RFQ17-25_Professional_Services_Agreement_DRAFT.pdf

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CITY OF WINTER PARK

PROFESSIONAL SERVICES AGREEMENT

This Professional Services Agreement (hereinafter "Contract" or "Agreement") is hereby entered into by and between the CITY OF WINTER PARK, a Florida municipal corporation, whose address is 401 South Park Avenue, Winter Park, Florida 32789 (hereinafter referred to as “CITY”), and [Firm Name], whose principal address is [Firm Address] (hereinafter referred to as “CONSULTANT”).

RECITALS

WHEREAS, CITY desires to retain professional electrical underground design and engineering services on a task-by-task basis; and

WHEREAS, CITY desires to employ CONSULTANT in connection with the services required, upon the terms and conditions hereinafter set forth, and CONSULTANT is desirous of obtaining such employment and of performing such services upon said terms and conditions.

WHEREAS, the CITY has followed the selection and negotiation process in accordance with the Florida Consultants Competitive Negotiation Act of 1973 (Chapter 287.055, Florida Statutes) as amended, through the CITY’s issuance of RFQ17-25 (“RFQ”).

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, it is agreed by and between the parties hereto as follows:

SECTION 1

GENERAL PROVISIONS

1.1 Services. CONSULTANT shall provide professional electrical underground design and engineering services (“Services”) to or for the CITY as required by CITY on an as-needed basis, in accordance with the aforementioned RFQ, which is attached as Exhibit “A” and hereby incorporated herein.

The CONSULTANT represents and warrants to the CITY that CONSULTANT is experienced, qualified, and competent to perform the Services described in this Agreement. The CONSULTANT shall perform all Services in a timely, efficient, and cost-effective manner, in accordance with applicable professional industry standards; all applicable federal, state, and local laws and regulations; and, when providing engineering services, in accordance with applicable professional engineering standards.

1.2 Competency. CONSULTANT represents and warrants to CITY that CONSULTANT is experienced with providing the Services described in this Agreement and is qualified and competent to perform such Services. CONSULTANT shall perform any and all Services assigned in a timely, efficient, workmanlike, and cost-effective manner that comports with professional industry standards, applicable federal, state and local laws and regulations, and in accordance with the applicable professional standards.

1.3 No Guarantee on Amount or Type of Work. CITY does not guarantee, warrant, or represent that any number of Projects or any particular type of Project will be assigned to CONSULTANT under the terms of this Agreement. Furthermore, the purpose of this Agreement is not to authorize a specific Project, but to set forth certain duties, obligations, rights, and responsibilities that will be automatically incorporated into any Services Authorization that may be mutually agreed to by the parties. CITY has the sole discretion to select the Project(s), if any, which may be given to CONSULTANT. CONSULTANT is not be entitled to compensation for any services rendered in excess of those specifically requested by CITY.

1.4 Contract Period. The initial Contract Period will be for twelve (12) months following the Effective Date, unless the Agreement is earlier terminated. The Agreement may be renewed for a possible second, third, fourth and fifth 12-month Contract Period, not to exceed sixty (60) months in total, following written agreement by both parties. The above time periods may be extended to complete Services being rendered under a specific task that has already been identified in a Services Authorization issued prior to the expiration of the Agreement.

1.5 Effective Date. The Effective Date is the date on which the last of the parties has executed the Agreement.

1.6 Notice to Proceed. CONSULTANT shall proceed with the performance of each task constituting the Services upon receiving a written Notice to Proceed from CITY.

SECTION 2

REPRESENTATIONS & RESPONSIBILITIES OF CONSULTANT

2.1 The rights and remedies of CITY provided for under this Contract are in addition to any other rights and remedies provided by law.

2.2 Public Records Laws. The CONSULTANT acknowledges and agrees that all records maintained, kept, and created pursuant to the Agreement, regardless of form or medium, are public records as defined pursuant to Section 24 of Article I of the Florida Constitution and Chapter 119, Florida Statutes, and that such records are subject to all state laws and regulations regarding the storage, disclosure, production, and maintenance of public records. Pursuant to Section 119.0701(2)(a), Florida Statutes, the CITY is required to provide the CONSULTANT with this statement and establish the following requirements as contractual obligations pursuant to the Agreement:

IF CONSULTANT HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO

CONSULTANT’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF

PUBLIC RECORDS AT 407-599-3277,

CITYCLERK@CITYOFWINTERPARK.ORG, 401 SOUTH PARK

AVENUE, WINTER PARK, FL 32789.

