Sample_Agreement.docx

SAMPLE

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CONSULTANT SERVICES AGREEMENT

BETWEEN THE CITY OF ST. CLOUD, FLORIDA

AND FOR

CONTINUING PROFESSIONAL CIVIL ENGINEERING SERVICES

THIS AGREEMENT, made this _______ day of 20 _, between the City of St. Cloud, Florida, a Municipal Corporation of the State of Florida, (hereinafter referred to as the "CITY") and , a Florida _________________________, whose address is (hereinafter referred to as "CONSULTANT”).

WHEREAS, pursuant to Request for Qualifications No. 2022-213, CITY received response from several qualified firms to provide Continuing Professional Civil Engineering Services as needed by CITY; and

WHEREAS, CONSULTANT, was selected to be one of several professional consultants to provide services on a rotating basis for and on behalf of CITY.

NOW THEREFORE, in consideration of the covenants, representations and agreements herein contained, the parties agree as follows:

Section 1. SCOPE OF SERVICES: The CONSULTANT shall furnish all labor, materials, equipment, transportation and perform all of the work described in the bid documents and specifications contained in Request for Qualifications No. 2022-213 Continuing Professional Civil Engineering Services and CONSULTANT’s ___________________, 2022 response thereto, all of which are incorporated herein and made a part hereof by reference and shall do everything required by this Agreement, including any such services or tasks made a part of the Task Authorization contemplated herein.

1.1. All projects contemplated hereunder shall be issued to one of the CITY’S contracted civil engineering services firms. Upon identification by CITY of an anticipated project, CITY shall obtain a proposed task authorization from the next ranked firm in rotation. Any award of a Task Authorization shall at a minimum be conditioned upon and subject to the following: i) availability of funds lawfully appropriated for its purpose; ii) confirmation from CONSULTANT and verification in the sole discretion of CITY that the CONSULTANT can meet the schedule or technical requirements of the project; iii) in the judgment of the CITY, strict compliance with the existing time for performance and milestones of any other contract or task authorization between CONSULTANT and CITY; and iv) determination by the CITY in its sole judgment that CONSULTANT can meet the project demands based on prior history of the CONSULTANT and/or knowledge of the existence of other time critical projects issued to CONSULTANT, which would conflict with the performance of the contemplated services.

1.2. The CITY shall request CONSULTANT to perform civil engineering services on a task basis by providing CONSULTANT, in writing, a general description of the task to be performed. The CONSULTANT will generate a detailed Scope of Work document, prepare a Schedule, to include a minimum a not-to-exceed-budget to accomplish the task, hereinafter referred to as the “Task Proposal”. The CONSULTANT shall provide the Task Proposal to the CITY within FIFTEEN (15) days of the date the written description is provided to CONSULTANT. If a site visit by CONSULTANT is needed to generate the scope document, CONSULTANT shall request approval prior to visiting the site. The CITY will review the proposal, and if the description is mutually acceptable, the parties will enter into a written “task authorization or work order”. The Scope of Services generally to be provided by the CONSULTANT may include any phases of civil engineering services. The provision of a Task Proposal by CONSULTANT shall not be deemed or construed as an agreement by CITY for CONSULTANT to provide the services and shall be subject to approval by the CITY as confirmed by CITY issuing a Notice to Proceed to the CONSULTANT signed by an authorized representative of CITY. Upon receipt of the signed Task Authorization and a Notice to Proceed from the CITY, the CONSULTANT shall perform the services set forth in the task authorization/work order. Under no circumstances is CONSULTANT authorized to proceed hereunder without receipt of the Notice to Proceed.

1.3. In the event that CONSULTANT cannot meet any of the above criteria or any others that may be required by CITY, the CITY shall obtain for its consideration and possible approval a proposed task authorization from the next ranked firm in rotation.

1.4. CITY may make changes in the approved Scope of Services at any time by giving written notice to CONSULTANT. If such changes increase (additional services) or decrease or eliminate any amount of work, CITY and CONSULTANT will negotiate any change in total cost or schedule of modifications. If the CITY and CONSULTANT approve any change, the task authorization/work order will be modified to reflect the changes; and CONSULTANT shall be compensated for said services in accordance with the terms of this Agreement. All change in Scope of Services shall require approval in writing execute by an authorized representative of CITY and CONSULTANT.

