PSA_Fixed_Term_CCNA_Continuing_Contract_2025_ver.2.pdf

PSA Fixed Term Continuing Contract 2025 Ver.2

PROFESSIONAL SERVICES AGREEMENT

(FIXED TERM CONTINUING CONTRACT)

CCNA

Contract # for

THIS AGREEMENT is made and entered into this day of______________, 20____ by and between the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter referred to as the “COUNTY”) and authorized to do business in the State of Florida, whose business address is (hereinafter referred to as the "CONSULTANT" and/or “CONTRACTOR”).

W I T N E S S E T H:

WHEREAS, the COUNTY desires to obtain the CONSULTANT’s services expeditiously when a need arises in connection with a Collier County project; and

WHEREAS, Section 287.055, Florida Statutes, Consultant’s Competitive Negotiation Act, “CCNA”, makes provisions for a fixed term contract with a firm to provide professional services to a political subdivision, such as the County; and

WHEREAS, the COUNTY has selected CONSULTANT in accordance with the provisions of Section 287.055, Florida Statutes, to provide professional services on a fixed term basis as directed by the COUNTY for such projects and tasks as may be required from time to time by the COUNTY.

NOW, THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows:

ARTICLE ONE

CONSULTANT'S RESPONSIBILITY

1.1. From time to time upon the written request or direction of the COUNTY as hereinafter provided, CONSULTANT shall provide to the COUNTY professional services (hereinafter the “Services”) as herein set forth. The term “Services” includes all Additional Services authorized by written Amendment or Change Order as hereafter provided.

1.2. CONSULTANT acknowledges and agrees that services under this Agreement are to be requested by the COUNTY on an as-needed basis only, and COUNTY makes no representation or guarantee to CONSULANT that the COUNTY will utilize CCONSUTLANT’S services exclusively or at all.

1.3 All Services to be performed by the CONSULTANT pursuant to this Agreement shall be in conformance with the scope of services, which shall be described in a Work Order issued pursuant to the procedures described herein. The form of the Work Order is set forth in attached Schedule A. Reference to the term “Work Order” herein, with respect to authorization of Services, includes all written Amendments or Change Orders to any particular Work Order. The CONSULTANT acknowledges and agrees that each individual Work Order shall not exceed $200,000 or the maximum sum allowable by law under Florida’s Consultants’ Competitive Negotiation Act, Section 287.055, Florida Statutes, as amended, whichever is greater, and as agreed upon by the parties.

Work order assignments for CCNA contracts shall be made in accordance with the current Procurement Ordinance, as amended.

1.4. (Multi-Award) SELECTION OF CONSULTANT FOR WORK ORDERS. All CONSULTANTS subject to this Agreement, including CONSULTANT, shall be placed on a rotation list for professional service, as listed below.

1.4.1. Professional Services Library Rotation

a. Work assignments within each service category are awarded on a rotational basis by the Procurement Division.

b. For each service category, the Procurement Service Division will place qualifying firms in the Professional Services Library in the order they are ranked, with the highest scoring firm placed in the first position in the rotation.

c. As each work assignment is identified the next firm in the rotation will be offered the opportunity to negotiate that work assignment with the COUNTY’s Contract Administrative Agent/Project Manager.

d. Should a firm decline a work assignment, or be unable to reach a satisfactory fee negotiation with the COUNTY within a reasonable time frame, the COUNTY will contact the next firm on the list until the work assignment is successfully negotiated.

e. Firms will have the option of rejecting one work assignment within each service category within a twelve (12) month period without penalty. A second work assignment rejection within any twelve (12) month period will cause the firm to be skipped in the rotation. A firm who rejects three (3) work assignments (or is unable to satisfactorily negotiate 3 work assignments) in any twelve (12) month period may be removed from the service category.

f. Firms wishing to reject a work assignment for any reason must complete a Work Assignment Rejection Notif icat ion Form. A copy of this completed form must be provided to the Procurement Division by the County’s Contract Administrative Agent/Project Manager.

g. Once a full rotation through all firms in a service category is complete, a method that attempts to impart an equitable distribution of work among selected firms will be based on prior dollars awarded; with the firm having received the least amount of dollars being considered for the next work assignment.

1.4.1.1 Professional Services Library – Direct Selection. For work assignments requiring unique experience or knowledge, including past experience on another phase of the project, the County’s Contract Administrative Agent/Project Manager may formally request permission to forego the rotation and select a specific firm. This request will require the completion of a Work Assignment Direct Select Form, which requires the approval of both a Division Director and the Procurement Services Director. Firms that are directly selected for a work assignment as a result of this process shall be passed on their next scheduled turn in the rotation.