By entering into this Agreement, the CONSULTANT acknowledges and agrees that any records maintained, generated, received, or kept in connection with, or related to the performance of services provided under, this Agreement are public records subject to the public records disclosure requirements of § 119.07(1), Florida Statutes, and Article I, Section 24 of the Florida Constitution. Pursuant to § 119.0701, Florida Statutes, any contractor entering into an agreement for services with the CITY is required to:

i. Keep and maintain public records required by the CITY to perform the services and work provided pursuant to this Agreement.

ii. Upon request from the CITY’s custodian of public records, provide the CITY 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 Chapter 119, Florida Statutes, or as otherwise provided by law.

iii. 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 Agreement term and following completion or termination of the Agreement if the Agreement does not transfer the records to the CITY.

iv. Upon completion or termination of the Agreement, transfer, at no cost, to the CITY all public records in the possession of the CONSULTANT or keep and maintain public records required by the CITY to perform the service. If the CONSULTANT transfers all public records to the CITY upon completion or termination of the Agreement, the CONSULTANT shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONSULTANT keeps and maintains public records upon completion or termination of the Agreement, the CONSULTANT shall meet all applicable requirements for retaining public records as set forth in the applicable retention schedule for State and Local Government Agencies, which schedule is published and maintained by the Florida Department of State, Division of Library and Information Services. All records stored electronically must be provided to the CITY, upon request from the CITY’s custodian of public records, in a format that is compatible with the information technology systems of the CITY.

Requests to inspect or copy public records relating to the Agreement must be made directly to the CITY. If the CONSULTANT receives any such request, the CONSULTANT shall instruct the requestor to contact the CITY. If the CITY does not possess the records requested, the CITY shall immediately notify the CONSULTANT of such request, and the CONSULTANT must provide the records to the CITY or otherwise allow the records to be inspected or copied within a reasonable time.

The CONSULTANT acknowledges that failure to provide the public records to the CITY within a reasonable time may result in the assessment of penalties under § 119.10, Florida Statutes. The CONSULTANT further agrees not to release any records that are statutorily confidential or otherwise exempt from disclosure without first receiving prior written authorization from the CITY.

The CONSULTANT agrees to indemnify, defend, and hold the CITY harmless from and against any and all claims, damage awards, penalties, sanctions, and causes of action arising from the CONSULTANT’s failure to comply with the public records disclosure requirements of Section 119.07(1), Florida Statutes, or by the CONSULTANT’s unauthorized disclosure or release of public records that are exempt or confidential and exempt from the public records disclosure requirements, including, but not limited to, any third party claims or awards for attorney’s fees and costs arising therefrom. The CONSULTANT authorizes the CITY to seek declaratory, injunctive, or other appropriate relief against the CONSULTANT from a Circuit Court in Orange County, Florida, on an expedited basis to enforce the requirements of this Section. This paragraph will survive the expiration and termination of this Agreement.

2.3 If CONSULTANT is comprised of more than one legal entity, each such entity shall be jointly and severally liable hereunder.

2.4 The standard of care applicable to CONSULTANT’s Services under this Agreement will be the degree of skill and care ordinarily exercised by similarly practicing professionals performing similar services under similar conditions.

2.5 CONSULTANT shall not engage in any action that would create a conflict of interest in the performance of the actions of any CITY official, officer, employee or other person during the course of performance of, or otherwise related to, this Agreement or which would violate or cause others to violate the provisions of Part III, Chapter 112, Florida Statutes, relating to ethics in government.

CONSULTANT hereby certifies that no officer, agent or employee of CITY has any material interest (as defined in Section 112.312 (15), Florida Statutes), as over five percent (5%) either directly or indirectly, in the business of CONSULTANT to be conducted here, and that no such person shall have any such interest at any time during the term of this Agreement.

2.6 CONSULTANT warrants that it 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 it 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 other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, CITY shall have the right to terminate this Agreement without liability.

2.7 The CITY’s review, approval, acceptance of, or payment for the Services required under this Contract may not be construed or deemed to operate as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract, and the CONSULTANT will be and remain liable to the CITY in accordance with applicable law for damages suffered by the CITY caused by the CONSULTANT’s negligent performance of any of the Services furnished under this Contract.

2.8 CONSULTANT agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, disability, or national origin and will take steps to ensure that applicants are employed, and employees are treated during employment without regard to race, color, religion, sex, age, disability, or national origin.

This provision will include, but not be limited to the following: employment; upgrading; demotion or transfer; recruitment advertising; layoff or termination; rates of pay, or other forms of compensation;

and selection for training, including apprenticeship. Each employee of the CONSULTANT must be a citizen of the United States or an alien who has been lawfully admitted for permanent residence as evidenced by an Alien Registration Receipt Card. CONSULTANT agrees not to employ any person undergoing sentence of imprisonment except as provided by Public Law 89-176, September 10, 1965 (or most recent) (18 USC 4082) (c)(2). CONSULTANT is required to pay all employees not less than the Federal minimum wage and to abide by other requirements as established by the Congress of the United States in the Fair Labor Standards Act, as amended from time to time. CITY shall consider the employment by CONSULTANT of unauthorized aliens as a violation of Section 274A(e) of the Immigration and Nationalization Act, as amended; and shall be considered a basis for immediate termination of this Agreement for a default.