Section 2. PERFORMANCE SCHEDULE.

2.1 CONSULTANT shall not be authorized to provide any services as set forth above until such time as CONSULTANT has received specific authorization from CITY as set forth in the Notice to Proceed.

2.2. CONSULTANT shall perform services in strict conformance with the mutually agreed upon schedule set forth in the Task Authorization. CONSULTANT shall complete all of said services in a timely manner and will keep CITY apprised of the status of work on at least a monthly basis.

2.3. In event that CONSULTANT falls behind the agreed upon schedule, it shall employ such resources so as to comply with the agreed upon schedule at no additional cost to the CITY.

2.4. No extension for completion of services shall be granted to CONSULTANT without CITY’S prior written consent, except as provided in Section 18 herein.

Section 3. COMPENSATION AND PAYMENT.

3.1. For all tasks and services contemplated herein, CONSULTANT’s compensation shall be in accordance and consistent with “CONSULTANT’s Professional Services Fee Schedule” as set forth in Exhibit A attached hereto and incorporated herein. The fee schedule includes all wages, salaries, taxes, insurance, overhead and profit related to the services to be provided. The fee schedule set forth in Exhibit “A” is firm for the initial term of the Agreement.

3.2. Any and all approved reimbursable expenses shall be as set forth in “CONSULTANT’s Reimbursable Expenses Schedule” attached hereto and incorporated herein as Exhibit “A”. Anticipated Reimbursable expenses shall be included in CONSULTANT’s Task Proposal and shall, unless otherwise approved by CITY be limited to incurred expenses, which are directly related and required to complete the project. Said reimbursable expenses shall be passed through at a cost factor of 1.0. In-house copying charges, computer fees, photocopies less than 11-inches by 17-inches, telephone services, faxes, and other similar items shall be considered a portion of the CONSULTANT’S overhead costs and shall not be billed separately to the CITY.

3.3. CONSULTANT shall submit statements, in a form acceptable to CITY, for services rendered and for reimbursable expenses incurred. The statements will be based upon CONSULTANT’s actual manpower expended and actual expenses incurred within the billing period. If the project time for completion as set forth in the Task Authorization is less than thirty (30) days, then CONSULTANT shall submit its request for payment at the conclusion of the project. If the time for completion as set forth in the Task Authorization exceeds thirty (30) days, then CONSULTANT shall submit requests for payment no more frequently than once per month. At a minimum each statement shall include a time sheets or labor cost statements for services rendered during the period covered by the statement. Each time sheet shall state the names and classifications of all personnel who performed services during said month under the task authorization, and the number of hours worked by each. Except for Task Authorizations for lump sum compensation, the statement shall include the following:

This statement sets forth only actual time spent by the firm’s employees and does not contain any unit billing, multipliers, or other devices that permit payment for more than actual time spent.

3.4. As a condition precedent to receiving payment, CONSULTANT shall have been authorized to proceed by CITY for the specific task or phase, shall not be in default of any of the terms and conditions of this Agreement.

3.5. CITY shall pay all valid, approved and undisputed invoices pursuant to Florida Statute Section 218.70, the Prompt Payment Act, and all City Policies promulgated thereby. In the event that CITY disputes any invoice submitted, it shall advise CONSULTANT in writing and said invoice shall not be deemed due and payable under this Agreement. Neither the CITY's review approval or acceptance of, nor payment for, any services provided hereunder shall be construed to operate as a waiver of any rights under this Agreement and the CONSULTANT shall be liable to CITY for any and all damages to CITY caused by the CONSULTANT's negligent or wrongful performance of any of the services furnished under this Agreement.

Section 4. PERFORMANCE BY CONSULTANT.