1.5. All Services must be authorized in writing by the COUNTY in the form of a Work Order.

The CONSULTANT shall not provide any Services to the COUNTY unless and to the extent they are required in a written Work Order. Any Services provided by CONSULTANT without a written Work Order shall be at CONSULTANT’s own risk and the COUNTY shall have no liability for such Services.

1.6. As the COUNTY identifies certain Services it wishes CONSULTANT to provide pursuant to the terms of this Agreement, the COUNTY shall request a proposal from CONSULTANT for such Services, said proposal to be in compliance with the terms of this Agreement. If the parties reach an agreement with respect to such Services, including, but not limited to the scope, compensation and schedule for performance of those Services, a Work Order shall be prepared which incorporates the terms of the understanding reached by the parties with respect to such Services; and if both parties are in agreement therewith, they shall jointly execute the Work Order.

Upon execution of a Work Order as aforesaid, CONSULTANT agrees to promptly provide the Services required thereby, in accordance with the terms of this Agreement and the subject Work Order.

1.7. It is mutually understood and agreed that the nature, amount and frequency of the Services shall be determined solely by the COUNTY and that the COUNTY does not represent or guarantee to CONSULTANT that any specific amount of Services will be requested or required of CONSULTANT pursuant to this Agreement.

1.8. The CONSULTANT shall have no authority to act as the agent of the COUNTY under this Agreement or any Work Order, or to obligate the COUNTY in any manner or way.

1.9. All duly executed Work Orders (including all written Amendments or Change Orders thereto) are hereby incorporated into and made a part of this Agreement by reference.

1.10. The CONSULTANT agrees to obtain and maintain throughout the period of this Agreement all such licenses as are required to do business in the State of Florida and in Collier County, Florida, including, but not limited to, all licenses required by the respective state boards and other governmental agencies responsible for regulating and licensing the professional services to be provided and performed by the CONSULTANT pursuant to this Agreement.

1.11. The CONSULTANT agrees that, when the services to be provided hereunder relate to a professional service which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to practice such services, it shall employ and/or retain only qualified personnel to provide such services to the COUNTY.

1.12. The CONSULTANT designates a qualified

licensed professional to serve as the CONSULTANT's project coordinator (hereinafter referred to as the "Project Coordinator"). The Project Coordinator is 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. In each Work Order CONSULTANT will designate a qualified licensed professional to serve as CONSULTANT's project coordinator for the Services to be provided under that Work Order (hereinafter referred to as the "Project Coordinator"). The Project Coordinator is 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 the Work Order. Further, the Project Coordinator has full authority to bind and obligate the CONSULTANT on all matters arising out of or relating to the Work Order. The CONSULTANT agrees that the Principal in Charge and the Project Coordinators shall devote whatever time is required to satisfactorily manage the services to be provided and performed by the CONSULTANT under the Work Order. CONSULTANT further agrees that the Principal in Charge and Project Coordinators shall not be removed by CONSULTANT without the COUNTY’s prior written approval, and if so removed must be immediately replaced with a person acceptable to the COUNTY.

1.13. The CONSULTANT agrees, within fourteen (14) calendar days of receipt of a written request from the COUNTY to promptly remove and replace the Project Coordinator, or any other personnel employed or retained by the CONSULTANT, or any subconsultants or subcontractors or any personnel of any such subconsultants or subcontractors engaged by the CONSULTANT to provide and perform services or work pursuant to the requirements of this Agreement, or any applicable Work Order, said request may be made with or without cause. Any personnel so removed must be immediately replaced with a person acceptable to the COUNTY.

1.14. The CONSULTANT represents to the COUNTY that it has expertise in the type of professional services that will be performed pursuant to this Agreement and has extensive experience with projects similar to the Project required hereunder. The CONSULTANT agrees that all services to be provided by CONSULTANT pursuant to this Agreement shall be subject to the COUNTY's review and approval and shall be in accordance with the generally accepted standards of professional practice in the State of Florida, as well as in accordance with all applicable laws, statutes, including but not limited to ordinances, codes, rules, regulations and requirements of any governmental agencies, and the Florida Building Code where applicable, which regulate or have jurisdiction over the Services to be provided and performed by CONSULTANT hereunder, the Local Government Prompt Payment Act (218.735 and 218.76 F.S.), as amended, and the Florida Public Records Law Chapter 119, including specifically those contractual requirements at F.S. § 119.0701(2)(a)-(b) as stated as follows:

IT IS THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS

CONTRACT. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF

CHAPTER 119, FLORIDA STATUTES, IT SHOULD CONTACT THE CUSTODIAN OF PUBLIC

RECORDS AT:

Communications, Government and Public Affairs Division 3299 Tamiami Trail East, Suite 102

Naples, FL 34112-5746 Telephone: (239) 252-8999

Email: PublicRecordsRequest@colliercountyfl.gov mailto:PublicRecordsRequest@colliercountyfl.gov

The Contractor must specifically comply with the Florida Public Records Law to:

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

2. Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.