CONSULTANT shall further comply with the applicable provisions of the Americans with Disabilities Act (the “ADA”) and any applicable rules or regulations promulgated pursuant thereto. For any Services or Deliverables provided or rendered digitally, via the internet or an intranet, or online, the CONSULTANT must, as a minimum standard, comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0 AA in order to be deemed compliant with the ADA pursuant to this paragraph. CONSULTANT further agrees to indemnify, defend, and hold the CITY harmless from and against any and all claims, sanctions, penalties, and attorney’s fees and costs claimed or otherwise assessed against the CITY arising from the CONSULTANT’s failure to comply with the ADA, Title VII of the Civil Rights Act of 1964, and any and all other applicable federal, state, or local anti-discrimination laws, rules, or regulations whether presently existing or hereafter promulgated or adopted.

CONSULTANT is required to pay all employees not less than the Federal minimum wage and to abide by other requirements as established by the Congress of the United States in the Fair Labor Standards Act, as amended from time to time.

2.9 CONSULTANT shall comply with the terms and conditions of the RFQ. To the extent there are any conflicts between the RFQ and this Agreement, the terms of this Agreement shall control to the extent of any such conflict.

SECTION 3

RESPONSIBILITIES OF CITY

3.1 Requirements for the Project. CITY shall provide criteria and information as may be requested by CONSULTANT to ascertain and meet CITY's requirements for the assigned task in a timely manner, including objectives and constraints.

3.2 Information Pertinent to the Project. CITY shall furnish CONSULTANT with existing data, plans, profiles, and other information necessary or useful in connection with the Services to be provided, which information is available in CITY’s files, all of which is and remains the property of CITY and must be returned to the CITY upon completion of the services to be performed by CONSULTANT.

3.3 Access to Property. CITY shall arrange for access to and make provisions for CONSULTANT to enter upon public and private property as required for CONSULTANT to perform its Services.

3.4 Examination. As applicable, the CITY shall examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by CONSULTANT, and render, in writing, decisions pertaining thereto within a reasonable time.

3.5 Notice and Extension of Term. CITY shall give prompt written notice to CONSULTANT whenever CITY observes or otherwise becomes aware of any development that affects the scope or timing of CONSULTANT's Services, or any defect in the work of contractor(s) affecting a Project. If CONSULTANT has been delayed in completing its Services through no fault or negligence of its own, and, as a result, will be unable to complete performance fully and satisfactorily under the provisions of any Services Authorization, then, in CITY's reasonable discretion, and upon the submission to CITY of evidence of the causes of the delay, CONSULTANT will be granted an extension of its Project schedule equal to the period CONSULTANT was actually and necessarily delayed, as CONSULTANT’s sole and exclusive remedy. In no event may the CITY be liable to CONSULTANT for damages caused by delays, impacts, disruption, acceleration, resequencing, or interruptions regardless of the cause. CONSULTANT expressly agrees that the foregoing constitutes its sole and exclusive remedy for delays in services, and CONSULTANT expressly waives any and all other remedies for any claim for increase in the Contract price or sum, damages, expenses, losses, or additional compensation.

SECTION 4

PAYMENTS TO CONSULTANT

4.1 CONSULTANT will invoice CITY [for services upon completion of Project Services] or [once each month for Services performed during the preceding monthly period]. CITY will pay CONSULTANT for the Services as detailed in each of CONSULTANT's narrative invoices, and in accordance with the price negotiated for such services or schedule of fees and reimbursable expenses as set forth in Exhibit “B” attached hereto and incorporated herein. The invoices will be generated in a format prescribed by the City, and contain such information as may be required by CITY.

4.2 In accordance with Part VII, Chapter 218, Florida Statutes (Local Government Prompt Payment Act), invoices must be paid by CITY to CONSULTANT within forty-five (45) calendar days of CITY’s receipt of a proper invoice(s) (“Payment Period”), unless CITY within ten (10) days after the improper payment request or invoice is received, notifies CONSULTANT, in writing, that the payment request or invoice is improper and indicates what corrective action on the part of CONSULTANT is needed to make the payment request or invoice proper.

4.3 CONSULTANT fully acknowledges and agrees that if at any time it performs Services on a Project contemplated by the parties, and such Services have not been, a) fully negotiated, reduced to writing, and formally executed by both CITY and CONSULTANT; or b) reduced to writing by CITY and signed by CITY, such Services will be deemed unauthorized, and the CONSULTANT performs such Services at its own risk and without liability to CITY.

4.4 No Liens. CONSULTANT acknowledges and agrees that CITY is a Florida municipality and, as such, CITY’s public property and the Project(s) involved are not subject to construction liens pursuant to Chapter 713, Florida Statutes or any other lien statute. CONSULTANT may not file or record claims of lien or any other liens against any Project or property owned by CITY.

4.5 Records. CONSULTANT agrees to maintain, and to cause each of CONSULTANT’s sub-consultants and subcontractors to maintain, complete and accurate books and records relating to all Services performed, all Deliverables provided, and all costs and expenditures related to the Services and Deliverables that have been contractor and paid for by the City (“Books”). The Books must identify the Services rendered during each month of the Services Authorization, the date on which each Project expense was incurred, and whether the expense was Service or reimbursable-related. These Books must be maintained for five (5) years following Final Payment; five (5) years following termination of any Services Authorization; or any other time beyond five (5) years as may be required by Florida’s applicable Public Records retention schedules, whichever is the longer of these times. All Books shall be subject to audit by CITY at all times during the term of this Agreement and as long as kept pursuant to the applicable retention period referenced above.