4.1. CONSULTANT shall assign competent professionals to perform the assigned responsibilities and duties faithfully, intelligently, and to the best of their ability, and in the best interest of CITY during the term of this Agreement. All services provided shall be performed in accordance with this Agreement and with any and all applicable law, professional standards and guidelines. CITY may request CONSULTANT to make revisions to the work performed. Any changes or revisions requested by CITY that are not due to consultant error, omission or negligence will be incorporated into the scope of services by written amendment to this agreement and the consultant may be entitled to additional compensation upon the agreement of the parties. Consultant will perform its Services with that level of care and skill ordinarily exercised by other professionals practicing in the same discipline(s), under similar circumstances and at the time and place where the Services are performed.

4.2 CITY or its agents shall at all times have the right to review or observe the services performed by CONSULTANT. No inspection, review, or observation shall relieve CONSULTANT of its responsibility under this Agreement.

4.3. CITY’s designated Project Manager may hold periodic progress meetings on a monthly basis, or more frequently, if required, during the term of any task authorization entered into under this Agreement. CONSULTANT’s Project Manager and all other appropriate personnel shall attend such meetings as designated by CITY’s Project Manager.

Section 5. TERM. This Agreement shall become effective upon execution by both parties and shall remain in effect for ___________ years. Thereafter, the terms of the Agreement may be extended for additional one-year periods, upon mutual agreement of both parties, but such option to extend may only be utilized two (2) times unless authorized by the City.

Section 6. SAFETY

6.1. To the extent applicable, CONSULTANT agrees to comply with CITY’s published safety standards while on the property of CITY. A copy of these standards is provided in Exhibit ‘B’ attached hereto and incorporated herein.

6.2. CONSULTANT shall have full responsibility and assume all liability for the safety and supervision of its employees while performing services provided hereunder.

Section 7. REASONABLE ACCESS. During the term of this Agreement, CITY shall grant CONSULTANT reasonable access to the CITY’s premises for purposes of fulfilling its obligations under this Agreement.

Section 8. COMPLIANCE WITH LAWS AND REGULATIONS. CONSULTANT shall comply with all requirements of federal, state and local laws, rules, regulations, standards, and/or ordinances applicable to the performance of this Agreement.

Section 9. REPRESENTATIONS.

9.1. Subject to the provisions of this Section, should CONSULTANT breach the warranties set forth herein, CITY shall have such remedies as may be provided at law or equity.

9.2. Without limiting the generality of the foregoing, if the CONSULTANT completes its services under any Task Authorization entered into hereunder, and the CONSULTANT’s services are non-complying, defective, or otherwise improperly performed and CITY notifies CONSULTANT in writing that a defect, error, omission or noncompliance has been discovered in CONSULTANT’s services, CONSULTANT shall, at the option of CITY: a) correctly re-perform such non-complying, defective, or otherwise improperly performed services at no additional cost to CITY; b) refund the amount paid by CITY attributable to such non-complying, defective or otherwise improperly performed services; or c) if CONSULTANT fails to take action under a) above, at CONSULTANT’s sole expense, otherwise cure or have cured any such non-complying, defective, or otherwise improperly performed services.

9.3. CONSULTANT guarantees that all services provided under this Agreement shall be free from claims of patent, copyright, and trademark infringement. Notwithstanding any other provision of this Agreement, CONSULTANT shall indemnify, hold harmless, and defend CITY, its officers, directors, employees, agents, assigns, and servants from and against any and all liability, including expenses, legal or otherwise, for actual or alleged infringement of any patent, copyright, or trademark resulting from the use of any goods, services, or other items provided under this Agreement. Notwithstanding the foregoing, CONSULTANT may elect to provide non-infringing services.

Section 10. DOCUMENTS

10.1. Upon CITY’s or its designated Project Manager’s request, at any time during the term of this Agreement or upon completion or termination of this Agreement, CONSULTANT shall provide CITY or its designated Project Manager with a copy of all documents and electronic files prepared by CONSULTANT under this Agreement or any Task Authorization hereunder. CONSULTANT specifically authorizes and agrees that CITY may use said documents for any purpose without additional consent from, or compensation to, CONSULTANT. CITY understands and agrees that re-use of any documents for any other purposes, shall be at the CITY’s own risk.