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 Contractor does not transfer the records to the public agency.

4. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the Contractor transfers all public records to the public agency upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor 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 Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify the COUNTY in writing. Failure by the Contractor to comply with the laws referenced herein shall constitute a breach of this Agreement and the COUNTY shall have the discretion to unilaterally terminate this Agreement immediately.

1.15. In the event of any conflicts in these requirements, the CONSULTANT shall notify the COUNTY of such conflict and utilize its best professional judgment to advise the COUNTY regarding resolution of each such conflict. The COUNTY’s approval of the design documents in no way relieves CONSULTANT of its obligation to deliver complete and accurate documents necessary for successful construction of the Project.

1.16. The COUNTY reserves the right to deduct portions of the (monthly) invoiced (task) amount for the following: Tasks not completed within the expressed time frame, including required deliverables, incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements and/or codes and ordinances applicable to CONSULTANT’s performance of the work as related to the project. This list is not deemed to be all-inclusive, and the COUNTY reserves the right to make sole determination regarding deductions. After notification of deficiency, if the CONSULTANT fails to correct the deficiency within the specified timeframe, these funds would be forfeited by the CONSULTANT. The COUNTY may also deduct or charge the CONSULTANT for services and/or items necessary to correct the deficiencies directly related to the CONSULTANT’s non-performance whether or not the COUNTY obtained substitute performance.

1.17. The CONSULTANT agrees not to divulge, furnish or make available to any third person, firm or organization, without the COUNTY's prior written consent, or unless incident to the proper performance of the CONSULTANT's obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the services to be rendered by CONSULTANT hereunder, and CONSULTANT shall require all of its employees, agents, subconsultants and subcontractors to comply with the provisions of this paragraph. CONSULTANT shall provide the COUNTY prompt written notice of any such subpoenas.

1.18. As directed by the COUNTY, all plans and drawings referencing a specific geographic area must be submitted in an AutoCAD DWG or MicroStation DGN format on a CD or DVD, drawn in the Florida State Plane East (US Feet) Coordinate System (NAD 83/90). The drawings should either reference specific established Survey Monumentation, such as Certified Section Corners (Half or Quarter Sections are also acceptable), or when implemented, derived from the RTK (Real- Time Kinematic) GPS Network as provided by the COUNTY. Information layers shall have common naming conventions (i.e. right-of-way - ROW, centerlines - CL, edge-of-pavement - EOP, etc.), and adhere to industry standard CAD specifications.

ARTICLE TWO

ADDITIONAL SERVICES OF CONSULTANT

2.1. If authorized in writing by the COUNTY through an Amendment or Change Order to a Work Order, CONSULTANT shall furnish or obtain from others Additional Services beyond those Services originally authorized in the Work Order. The agreed upon scope, compensation and schedule for Additional Services shall be set forth in the Amendment or Change Order authorizing those Additional Services. With respect to the individuals with authority to authorize Additional Services under this Agreement, such authority will be as established in the COUNTY’s Procurement Ordinance and Procedures in effect at the time such services are authorized.

Except in an emergency endangering life or property, any Additional Services must be approved in writing via an Amendment or Change Order to the subject Work Order prior to starting such services. The COUNTY will not be responsible for the costs of Additional Services commenced without such express prior written approval. Failure to obtain such prior written approval for Additional Services will be deemed: (i) a waiver of any claim by CONSULTANT for such Additional Services and (ii) an admission by CONSULTANT that such Work is not additional but rather a part of the Services originally required of CONSULTANT under the subject Work Order.

2.2. If the COUNTY determines that a change in a Work Order is required because of the action taken by CONSULTANT in response to an emergency, an Amendment or Change Order shall be issued to document the consequences of the changes or variations, provided that CONSULTANT has delivered written notice to the COUNTY of the emergency within forty-eight (48) hours from when CONSULTANT knew or should have known of its occurrence. Failure to provide the forty-eight (48) hour written notice noted above, waives CONSULTANT’s right it otherwise may have had to seek an adjustment to its compensation or time of performance under the subject Work Order.

ARTICLE THREE

THE COUNTY'S RESPONSIBILITIES

3.1. The COUNTY shall designate in writing a project manager to act as the COUNTY's representative with respect to the services to be rendered under this Agreement (hereinafter referred to as the "Project Manager"). The Project Manager shall have authority to transmit instructions, receive information, interpret and define the COUNTY's policies and decisions with respect to CONSULTANT's services for the Project. However, the Project Manager is not authorized to issue any verbal or written orders or instructions to the CONSULTANT that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatever:

a. The scope of services to be provided and performed by the CONSULTANT as set forth in the Work Order;

b. The time the CONSULTANT is obligated to commence and complete all such services as set forth in the Work Order; or

c. The amount of compensation the COUNTY is obligated or committed to pay the CONSULTANT as set forth in the Work Order.

