tasks of the project services set forth and described https://www.cityftmyers.com/DocumentCenter/View/23635/Attachment-C---Compensation-and-Method-of-Payment https://www.cityftmyers.com/DocumentCenter/View/23635/Attachment-C---Compensation-and-Method-of-Payment https://www.cityftmyers.com/DocumentCenter/View/23635/Attachment-C---Compensation-and-Method-of-Payment

Contract 26-028 | Page 21 in this Agreement, as set forth in Time and Schedule of Performance, which is attached hereto and made a part of this Agreement.

Should the Consultant be obstructed or delayed in the prosecution or completion of its obligations under this Agreement and its Amendment(s), as a result of causes beyond the control of the Consultant, or its

Subconsultant(s), and not due to their fault or neglect, the Consultant shall notify the CITY, in writing, within five (5) calendar days after the commencement of such delay, stating the cause(s) thereof and requesting an extension of the Consultant time of performance. Upon receipt of the Consultant request for an extension of time, the City will begin determination with the Consultant to length of extension and legitimacy of cause.

10.3. CONSULTANT WORK SCHEDULE

The Consultant shall be required, as a condition of this Agreement, to prepare and submit to the City, on a monthly basis, commencing with the issuance of the Notice to Proceed, a Consultant’s Work

Schedule. Said Schedule shall be updated at each pay request. The Work Schedule shall set forth the time and manpower scheduled for all of the various phases and/or tasks required to provide, perform and complete all of the services and work required for completion of the various phases, and/or tasks of the project services set forth and described in this Agreement, as set forth in Time and Schedule of

Performance, pursuant to this Agreement in such a manner that the Consultant's planned and actual work progress can be readily determined. The Consultant's Work Schedule of planned and actual work progress shall be updated and submitted by the Consultant to the City on a monthly basis.

10.4. FAILURE TO PERFORM IN A TIMELY MANNER

Notwithstanding anything to the contrary in section Time of Performance above, should the Consultant fail to commence, provide, perform and/or complete any of the services and work required pursuant to this

Agreement in a timely and diligent manner, the City may consider such failure as justifiable cause to terminate this Agreement. As an alternative to termination, the City at its option, may, upon written notice to the Consultant, withhold any or all payments due and owing to the Consultant, not to exceed the amount of the compensation for the work in dispute, until such time as the Consultant resumes performance of his obligations in such a manner as to get back on schedule in accordance with the time and schedule of performance requirements set forth in the Agreement, or any Supplemental

Agreement(s), or Change Order(s) or Amendment(s) issued thereto. Consultant shall not be responsible for failure to perform in a timely manner due to causes outside Consultant's reasonable control.

https://www.cityftmyers.com/DocumentCenter/View/23636/Attachment-D---Time-and-Schedule-of-Performance https://www.cityftmyers.com/DocumentCenter/View/23636/Attachment-D---Time-and-Schedule-of-Performance https://www.cityftmyers.com/DocumentCenter/View/23636/Attachment-D---Time-and-Schedule-of-Performance

Contract 26-028 | Page 22

11. SECURING AGREEMENT

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

12. CONFLICT OF INTEREST

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 Subconsultants, 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 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 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.