10.2. CONTRACTOR expressly understands records associated with this project are public records and agrees to comply with Florida’s Public Records law, to include, to:

10.2.1. Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to perform the services contemplated herein.

10.2.2. Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in this Florida’s Public Records law or as otherwise provided by law.

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

10.2.4. Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of the CONTRACTOR upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY.

10.2.5. IF CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONSULTANT SHALL CONTACT THE CITY’S CUSTODIAN OF PUBLIC RECORDS AT CITY CLERK’S OFFICE, 1300 9th STREET, ST. CLOUD, FLORIDA 34769, TELEPHONE 407-957-7300, EMAIL CITYCLERK@STCLOUD.ORG.

Section 11. ASSIGNMENT/SUBCONTRACTORS. CONSULTANT shall not assign or subcontract this Agreement, any task authorization hereunder, or any rights or any monies due or to become due hereunder without the prior, written consent of CITY.

Section 12. INDEPENDENT CONSULTANT. At all times during the term of this Agreement, CONSULTANT shall be considered an independent CONSULTANT.

Section 13. DEFAULT. If during the term of this Agreement, CONSULTANT shall be in default of any of the material provisions of this Agreement, CITY may suspend CONSULTANT’s performance hereunder until such delinquency or default has been corrected; provided, however that no suspension shall be effective unless and until CITY gives written notice of the default to CONSULTANT with at least ten (10) days to cure such default. If CONSULTANT fails to correct such delinquency or default within thirty (30) days of suspension by CITY, CITY may terminate this Agreement.

Section 14. TERMINATION.

14.1. The non-breaching party upon breach of the terms and conditions contained herein may terminate this Agreement.

14.2. Additionally, CITY shall have the right to terminate the agreement, for any reason, upon thirty (30) days written notice to the CONSULTANT. In the event of termination by the CITY pursuant to this Section 3 above. CONSULTANT shall be compensated in accordance with the services completed and accepted, as of the date of the termination and as set forth in the Scope of Services.

14.3. CITY may terminate this agreement at any time in accordance with Section 287.135 Florida Statutes, as may be amended.

Section 15. AUTHORIZED REPRESENTATIVE OF THE CITY. During the term of this Agreement, the City Manager shall be the designated representative authorized to act on behalf of the CITY, as provided by law. The City Manager shall appoint a Project Manager to, subject to final authority of the City Manager and/or the City Council, with respect to the administration of this Agreement and any Task Authorization issued hereunder.

Section 16. INSURANCE PROVIDED BY CONSULTANT. CONSULTANT shall maintain in force during the term of this Agreement, at its own expense, insurance as set forth in Exhibit “C”, attached hereto and incorporated herein and shall be bound by the terms of the Hold Harmless/Indemnification provisions expressed therein.

Section 17. INDEPENDENT CONTRACTOR. The parties agree that at all times and for all purposes within the scope of this Agreement, the relationship of CONSULTANT and CITY is that of an independent contractor.

Section 18. FORCE MAJEURE. With regard to the performance hereunder, CONSULTANT shall not be deemed to be in default of this agreement, or have failed to comply with any term or conditions herein if, for reasons beyond CONSULTANT's reasonable control (including, without limitation, acts of God, natural disaster, labor unrest, war, declared or undeclared, the existence of injunctions or requirements for obtaining licenses, permits or other compliance with applicable laws, rules and regulations), such performance is not reasonably possible within such time periods, then the time for such performance shall be extended until removal of such reasons beyond CONSULTANT's reasonable control, provided that CONSULTANT commences such performance as soon as reasonably possible and diligently pursues such performance.

Section 19. GOVERNING LAW & VENUE. This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue shall be Osceola County, Florida, or the United States District Court in and for the Middle District of Florida.

Section 20. HEADINGS. Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement.

Section 21. SEVERABILITY. In the event any portion or part of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law, the parties shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts thereof shall otherwise be fully enforceable.

Section 22. WAIVER AND ELECTION OF REMEDIES.

22.1. Waiver by either party of any terms, condition, or provision of this Agreement shall not be considered a waiver of that term, condition, or provision in the future.

22.2. No waiver, consent, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party hereto.

Section 23. THIRD PARTY RIGHTS. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than CITY and CONSULTANT.