3.2. The Project Manager shall:

a. Review and make appropriate recommendations on all requests submitted by the CONSULTANT for payment for services and work provided and performed in accordance with this Agreement;

b. Provide all criteria and information requested by CONSULTANT as to the COUNTY's requirements for the Services specified in the Work Order, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations;

c. Upon request from CONSULTANT, assist CONSULTANT by placing at CONSULTANT's disposal all available information in the COUNTY’s possession pertinent to the Services specified in the Work Order, including existing drawings, specifications, shop drawings, product literature, previous reports and any other data relative to the subject Work Order;

d. Arrange for access to and make all provisions for CONSULTANT to enter the site (if any) set forth in the Work Order to perform the Services to be provided by CONSULTANT under the subject Work Order; and

e. Provide notice to CONSULTANT of any deficiencies or defects discovered by the COUNTY with respect to the Services to be rendered by CONSULTANT hereunder.

ARTICLE FOUR

TIME

4.1. Each Work Order will have a time schedule (“Schedule”) for the performance of the Services required under the subject Work Order. Said Schedule shall be in a form and content satisfactory to the COUNTY. Services to be rendered by CONSULTANT shall be commenced, performed and completed in accordance with the Work Order and the Schedule. Time is of the essence with respect to the performance of the Services under each Work Order.

4.2. Should CONSULTANT be obstructed or delayed in the prosecution or completion of the Services as a result of unforeseeable causes beyond the control of CONSULTANT, and not due to its own fault or neglect, including but not restricted to acts of nature or of public enemy, acts of government or of the COUNTY, fires, floods, epidemics, quarantine regulations, strikes or lock-outs, then CONSULTANT shall notify the COUNTY in writing within five (5) working days after commencement of such delay, stating the specific cause or causes thereof, or be deemed to have waived any right which CONSULTANT may have had to request a time extension for that specific delay.

4.3. Unless otherwise expressly provided in the Work Order, no interruption, interference, inefficiency, suspension or delay in the commencement or progress of CONSULTANT's Services from any cause whatsoever, including those for which COUNTY may be responsible in whole or in part, shall relieve CONSULTANT of its duty to perform or give rise to any right to damages or additional compensation from the COUNTY. CONSULTANT's sole remedy against the COUNTY will be the right to seek an extension of time to the Schedule; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned “No Damage For Delay” provision. This paragraph shall expressly apply to claims for early completion, as well as claims based on late completion.

4.4. Should the CONSULTANT fail to commence, provide, perform or complete any of the Services to be provided hereunder in a timely manner, in addition to any other rights or remedies available to the COUNTY hereunder, the COUNTY at its sole discretion and option may withhold any and all payments due and owing to the CONSULTANT under this Agreement (including any and all Work Orders) until such time as the CONSULTANT resumes performance of its obligations hereunder in such a manner so as to reasonably establish to the COUNTY's satisfaction that the CONSULTANT's performance is or will shortly be back on schedule.

4.5. In no event shall any approval by the COUNTY authorizing CONSULTANT to continue performing Work under any particular Work Order or any payment issued by the COUNTY to CONSULTANT be deemed a waiver of any right or claim the COUNTY may have against CONSULTANT for delay or any other damages hereunder.

4.6. The period of service shall be from the date of execution of this Agreement through _______ (_____) year(s) from that date, or until such time as all outstanding Work Orders issued prior to the expiration of the Agreement period have been completed. The COUNTY may, at its discretion and with the consent of the CONSULTANT, renew the Agreement under all of the terms and conditions contained in this Agreement for ( ) additional ( ) year(s) periods. The COUNTY shall give the CONSULTANT written notice of the COUNTY’s intention to renew the Agreement term prior to the end of the Agreement term then in effect.

4.7. The County Manager, or his designee, may, at his discretion, extend the Agreement under all of the terms and conditions contained in this Agreement for up to one hundred and eighty (180) days. The County Manager, or his designee, shall give the CONSULTANT written notice of the COUNTY's intention to extend the Agreement term prior to the end of the Agreement term then in effect.

