RFQ_26-0068BW_Draft_Professional_Service_Agreement.pdf

Contract Number _______________________ Vendor Number ________________________

LEE COUNTY PORT AUTHORITY

PROFESSIONAL SERVICES AGREEMENT

RFQ 26-0068BW General Planning and EnvironmentalServices For the Lee

County Port Authority - Continuing Contract

THIS AGREEMENT is entered this _____ day of _____________, 20____, between the LEE COUNTY PORT AUTHORITY, a political subdivision and special districtoftheStateofFlorida("Authority")locatedat11000TerminalAccessRoad,Suite 8671, Fort Myers, Florida, 33913, and (consultant name), a (state) corporation, authorized to do business in the State of Florida, and having a business address of XXX, FEI No. XXX, ("Consultant").

W I T N E S S E T H:

WHEREAS, Authority desires to enter a continuing contract to obtain the professional general planning and environmental services of Consultant to benefit variousAuthorityprojectsattheSouthwestFloridaInternationalAirportandPageField General Aviation Airport in Fort Myers, Florida; and

WHEREAS, Consultant has submitted Letters of Qualifications seeking to provide those services and represents that it has expertise in thetypeofprofessional services required; and

WHEREAS, Authority has conducted a competitive selection process in accordance with the provisions of the Consultants’ Competitive Act, Chapter287.055, Florida Statutes and under the terms of the Port Authority Purchasing Manual procedures to obtain the professional services described above and has selected Consultant to provide those services; and

WHEREAS, the Parties have agreed that this Agreement is intended to be a “Continuing Contract”.

NOW, THEREFORE, in consideration of the above, the terms and provisions contained herein, and the mutual consideration described below, the parties agreeas follows:

ARTICLE 1 -RECITALS

The recitals as set forth above are true and correct and are incorporated into the terms of this Agreement as if set out herein at length.

ARTICLE 2 -SCOPE OF SERVICES

2.1. Consultantshallprovideprofessionalplanningandenvironmentalservices to Authority on a continuing basis, as described in Exhibit “A”, "Scope of Services," attached to this Agreement and incorporated herein, and as assigned by Authority during the term of this Agreement. TheseservicesmayincludeservingasAuthority's professional planning and environmental consultant for various projects and providing the customary services associated therewith.

2.2. ConsultanthasrepresentedtoAuthoritythatithasexpertiseinthetypeof professionalservicesthatwillberequiredbytheScopeofServices. Consultantagrees thatallservicesprovidedbyConsultantunderthisAgreementaresubjecttoAuthority’s review and approval and shall be performed according to the normal and customary standardsofprofessionalpracticeforfirmswithspecialexpertiseinthetypeofservices required by this Agreement, and in compliance with all laws, statutes, ordinances, codes, rules, regulations and requirements of any governmental agencies which regulateorhavejurisdictionoverthoseservices. IfaConsultantbecomesawareofany conflicts in these requirements, the Consultant shall notify Authority ofsuchconflictin writing and utilize its best professional judgment to resolve the conflict.

ARTICLE 3 -TERM OF AGREEMENT

The term of this Agreement commences on the date first written above and continuesforatermofthree(3)yearsfromthatdate(the“ExpirationDate”),orthedate Consultant completes, and Authority accepts, any work assigned by a Contract AmendmentorTaskAuthorizationissuedbeforetheExpirationDate,whicheveroccurs last. If a ContractAmendmentorTaskAuthorizationisissuedthatwillrequireworkto continue beyond theExpirationDate,neitherAgreementnorAuthorizationmayextend the term of this Agreement for more than six (6) months from the Expiration Date.

ARTICLE 4 -CONSULTANT'S RESPONSIBILITIES

The Consultant’s responsibilities are, but not limited to, the following:

4.1. Obtain and maintain throughout the term of this Agreement all licenses requiredtodobusinessintheStateofFloridaandinLeeCounty,Florida,including,but not limited to, all licenses required by any governmental agency responsible for regulating and licensing the professional services provided by Consultant under this Agreement.

4.2. Employand/orretainqualifiedpersonneltoprovideallservicesunderthis Agreement that relate to professional services which, under Florida law, require a license, certificate of authorization or other form of legal entitlement to practice such services.

4.3. Employ and designate a qualified licensed professional to serve as Consultant’s Project Manager ("Project Manager"). Consultant must designate its Project Manager in writing within five (5) calendar days after receiving an executed originalofthisAgreement. Consultant'sProjectManagerdesignationmustbeexecuted by the proper officers of Consultant, and shall acknowledge that the Project Manager shall have full authority to bindandobligateConsultantonallmattersarisingoutofor relating to this Agreement. The Project Manager shall be specifically authorized and responsible to act on behalf of Consultant with respect to directing, coordinating and administering all aspects of the services provided under this Agreement. The person selected as Consultant's Project Manager will be subject to the prior approval and acceptanceofAuthority. ConsultantfurtheragreesnottochangeitsdesignatedProject Manager,orthelocationordutiesassignedtotheProjectManager,withoutpriorwritten consent of Authority.

4.4 PromptlyremoveandreplacetheProjectManager,oranyotherpersonnel employed or retained by Consultant, or any subconsultant or subcontractor, or any personnel of any such subconsultant or subcontractor, engaged by Consultant to provide servicesunderthisAgreement,withinfourteen(14)calendardaysofreceiptof a written request from Authority. Authority may make such requests with or without cause. However, if day fourteen (14) falls on a Saturday, Sunday, or Authority recognized holiday, the deadline shall fall to the next day or non-Authorityrecognized holiday.

