CONTRACT NO. {cmagreement356}

{cmsprojectname69} PROFESSIONAL SERVICES FIXED FEE AGREEMENT

THIS AGREEMENT (“Agreement”) shall be effective commencing _________________, between Central Florida Tourism Oversight District (herein referred to as the “Owner,” “District” or “CFTOD”), whose mailing address is 10450 Turkey Lake Road, Box #690519, Orlando, FL 32869, and {cmexternalpartyname363} (herein referred to as the “Consultant”), whose mailing address is {cmexternalpartyaddress335}, {cmexternalpartycity336}, {cmexternalpartystate340} {cmexternalpartyzipcode341}.

W I T N E S S E T H:

WHEREAS, Central Florida Tourism Oversight District issued a _____________ (“___”) No. C00____ on ____ for __________;

WHEREAS, ___ (_) proposers responded, and ________________ was the highest ranked proposer.

The Consultant was subsequently selected as the intended awardee for these services; and

WHEREAS Owner desires to commission the services of a consultant to perform the hereinafter described services, and Consultant desires to be so commissioned.

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

1. SCOPE OF SERVICES.

A. Description of Services: A description of the nature and scope of services to be performed by

Consultant under this Agreement (“Services”) is set forth in Exhibit A. Owner retains the right to reduce any portion of Consultant's Services. In such event, Owner shall be entitled to a proportionate reduction to the Compensation, as defined in Section 2.

B. Additional Services: Owner may, from time to time, authorize Consultant in writing to perform additional services (“Additional Services”), in which event Consultant shall perform same. Any such Additional Services shall be set forth in an Amendment to this Agreement which shall be executed by both parties and which shall be governed by the terms and conditions of this Agreement unless otherwise expressly set forth therein. Any additional Services performed by Consultant prior to execution by both parties of an Amendment shall be done at Consultant’s sole risk and shall not be compensated by Owner.

2. CONTRACT TIME.

A. Time for Completion: Consultant shall commence the Services on {cmstartingdate287} OR upon execution of this Agreement and shall complete the Services on or before {cmexpirationdate287_1} (“Schedule”) or as otherwise directed by Owner, and within the times established for the Deliverables set forth in Exhibit A.

B. Acceleration: Consultant shall accelerate performance of its Services in the manner directed by Owner in the event that Owner, in its sole discretion, determines that such acceleration is necessary to maintain the Schedule.

3. COMPENSATION.

Fixed Fee Amount.

A. Owner shall pay Consultant a lump sum, fixed fee amount of ___ONE-HUNDREDTHS DOLLARS

{cmsoriginal_feeamt173} (“Contract Sum”) as total compensation for the complete and satisfactory performance of the Services in accordance with the Schedule and Rate Schedule. The Fixed Fee Amount shall include, but not be limited to, Consultant’s profit, overhead, employee burden, taxes, labor, materials, and any and all costs and expenses of any nature, incurred by

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Consultant in connection with the performance of Consultant’s Services hereunder, all of which shall be borne solely by Consultant.

B. The Fixed Fee Amount shall be proportionally adjusted to reflect any changes in the scope of Services as set forth in an Amendment, and the Schedule shall be equitably adjusted by way of said Amendment to the extent impacted thereby. Consultant shall not be entitled to compensation for additional Services unless Consultant has obtained prior written authorization in an Amendment to perform such additional Services.

C. Progress payments shall be made monthly based upon the percentage of Services completed to date of invoice and approved by Owner, pursuant to the Schedule and Rate Schedule. Consultant shall invoice Owner on the first day of each month and Owner shall pay each such approved invoice (or uncontested portion thereof) within thirty (30) days after receipt of invoice. Invoices shall (i) refer to this Agreement by the Contract Number indicated at the top right-hand corner of the first page hereof, (ii) display the Fixed Fee Amount, (iii) itemize each Amendment and amount being billed against those Amendments in the invoice, (iv) itemize all amounts previously invoiced and paid, and (v) include complete documentation and substantiation for all amounts invoiced.