ARTICLE FIVE

COMPENSATION

5.1. Compensation and the manner of payment of such compensation by the COUNTY for Services rendered hereunder by CONSULTANT shall be as prescribed in each Work Order. The Project Manager, or designee, reserves the right to request proposals from this agreement utilizing any of the following Price Methodologies:

Lump Sum (Fixed Price): A firm fixed total price offering for a project; the risks are transferred from the COUNTY to the CONSULTANT; and, as a business practice there are no hourly or material invoices presented, rather, the CONSULTANT must perform to the satisfaction of the COUNTY’s Project Manager before payment for the fixed price contract is authorized.

Time and Materials: The COUNTY agrees to pay the contractor for the amount of labor time spent by the CONSULTANT's employees and subcontractors to perform the work (number of hours times hourly rate), and for materials and equipment used in the project (cost of materials plus the contractor's mark-up). This methodology is generally used in projects in which it is not possible to accurately estimate the size of the project, or when it is expected that the project requirements would most likely change. As a general business practice, these contracts include back-up documentation of costs; invoices would include number of hours worked and billing rate by position (and company (or subcontractor) timekeeping or payroll records), material or equipment invoices, and other reimbursable documentation for the project.

5.2. The hourly rates as set forth and identified in Schedule B, Attachment 1, Rate Schedule, which is attached hereto, shall apply only to projects procured under the Time and Materials pricing methodology specified in paragraph 5.1 above. Grant Funded: The hourly rates as set forth and identified in Schedule B, Attachment 1, Rate Schedule, which is attached hereto, are for purposes of providing estimate(s), as required by the grantor agency.

ARTICLE SIX

OWNERSHIP OF DOCUMENTS

6.1. Upon the completion or termination of each Work Order, as directed by the COUNTY, CONSULTANT shall deliver to the COUNTY copies or originals of all records, documents, drawings, notes, tracings, plans, MicroStation or AutoCAD files, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for CONSULTANT under the applicable Work Order ("Project Documents"). The COUNTY shall specify whether the originals or copies of such Project Documents are to be delivered by CONSULTANT. The CONSULTANT shall be solely responsible for all costs associated with delivering to the COUNTY the Project Documents. The CONSULTANT, at its own expense, may retain copies of the Project Documents for its files and internal use.

6.2. Notwithstanding anything in this Agreement to the contrary and without requiring the COUNTY to pay any additional compensation, CONSULTANT hereby grants to the COUNTY a nonexclusive, irrevocable license in all of the Project Documents for the COUNTY’s use with respect to the applicable authorized project or task. The CONSULTANT warrants to the COUNTY that it has full right and authority to grant this license to the COUNTY. Further, CONSULTANT consents to the COUNTY’s use of the Project Documents to complete the subject project or task following CONSULTANT’s termination for any reason or to perform additions to or remodeling, replacement or renovations of the subject project or task. The CONSULTANT also acknowledges the COUNTY may be making Project Documents available for review and information to various third parties and hereby consents to such use by the COUNTY.

ARTICLE SEVEN

MAINTENANCE OF RECORDS

7.1. The CONSULTANT will keep adequate records and supporting documentation which concern or reflect its services hereunder. The records and documentation will be retained by CONSULTANT for a minimum of five (5) years from (a) the date of termination this Agreement or

(b) the date of the Work Order is completed, whichever is later, or such later date as may be required by law. The COUNTY, or any duly authorized agents or representatives of the COUNTY, shall, free of charge, have the right to audit, inspect and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the five (5) year period noted above, or such later date as may be required by law; provided, however, such activity shall be conducted only during normal business hours.

ARTICLE EIGHT

INDEMNIFICATION

8.1. To the maximum extent permitted by Florida law, CONSULTANT shall defend, indemnify and hold harmless the COUNTY, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys’ fees and paralegals’ fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of CONSULTANT or anyone employed or utilized by the CONSULTANT in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph.

This section does not pertain to any incident arising from the sole negligence of Collier County.

8.1.1. The duty to defend under this Article 8 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of the CONSULTANT, the COUNTY and any indemnified party. The duty to defend arises immediately upon presentation of a claim by any party and written notice of such claim being provided to CONSULTANT. The CONSULTANT’s obligation to indemnify and defend under this Article 8 will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the COUNTY or an indemnified party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations.

8.1.2 To the extent that the Agreement that the work pertains to is a “Professional Services Contract” as defined in Section 725.08(3), Florida Statues, and the CONSULTANT is a “Design Professional” as defined in Section 725.08(4), Florida Statues, the indemnification provided herein shall be limited as provided in Section 725.08(1) & (2), Florida Statues.

ARTICLE NINE

INSURANCE

9.1. The CONSULTANT shall obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts set forth in SCHEDULE C to this Agreement.

