DRAFT_CONTRACT-civil_engineering_continuing_contract_033026.pdf

>Consultant

Civil Engineering Services Continuing Contract, 26-012-xxx

PROFESSIONAL SERVICES AGREEMENT

THE CITY OF FORT MYERS

And

For the project known as

Table of Contents

PARTIES AND TERM

RECITALS

1 – NOTICES

1.1. NOTICES BY CONSULTANT TO CITY

1.2. NOTICES BY CITY TO CONSULTANT

1.3. CHANGE OR ADDRESS OF RECORD

2 - CONTRACT DOCUMENTS

3 - AMENDMENTS/MODIFICATIONS

4- APPLICABLE LAW

5 - CHANGE ORDERS

6 - CONFLICT OF INTEREST

7 - CONTINGENT FEE PROHIBITION

8 - CONTRACT ADMINISTRATION

9 - CONTRACT EXECUTION

10 – EMPLOYEES

10.1. QUALIFIED PERSONNEL

10.2. REMOVAL OF PERSONNEL

11 - ERRORS AND OMISSIONS

11.1. RESPONSIBILITY TO CORRECT

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

12 - E-VERIFY

13 - FLORIDA PUBLIC RECORDS LAW

14 - GOVERNING LAW / VENUE

15 - HEADINGS AND CAPTIONS

16 - IMPROPER USE OF FACILITIES

17- INDEMNIFICATION / HOLD HARMLESS

18 - INDEPENDENT CONSULTANT

19 - INSURANCE REQUIREMENTS

19.1. INSURANCE TERMS AND CONDITIONS

19.2. INSURANCE CERTIFICATE(S) REQUIRED

19.3. INSURANCE COVERAGES REQUIRED

20 - NOTICE OF CLAIM; WAIVER OF REMEDIES; NO DAMAGE FOR DELAY

20.1. NOTICE OF CLAIMS

20.2. REMEDIES AND NO DAMAGES FOR DELAY

21 - OBLIGATIONS OF THE CITY

21.1. PROJECT MANAGER

21.2. AVAILABILITY OF CITY INFORMATION

21.3. AVAILABILITY OF CITY’S DESIGNATED REPRESENTATIVES

21.4. ACCESS TO CITY PROPERTY

21.5. PLAN REVIEWS

22 - OBLIGATIONS OF THE CONSULTANT

22.1. STANDARDS OF PROFESSIONAL SERVICE

22.2. NOT TO DIVULGE CERTAIN INFORMATION

22.3. CONSULTANT TO REPAIR PROPERTY DAMAGE CAUSED BY THE CONSULTANT

22.4. RESPONSIBILITY FOR ESTIMATES

22.5. PERMITS

22.6. ADDITIONAL SERVICES

22.7. TRUTH-IN-NEGOTIATIONS CERTIFICATE

22.8. COMPLETION OF TASKS

22.9. ALL DRAWINGS

22.10. ALL REPORTS

22.11. NON-DISCRIMINATION

22.12. NAME CHANGE

22.13. PROJECT MANAGEMENT PLATFORM SOFTWARE

22.14. RECORDS RENTENTION

23 - OWNERSHIP OF DOCUMENTS

24 - PAYMENT

24.1. BASIC SERVICES

24.2. ADDITIONAL SERVICES

24.3. DISCOUNTS

24.4. INVOICING

24.6. PAYMENT DISPUTE RESOLUTION

24.7. PAYMENT WHEN SERVICES ARE TERMINATED BY THE CITY

25 - PERFORMANCE, TIME, AND SCHEDULE

25.1. RESERVED

25.2. TIME OF PERFORMANCE

25.3. WORK SCHEDULE

25.4. TIMELY ACCOMPLISHMENT OF SERVICES

25.5. FAILURE TO PERFORM IN A TIMELY MANNER

26 - PRICE ADJUSTMENT

26.1. INITIAL PRICING COMMITMENT

26.2. RENEWAL TERM PRICE ADJUSTMENTS

26.3. DEFINITION OF CONSUMER PRICE INDEX (CPI)

26.4. RIGHT TO APPROVE OR REJECT

26.5. PRICE REDUCTIONS

27 – CONSULTANT’S PROJECT MANAGER

28 - RESERVATION OF RIGHTS

29 - SCOPE OF SERVICES / WORK

30 - TERMINATION

30.1. FOR CONVENIENCE

30.2. FOR CAUSE

30.3. NON-APPROPRIATION

31. THIRD-PARTY BENEFICIARIES

32 - WAIVER OF BREACH

33 - FORMS

34-GENERAL CONDITIONS

34.1. FAILURE TO ENFORCE

34.2. FLORIDA CIVIL RIGHTS ACT (FCRA)

34.3. FORCE MAJEURE

34.4. HUMAN TRAFFICKING

34.5. PATENTS, ROYALTIES, AND COPYRIGHTS

34.6 RELATIONSHIP BETWEEN PARTIES

34.7. SCRUTINIZED COMPANIES

34.8. SEVERABILTY

34.9. TAXES

35 - ACCEPTANCE

Scope

SCOPE OF WORK

Fee Schedule Compensation and Method of Payment

Date:

Personnel Hourly Rate Schedule

Date:

Time & Schedule of Performance Subconsultants & Subcontractors Project Guidelines & Criteria Truth in Negotiation Certificate

PARTIES AND TERM

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 two

(2) one-year renewal options upon mutual agreement ending either (1) upon end of term or non renewal, or (2) 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: Civil Engineering Services Continuing Contract, RSQ 26-012 and

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

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

NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Contract shall exist between both parties consisting of:

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 mailto:procurementservices@fortmyers.gov mailto:clerk@cityftmyers.com legalservice@fortmyers.gov.

Copy to:

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

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: >

Address: >

Phone: >

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 - 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. Permits (if applicable), incorporated by reference

3. This Agreement

4. Addenda / Questions and Answers (if applicable), incorporated by reference

5. Solicitation Document, incorporated by reference

5.1. Solicitation Attachments

5.2. Solicitation Terms & Conditions

5.3. Submission Instructions

6. Consultant's submittal/proposal, incorporated by reference

7. All Purchase Orders issued under the Solicitation, incorporated by reference

8. Certificates of Insurance, incorporated by reference

Any inconsistencies in this solicitation or contract shall be resolved by giving precedence to the order above.

mailto:legalservice@fortmyers.gov mailto:greg.stevens@collierseng.com

3 - AMENDMENTS/MODIFICATIONS

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), and/or Change Order(s), the latest executed Amendment(s), Supplemental Agreement(s), and/or Change Order(s) shall take precedence.

4- APPLICABLE LAW

Unless otherwise specified, this Agreement shall be governed by the laws, rules, and regulations of the State of Florida, or the laws, rules, and regulations of the United States when providing services funded by the United States Government. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the State or Federal courts in Lee County, Florida, for any and all claims or causes of action arising from or related to this Agreement.

5 - CHANGE ORDERS

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, Change Order, or Supplemental Agreement] (see Definitions) to the contract and shall be executed under the applicable conditions of the contract upon approval of City 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 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 shall be secured from the using Department and the City’s Procurement Manager, and City 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 shall be considered valid by the City unless first submitted in writing.

6 - CONFLICT OF INTEREST

The award of this contract is subject to the provisions of Chapter 112, Florida Statutes. Consultant must disclose within their responses to the City the name of any officer, director, or agent who is also an employee of the City (hereinafter the “City”). Furthermore, Consultant 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 shall promptly bring such potential conflict of interest to the City's attention, in writing. The City shall 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 a representation. If Consultant or Subconsultant/Subcontractor accepts 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 a 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. The consultant shall require each of such Subconsultant/Subcontractor to comply with the provision of this Section.

If the Consultant fails to advise or notify the City as required, regarding a representation that could result in a conflict of interest, the City may consider this a justifiable cause for termination.

7 - CONTINGENT FEE PROHIBITION

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

8 - CONTRACT ADMINISTRATION

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

9 - CONTRACT EXECUTION

City and Consultant each bind 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 Documents.

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. CITY'S APPROVAL SHALL NOT RELIEVE CONSULTANT OF RESPONSIBILITY

Neither review, approval, or acceptance by the City of data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and incidental Professional Services, work and materials furnished hereunder by the Consultant, or any Subconsultant/Subcontractor 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 Subconsultant/Subcontractor 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.

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 Subconsultant/Subcontractor stating that they use, 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 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 “Consultant” as defined by Section 119.0701, Florida Statutes, it shall:

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

13.2. 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 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 at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.

13.3. 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 of the contract term and following completion of the contract if the Consultant does not transfer the records to the public agency.

13.4. 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.

14 - 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 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.

15 - HEADINGS AND CAPTIONS

The headings and captions of the Articles, Sections, Exhibits, Attachments, Phases or Tasks, as contained in this Agreement, are for the purpose of convenience only and shall not be deemed to expand, modify, amplify, limit or change, add to the interpretation, construction or meaning of any provision of, or scope of intent of, these Articles, Sections, Exhibits, Attachments, Phases or Tasks nor in any way affect this Agreement.

16 - IMPROPER USE OF FACILITIES

The Consultant shall 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 mailto:jgravitt@cityftmyers.com 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 to 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.

17- INDEMNIFICATION / 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 people 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 shall 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.