D. All invoices should reference the contract number and shall be addressed appropriately as outlined below based on the Owner’s Representative/department the invoice pertains to:

Central Florida Tourism Oversight District (“District” or “CFTOD”) projects

District utility projects managed by Reedy Creek Energy Services (“RCES”)

Central Florida Tourism Oversight District Attention: Accounts Payable P.O. Box 690519 Orlando, Florida 32869 All invoices shall be sent to ap@oversightdistrict.org

Central Florida Tourism Oversight District C/O: Reedy Creek Energy Services - Utilities Division Attention: Accounts Payable P.O. Box 690519 Orlando, Florida 32869 All invoices shall be sent to wdw.rces.billing@disney.com

E. Return of Funds. Consultant will return any overpayments due to unearned funds or funds disallowed pursuant to the terms of the Agreement that were disbursed to the Consultant. The Consultant must return any overpayment within forty (40) calendar days after either discovery by the Consultant, its independent auditor, or notification by the Owner of the overpayment.

4. PROJECT CONSTRUCTION BUDGET.

A. Consultant acknowledges that it has been provided with the Project Construction Budget of

$_________________, and acknowledges that the Project Construction Budget is of the essence of this Agreement. Consultant agrees that its work product, including without limitation, any designs, plans, and drawings, to be provided under this Agreement shall be designed to be constructed within the Project Construction Budget. The Owner and Consultant acknowledge that neither party has control over the cost of labor, materials, or equipment, over the Contractor's methods of bidding, or over market conditions which may affect the costs of construction for the Project.

B. Consultant shall perform any and all redesign work, as a part of its Services that may be required so that the Project may be constructed within the Project Construction Budget, provided that such redesign work is not necessitated solely by negligent acts or omissions of Owner. In the event any such redesign work is necessitated solely by the negligent acts or omissions of Owner, then Consultant shall perform any such redesign work as Additional Services.

C. Consultant shall cooperate with the Owner's estimating consultant by providing all necessary information for the preparation and updating of all estimates of construction costs throughout all

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mailto:wdw.rces.billing@disney.com phases of the Project. Consultant shall provide accurate estimates of the costs of construction of Consultant's designs, including those covered by Amendments to this Agreement, throughout all phases of the Project.

D. Consultant may request adjustments to the Project Construction Budget if governmental regulatory authorities, boards or agencies, subsequent to the date of this Agreement, impose requirements applicable to the Project which have substantial impact on the cost of construction of the Project.

Consultant shall submit to the Owner a written request for adjustment to the Project Construction Budget within 30 days of receipt of any such requirements. Owner retains the right to approve or disapprove Consultant's request for adjustment or to take such action as Owner deems appropriate to ensure that the Project will not exceed the Project Construction Budget.

5. INSURANCE AND INDEMNIFICATION.

A. The Consultant shall at its expense procure and maintain during the life of this Agreement (and shall require the same from its Subconsultants, subcontractors, and Sub-subconsultants) the following types and minimum amounts of insurance:

i. Commercial General Liability Insurance including liability assumed under written contract, bodily injury, property damage, personal and advertising injury, and products/completed operations liability written on an occurrence basis with minimum combined single limits for bodily injury and property damage of $1,000,000 per occurrence. This coverage must be maintained for two (2) years after contract expiration;

ii. Automobile Liability coverage for all owned, non-owned and hired vehicles written on an occurrence basis, with minimum combined single limits of $1,000,000 per occurrence;

iii. Workers’ Compensation Insurance providing statutory benefits and Employer’s Liability Insurance with minimum limits of $1,000,000 per occurrence;

iv. Umbrella Liability on a follow-form basis providing coverage excess of the underlying policies required by i, ii, and iii above in an amount of at least $1,000,000 per occurrence;

v. If Consultant is providing any kind of professional service or advice including design, architectural, surveying, legal, financial, accounting or similar then Consultant will also carry Professional Liability/Errors & Omissions insurance with a limit of at least $1,000,000 per occurrence. This insurance may be on a claims-made form if there is a retroactive date that precedes the first date of work or services under this agreement and is maintained for at least two (2) years following the conclusion of services.

vi. If Consultant is using, transporting or disposing of any hazardous materials, potentially harmful materials, chemicals, waste or similar then Consultant will also carry Pollution Liability insurance with a limit of at least $1,000,000 per occurrence. This insurance may be on a claims-made form if there is a retroactive date that precedes the first date of work or services under this agreement and is maintained for at least two (2) years following the conclusion of services.

vii. If services will include the use or operation of any crane, total limit of Umbrella liability insurance will be at least $4,000,000.