9.2. All insurance shall be from responsible companies duly authorized to do business in the State of Florida.

9.3. All insurance policies required by this Agreement shall include the following provisions and conditions by endorsement to the policies:

9.3.1. All insurance policies, other than the Business Automobile policy, Professional Liability policy, and the Workers Compensation policy, provided by CONSULTANT to meet the requirements of this Agreement shall name Collier County Board of County Commissioners, OR, Board of County Commissioners in Collier County, OR, Collier County Government, as an additional insured as to the operations of CONSULTANT under this Agreement and shall contain a severability of interests’ provisions.

9.3.2. Companies issuing the insurance policy or policies shall have no recourse against the COUNTY for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of CONSULTANT.

9.3.3. All insurance coverages of CONSULTANT shall be primary to any insurance or self-insurance program carried by the COUNTY, and the “Other Insurance” provisions of any policies obtained by CONSULTANT shall not apply to any insurance or self-insurance program carried by

COUNTY.

9.3.4. The Certificates of Insurance, which are to be provided in an Occurrence Form patterned after the current I.S.O. form with no limiting endorsements, must reference and identify this Agreement.

9.3.5. All insurance policies shall be fully performable in Collier County, Florida, and shall be construed in accordance with the laws of the State of Florida.

9.4. The CONSULTANT, its subconsultants and the COUNTY shall waive all rights against each other for damages covered by insurance to the extent insurance proceeds are paid and received by the COUNTY, except such rights as they may have to the proceeds of such insurance held by any of them.

9.5. All insurance companies from whom CONSULTANT obtains the insurance policies required hereunder must meet the following minimum requirements:

9.5.1. The insurance company must be duly licensed and authorized by the Department of Insurance of the State of Florida to transact the appropriate insurance business in the State of Florida.

9.5.2. The insurance company must have a current A. M. Best financial rating of “Class VI” or higher.

ARTICLE TEN

SERVICES BY CONSULTANT'S OWN STAFF

10.1. The services to be performed hereunder shall be performed by CONSULTANT's own staff, unless otherwise authorized in writing by the COUNTY. The employment of, contract with, or use of the services of any other person or firm by CONSULTANT, as independent consultant or otherwise, shall be subject to the prior written approval of the COUNTY. No provision of this

Agreement shall, however, be construed as constituting an agreement between the COUNTY and any such other person or firm. Nor shall anything in this Agreement be deemed to give any such party or any third party any claim or right of action against the COUNTY beyond such as may then otherwise exist without regard to this Agreement.

10.2. Attached to each Work Order shall be a Schedule that lists all of the key personnel CONSULTANT intends to assign to perform the Services required under that Work Order. Such personnel shall be committed to the project or task specified in the Work in accordance with the percentages noted in the attached schedule. CONSULTANT shall also identify in that Schedule each subconsultant and subcontractor it intends to utilize with respect to the subject Work Order.

All personnel, subconsultants and subcontractors identified in the Schedule shall not be removed or replaced without the COUNTY’s prior written consent.

10.3. The CONSULTANT is liable for all the acts or omissions of its subconsultants or subcontractors. By appropriate written agreement, the CONSULTANT shall require each subconsultant or subcontractor, to the extent of the Services to be performed by the subconsultant or subcontractor, to be bound to the CONSULTANT by the terms of this Agreement and any subsequently issued Work Order, and to assume toward the CONSULTANT all the obligations and responsibilities which the CONSULTANT, by this Agreement and any subsequently issued Work Order, assumes toward the COUNTY. Each subconsultant or subcontract agreement shall preserve and protect the rights of the COUNTY under this Agreement, and any subsequently issued Work Order, with respect to the Services to be performed by the subconsultant or subcontractor so that the subconsulting or subcontracting thereof will not prejudice such rights.

Where appropriate, the CONSULTANT shall require each subconsultant or subcontractor to enter into similar agreements with its sub-subconsultants or sub-subcontractors.

10.4. The CONSULTANT acknowledges and agrees that the COUNTY is a third-party beneficiary of each contract entered into between CONSULTANT and each subconsultant or subcontractor, however nothing in this Agreement shall be construed to create any contractual relationship between the COUNTY and any subconsultant or subcontractor. Further, all such contracts shall provide that, at the COUNTY’s discretion, they are assignable to the COUNTY upon any termination of this Agreement.

ARTICLE ELEVEN

WAIVER OF CLAIMS

11.1. The CONSULTANT's acceptance of final payment for Services provided under any Work Order shall constitute a full waiver of any and all claims, except for insurance company subrogation claims, by it against the COUNTY arising out of the Work Order or otherwise related to those Services, and except those previously made in writing in accordance with the terms of this Agreement and identified by CONSULTANT in its final invoice for the subject Work Order as unsettled. Neither the acceptance of CONSULTANT's Services nor payment by the COUNTY shall be deemed to be a waiver of any of COUNTY's rights against CONSULTANT.