Section 24. PROHIBITION AGAINST CONTINGENT FEES. The CONSULTANT warrants that he or she has not employed or retained any company or person, other than a bona fide employee working solely for the ENGINEER to solicit or secure this agreement and that he or she has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the CONSULTANT any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this agreement.

Section 25. ENTIRE AGREEMENT. This Agreement, including the schedules, attachments, appendixes and exhibits attached hereto, constitutes the entire agreement between CITY and CONSULTANT with respect to the services specified and all previous representations relative thereto, either written or oral, are hereby annulled and superseded.

Section 26. SOVEREIGN IMMUNITY. Nothing contained in the Agreement shall be construed as a waiver of the CITY’s rights to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the CITY’s potential liability under state or federal law.

Section 27. ATTORNEYS’ FEES. In the event a suit or action is instituted to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys’ fees at trial or on any appeal, in addition to all other sums provided by law.

Section 28. NOTICES. All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended.

Section 29. PROHIBITION AGAINST CONTINGENT FEES. 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/contractor working solely for CONSULTANT any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award of making of this agreement. For breach or violation of this provision, in addition to any and all remedies available to CITY, CITY shall have the right to terminate this agreement without liability and to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration.

Section 30. AMENDMENT. Except for as otherwise provided herein, this Agreement may not be modified or amended except by an Agreement in writing signed by both parties.

Section 31. ELECTRONIC SIGNATURES AUTHORIZED. Each Party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement for the purposes herein expressed on the date first above written.

CITY OF ST. CLOUD ___________________________________

BY: BY:

ATTEST: ATTEST:

Linda P. Jaworski, City Clerk Print Attest Name

Exhibit ‘A’ CONSULTANT’s Reimbursable Expenses Schedule

Exhibit ‘B’

SPECIFICATION SAFETY REQUIREMENTS

The following safety requirements are comprehensive in nature with some site specificity; therefore, not all sections are applicable to every Agreement. Please apply those safety requirements as site(s) or situation(s) dictate. NOTE: All architects and/or CONSULTANTs who assume responsibility for contract management will be responsible for insuring compliance with these safety requirements by all CONSULTANT and any Subcontractors.

I. GENERAL

A. The CONSULTANT shall comply with Federal/State Occupational Safety and Health Act (OSHA) Standards and any other rules and regulations applicable to construction and/or maintenance activities in the State of Florida. The CONSULTANT shall also comply with Chapter 442, Florida Statutes (Occupational Safety and Health/Workers’ Compensation) and any county, or city, or any other agency’s rules and regulations regarding safety.

B. The CITY’S safety personnel or any supervisor may, but is not required to, order that the work be stopped if a condition of imminent danger is found to exist. Nothing contained herein shall be construed to shift responsibility or risk of loss for injuries or damage sustained as a result of violations of this Article from the CONSULTANT to the CITY; and the CONSULTANT shall remain solely and exclusively responsible for compliance with all safety requirements and for the safety of all persons and property at the project site.

C. The parties hereto expressly agree that the obligation to comply with applicable safety provisions is a material provision of this Agreement and a duty of the CONSULTANT. The CITY reserves the right to require demonstration of compliance with the safety provisions of this Agreement. The parties agree that such failure is deemed to be a material breach of this Agreement; and the CONSULTANT agrees upon such breach, all work pursuant to the Agreement shall terminate until demonstration to the CITY that the safety provisions of this Agreement have been complied with. In no event shall action or failure to act on the part of the CITY be construed as a duty to enforce the safety provisions of this Agreement, nor shall it be construed to create liability for the CITY for any act or failure to act in respect to the safety provisions of this Agreement.

II. SAFETY EQUIPMENT

All CITY safety regulations will be strictly adhered to and enforced by the CITY, which may include work stoppage or removal of CONSULTANT and/or personnel. These safety regulations include, but are not limited to:

A. All persons on CITY property will wear industrial safety glasses with affixed side shields at all times, except, when in an office building or construction trailer, in the enclosed cab of a motor vehicle, or during a break period when all work has stopped.