4.5. The work and/or services to be provided and/or performed by the Consultant and by any subconsultant or subcontractor, or any personnel of any such subconsultant or subcontractor, engaged by Consultant to provide services under this Agreement shall be done in accordance with the generally accepted standards of professional practice and in accordance with the laws, rules, regulations, ordinances, codes, policies, standards or other guidelines issued by thosegovernmentalagencies whichhavejurisdictionoveralloraportionofthisprojectandwhichareineffectatthe timetheAuthorityapprovesthisAgreement,orwhichmaysubsequentlybechangedor revised.

Preparing and submitting all required applications and other supportive information necessary to assist the Authority in obtaining all reviews, approvals and permits, with respect to the Consultant’s design, drawings and specifications required byanygovernmentalbodyhavingauthorityovertheproject. Anyfeesrequiredforsuch reviews, approvals or permits will be covered by a check issued by the Authorityand made payabletotherespectivegovernmentalbodyupontheConsultantfurnishingthe Authority satisfactory documentation of such fees. The Consultant will be similarly responsible for preparing and submitting allrequiredapplicationsandothersupportive information necessary to assist the Authority in obtaining any renewals and/or extensions ofreviews,approvalsorpermitsthatmayberequiredwhilethisAgreement isineffect. TheAuthorityshall,attheConsultant‘srequest,assistinobtainingrequired signatures andprovidetheConsultantwithallinformationknowntobeavailabletothe AuthoritysoastoassisttheConsultantinthepreparationandsubmittalofanyoriginal, renewal or extension of required reviews, approvals or permits.

4.6 Comply with all federal, state and local laws and building requirements.

Consultant shall devote particular attention to complying with Federal Aviation Administration regulations, requirements andAdvisoryCirculars. TheConsultantmust alsocomplywithallpertinentgrantagreementsandgrantconditionsapplicabletoeach ContractAmendmentorTaskAuthorization. AuthorityshallprovidetheConsultantwith onecopyofanyspecificanduniquegrantorregulatoryrequirementsonataskbytask basis prior to or concurrent with issuance of any Contract Amendment or Task Authorization.

4.7 Be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all data, studies, reports, memoranda, other documents and other services, work and materials performed, provided, and/or furnished by Consultant. The Consultant shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in such data, studies and other services, work and materials resulting from the negligent act, errors or omissions or intentional misconduct of Consultant.

4.8 Agree that neither review, approval, nor acceptance by Authority of any data, studies, reports, memoranda, and incidental professional services, work or materials furnished hereunderbytheConsultantshallinanywayrelieveConsultantof responsibility for the adequacy, completeness and accuracy of its services and the quality of Consultant’s workandmaterials. FurtherthatAuthority'sreview,approvalor acceptance of, nor payment for, any part of the Consultant's services, work and materialsshallbeconstruedtooperateasawaiverofanyoftheAuthority'srightsunder thisAgreementoranycauseofactionitmayhavearisingoutoftheperformanceofthis Agreement.

4.9. If requested by Authority, maintain for the duration of this Agreement a localofficeinSouthwestFloridastaffedfull-timebyConsultant'sProjectManager. The local office must be Consultant's main place of business, or an independent branch office of Consultant's business, and not merely the office of a subconsultant or subcontractor providing desk space to the Project Manager.

4.10. Agreestopromptlyrepairand/orreplace,orcausetohaverepairedand/or replaced,atitssolecostandexpenseandinamanneracceptabletoandapprovedby the Authority, any propertydamagearisingoutof,orcausedby,thewillfulornegligent acts of the Consultant, or of its sub-consultants and/or subcontractors. This Consultant’sobligationunderthissub-articledoesnotapplytopropertydamagecaused by any other Consultant or Contractor engaged directly by the Authority.

TheAuthorityreservestheright,shouldtheConsultantfailtomakesuchrepairs and/or replacement within a reasonable period of time, to cause such repairs and/or replacement to be made by others and for all costs and expenses associated with havingsuchrepairsand/orreplacementdonetobepaidforbytheConsultant,orbythe Consultant reimbursing the Authority for all such costs and expenses.

4.11. AcknowledgethatAuthorityisconductinganongoingcapitalimprovement program at the Southwest Florida International Airportandcontinuingrenovationsand improvementstoPageFieldGeneralAviationAirport.Accordingly,Consultantagreesto coordinate the performance of its services under this Agreement as directed and required byAuthoritysoasnottointerferewith,disruptordelayanywork. Consultant further agrees to coordinate its efforts with Authority’s other architects, engineers, designers, or construction managers for that work.

ARTICLE 5 -ADDITIONAL SERVICES OF CONSULTANT

AdditionalServicesrefertoprofessionalservicesrequestedbyAuthoritythatare not specifically set out in the Scope of Services. Should the Authority request ConsultanttoprovideandperformAdditionalServices,theConsultantagreestoprovide andperformsuchAdditionalServicesasmaybeagreedtoinwritingbybothpartiesto this Agreement.

Additional Services may include, but are not limited to:

5.1. Preparation of applications and supporting documents (except those alreadytobefurnishedunderthisAgreement)forprivateorgovernmentalgrants,loans or advances in connection with any Project or Task.

5.2. Servicesresultingfromsignificantchangesinthegeneralscope,extentor character of any assignmentincluding,butnotlimitedto,changesinsize,complexity, Authority's schedule or character of construction; and revising previously accepted studies,reports,designsordocumentswhensuchrevisionsarerequiredbychangesin laws, rules, regulations, ordinances, codes or orders enacted subsequent to and not reasonably anticipated prior to the preparation of such studies, reports, designs or documents, or that are due to any causes beyond Consultant's control and fault.