18 - INDEPENDENT CONSULTANT

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

19 - INSURANCE REQUIREMENTS

19.1. INSURANCE TERMS AND CONDITIONS

19.1.1. The Consultant/Contractor 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/Contractor, its employees, or by any Sub-Consultant(s), Sub-Contractor(s), or anyone employed by or under the supervision of any of them, or for whose acts any of them may be legally liable.

19.1.2. Subcontractors. Unless expressly specified otherwise in this solicitation, a Consultant/Contractor and its 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/Contractor to maintain the required insurance coverage and to assure that subcontractors maintain required insurance coverages at all times.

Failure of a Consultant/Contractor 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/Contractor and its subcontractors are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the Consultant/Contractor and its subcontractors under a contract. Any insurance carried by the City that may be applicable shall be deemed to be excess insurance and the Consultant/Contractor(s) insurance primary for all purposes despite any conflicting provision in the Consultant/Contractor(s) policies to the contrary.

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

19.1.4. The insurance coverage to be obtained by the Consultant/Contractor, as set forth in Agreement for: (1) Worker's Compensation; (2) Commercial General Liability; (3) Commercial Automobile Liability; or (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 Order(s), or Supplemental Agreement(s). If the total amount of insurance coverage established in, and required by, a Change Order or Supplemental Agreement exceeds the amount of insurance coverage carried by the Consultant/Contractor, then the Consultant/Contractor 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/Contractor to obtain such additional insurance coverage.

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

19.1.6. 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/CONTRACTOR and its 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.

19.1.7. Waiver of Subrogation. The Consultant/Contractor and its 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/Contractor and subcontractors.

19.2. INSURANCE CERTIFICATE(S) REQUIRED

19.2.1. Certificates of Insurance. Prior to commencing work at the jobsite, and as a condition precedent to the Consultant/Contractor(s) and their subcontractors’ initiation of performance, the Consultant/Contractor and its subcontractors 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 shall 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/CONTRACTOR 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/Contractor 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 forth for delivery of the Solicitation.

19.2.2. All such insurance certificates shall be in a form and underwritten by an insurance company(s) acceptable to the City and licensed in the State of Florida.

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

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

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

19.2.3.2. 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

19.2.3.3. The date of expiration of coverage; and

19.2.3.4. The designation of the City of Fort Myers, 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

19.2.3.5. 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/Contractor has, or expects to enter into an agreement for Professional Services other than those provided for in this Agreement; the Consultant/Contractor 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 of Fort Myers pursuant to one or more written Professional Services AGREEMENTS, or written Supplemental Agreements or Change Orders thereto, and the limit(s) of liability shown shall not be intended or construed as applying to only one project."

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

19.2.3.6. An identifying statement indicating the identification of any services or work that is included in, or required under, the Scope Of Professional Services set forth in Exhibit “A” that is specifically excluded or exempted from coverage under the provisions, terms, conditions, or endorsements of the Consultant/Contractor's insurance policy(s). 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(s), or coverage statement of exclusions or exemptions, the CITY will proceed with the understanding, stipulation, and condition that there are no deductible amount(s), or exclusions or exemptions to the insurance coverage(s) provided.

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

19.2.3.8. 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(s) indicated on each Certificate of Insurance.

19.2.3.9. 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/Contractor's responsibility to furnish the City a renewal or replacement Certificate(s) of Insurance, including all endorsements, not later than thirty (30) calendar days prior to the date of their expiration. Failure of the Consultant/Contractor to provide the City with such renewal certificate(s) shall be considered justification for the City to terminate this Agreement.

19.2.4. It is vitally important that all insurance coverage(s) required under this Agreement be in effect throughout the entire period of this Agreement. If any of the insurance coverage(s) required by this Agreement should reach the date of expiration indicated on the Certificate(s) 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(s) has either been renewed or replaced, then the Consultant/Contractor, 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(s) has been renewed or replaced. During any time period that the Consultant/Contractor shall 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/Contractor. 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 period that the Consultant/Contractor's services or work is suspended, as provided above, for failure to comply with the insurance requirements set forth in the Agreement, the Consultant/Contractor 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.

19.3. INSURANCE COVERAGES REQUIRED

Insurance will be provided by the Consultant/Contractor. If required, the awarded Consultant/Contractor (and its subcontractors to the same extent and on the same terms as set forth below for Consultant/Contractor) shall maintain the following coverages during the entire period of this agreement for not less than the limits specified herein, or as required by law, whichever is greater, and furnish the certificate(s) of insurance on the policies and renewals thereof which indicate that insurance coverage has been obtained meeting the requirements of the contract.

19.3.1. Workers Compensation and Employer’s Liability. This insurance shall protect the Consultant/Contractor against all claims under applicable state workmen’s compensation laws. The Consultant/Contractor 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 workmen’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, sub-contractors not eligible for exemption. The liability limits shall not be less than:

19.3.1.1. 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.