viii. If Consultant is using any kind of aircraft including unmanned aerial vehicles (drones) then use must be approved by Owner and liability insurance satisfactory to Owner must be obtained.

ix. If Consultant is providing information technology software or services, then Consultant must also carry Cyber Liability Insurance with limits not less than $2,000,000 per occurrence or claim. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Consultant in this agreement and shall include, but not be limited to, claims

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involving infringement of intellectual property, infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.

x. Consultant is not required to commercially insure its owned, rented or borrowed machinery, tools, equipment, office trailers, vehicles, and other property but agrees that Owner is not responsible for and Consultant holds Owner harmless for loss, damage or theft of such items.

B. All insurance required under this Section shall be with companies and on forms authorized to issue insurance in Florida and with an insurer financial strength rating from AM Best of no less than A-or an equivalent rating from a similar, recognized ratings agency unless such requirements are waived, in writing, by the Owner’s Risk Manager. Certificates of insurance (or copies of policies, if required by the Owner) shall be furnished to the Owner at vendors@oversightdistrict.org.

C. CANCELLATION. All such insurance required by this Section shall provide that the coverage thereunder may not be reduced or canceled unless thirty (30) days unrestricted prior written notice thereof is furnished to Consultant, who agrees to promptly relay any such notice received to Owner.

D. ADDITIONAL INSUREDS. Each liability policy required herein (except Workers’ Compensation or Professional Liability) shall schedule as Additional Insureds, on a primary and non-contributory basis, the Owner and its affiliated entities and their supervisors, officers, employees, agents and assigns.

E. WAIVERS. The Consultant hereby waives, and will require its Subconsultants and Sub-subconsultants to waive and to require its and their insurers to waive their rights of recovery or subrogation against the Owner and its affiliated entities, supervisors, officers, employees, agents and assigns.

F. CLAIMS. The Consultant and its Subconsultants and Sub-subconsultants shall assist and cooperate in every manner possible in connection with the adjustment of all claims arising out of the operations conducted under or in connection with the Services and shall cooperate with the insurance carrier or carriers of the Owner and of the Consultant, its Subconsultants and Sub-subconsultants in all litigated claims and demands which arise out of said operations and which the said insurance carrier or carriers are called upon to adjust or resist.

G. DESIGN PROFESSIONAL INDEMNIFICATION. Per Florida Statute, §725.08, the Consultant/Design Professional shall indemnify and hold harmless the District and its appointed board supervisors, officers, employees, and volunteers from and against liabilities, damages, losses, and costs, including but not limited to reasonable attorneys’ fees, to the extent caused by the negligence recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of, and contemplated by this Agreement, and to the extent that the services rendered pursuant to the Agreement were services of a “Design Professional” as defined in Florida Statute, §725.08(4). The provisions of this paragraph shall survive the expiration or termination of this Agreement.

(OR)

INDEMNIFICATION. The Consultant shall indemnify and hold harmless the District and its appointed board supervisors, officers, employees, and volunteers from and against liabilities, damages, losses, and costs, including but not limited to reasonable attorneys' fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct (which includes, without limitation, any failure of the Consultant or any of its Subconsultants or Sub-subconsultants to

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mailto:vendors@oversightdistrict.org perform and complete the Services in strict compliance with the Contract Documents, unless such failure has been specifically waived by the District in writing upon final acceptance of the Services) of the Consultant or any persons employed or utilized by the Consultant in the performance of the Agreement, including without limitation, any Subconsultant or Sub-subconsultant (or their employees), utilized by the Consultant in the performance of the Services. The provisions of this paragraph shall survive the expiration or termination of this Agreement.

6. NO WAIVER OF SOVEREIGN IMMUNITY. Nothing in this Agreement operates as a waiver of District’s sovereign immunity or any rights or limits of liability existing under Florida law. District’s indemnity obligations herein are limited to the financial limitations provided in F.S. Section 768.28, whether said loss, cost, damage, claim or expense arises from tort, contract or any other theory of law and shall not extend to any loss, cost, damage, claim or expense resulting from the acts or negligence of the Consultant. These terms shall survive the termination of this Agreement and shall be fully binding until any proceeding brought under this Agreement is barred by statute of limitations.