5.3. Providing models for Authority's use.

5.4. Furnishing services of independent professional associates and consultants for services other than those to be provided by Consultant under this Agreement.

5.5. Services during out-of-town travel requiredofConsultantandasdirected by Authority, other than visits to any Project site or Authority's offices.

5.6. Assistance in connection with bid protests, rebidding or renegotiating contracts for construction, materials, equipment or services, except as otherwise provided for herein.

5.7. Preparing to serve or serving as a consultant or witness for Authority in any litigation, or other legal or administrative proceeding, involving any assignment (except for assistance in any litigation or other legal or administrative proceeding, involving any assignments that are included as part of the services to be provided herein).

5.8. Additional services rendered by Consultant in connection with any assignment,nototherwiseprovidedforinthisAgreementornotcustomarilyfurnishedin accordance with generally accepted professional planning and environmental service practice.

Any additional services agreed to by thepartieswillconstituteacontinuationof the professional services requested under this Agreement and must be provided and performed in accord with the terms of this Agreement and any amendment to this Agreement.

Any amendment shall describe: (1) the scope of the additional services requested; (2) the basis of compensation; and (3) the period of time or performance schedule for completion of the additional services.

ARTICLE 6 -RESPONSIBILITY FOR ESTIMATES

6.1 Budget Evaluations - If the Consultant is required to evaluate a project budget and prepare preliminary or detailed estimatesofprobableconstructioncostfor any project or portion of a project, Consultant shall insure that all evaluations and estimates represent Consultant's best judgment as a professional familiar with the construction industry. For purposes of the Liability Provisions of this Article only, the Consultant’s evaluations or estimate(s) shall be considered valid and effective for a period of six (6) months from the dateAuthorityacceptstheevaluationorestimate(s).

Budget in this case applies to the Authority’s budget and not to the budget as a project-controlleddocument. Abudgetispreparedwiththeuseofflowsheets,layouts, and equipment details. This type of evaluation shall be accurate within twenty-five percent (25%) of the cost of construction of the Project. If the Authority solicits and receives bids or price proposals in which the lowest exceeds 25%oftheConsultant’s Budget Evaluation, then the cost associated with preparing the BudgetEvaluationwill be repaid by Consultant to Authority or deducted from any fees owing Consultant by Authority.

6.2. Construction Estimates - When preparing and submitting preliminary or detailed estimates of probable construction cost to the Authority for any project or portionofaproject,theConsultant,byexerciseofitsexperience,effort,knowledgeand judgment, shall insure that all estimates represent Consultant's best judgment as a professional familiar with the construction industry and shall be held accountable, responsible and liable for the accuracy and completeness of any and all such cost estimates.

A. AconstructioncostestimateforpurposesofthisAgreementisanestimate prepared on the basis of well-defined engineering/architectural data and on detailed information set forth in specifications, designs or drawings which are to be used asa basis for obtaining bids or price proposals for constructing a project. This type of estimate shall be accurate within plus or minus ten percent (10%) of the cost of the constructionoftheproject.TheaccuracyandreliabilityofaConstructionCostEstimate isvitaltotheAuthority'sinterestsbecauseitmaybeusedforsuchpurposesas,butnot limited to, the following: budgeting; obtaining, allocating or obligating funds for the project; and evaluating ordeterminingthereasonablenessandacceptablenessofbids or price proposals for construction projects.

B. Consultant shall certify all estimates of probable construction costs and project completion dates prepared by Consultant. All certifications shall be in a form approved by Authority.

C. If the Authority solicits and receives bids or price proposals from contractors on a construction project based on specifications, design, drawings anda Construction Cost Estimate prepared by the Consultant, and the lowest bid or price proposal, submitted by a responsive and responsible bidder or proposer,exceedsthe amount of the Consultant's Construction Cost Estimate by more than the five percent (5%), the Consultant shall, uponnotificationbytheAuthority,assumeresponsibilityfor and proceed to provide and perform the following services without additional compensation:

1. Consultantwill,subjecttothereviewandapprovaloftheAuthority, modify at its expense the design, specifications, drawings and related bidding and contractdocumentstotheextentnecessarytoreducetheanticipatedconstructioncosts so that the re-solicitation of bids or price proposals willrealizebidsorpriceproposals being received that are within the range of accuracy established for the Construction Cost Estimate. Any such modifications made by the Consultantshallnotconflictwith the functional or operational requirements established by the Authority for the project and set forth in the Agreement or Task Authorization(s) issued thereto, nor shall any such modifications conflict with established rules, regulations, requirements or professionalstandardspertainingtothedesign,specificationsordrawingspreparedby the Consultant, nor shall such modificationsadverselyaffectthesafeuseoroperation of the constructed project.

2. If (i) the Consultant's modification of the design, specifications, drawingsandrelatedbiddingandcontractdocuments,and(ii)there-solicitationofbids or price proposals do not result in bids or price proposals being received from a responsive and responsible bidder or proposer that are within theestablishedpercent accuracyoftheConsultant'sConstructionCostEstimate,thecostsassociatedwiththe Consultant's preparation and development of the Construction Cost Estimate shall be recoverable by the Authority by an appropriate reduction in the Consultant's invoice requesting payment for services rendered.

D. To determine compliance with the accuracy requirement established for the Construction Cost Estimate prepared by the Consultant, the amount of the Construction Cost Estimate shall be adjusted from the date the Construction Cost Estimate was received by the Authority until the date bids or price proposals are received bytheAuthority,byapplyingthepercentchangeinthe"20CitiesCostIndex" as published in the ENR (formerly Engineering News-Record), a McGraw-Hill, Inc.

publication.