B. All persons on CITY property will wear an approved hard hat in good repair at all times, except when in an office building or construction trailer, in the enclosed cab of a motor vehicle, or during a break period when all work has stopped. Bump hats are not acceptable at any time.

C. All persons on CITY property and in an area where the noise level exceeds 85db, must wear hearing protection that complies with ANSI S3.19-74 (ear muffs and/or approved earplugs). This includes areas where noisy equipment is in use (i.e. jack hammers, electric or air drills, heavy equipment with open cabs, pipe cutting saw, etc.) and in the plant where posted.

D. Sport or athletic-type style shoes are NOT considered a suitable work shoe and are not acceptable as work shoes at this location.

E. Work conducted in an elevated position will require that:

1. Any person on CITY property working on or in an elevated location (four feet above ground level) and unprotected by handrails or guardrails must wear a safety belt or safety harness and be tied off with a lanyard to a fixed object or support that will restrict that person’s fall to a “minimum distance.”

2. Any person working from an electrical-line bucket truck will have in use the appropriate fall protection device.

3. Any person on a pole or tree will have in use the appropriate gaffs, belts, and/or harness.

4. Compliance with 29CFR 1910.269 is required.

F. Any person on CITY property, in an area where tools are being used that cause or may cause flying particles or an area where there is a potential of excessive dust or airborne particles, must wear, in addition to and over the industrial safety glasses, either soft-sided goggles or a full face shield/protector, and the appropriate respiratory protection equipment.

G. Where vehicular and/or pedestrian traffic is affected:

1. Maintenance of Traffic

The CONSULTANT shall conduct his work so as to interfere as little as possible with public travel, whether vehicular or pedestrian. Whenever it is necessary to cross, obstruct, or close roads, driveways, and walks, whether public or private, the CONSULTANT shall, at his own expense, provide and maintain suitable and safe detours or other temporary expedients for the accommodation of public and private travel, and shall give reasonable notice to owners of private drives before interfering with them. Such maintenance of traffic will not be required when the CONSULTANT has obtained permission from the owner and tenant of private property, or from the authority having jurisdiction over public property involved, to obstruct traffic at the designated point.

2. Barricades and Lights

All streets, roads, highways, and other public thoroughfares, which are closed to traffic, shall be protected by effective barricades on which shall be placed acceptable warning signs. Barricades shall be located at the nearest intersecting public highway or street on each side of the blocked section and all other positions required by applicable standards.

All barricades and obstructions shall be illuminated by means of warning lights from sunset to sunrise. Materials stored upon or alongside public streets and highways shall be so placed, and the work at all times shall be so conducted, as to cause the minimum obstruction and inconvenience to the traveling public.

All materials and equipment MUST BE stationed outside of the clear zone at the end of each shift or whenever work is concluded for that day. The total roadside border area, starting at the edge of the travelled way, which is available for an errant driver to stop or regain control of a vehicle, is defined as the Clear Zone.

All barricades, signs, lights, and other protective devices shall be installed and maintained in conformity with applicable statutory requirements and, where within railroad and highway rights-of-way, as required by the authority having jurisdiction thereover.

All CONSULTANT owned or controlled vehicles and/or equipment, which will be operated on or within ten (10) feet of the roadway will be equipped with a minimum of one amber 360 degree Class I warning device. This device must meet minimum standards for utility construction purposes such as a minimum of 500,000 candlepower and visible from 360 degrees of mounting. The warning device(s) must be in operation at all times that a vehicle/equipment is on the roadway or within the ten (10) feet of runoff area and not in a “normal” travel status.

3. Damage to Existing Property

The CONSULTANT will be held responsible for any damage to existing structures, work, materials, or equipment because of his operations and shall repair or replace any damaged structures, work, materials, or equipment to the satisfaction of, and at no additional cost to, the CITY, unless otherwise addressed in the Agreement.

III. TOXIC SUBSTANCES

The CONSULTANT shall be responsible for compliance with Chapter 442, Florida Statutes, “Toxic Substances in the Workplace” (Right-To-Know-Law/Global Harmonized System) for its employees and the employees of any and all subcontractors the CONSULTANT brings on or causes to be on the project site. Assure compliance with 29 CFR1910 Subpart Z.