4.6 Final Payment. The acceptance by CONSULTANT, including its successors or assigns, of any Final Payment due upon the termination of this Agreement or any Services Authorization or completion of any Project, will constitute a full and complete release of CITY from any and all claims or demands regarding further compensation for authorized Services rendered prior to such Final Payment that CONSULTANT, its successors, or assigns have or may have against CITY under the provisions of this Agreement, unless otherwise a claim was previously and properly filed pursuant to the provisions of this Agreement or in a court of competent jurisdiction. This Subsection does not affect any other portion of this Agreement that extends obligations of the parties beyond Final Payment.

4.7 Local Government Prompt Payment Act (Disputed Invoices). If the CITY receives an improper payment request or invoice, CITY will notify CONSULTANT, in writing, that the payment request or invoice is improper and indicate what corrective action on the part of the CONSULTANT is needed to correct the payment request or invoice. If a dispute arises between CITY and CONSULTANT concerning payment of a payment request or invoice, the dispute will be finally determined by the local governmental entity pursuant to administrative dispute resolution procedures, which will be commenced within forty-five (45) days after CITY received the disputed payment request or proper invoice and concluded by final decision of CITY within sixty (60) days after CITY received such invoice or request. The dispute resolution procedures will be those procedures as may be currently established by resolution or ordinance of CITY, or, if no such procedures have been established, the dispute will be reviewed by the City Manager or his/her designee, who will endeavor to meet with CONSULTANT to discuss the nature of the dispute and attempt to resolve the dispute within the time allotted by law.

If no resolution satisfactory to the parties is reached, the City Manager or his/her designee shall issue a final decision in writing to CONSULTANT within sixty (60) days as required by statute.

SECTION 5

SCOPE, COST AND FEE ADJUSTMENT

5.1 General. CONSULTANT or CITY may at any time notify the other of requested changes to the Scope of Services. The notification shall state the Scope modification and an adjustment of the cost estimate and fee specified in the subject Services Authorization to reflect such modification. The cost and fee adjustment due to modification in the Scope of Services may be calculated utilizing the same method of compensation applicable to the Services Authorization prior to the Scope modification.

CONSULTANT and CITY understand that, unless the cost and fee adjustment is within a previously approved budget, any change to the Scope of Services must be approved or authorized by the City Manager or City Commission. If the cost and fee adjustment is within a previously approved budget for changes to the Scope of Services for the overall Project, the change may be approved by the City Manager.

5.2 Scope Reduction. CITY shall have the sole right to reduce or eliminate, in whole or in part, the Scope of any Project or Service Authorization at any time and for any reason, upon written notice to CONSULTANT specifying the nature and extent of the reduction. In such event CONSULTANT shall be fully compensated for the Services already performed, including payment of all Project-specific fee amounts due and payable prior to the effective date stated in CITY's notification of the reduction.

CONSULTANT shall also be compensated for the Services remaining to be done and not reduced or eliminated on the Project. However, CONSULTANT will not be compensation for services not performed or that are eliminated from this Agreement by CITY.

5.3 Scope Suspension. CITY may, at any time and for any reason, direct CONSULTANT to suspend work, in whole or in part, under this Agreement or any Service Authorization. Such direction must be in writing and specify the period during which Services shall be stopped. CONSULTANT shall resume its Services upon the date specified, or upon such other date as CITY may thereafter specify in writing.

The CONSULTANT’s sole remedy for such suspension or delay will be a tolling of the completion date until the CITY instructs the CONSULTANT to resume Services. The suspension or delay of Services, regardless of whether caused by the actions or inactions of CITY, does not give rise to any claim by CONSULTANT against CITY.

SECTION 6

TERMINATION

6.1 Termination. This Agreement may be terminated at any time by CITY by delivering a written notice to CONSULTANT at least thirty (30) days prior to the intended termination date. This Agreement may be terminated at any time by CONSULTANT by delivering a written notice to CITY at least one hundred and twenty (120) days prior to the intended termination date. If the Agreement is terminated, CONSULTANT will be paid for Services completed prior to and on the date of termination, including those reimbursable reasonable and provable expenses required by any Services Authorization and actually incurred by CONSULTANT; provided however, if CONSULTANT terminates this Agreement prior to the completion of a Project(s), CONSULTANT will not be compensated for uncompleted work in progress, including but not limited to circumstances where no final report or testing results that were due have been provided to CITY.