E. If,inresponsetoitssolicitation,theAuthorityreceiveslessthanthreebids orpricedproposalsforaproject,thereisthepotentialthatsuchbidsorpriceproposals may not be a realistic representation of the costs expected to be associated with the Project. If under such circumstances, and if in the professional judgment of the Consultant, the low bid or thelowpriceproposalreceivedfromaresponsivebidderor proposer does not realistically represent the costs associated with the Project, the Consultant may deem it appropriate to recommend that the Authority reject any such bid(s) orpriceproposal(s). IfundersuchcircumstancestheAuthorityconcurswiththe Consultant's recommendation and rejects the bid(s) or priceproposal(s),theAuthority willnotholdtheConsultantresponsibleto,norwilltheAuthorityrequiretheConsultant to, modify the specifications, design, drawings and related bidding and contract documents as set forth above.

F. Notwithstanding the above, Consultant will not be required to guarantee that bids or negotiated prices will not vary from any estimateofprobableconstruction cost prepared or agreed to by Consultant.

ARTICLE 7 -AUTHORITY'S RESPONSIBILITIES

The Authority’s responsibilities are the following:

7.1. DesignateinwritingaProjectManagertoactasAuthority’srepresentative withrespecttotheissuanceofContractAmendmentorTaskAuthorizationsforservices rendered under this Agreement (“Authority Project Manager”). TheAuthority’sProject Manager, Executive Director, Deputy Executive Director - Development or the Development Division Director shall have authority to execute Contract Amendments, Task Authorizations, and any modifications or changes to Consultant’s (1) scope of services;(2)timeofcommencementordelivery;or(3)compensationrelatedtoservices required under any Contract Amendment or TaskAuthorization. TheAuthorityProject Manager shallhaveauthoritytotransmitinstructions,receiveinformation,andinterpret anddefineAuthority’spoliciesanddecisionswithrespecttoConsultant’sservicesunder this Agreement. The Authority’s Project Manager shall review and make appropriate recommendations on all requests for payment for services submitted by Consultant.

7.2. The Authority’s Project Managerisnotauthorizedto,andshallnot,issue any verbal orders or instructions to Consultant that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatever the: (1) scope of services provided and performed by Consultant hereunder; (2) the time Consultant is obligated to commence and complete all such services; or (3) the compensation Authority is obligated or committed to pay Consultant.

7.3. Provide all criteria and information requested by Consultant as to Authority’s requirements for any project or task, including design objectives and constraints,space,capacityandperformancerequirements,flexibilityandexpandability, and budgetary limitations.

7.4. Upon request from Consultant,makeavailabletoConsultantallavailable information in Authority’s possession pertinent to any Contract Amendment or Task Authorization, including existing drawings, specifications, shop drawings, product literature, previous reports and any other data concerning design or construction of a project.

7.5. Arrange access, in accord with Authority's security regulations, for ConsultanttoenteranyProjectsitetoperformservices. Consultantacknowledgesthat Authority may provide such access during times that are not the Consultant's normal business hours.

7.6. Notify Consultant of any defects or deficiencies in services rendered by Consultant.

ARTICLE 8 -CONTRACT AMENDMENTS, TASK AUTHORIZATIONSAND TIME

FOR COMPLETION OF SERVICES

8.1. Consultant shall not commence work under this Agreement until it receivesafullyexecutedcopyofthisAgreementandawrittenContractAmendmentor TaskAuthorization,insubstantiallytheformattachedandincorporatedbyreferenceas Exhibit "E," and signed by both parties. Each Contract Amendment or Task Authorization must include a lump sum or not-to-exceed compensation amount anda schedule of services required or a delivery date for all services.

8.2. All tasks outlined in the Agreement are contingent upon execution of a Task Authorization Form.

8.3 Thetimelyperformanceandcompletionoftherequiredservices,workand materialsisvitallyimportanttotheinterestsoftheAuthority. Timeisoftheessencefor allofthedutiesandobligationscontainedinthisAgreementthereto. TheAuthoritymay suffer damages if the Consultant does not accomplish and complete the required services in a timely manner. The Consultant agrees toemploy,engage,retainand/or assign an adequate number of personnel throughout the period of this Agreement so that all services will be provided, performed, and completed in a timely and diligent manner throughout.

8.4. If Consultant is obstructedordelayedintheprosecutionorcompletionof its services as a resultofunforeseeablecausesbeyondthecontrolofConsultant,and notduetoitsownfaultorneglect,includingbutnotrestrictedto:actsofGodorofpublic enemies, acts of government or of Authority, fires, floods, epidemics, quarantine regulations, strikes or lock-outs, then Consultant must notify the Authority in writing within seventy-two (72) hoursaftercommencementofsuchdelay,statingthecauseor causesthereof,orbedeemedtohavewaivedanyrightwhichConsultantmayhavehad to request a time extension.

8.5. No interruption, interference, inefficiency, suspension or delay in the commencement or progress of Consultant’s services from any cause whatsoever, includingthoseforwhichAuthoritymayberesponsibleinwholeorinpart,shallrelieve Consultant of its duty to perform services or give rise to any right to damages or additionalcompensationfromAuthority. Consultant’ssoleremedyagainstAuthoritywill betherighttoseekanextensionoftimetoitsschedule. Thisparagraphshallexpressly apply to claims for early completion, as well as claims based on late completion.

Provided,however,ifthroughnofaultorneglectofConsultant,theservicesrelatingtoa specific Contract Amendment or Task Authorization hereunder have not been completedwithintwenty-four(24)monthsofthedatethatContractAmendmentorTask Authorization was signed by both parties, Consultant’scompensationforthatContract Amendment or Task Authorization shall be equitably adjusted, with respect to those services that have not yetbeenperformed,toreflecttheincrementalincreaseincosts experienced by Consultant after expiration of said twenty-four (24) month period.