The CONSULTANT shall, between receiving the Agreement and coming on the project site to begin work, provide the CITY’S field representative with affidavits stating that ALL personnel the CONSULTANT brings on, or causes to be on the project site, have been given training on any toxic substances said personnel will be working with or may be exposed to while working at the job site.

The CONSULTANT shall provide/give to the CITY’S field representative a copy of manufacturer’s SDS for ANY and ALL “Toxic Chemicals” used by or brought on the project site by the CONSULTANT or subcontractor prior to the substance(s) being delivered to the CITY’S property.

The CONSULTANT and/or subcontractor must be provided SDS(s) which is/are in the possession of the CITY upon receipt of a written request. The CITY may establish reasonable procedures for acting upon such requests to avoid interruption of normal work operations.

Before any work shall begin, the CONSULTANT shall arrange a meeting to advise CITY’S field representative about safety and any dangers CITY employees will be subjected to, due to the presence of chemicals on the project site.

IV. TRENCHING AND EXCAVATION

Trenching and excavation operations shall comply with the OSHA 29CFR 1926 Subpart P final rule.

A. Where CONSULTANT work may interfere with other utilities, the CITY shall be notified prior to encroachment unless otherwise addressed in the Agreement.

B. The CITY has identified certain areas within its operations, which are regulated by OSHA 29CFR 1910 Subpart Z, as well as 29 CFR1926.651 and 1926.652. If the CONSULTANT’S work involves these affected areas, the CITY requires prior to commencement of CONSULTANT work that applicable and acceptable written compliance programs and documented certification/qualifications be provided to the CITY, management, and safety personnel.

V. CONSULTANT OPERATIONS SHALL COMPLY WITH OSHA 29CFR 1910.269. Further CONSULTANT operations shall comply with 29CFR 1910.252 and NFPA 51B for cutting and welding procedures.

VI. CONSULTANT SHALL, WITHIN THIRTY (30) CALENDAR DAYS of notification of award of Contract, and prior to commencement of work, provide to the CITY, the CONSULTANT’S written safety compliance program(s).

VII. CURRENT INDEPENDENT CERTIFICATION for any CONSULTANT-provided bucket truck to be for the provision of services of this Agreement shall be provided to the CITY prior to use of said bucket truck.

Exhibit ‘C’

INSURANCE REQUIREMENTS

SPECIAL PROVISIONS

On the Commercial General Liability and Business Automobile Liability, the City of St. Cloud shall be listed as an “additional insured” and named as a certificate holder, as their interest may appear. The CITY shall not by reason of their inclusion under these policies incur liability to the insurance carrier for payment of premiums for these policies. A renewal certificate shall be issued thirty (30) days prior to expiration of coverage.

Where available all policies shall be of an occurrence type and provide a forty-five (45) day notice of cancellation or modification of coverage. Prior to commencement of work, the proper insurance certificates shall be provided to, and approved by the CITY.

DEDUCTIBLES: Given that the indemnification agreement is intended to be supported by first dollars insurance policies, which require full disclosure of any and all deductible for all coverage required by this specification or Contract, the only exception will be the area of Workers’ Compensation. The CITY reserves the right to determine acceptable limits of such deductibles.

FIRST DOLLAR COVERAGE: To the extent that the CONSULTANT may elect to purchase insurance, which provides a deductible or (SIR) self-insure retention, the CONSULTANT will assume liability to personally indemnify the CITY to the same level of coverage required of their insurance carrier.

COVERAGE’S & LIMITS

COMMERCIAL GENERAL LIABILITY: This insurance shall be an “occurrence” type policy written in comprehensive form and shall protect the CONSULTANT and the additional insured against all claims arising from bodily injury, sickness, disease, or death of any person other than the CONSULTANT’S employees or damage to property of the CITY or others arising out of any act or omission of the CONSULTANT or his agents, employees, or subcontractors. This policy shall also include protection against claims insured by usual personal injury liability coverage, and to insure the Agreementual liability assumed by the CONSULTANT under the article entitled INDEMNIFICATION and COMPLETED OPERATIONS AND PRODUCTS LIABILITY coverage.