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6.2 Delivery of Materials Upon Termination. In the event of termination of this Agreement, or any Services Authorization, and prior to CONSULTANT's satisfactory completion of all the Services described or alluded to herein, CONSULTANT, unless otherwise excused by CITY in writing, must promptly furnish CITY, at no additional cost or expense, with one (1) physical copy and one (1) electronic copy of the following items, any or all of which may have been produced prior to and including the date of termination: data, specifications, test results, calculations, estimates, plans, drawings, computer print outs, surveys, construction documents, photographs, summaries, reports, memoranda;

and any and all other documents, instruments, information, and materials, whether or not completed, generated or prepared by CONSULTANT, or by any sub-consultant or subcontractor, in rendering the Services described herein (“Documents”), and not previously furnished to CITY by CONSULTANT pursuant to this Agreement, or any Services Authorization. The Documents will be the sole property of CITY, and the CITY will be vested with all rights provided therein of whatever kind and however created.

CONSULTANT shall also require that all sub-consultants or subcontractors hired or otherwise engaged by the subconsultants to provide Services or Deliverables in connection with this Agreement agree in writing to be bound by the provisions of this Subsection.

SECTION 7

MATERIALS, REUSE OF DOCUMENTS AND CONFIDENTIALITY

7.1 General. One (1) reproducible copy and one (1) electronic copy of all Documents must be supplied to CITY at CITY's request by CONSULTANT. The final work product of all such materials, along with all formal CITY/CONSULTANT correspondence concerning any Project (e.g. letters, tapes, memoranda, etc.) will be the sole property of CITY. Furthermore, CITY may reuse such Documents at no additional cost, and the CITY will be vested with all rights of whatever kind and however created that may be in existence thereto.

7.2 Reuse of Documents. CITY acknowledges that the Documents are not intended for use in connection with any Project or purpose other than the Project and purpose for which the materials are prepared. Any use by CITY of such Documents in connection with a Project or purpose other than that for which such Documents were prepared, without the prior written consent of CONSULTANT, will be at CITY's sole risk, and CONSULTANT will have no responsibility or liability related thereto.

SECTION 8

NOTICES

All notices denominated as such by this Agreement, or the City Code, or Florida law, required to be given to CONSULTANT hereunder shall be in writing, and shall be delivered via email, hand-delivery or United States mail, postage prepaid, addressed to:

[FIRM NAME]

[Firm Address] [Firm Address] [Firm Email]

All notices required to be given to CITY shall be in writing, and shall be delivered via email, hand-delivery or United States mail, postage prepaid, to the CITY’s Procurement Division and the City Attorney, separately, at:

City of Winter Park Attention: Procurement Division 401 South Park Avenue Winter Park, Florida 32789 Procurement@cityofwinterpark.org

City of Winter Park Attention: City Attorney 401 South Park Avenue Winter Park, Florida 32789 CityAttorney@cityofwinterpark.org

Either party may change its address, for the purposes of this Subsection, by written notice to the other party given in accordance with the provisions of this Subsection.

SECTION 9

WAIVER OF CONSEQUENTIAL DAMAGES

IN NO EVENT MAY CITY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,

SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS,

LOSS OF REVENUE, OR LOSS OF USE, OR COST OF COVER INCURRED BY

CONSULTANT OR ANY THIRD PARTIES ARISING OUT OF THIS AGREEMENT

AND/OR CONCERNING THE PERFORMANCE OF SERVICES BY CONSULTANT

OR BY CITY UNDER THIS AGREEMENT OR UNDER A SERVICES

AUTHORIZATION ISSUED UNDER THIS AGREEMENT.

SECTION 10

INDEMNIFICATION AND INSURANCE

10.1 Indemnification. CONSULTANT agrees to indemnify, defend, and hold harmless CITY, its employees and elected and appointed officials and officers, from all claims, judgments, damages, losses, and expense, including reasonable attorneys’ fees, experts’ fees and litigation costs incurred at all trial and appellate levels with attorneys and experts selected by CITY, arising out of or resulting from the performance or nonperformance of the work or services provided within the scope of this Agreement to the extent caused in whole or part by any negligence, recklessness, or intentional wrongful misconduct of CONSULTANT or persons employed or utilized by CONSULTANT in the performance of any Services rendered under this Agreement.

If the type of services being performed under this Agreement require a maximum monetary limit of indemnification under general law, then the maximum monetary limit under this Section and other indemnifications contained within this Agreement shall be two million dollars ($2,000,000) per occurrence, which CITY and CONSULTANT agree bears a commercially reasonable relationship to this Agreement; otherwise there is no maximum limit of indemnification. This Section shall survive the termination, cancellation, or expiration of the Agreement, and shall not be limited by reason of any insurance coverage.

10.2 Insurance. CITY has contracted with ‘myCOI’ to track and establish insurance compliance with contract terms. Within ten (10) days from the Effective Date and prior to rendering services to CITY, CONSULTANT must register with myCOI and submit certificates or other documentary evidence for CITY via myCOI, attesting to insurance coverage required by the Original Government Contract.