8.6. If Consultant fails to commence, provide,performorcompleteanyofthe services to be provided hereunder in a timely and diligent manner, in addition to any otherrightsorremediesavailabletoAuthorityhereunder,Authorityatitssolediscretion and option maywithholdanyandallpaymentsdueandowingtoConsultantuntilsuch time as Consultant resumes performance of its obligations in such amannersoasto establish to Authority’s satisfaction that Consultant’s performance is or will shortly be back on schedule.

ARTICLE 9 -COMPENSATION AND METHOD OF PAYMENT

9.1. Authority will pay Consultant for all requested and authorized services providedbyConsultantunderthisAgreementandassetforthintheindividualContract AmendmentsorTaskAuthorizations,basedontheFeeSchedulesetoutinExhibit“B”, “Basis of Compensation,” which is attached hereto and incorporated by reference.

Consultant will be compensated on a lump-sum basis on completion of a particular ContractAmendmentorTaskAuthorizationoverthecourseofConsultant’sservicesfor Work in Progress, based on a monthly statement of services, as follows:

A. LumpSum-UponcompletionandAuthority'sacceptanceofConsultant’s work on a particular Project or Task, Authority will pay Consultant a lump sum as specified in the Task Authorization or Contract Amendment.

“Lump Sum is a contracting method utilized by the Authority whereby scope equals fee. Lump Sum fees shall be based on assumptions/estimates of personnel, hourly rates, man hours, indirect expenses, time durations, etc. needed to effectively accomplish the scope of work. As such, the project assumptions made during good faithnegotiationsarethebasisforthe Lump Sum fee. TheLumpSumscopeequalsthe Lump Sum fee. As such,theLumpSumfeeisnotguaranteedregardlessofscopeor time impacts to the project. If at any time during the progression of work under this Contract the project assumptions and resulting agreed upon scope of work substantially or materially change, then the Lump Sum fee will be adjusted to reflect these changes by a Contract Amendment.”

LumpSumFeesarenegotiated,understoodandagreedtoincludealldirectand indirectlaborcosts,personnelrelatedcosts,overheadandadministrativecosts,costsof sub-consultant(s) and/or subcontractor(s), out-of-pocket expenses and costs, professional service fee(s) and any other costs or expenses which maypertaintothe services and/or work to be performed, provided and/orfurnishedbytheConsultantas may be required and/or necessary to complete each and every task set forth in the Scope of Professional Services, or as may be set out in subsequent Contract Amendments, and/or Task Authorizations agreed to in writing by both parties to this Agreement.

ThepartiesacknowledgethatLumpSumfeesarenegotiatedbasedontheirbest estimateofthenumberofpersonnelrequired,theirhourlyrates,andthecostofindirect expenses, materials and general conditions required to complete a specific Projector Task. Each Lump Sum amount is therefore based on a good faith estimate and the Lump Sum will be subject to adjustment by a revised Task Authorization or Contract Amendment if the project assumptions substantially or materially change over the course of the services.

If the scope of Consultant’s services for a particular Task or Project are substantially reduced, due to lack of funding or for any other reason, or Consultant’s services are suspended or this Agreement expires or is terminated prior to the completionofaTaskorProject,ConsultantshallnotbeentitledtoclaimtheentireLump Sum payment amount for that Task or Project, but will be compensated as set out in Sections 9.4 through 9.6, below.

B. Work in Progress - Monthly Statements - Consultant may submit one invoice to Authority’s Development Division each calendar month covering services rendered andcompletedduringtheprecedingcalendarmonth. Consultant’sinvoice(s) must be itemized to correspond to the basis of compensation as set forth intheTask Authorization or Contract Amendment, expressed as a percentageofthetotalworkto be performed under that Task Authorization or Contract Amendment.

Authority will review each Monthly Invoice Statement to determine whether the requested Consultant Invoice accurately accounts for the work completed todate,the remaining scope of work required and the remaining schedule of subconsultant or subcontractor work required to complete the assigned Task or Project. If Authority determines that the timeandcostsinvoiceddoesnotreflectthenegotiatedConsultant scope of work for the specific Contract Amendment or Task Authorization and the agreedprojectschedule,theAuthoritymayreducetheamountoftheinvoicetobepaid accordingly.

C. Non-Personnel Reimbursable Expenses – If authorized, Authority will further compensate Consultantfornon-personnelreimbursableexpensesandcostsas set out in Exhibit “B-1”, attached and incorporated by reference.

D. Not-To-Exceed Fee(s) - When all, or any portion, of the Consultant's compensationforperformingservicesrequiredintheScopeofServicesoranyContract AmendmentorTaskAuthorization(s),isestablishedonaNot-to-Exceed(N.T.E.)amount basis,itismutuallyunderstoodandagreedthatsuchcompensationforeachCompleted Task shall be made on the following basis:

1. For the actual hours necessary, required and expended by the Consultant's professional and technical personnel, multiplied by the applicable hourly rates for each classification or position as set forth in Exhibit "B" to this Agreement; and

2. For the actual necessary, required and expended non-personnel reimbursable expensesandcosts,multipliedbytheapplicablechargeforeachitemas set forth in Exhibit "B-1"; and

3. With theunderstandingandagreementthattheAuthorityshallpay the Consultant for all such costs and expenses within the established Not-to-Exceed amountforeachTaskorSub-TasksubjecttotheConsultantpresentinganitemizedand detailed invoice with appropriate supporting documentation attached thereto to show evidence satisfactory to the Authority covering all such costs and expenses; and

4. With the understanding and agreement that the Consultant's invoices and all payments tobemadeforallNot-to-Exceedamountswillbesubjectto the review, acceptance and approval of the Authority; and

5. With the understandingandagreementthatwhentheConsultant's compensation is established on a Not-to-Exceed basis for a specific Task(s) or Sub-Task(s) the total amount of compensation to be paid the Consultant to cover all personnelcosts,non-personnelreimbursableexpensesandcosts,andSub-Consultant andSub-ContractorcostsforanysuchspecificTask(s)orSub-Task(s)shallnotexceed theamountofthetotalNot-to-Exceedcompensationestablishedandagreedtoforeach specific Task(s) or Sub-Task(s).