19.3.1.2. 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.

19.3.1.3. Coverage shall be provided for USL&H (Longshore and Harbor Workers) and Jones Act exposures where applicable.

19.3.2. Commercial General Liability. This insurance shall be an “occurrence” type policy written in comprehensive form and shall protect the Consultant/Contractor 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/Contractor 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/Contractor 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/Contractor'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:

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

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

19.3.2.3. Such additional requirements as are set forth in 19.3.1.1 and 19.3.1.2 above.

19.3.3. Comprehensive Automobile Liability. This insurance shall be written in comprehensive form and shall protect the CONSULTANT/CONTRACTOR 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:

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

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

19.3.3.2. Such additional requirements as are set forth in in 7.3.1.1 and 7.3.1.2 above.

19.3.4. Professional Liability. The Consultant/Contractor 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/Contractor shall provide the City with policy coverage wherein the insurer agrees to pay claims (up to the limits of coverage), and will thereafter recover the deductible from the insured Consultant/Contractor. The errors and omissions policy shall be in effect and shall insure the Consultant/Contractor's performance on City projects.

19.3.4.1. 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/Contractor 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/Contractor shall be required to provide written documentation that is acceptable to the City establishing that the Consultant/Contractor 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.

20 - NOTICE OF CLAIM; WAIVER OF REMEDIES; NO DAMAGE FOR DELAY

20.1. NOTICE OF CLAIMS

20.1.1. The City's liability to Consultant for any claims arising out of or related to the subject matter of this contract, whether in contract or tort, including, but not limited to, claims for extension of construction time, for payment by the City of the costs, damages or losses because of changed conditions under which the work is to be performed, or for additional work, shall be governed by the following provisions:

20.1.1.1. All claims must be submitted as a Request for Change Order in the manner as provided herein;

20.1.1.2. The Consultant must submit a Notice of Claim to City and to the Engineer within 20 days of when the Consultant was or should have been aware of the occurrence of the event giving rise to the claim; and

20.1.1.3. Within 10 days of submitting its Notice of Claim, the Consultant shall submit to the City its Request for Change Order, which shall include a written statement of all details of the claim, including a description of the work affected. The Consultant agrees that the City shall not be liable for any claim that the Consultant fails to submit as a Request for Change Order as provided in this paragraph.

20.1.2. After receipt of a Request for Change Order, the City, in consultation with the Engineer, shall deliver to the Consultant its written determination of the claim. As to matters subject to the determination by the City (not actions for breach of contract or tort) the City's written decision shall be final unless the Consultant, within thirty (30) days of the Consultant's receipt of the City's determination, delivers to the City a written objection thereto. If, after good faith efforts to resolve the matter, the parties are unable to agree, the matter shall be submitted to arbitration pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association.

20.2. REMEDIES AND NO DAMAGES FOR DELAY

For work the Consultant performs with its own forces, and in addition to the adjustments provided for in "Fee", the Consultant's exclusive remedy for delays in performance of the construction caused by events beyond its control, except for delays claimed to be caused by or attributable to the City or the Engineer, including claims based on breach of contract or negligence, shall be a claim submitted in compliance with

(1) above, for an extension of the scheduled construction time. In the event of a change in such work, the Consultant's claims for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus 5% for profit. Except as set forth herein, the Consultant expressly agrees that the foregoing constitutes its sole and exclusive remedies for delays and changes in such work and eliminate any other remedies for claiming an increase in the contract price, delays, changes in the work, damages, losses or additional compensation.

21 - OBLIGATIONS OF THE CITY

21.1. PROJECT MANAGER

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 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 Ayoub Al-Bahou and they can be reached after a NOTICE OF AWARD is issued at aal-bahou@fortmyers.gov or (239) 321-7220.

21.2. AVAILABILITY OF CITY INFORMATION

21.2.1. Project Guidelines and Criteria. Guidelines to the Consultant regarding requirements the City has established, or suggestions relative to the Project including, but not limited to, such items as: goals, objectives, constraints, and any special financial, budgeting, space, site, operational, equipment, technical, construction, time and scheduling criteria.

21.2.2. 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.

21.3. 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.

21.4. 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 normal office and/or field workdays and/or work hours.

21.5. PLAN REVIEWS

Plan reviews by City staff are only for conformance with the design concept of the project and for compliance with the information given in the contract documents, and shall not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions or programs incident thereto. The review does not relieve the Consultant from responsibility for errors or omissions or from responsibility for having the design comply with the provisions of all codes having jurisdiction.

22 - 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:

22.1. STANDARDS OF PROFESSIONAL SERVICE

The work and/or services to be provided and/or performed by the Consultant and by any Subconsultant/Subcontractor 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.

22.2. 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…