CONSULTANT shall acquire and maintain required insurance coverage during the term of this Agreement. CONSULTANT may not commence work under any agreement until obtaining all insurance coverage under this Section and until CITY has approved such insurance. Except for the Worker’s Compensation and Professional Liability Insurance policies, all policies must be issued on an occurrence basis and include the City of Winter Park as an ADDITIONAL INSURED. All coverage provided to the CITY as an additional insured must be (i) primary and non-contributory with any valid collectible insurance available to the CITY and (ii) waive subrogation in favor of the CITY. Insurance companies must be licensed to do business in the State of Florida with a Best’s Key Rating Guide rate of no less than “A.” This information may be grounds for disqualification if the information is not in order.

A. Required Coverage. Based on the services the CONSULTANT provides for the CITY, it has been determined that the CONSULTANT is required to meet or exceed the insurance coverage detailed in Exhibit “C”, attached to this amendment.

B. Claims Made Basis Insurance Policies. All insurance policies written on a Claims Made Form (i.e., some professional liability policies) must maintain a retroactive date prior to or equal to the effective date of this Agreement. The CONSULTANT must purchase a Supplemental Extended Reporting Period (“SERP”) with a minimum reporting period of not less than three (3) years in the event the policy is canceled, not renewed, switched to occurrence form, or any other event that requires the purchase of a SERP to cover a gap in insurance for claims that may arise under or related to this Agreement. The CONSULTANT’s purchase of a SERP will not relieve the CONSULTANT of its obligation to provide replacement coverage. In addition, the CONSULTANT shall require that the carrier immediately inform the CONSULTANT and the CITY of any contractual obligations that may alter the professional liability coverage, if any, required under this Agreement.

10.3 City's Right to Inspect Certificates. CONSULTANT shall, upon fifteen (15) days written request from CITY, deliver copies to CITY of any or all certificates of insurance relating to such policies that are required by CITY, this Agreement, or any Purchase Order.

SECTION 11

MISCELLANEOUS PROVISIONS

11.1 Non-Exclusive Contract. This Agreement is non-exclusive, and may be terminated at CITY's convenience with the proper notice having been given to CONSULTANT pursuant to Sections 6 and 7 above. It is understood and acknowledged that the rights granted herein to CONSULTANT are non-exclusive, and CITY shall have the right, at any time, to enter into similar agreements with other engineers, consultants, and sub-consultants, and so forth, to have them perform such professional services as CITY may desire.

11.2 Local, State, and Federal Regulations.

a. Discrimination. CONSULTANT, for itself, its delegates, successors-in-interest, and its assigns, and as a part of the consideration hereof, does hereby covenant and agree that, 1) in the furnishing of Services to CITY hereunder, no person may be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in regard to this Agreement on the grounds of such person's race, color, creed, national origin, disability, marital status, religion or sex; and 2) CONSULTANT shall comply with all existing requirements concerning discrimination imposed by any and all applicable local, state, and federal rules, regulations, or guidelines, and as such rules, regulations, or guidelines may be from time to time amended. In the event of a breach of any of the nondiscrimination covenants described in this Subsection, CITY shall have the right to terminate this Agreement.

b. Compliance with Law. CONSULTANT and its employees shall promptly observe, comply with, and execute the provision of any and all present and future federal, state, and local laws, rules, regulations, requirements, ordinances, and orders which may pertain or apply to the Services that may be rendered hereto, or to the wages paid by CONSULTANT to its employees.

CONSULTANT shall also require, by contract, that all sub-consultants and subcontractors shall comply with the provisions of this Subsection.

c. Licenses. CONSULTANT shall, during the life of this Agreement, procure and keep in full force, effect, and good standing all necessary licenses, registrations, certificates, permits, and other authorizations as are required by local, state, or federal law, in order for CONSULTANT to render its Services or Work as described herein. CONSULTANT shall also require all sub-consultants and subcontractors to comply by contract with the provisions of this Subsection.

d. Compliance with New Regulations. CONSULTANT agrees that if local, state, or federal agencies modify their grant procedures in order for CITY or CONSULTANT to qualify for local, state, or federal funding for the Services to the rendered by CONSULTANT, then CONSULTANT shall consent to and make such modifications or amendments in a timely manner. If CONSULTANT is unable to comply with applicable local, state, or federal laws and regulations governing the grant of such funds for Services to be rendered herein, then CITY shall have the right, by written notice to CONSULTANT, to terminate this Agreement.

Furthermore, if CONSULTANT's compliance with such laws, regulations, rules, or procedures causes a material change to a term or condition of this Agreement, or to any Services Authorization, then CITY agrees, upon sufficient proof of material changes as may be presented to it by CONSULTANT, to amend all related CITY/CONSULTANT contractual obligations, and to revise such Project budgets accordingly.

11.3 Consultant Not Agent of City. CONSULTANT is not authorized to act as CITY's agent hereunder and has no authority, expressed or implied, to act for or bind CITY hereunder, either in CONSULTANT's relations with sub-consultants or subcontractor, or in any other manner whatsoever except as otherwise stated in a Services Authorization. CONSULTANT shall perform its Services as an independent contractor and has full responsibility for and control over the details of and means for performing the Services assigned and is subject to the directions of CITY only with respect to the scope of work and the general results required.