E. Authorization to Commit Funds - All Tasks outlined in the Agreement are contingent upon execution of a Contract Amendment or Task Authorization Form.

The Board ofPortCommissioners'approvalandexecutionofthisAgreementdoesnot commit the Authority to the expenditure of any federal, state, local or funds for any service listed in this Agreement. Only by execution of a Contract Amendment and subsequent Task Authorization is the expenditure of funds authorized and committed.

ConsultantandAuthorityunderstand,recognizeandagreethatthereisnopresumption of funding availability, authorization to work or commitment for future work until an appropriate Contract Amendment or Task Authorization is executed by both parties.

Tasks may be authorized in whole or in part.

9.2. Paymentswillbemadeuponreceiptofaproperinvoiceandincompliance with FL § Chapter 218, otherwise known as the “Florida Prompt Payment Act,” and, pursuant to the Authority’s payment policies as described herein. Authority shall issue payment to Consultantwithinforty-five(45)calendardaysafterreceiptofaninvoicein an acceptable form and containing the requested breakdown and detailed description and documentation. If Authority objects or takes exception to the amount of any Consultant invoice, Authority shall notify Consultant in writing of such objection or exception within the forty-five (45) day period.However,ifdayforty-five(45)fallsona Saturday, Sunday, or Authority recognized holiday, the deadline shall fall to the next Monday or non-Authority recognized holiday. If such objection or exception remains unresolved at the end of the forty-five (45) day period, Authority shall withhold the disputed amount and make payment to Consultant of all amounts not in dispute.

Payment of any disputed amount will be resolved by the mutual agreement of the parties.

9.3. FailurebyConsultanttofollowtheinstructionssetoutaboveshallresultin an unavoidable delay in payment by Authority.

9.4. If this Agreement is terminated for the convenience of the Authority, the Authority shall compensate the Consultant for: (1) all services performed prior to the effective date of termination; (2) reimbursable expenses then due;and(3)reasonable expenses incurred by the Consultant ineffectingtheterminationofservicesandwork, and incurred by the submittal to the Authority of any Project documents.

9.5. IfAuthoritysuspendstheConsultant'sservicesorworkonallorpartofthe servicesrequiredbythisAgreement,theAuthorityshallcompensatetheConsultantfor all services performed prior to the effective date of suspension and any reimbursable expensesthenduealongwithanyreasonableexpensesincurredorassociatedwith,or incurred as a result of such suspension.

9.6. If services required under this Agreement are terminated, canceled, or decreaseddueto: (1)termination;(2)suspensioninwholeorinpart;and(3)and/orare modified by the subsequent issuance of Contract Amendment(s); the Consultantshall not be entitled to receive compensation for anticipated fees; profit, general and administrative overhead expenses or any other anticipated income or expense which may be associated with the services which are terminated, suspended, eliminated, canceled or decreased.

9.7. TheConsultantmaycross-utilizefundsfromthevariousTasksassignedto accomplishtheoverallpurposeandgoalofthisAgreementprovidedtheConsultanthas obtained prior writtenapprovalfromtheAuthority. TheAuthorityshallreviewtheneed for such a requestandtheimpactonotherassignedTasks. Indoingso,theAuthority retains the authority to delete any Task outlined in the Scope of Services.

ARTICLE 10 -FAILURE TO PERFORM

If a Consultant fails to commence, performand/orcompleteanyoftheservices and work required under this Agreement inatimelyanddiligentmanner,theAuthority may consider such failure as cause to terminate thisAgreement. Asanalternativeto termination,theAuthoritymay,atitsoption,withholdanyorallpaymentsdueandowing to the Consultant, not to exceed the amount of the compensation for the work in dispute, until such time as the Consultant resumes performance of its obligations in accordance with the time and schedule of performance requirements set forth in this Agreement.

ARTICLE 11 -PUBLIC RECORDS

Consultant acknowledges that any information concerning its services may be exempt from disclosure under the Florida Public Records Law as follows:

11.1 Airport Security Plans - The Southwest Florida International Airport security plan, and other critical operational materials designated by the Authority, are exempt from disclosure as public records under Section 331.22, Florida Statutes (2001).

These materials include, but are not limited to,anyphotograph,map,blueprint, drawing,orsimilarmaterialthatdepictscriticaloperationalinformationthattheAuthority determines could jeopardize airport security if generally known.

11.2 Building Plans - Consultant further acknowledges that Section 119.07(3)(b)1., Florida Statutes, exempts building plans, blueprints, schematic drawings, and diagrams depicting internal layouts and structural elements of a public building from the disclosure requirements of the Florida Public Records Law.

11.3 Airport Security Systems - Section 281.301, Florida Statutes, exempts information relating tothesecuritysystemsforanypropertyownedbyorleasedtothe Authority andallinformationrelatingtothesecuritysystemsforanyprivately-ownedor leased property which is in Authority's possession, including all records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to or revealing such systems or information, and all meetings relating directly to or that wouldreveal such systems or information, is confidential and exempt from disclosure.