The liability limits shall not be less than:

BUSINESS AUTOMOBILE LIABILITY: This insurance shall cover “any auto” type for bodily injury and property damage. This shall include owned vehicles, hired and non-owned vehicles, and employee non-ownership.

The liability limits shall not be less than:

WORKERS’ COMPENSATION INSURANCE: The CONSULTANT shall take out and maintain during the life of this agreement, workers’ compensation insurance for all of his employees connected with the work of this project and in case any work is sublet, the CONSULTANT shall require the subcontractor similarly to provide workers’ compensation insurance for all of the latter’s employees unless such employees are covered by the protection afforded by the CONSULTANT. Such insurance shall comply fully with Florida Statutes, Chapter 440 and the Florida Workers’ Compensation Law (Florida WC Statutory Limits). In case any class of employees engaged in hazardous work under this contract at the site of the project is not protected under the workers’ compensation statute, the CONSULTANT shall provide adequate insurance, and cause such subcontractor to provide adequate insurance, satisfactory to the owner, for the protection of his employees not otherwise protected.

PROFESSIONAL LIABILITY: CONSULTANT shall carry professional malpractice insurance in the amount of $1,000,000 throughout the term of this Agreement and shall maintain such coverage for an extended period of three (3) years after completion and acceptance of any work performed hereunder. At all times throughout the period of required coverage, said coverage shall insure all claims accruing from the first date of the Agreement through the expiration date of the last policy period. In the event that CONSULTANT shall fail to secure and maintain such coverage, CONSULTANT shall be deemed the insurer of such professional malpractice and shall be responsible for all damages suffered by the CITY as a result thereof, including attorney’s fees and costs.

HOLD HARMLESS/INDEMNIFICATION: To the fullest extent permitted by laws and regulations, the CONSULTANT shall defend, indemnify, and hold harmless the CITY, its officers, directors, agents, guests, invitees, and employees from and against all claims, damages, losses, and expenses, direct, indirect, or consequential (including but not limited to fees and charges of CONSULTANTs, architects, attorneys, and other professionals and court and arbitration costs) arising out of or resulting from any acts of commission, omission or negligence in the performance of the work by the CONSULTANT, any subcontractor, or any person or organization directly or indirectly employed by any of them to perform or furnish any of the work or anyone for whose acts any of them may be liable.

In any and all claims against the CITY, or any of its officers, directors, agents, or employees by any employee of the CONSULTANT, any subcontractor, any person or organization directly or indirectly employed by any of them to perform or furnish any of the work or anyone for whose acts any of them may be liable, this indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the CONSULTANT or any such subcontractor or other person or organization under workers’ or workmen’s compensation acts, disability benefit acts, or other employee benefit acts, nor shall this indemnification obligation be limited in any way by any limitation on the amount or type of insurance coverage provided by the CITY, the CONSULTANT, or any subcontractors.

APPLICABILITY: It is the express intent of the CONSULTANT that this Agreement shall apply to all work or purchase orders incidental to the Professional Civil Engineering Services Agreement.

SUBROGATION: The CONSULTANT and any subcontractors shall require their insurance carriers, with respect to all insurance policies, to waive all rights of subrogation against the CITY, except for “Professional Liability”. In the case of “Professional Liability,” the CONSULTANT and any subcontractors shall waive all rights of subrogation except in situations where gross negligence is shown on the part of the CITY.

RELEASE OF LIABILITY: Acceptance by the CONSULTANT of the last payment shall be a release to the CITY and every officer and agent thereof, from all claims and liability hereunder for anything done or furnished for, or relating to the work, or for any act or neglect of the CITY or of any person relating to or affecting the work.

COMPANIES ISSUING POLICIES: Each insurance policy issued hereunder shall be issued by a company or companies authorized to do business in the State of Florida and which have an A.M. Best Company rating of “A” or better and a Financial Size category of “VII” or as otherwise approved by CITY, in its sole discretion.

NAME OF FIRM

By: Date:

Type / Print Name / Title