ARTICLE TWELVE

TERMINATION OR SUSPENSION

12.1. This Agreement is a fixed term contract for the professional services of CONSULTANT. It is agreed that either party hereto shall at any and all times have the right and option to terminate this Agreement by giving to the other party not less than thirty (30) days prior written notice of such termination. Upon this Agreement being so terminated by either party hereto, neither party hereto shall have any further rights or obligations under this Agreement subsequent to the date of termination, except that Services specified to be performed under a previously issued Work Order, shall proceed to completion under the terms of this Agreement.

12.2. The CONSULTANT shall be considered in material default of this Agreement and such default will be considered cause for the COUNTY to terminate this Agreement and any Work Orders in effect, in whole or in part, as further set forth in this section, for any of the following reasons: (a) CONSULTANT’s failure to begin Services under any particular Work Order within the times specified under that Work Order, or (b) CONSULTANT's failure to properly and timely perform the Services to be provided hereunder or as directed by the COUNTY, or (c) the bankruptcy or insolvency or a general assignment for the benefit of creditors by CONSULTANT or by any of CONSULTANT's principals, officers or directors, or (d) CONSULTANT's failure to obey any laws, ordinances, regulations or other codes of conduct, or (e) CONSULTANT's failure to perform or abide by the terms and conditions of this Agreement and any Work Orders in effect, or (f) for any other just cause. The COUNTY may so terminate this Agreement and any Work Orders in effect, in whole or in part, by giving the CONSULTANT seven (7) calendar days written notice of the material default.

12.3. If, after notice of termination of this Agreement as provided for in paragraph 12.1 above, it is determined for any reason that CONSULTANT was not in default, or that its default was excusable, or that the COUNTY otherwise was not entitled to the remedy against CONSULTANT provided for in paragraph 12.2, then the notice of termination given pursuant to paragraph 12.2 shall be deemed to be the notice of termination provided for in paragraph 12.4, below, and CONSULTANT’s remedies against the COUNTY shall be the same as and be limited to those afforded CONSULTANT under paragraph 12.4 below.

12.4. Notwithstanding anything herein to the contrary (including the provisions of paragraph 12.1 above), the COUNTY shall have the right to terminate this Agreement and any Work Orders in effect, in whole or in part, without cause upon seven (7) calendar days written notice to CONSULTANT. In the event of such termination for convenience, CONSULTANT's recovery against the COUNTY shall be limited to that portion of the fee earned through the date of termination, for any Work Orders so cancelled, together with any retainage withheld and any costs reasonably incurred by CONSULTANT that are directly attributable to the termination, but CONSULTANT shall not be entitled to any other or further recovery against the COUNTY, including, but not limited to, anticipated fees or profits on Services not required to be performed.

CONSULTANT must mitigate all such costs to the greatest extent reasonably possible.

12.5. Upon termination and as directed by the COUNTY, the CONSULTANT shall deliver to the COUNTY all original papers, records, documents, drawings, models, and other material set forth and described in this Agreement, including those described in Article 6, that are in CONSULTANT’s possession or under its control arising out of or relating to this Agreement or any Work Orders.

12.6. The COUNTY shall have the power to suspend all or any portions of the Services to be provided by CONSULTANT hereunder upon giving CONSULTANT two (2) calendar days prior written notice of such suspension. If all or any portion of the Services to be rendered hereunder are so suspended, the CONSULTANT's sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in Article Four herein.

12.7. In the event (i) the COUNTY fails to make any undisputed payment to CONSULTANT within forty-five (45) days after such payment is due as set forth in the Work Order or such other time as required by Florida’s Prompt Payment Act or (ii) the COUNTY otherwise persistently fails to fulfill some material obligation owed by the COUNTY to CONSULTANT under this Agreement or subsequently issued Work Order, and (ii) the COUNTY has failed to cure such default within fourteen (14) days of receiving written notice of same from CONSULTANT, then CONSULTANT may stop its performance under the subject Work Order until such default is cured, after giving the COUNTY a second fourteen (14) days written notice of CONSULTANT’s intention to stop performance under the applicable Work Order. If the Services are so stopped for a period of one hundred and twenty (120) consecutive days through no act or fault of the CONSULTANT or its subconsultant or subcontractor or their agents or employees or any other persons performing portions of the Services under contract with the CONSULTANT, the CONSULTANT may terminate the subject Work Order by giving written notice to the COUNTY of CONSULTANT’s intent to terminate that Work Order. If the COUNTY does not cure its default within fourteen (14) days after receipt of CONSULTANT’s written notice, CONSULTANT may, upon fourteen (14) additional days' written notice to the COUNTY, terminate the subject Work Order and recover from the COUNTY payment for Services performed through the termination date, but in no event shall CONSULTANT be entitled to payment for Services not performed or any other damages from the COUNTY.