Section 119.071(3)(a)1. and 2., Florida Statutes, reiterates the security system exemption and expands upon it to include threatassessments;threatresponseplans;

emergency evacuation plans; shelter arrangements; security manuals; emergency equipment; and security training as confidential and exempt from disclosure.

Consultant agrees, during the term of this Agreement, nottodivulge,furnishor makeavailabletoanythirdperson,firm,ororganization,withoutAuthority’spriorwritten consent, or unless incident to the proper performance of Consultant’s obligations hereunder,orinthecourseofjudicialorlegislativeproceedingswheresuchinformation has been properly subpoenaed, any non-public informationconcerningtheservicesto be rendered by Consultant or any sub-consultants or subcontractors pursuant to this Agreement. Consultant shall require all of its employees, sub-consultants and subcontractors to comply with the provisions of this paragraph.

ARTICLE 12 –CONSULTANT’S PUBLIC RECORDS OBLIGATIONS

Consultant specifically acknowledges its obligation to comply with Section 119.0701, Florida Statutes, with regard to public records, and shall:

A. Keep and maintain public records that ordinarily and necessarily would be required by the Authority in order to perform the services required under this Agreement;

B. Upon request from the Authority,providetheAuthoritywithacopy 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 Chapter 199, Florida Statutes, or as otherwise provided by law;

C. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law; and

D. Meet all requirements for retaining public records and transfer, at nocosttotheAuthority,allpublicrecordsinpossessionofProvideruponterminationof thisAgreementanddestroyanyduplicatepublicrecordsthatareexemptorconfidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the Authority in a formatthatiscompatiblewiththe information technology system of the Authority.

IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION

OFCHAPTER119,FLORIDASTATUTES,TOTHECONSULTANT’SDUTYTO

PROVIDE PUBLIC RECORDS RELATING TO THE CONTRACT, CONTACT

THECUSTODIANOFPUBLICRECORDSAT239-590-4504,11000TERMINAL

ACCESS ROAD, SUITE 8671, FORT MYERS, FLORIDA 33919,

publicrecords@flylcpa.com; http:/flylcpa/publicrecords.

mailto:publicrecords@flylcpa.com

ARTICLE 13 -OWNERSHIP OF DOCUMENTS

Upon completion or termination of this Agreement, all records, documents, tracings, plans, specifications, maps, evaluations, reports and other technical data, otherthanworkingpapers,preparedordevelopedbyConsultantunderthisAgreement shallbedeliveredtoandbecomethepropertyofAuthority. Consultant,atitsexpense, may retain copies thereof for files and internal use.

ARTICLE 14 -MAINTENANCE OF RECORDS

Consultant will keep and maintain adequate records and supporting documentation which concern or reflect its services hereunder. The records and documentation will be retained by Consultant for aminimumoffive(5)yearsfromthe date of expiration or termination of this Agreement or the date all work under this Agreementiscomplete,whicheverislater. Authority,theFAA,theComptrollerGeneral oftheUnitedStatesoranydulyauthorizedagentorrepresentativeofanyofthemshall havetherighttoaudit,inspectandcopyallsuchrecordsanddocumentationasoftenas they deem necessary during the period of thisAgreementandduringthefive(5)year period thereafter; provided, however, such activity shall be conducted only during normal business hours.

ARTICLE 15 -INDEMNIFICATION

Consistent with the provisions of FS s.725.08,Consultantshallindemnify,hold harmlessanddefendAuthorityandLeeCounty,Florida,andtheirrespectiveBoardsof Commissioners, officers, agents, and employees, from and against any liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys' fees, that may be made or brought hereafter by anyone on account of personal injury, propertydamage,lossofmonies,orotherloss,totheextentcausedbythenegligence, recklessness, or intentional wrongful misconduct of Consultant, or anyone utilized by Consultant in the performance of this Agreement, except where such claims or damagesresultfromthegrossnegligenceorwillful,wantonorintentionalmisconductof Authority,LeeCountyortheirrespectiveBoardsofCommissioners,officers,agents,or employees. ThisobligationwillsurviveterminationoftheAgreementandacceptanceof the services provided under this Agreement and payment therefore by Authority.

ARTICLE 16 –SOVEREIGN IMMUNITY

ConsultantacknowledgesandagreesthatAuthoritydoesnotwaiveitssovereign immunitybyenteringintothisAgreementandthatnothinghereinshallbeinterpretedas a waiver of Authority’s rights,includingthelimitationofwaiverofimmunityperSection 768.28, Florida Statutes, or any other statute, and Authority expressly reserves those rights to the fullest extent allowed by law.

ARTICLE 17 –INSURANCE

During the term of this Agreement, Consultant shall provide, pay for, and maintain, with companies satisfactory to Authority, the types of insurance described herein. PromptlyafterexecutionofthisAgreementbybothparties,theConsultantmust obtaintheinsurancecoveragesandlimitsassetoutbelow.Allinsuranceshallbefrom responsible companies duly authorized to do business in the State of Florida and/or responsible risk retention group insurance companies registered with the State of Florida.

IntheeventthattheConsultantengagesSub-ConsultantsorSub-Contractorsto assist the Consultant in providing or performing services or work pursuant to the requirements of this Agreement, the insurance coverages required under Article17to be provided by the Consultant shallcoveralloftheservicesorworktobeprovidedor performedbyalloftheSub-ConsultantsorSub-ContractorsengagedbytheConsultant.