11.4 Assignment and Delegation. CITY and CONSULTANT bind themselves and their partners, successors, executors, administrators, and assigns, to the other party of this Agreement in respect to all duties, rights, responsibilities, obligations, provisions, conditions, and covenants of this Agreement;

except that CONSULTANT may not assign, transfer, or delegate its rights or duties, or both of these things, in this Agreement without the prior written consent of CITY. The CITY has the absolute right to withhold such consent at its convenience, and, furthermore, if CONSULTANT attempts to assign, transfer, or delegate its rights or duties in violation of these provisions without CITY's consent, then CITY may immediately terminate this Agreement as a breach of contract by CONSULTANT and a failure by CONSULTANT to substantially perform its obligations hereunder, and any such assignment will be null, void, and of no legal effect. The CITY retains the right to assign its rights, or any part of them, or to delegate its duties and obligations, or any part of them, to another entity that shall be bound by all applicable terms and conditions as provided in this Agreement.

11.5 Entire Agreement. This Agreement constitutes the entire Agreement between the parties, and supersedes and replaces all prior agreements or understandings, written or oral, relating to the matters set forth therein, and that are specifically related to the execution of this particular document.

11.6 Amendment. This Agreement may be amended or modified only by a Services Authorization, or an Amendment, and as duly authorized and executed in writing by the parties.

11.7 Validity. The validity, interpretation, construction, and effect of this Agreement shall be in accordance with and governed by the laws of the State of Florida, only. If any provision hereof is determined to be unenforceable or invalid, such unenforceability or invalidity shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect. To that extent, this Agreement is deemed severable.

11.8 Headings. The headings of the Sections or Subsections of this Agreement are for the purpose of convenience only, and may not be deemed or otherwise construed to expand, limit, or modify the provisions contained in such Sections or Subsections.

11.9 Timeliness. CITY and CONSULTANT acknowledge and understand that time is of the essence in this Agreement and any Service Authorization, and that the Services must be performed in as expeditious a manner as may be in accord with the nature of each Project.

11.10 Public Entity Crime. Any Person or affiliate, as defined in 287.133 of the Florida Statutes, may not contract with the CITY, nor be allowed to enter into a subcontract for work on this Agreement, if such a person or affiliate has been convicted of a public entity crime within three (3) years of the date this Agreement was advertised for proposals, or if such person or affiliate was listed on the State's convicted vendor list within three (3) years of the date this Agreement was advertised, whichever time period is greater. A public entity crime means a violation of any state or federal law with respect to and directly related to the transaction of business with any public entity or agency (federal, state or local), involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, forgery, falsification of records, receiving stolen property or material misrepresentation. Any Agreement with the CITY obtained in violation of this Section is subject to termination for cause. A sub-consultant or subcontractor who obtains a subcontract in violation of this Section will be removed from the Project and promptly replaced by a sub-consultant or subcontractor acceptable to CITY at no penalty or additional cost to the CITY.

11.11 Force Majeure. Neither party may be deemed to be in default of its obligations hereunder if and so long as it is prevented from performing such obligations by any act of war, hostile foreign action, nuclear explosion, riot, strikes, civil insurrection, earthquake, hurricane, tornado, or other catastrophic natural event or act of God (“Force Majeure Event”). If there is such an occurrence that impacts the ability of either party to perform their responsibilities under this Agreement, the nonperforming party shall give immediate written notice to the other party to explain the cause and probable duration of any such nonperformance. If feasible, the Parties may agree to amend in writing the time periods for any Services authorized to accommodate the situation; however, should a Force Majeure Event preclude CONSULTANT from performing time-sensitive Services for the CITY, the CITY may terminate this Agreement and reassign Services to another CONSULTANT at no risk, penalty, additional cost, or liability to the CITY.

11.12 Remedies and Costs. Unless specified otherwise herein, all remedies set forth in this Agreement are cumulative and additional, and not in lieu or exclusive of each other or of any other remedy available to either party, at law or in equity.

11.13 Dispute Resolution and Exclusive Venue. As a condition precedent to the filing of any suit or other legal proceeding and if the parties do not agree to the resolution of a dispute pursuant to Section 4.7 of this Contract, the parties shall endeavor to resolve claims, disputes or other matters in question by mediation. Mediation will be initiated by any party by serving a written request for same on the other party. The parties shall, by mutual agreement, select a mediator within fifteen (15) days of the date of the request for mediation. If the parties cannot agree on the selection of a mediator, then CITY shall select the mediator who, if selected solely by CITY, shall be a mediator certified by the Supreme Court of Florida. No suit or other legal proceeding may be filed until (i) the mediator declares an impasse, which declaration, in any event, must be issued by the mediator not later than sixty (60) days after the initial mediation conference; or (ii) sixty (60) days has elapsed since the written mediation request was made and if the other party refuses to or has not committed to attend mediation.

The parties shall share the mediator’s fee equally.