ARTICLE THIRTEEN

TRUTH IN NEGOTIATION REPRESENTATIONS

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

13.2. CCNA Projects: In accordance with provisions of Section 287.055, (5)(a), Florida Statutes, the CONSULTANT agrees to execute the required Truth-In-Negotiation Certificate, attached hereto and incorporated herein as Schedule D, certifying that wage rates and other factual unit costs supporting the compensation for CONSULTANT’s services to be provided under this Agreement and each subsequent Work Order issued hereafter, if any, are accurate, complete and current at the time of the Agreement or such subsequent Work Order. The CONSULTANT agrees that the original price as set forth in each subsequent issued Work Order, if any, and any additions thereto shall be adjusted to exclude any significant sums by which the COUNTY determines the price as set forth in the Work Order was increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs. All such adjustments shall be made within one (1) year following the end of the subject Work Order.

ARTICLE FOURTEEN

CONFLICT OF INTEREST

14.1. CONSULTANT represents that 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. CONSULTANT further represents that no persons having any such interest shall be employed to perform those services.

ARTICLE FIFTEEN

MODIFICATION

15.1. No modification or change in this Agreement shall be valid or binding upon either party unless in writing and executed by the party or parties intended to be bound by it.

15.2. In the event that the need for changes to the Services under a Work Order may arise during the course of the work, the associated tasks may be modified at the request of the Project Manager or his designee. Written authorization from the Project Manager will be required in accordance with the Procurement Ordinance, as amended, and Procedures. For any changes that exceed an existing Work Order amount, the Work Order shall be modified to reflect the increase prior to any related Services being performed.

15.3. All duly executed modifications to Work Orders (including all written modifications or Changes thereto) are hereby incorporated into and made a part of this Agreement by reference.

ARTICLE SIXTEEN

NOTICES AND ADDRESS OF RECORD

16.1. All notices required or made pursuant to this Agreement to be given by the CONSULTANT to the COUNTY shall be in writing and shall be delivered by hand, email, or by United States Postal Service Department, first class mail service, postage prepaid, addressed to the following the COUNTY's address of record:

Board of County Commissioners for Collier County, Florida

Division Name: _____________________________________________ Division Director: _____________________________________________

Address: _____________________________________________

Administrative Agent/PM: _____________________________________________ Telephone: _____________________________________________ E-Mail(s): _____________________________________________

16.2. All notices required or made pursuant to this Agreement to be given by the COUNTY to the CONSULTANT shall be made in writing and shall be delivered by hand, email or by the United States Postal Service Department, first class mail service, postage prepaid, addressed to the following CONSULTANT's address of record:

Company Name: _____________________________________________ Address: _____________________________________________

Authorized Agent: _____________________________________________ Attention Name & Title: _____________________________________________ Telephone: _____________________________________________ E-Mail(s): _____________________________________________

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

ARTICLE SEVENTEEN

MISCELLANEOUS

17.1. The CONSULTANT, in representing the COUNTY, shall promote the best interests of the COUNTY and assume towards the COUNTY a duty of the highest trust, confidence, and fair dealing.

17.2. No modification, waiver, suspension or termination of the Agreement or of any terms thereof shall impair the rights or liabilities of either party.

17.3. This Agreement is not assignable, or otherwise transferable in whole or in part, by CONSULTANT without the prior written consent of the COUNTY.

17.4. Waivers by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement.

17.5. The headings of the Articles, Schedules, Parts and Attachments as contained in this Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions in such Articles, Schedules, Parts and Attachments.

17.6. This Agreement, including the referenced Schedules and Attachments hereto, constitutes the entire agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matter set forth herein, and any such prior agreements or understanding shall have no force or effect whatever on this Agreement.

17.7. Unless otherwise expressly noted herein, all representations and covenants of the parties shall survive the expiration or termination of this Agreement.

17.8. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

17.9. The terms and conditions of the following Schedules attached hereto are by this reference incorporated herein:

Schedule A WORK ORDER Schedule B RATE SCHEDULE Schedule C INSURANCE Schedule D CCNA Projects: TRUTH IN NEGOTIATION CERTIFICATE Schedule E Other: __________________________________________ Solicitation # ______________, including all Attachment(s), Exhibit(s) and Addendum/Consultant’s Proposal

17.10. Grant Funded Projects: In the event of any conflict between or among the terms of any of the Contract Documents and/or the COUNTY’s Board approved Executive Summary, the terms of the Agreement shall take precedence over the terms of all other Contract Documents, except the terms of any Supplemental Grant Conditions shall take precedence over the Agreement.