However, in the event the services or work of Sub-Consultants or Sub-Contractors engaged by the Consultant is not covered by the Consultant’s Insurance Policy(s), it shall be the responsibility of the Consultant to ensure that all Sub-Consultants or Sub-Contractors have fully complied with the Authority’s insurance requirements set forth in Article 17 of this Agreement.

TheAuthorityreservestherighttorejectinsurancewrittenbyaninsureritdeems unacceptable because of poor financial condition or other operational deficiency. All insurance must be placed with insurers who are duly licensed, or authorized to do businesswithintheStateofFlorida,andwithanA.M.BestRatingofnotlessthanA-VII.

Regardlessofthisrequirement,Authorityinnowaywarrantsthattherequiredminimum insurer rating is sufficient to protect the Consultant from potential insurer insolvency.

Allpoliciesofinsuranceshallcontainprovisionsthatadvancewrittennoticeshall be given to Authority’s Risk Manager of any cancellation,intentnottorenew,material changeoralteration,orreductioninthepolicies’coverages,exceptintheapplicationof the Aggregate Limits provision of any policy. If there is a reduction in the Aggregate Limitofanypolicy,ConsultantshallimmediatelytakestepstohavetheAggregateLimit reinstated to the full extent permitted under such policy. If there is a cancellation, the provider agrees to obtain replacement coverage as soon as possible.

The acceptance by Authority of any Certificate of Insurance evidencing the insurancecoveragesandlimitsrequiredinthisAgreementdoesnotconstituteapproval or agreement by Authority that the insurance requirements have been metorthatthe insurance policies shown in the Certificates of Insurance are in compliance with the requirements of this Agreement.

AllofConsultant’sinsurancecoveragesshallbeprimaryandnon-contributoryto any insurance or self-insurance program carried by Authority and applicable to work under this Agreement and shall include waiver of subrogation in favor of Authority.

No work shall commence on any Task assigned under this Agreement unless anduntiltherequiredCertificatesofInsurancearereceivedandapprovedbyAuthority.

DuringthetermofthisAgreement,Consultantshallprovide,payfor,andmaintain,with companies satisfactory to Authority, the types of insurance described herein.

17.1. INSURANCE REQUIRED

Before starting and until acceptance of any work by Authority, Consultant shall procure and maintain insurance of the types and to the limits specified in paragraphs

17.2.1 through 17.2.6, inclusive below. All liability insurance policies obtained by Consultant to meet the requirements of this Agreement, other than Workers’ Compensation and Employer's Liability and Professional Liability policies, shall name AuthorityasanadditionalinsuredastotheservicesofConsultantunderthisAgreement and shall contain the severability of interests provisions.

17.2. COVERAGES

The amounts and types of insurance described below are the minimum requirementsandarenotintendedtolimittheAuthority’saccesstoadditionalcoverage ifmorecoverageisavailable. Allamountsandtypesofinsuranceshallconformtothe following minimum requirements with the use of Insurance Service Office (ISO)forms and endorsements or broader where applicable:

17.2.1. Professional Liability Insurance - Consultant shall maintain professionalliabilityinsuranceinsuringitslegalliabilityarisingoutoftheperformanceof professional services under this Agreement. Such insurance shall have limits of not less than $2,000,000 each claim and $2,000,000 annual aggregate. Consultantmust continuethiscoverageforaperiodofnotlessthanfive(5)yearsaftercompletionofits services to Authority. Consultant shall promptly submit a Certificate of Insurance providingforanunqualifiedwrittennoticetoAuthorityofanycancellationofcoverageor reduction in limits, other than the application of the Aggregate Limits provision.

If the professional liability insurance is written on a claims-made basis, Consultant warrants that any retroactive date under the policy shall precede the effectivedateofthisAgreementandthateithercontinuouscoveragewillbemaintained oranextendeddiscoveryperiodwillbeexercisedforaperiodoftwo(2)yearsbeginning at the time work under this Agreement is completed.

17.2.2. CommercialGeneralLiabilityInsurance-Consultantshallmaintain commercialgeneralliabilityinsuranceonanoccurrencebasis. Coverageshallinclude, but not be limited to, Bodily Injury, Contractual for this Agreement, Independent Contractors, Broad Form Property Damage including Products and Completed Operations, and Personal and Advertising Injury.

Limits of coverage shall not be less than the following:

Each Occurrence Personal and Advertising Injury $1,000,000 General Aggregate Limits $2,000,000

17.2.3. AutomobileLiabilityInsuranceshallbemaintainedbyConsultantas toownership,maintenance,anduseofallowned,non-owned,leasedorhiredvehicles with limits of not less than:

Bodily Injury Liability per person/per accident $1,000,000 Property Damage $100,000 per accident

OR

Combined Single Limits $1,000,000 per accident

If Consultant’s services require driving Airside, business automobile liability coverage must be increased as follows:

Page Field $2,000,000 Combined Single Limit Southwest Florida International Airport $5,000,000

17.2.4. Workers’CompensationandEmployersLiabilityInsuranceshallbe maintainedbyConsultantduringthetermofthisAgreementforallemployeesengaged in the work under this Agreement, in accordancewiththelawsoftheStateofFlorida.

The amount of such insurance shall not be less than:

Workers’ Compensation Florida Statutory Requirements Employer's Liability Each Accident $1,000,000 Disease Each Employee $1,000,000

17.2.5. Environmental Liability and/or ContractorsPollution Liability Insurance and/or Errors and Omissions Liability Applicable to the Work Performed– Consultant shall maintain pollution liability insurance, including the cost of defense during the term of this Agreement and for a period of five (5) years following completion of all services under this Agreement.