The mediation must be held in Orange County, Florida, unless another location is mutually agreed upon by the parties. Agreements reached in mediation will be enforceable as settlement agreements in any court having jurisdiction thereof. The sole and exclusive venue for any litigation arising out of or relating to this Agreement or the Services will be, in in state court, in Orange County, Florida before the County Court or Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, or if in federal court, the Florida Middle District, Orlando Division.

11.14 Attorneys’ Fees & Litigation Costs. In the event of mediation or litigation between the parties concerning or arising from this Agreement or any Services Authorization and unless otherwise provided by law, each party shall bear their own attorneys’ fees and litigation costs except for in claims by CITY for indemnity against CONSULTANT under this Agreement, for which claim(s), attorneys’ fees and litigation cost shall be due and payable to the prevailing party.

11.15 False Claims. If CONSULTANT is unable to support any part of its claim and it is determined that such inability is attributable to misrepresentations of fact or fraud on the part of CONSULTANT, CONSULTANT shall be liable to CITY for an amount equal to such unsupported part of the claim in addition to all costs to CITY attributable to the cost of reviewing said part of CONSULTANT’s claim.

CITY and CONSULTANT acknowledge that the “Florida False Claims Act” provides civil penalties not more than ten thousand dollars ($10,000) plus remedies for obtaining treble damages against contractors or persons causing or assisting in causing Florida Governments to pay claims that are false when money or property is obtained from a Florida government by reason of a false claim.

CONSULTANT agrees to be bound by the provisions of the Florida False Claims Act for purposes of this Agreement and the services performed hereunder.

11.16 No Waiver of Sovereign Immunity. CITY is a municipal corporation and expressly retains all rights, benefits, and immunities of sovereign immunity in accordance with common law and § 768.28, Florida Statutes. Regardless of anything set forth to the contrary in this Agreement, nothing in this Agreement may be interpreted or otherwise deemed as a waiver of immunity or limits of liability of the CITY beyond any statutory limited waiver of immunity or limits of liability that may have been or may be adopted by the Florida Legislature, and the cap on the amount and liability of the CITY for damages, regardless of the number or nature of claims in tort, equity, or contract, may not exceed the dollar amount set by the legislature for tort. Nothing in this Agreement may inure to the benefit of any third party for the purpose of allowing any claim against the CITY, which claim would otherwise be barred under the doctrine of sovereign immunity or by operation of law.

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11.17 Scrutinized Companies.

a. Generally. Pursuant to Section 287.135, Florida Statutes, a company is ineligible to, and may not, bid on, submit a proposal for, or enter into or renew a contract with a local governmental entity for goods or services of: 1) any amount if, at the time of bidding on, submitting a proposal for, or entering into or renewing such contract, the company is on the Scrutinized Companies that Boycott Israel List, created pursuant to Section 215.4725, Florida Statutes, or is engaged in a boycott of Israel; or 2) one million dollars ($1,000,000) or more if, at the time of bidding on, submitting a proposal for, or entering into or renewing such contract, the company is: (a) on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to Section 215.473, Florida Statutes; or (b) engaged in business operations in Cuba or Syria. A violation of this Subsection constitutes grounds for CITY to reject any bid or proposal submission and grounds for CITY to immediately terminate any resulting contract or agreement relating to same. By entering into this Agreement, CONSULTANT certifies that it is in compliance with the foregoing statutory requirements.

b. Contract or renewal of contract for goods or services of one million dollars ($1,000,000) or greater. CONSULTANT expressly agrees that, pursuant to Section 287.135, Florida Statutes, CITY has the exclusive right, at CITY’s option, to immediately terminate any contract for goods or services of one million dollars ($1,000,000) or more that is renewed or entered into on or after July 1, 2018, if CONSULTANT: 1) submits a false certification as to compliance with Section 287.135(5), Florida Statutes; 2) is currently or has been subsequently placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List; or 3) is currently or has been determined to be engaged in business operations in Cuba or Syria.

c. Contract or renewal of contract for goods or services of any amount. CONSULTANT expressly agrees that, pursuant to Section 287.135, Florida Statutes, CITY has the exclusive right, at CITY’s option, to immediately terminate any contract for goods or services of any amount that is renewed or entered into on or after July 1, 2018, if CONSULTANT: 1) is found to have been placed on the Scrutinized Companies that Boycott Israel list; or 2) is engaged in a boycott of Israel.

d. False certification. If CONSULTANT submits a false certification as may be required under Section 287.135, Florida Statutes, then CITY shall have all remedies afforded by law, including but not limited to, the filing of a civil action as authorized in Section 287.135(5), Florida Statutes, which expressly authorizes the payment of certain penalties, all reasonable attorneys’ fees and costs incurred by CITY, and all costs for investigations that led to the finding of false certification.

11.18 Tobacco-Free Campus. CONSULTANT agrees that the performance of all work and services for CITY will be tobacco-free as required by this paragraph. Accordingly, CONSULTANT agrees that all of CONSULTANT’s employees, agents, and those performing work and services for CITY at CONSULTANT’s direction or control shall…