7. SUSPENSION/TERMINATION FOR CONVENIENCE.

A. Anything herein to the contrary notwithstanding, Owner may, for convenience, terminate this Agreement upon seven (7) days prior written notice to Consultant. In the event of such termination, Owner's sole obligation and liability to Consultant, if any, shall be to pay Consultant that portion of the Contract Sum for the performance of the Services, plus any authorized reimbursable expenses incurred through the date of termination. In addition, Owner shall reimburse Consultant for any verifiable and documented non-cancelable commitments made by Consultant through the date of termination; provided, however, that Consultant shall exercise best efforts to mitigate the cost of same. Under no circumstances shall Owner be liable for any lost profits, lost revenue, unabsorbed overhead or any other losses of any kind whatsoever associated with any Services not performed.

B. Upon delivery to Consultant of a written Notice to Suspend Services, Consultant shall immediately suspend performance of its Services in the manner and for the duration directed by Owner in said Notice. Consultant shall take reasonable steps to preserve any Deliverables in progress at the time of suspension. Upon written notice that the suspension has been canceled, Consultant shall be entitled to an equitable adjustment to the Schedule only. In no event shall any suspension of Services exceed one (1) year in duration.

8. NON-FUNDING. In the event that budgeted funds for this Agreement are reduced, terminated, or otherwise become unavailable, Owner may terminate this Agreement upon written notice to Consultant without penalty to Owner. Owner shall be the final authority as to the availability of the funding.

9. FORCE MAJEURE.

A. Neither party shall be responsible for damages or delays caused by Force Majeure or other events beyond the reasonable control of the party and which could not reasonably have been anticipated or prevented.

B. Force Majeure includes, but is not limited to, war, terrorism, riots, epidemics, fire, acts of nature, strikes, lockouts, pandemics, court orders, and acts, orders, laws, or regulations of the government of the United States or the several states, prohibiting or impeding any part from performing its respective obligations.

C. If Force Majeure occurs, the parties shall mutually agree on the terms and conditions upon which services may continue. Should Consultant be delayed in the commencement, performance, or completion of the Services due to any of the conditions under this section, Consultant shall be entitled to an extension of time only, provided however, that in no event shall Consultant be entitled to any increased costs, additional compensation, or damages of any type resulting from such Force Majeure delays.

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10. CONSULTANT RESPONSIBILITIES. Except as otherwise specifically provided for in this Agreement, the following provisions are the responsibility of the Consultant:

A. Consultant shall be solely responsible for the means, methods, techniques, sequences, or procedures and safety precautions or programs incident thereto.

B. Consultant shall competently and efficiently supervise, inspect, and direct all work to be performed under this Agreement, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the work in accordance with the Contract Documents.

C. Consultant is duly licensed to observe and perform the terms, covenants, conditions and other provisions on its part to be observed or performed under this Agreement.

D. Standard of Care. Consultant shall perform all Services in a timely, efficient, and cost-effective manner. The quality of these Services shall be in accordance with the professional standards and the degree of skill and care ordinarily exercised by consultants in the same profession under similar circumstances. Consultant shall, at no additional cost to the Owner, re-perform any Services that fail to satisfy this standard of care. This standard of care shall govern all Consultant performance, regardless of any other provision in this Agreement.

E. The Deliverables shall not call for the use of nor infringe any patent, trademark, service mark, copyright or other proprietary interest claimed or held by any person or interest absent prior express written consent from the Owner.

F. Consultant shall comply with all applicable federal, state, and local laws, statutes, rules, codes, ordinances, agency regulations and orders of any public, quasi-public or other government authority including without limitation the requirements of the Americans with Disabilities Act of 1990 (“ADA”), as same may be amended from time to time, which have jurisdiction and which are current at the time Consultant renders Services hereunder.

11. KEY EMPLOYEES. In the event that any employees of Consultant are listed as Key Employees in Exhibit B, Consultant acknowledges that Owner has relied upon and hired Consultant because of the involvement of such individuals. Consultant agrees that such Key Employees shall be assigned to perform the Services. Consultant shall not remove any Key Employees from the performance of the Services absent prior written consent of Owner.

12. DELIVERABLES. “Deliverables” shall mean all drawings, specifications, data, ideas, designs, concepts, sketches, artwork, molds, models, tooling, programs, software, reports, improvements, inventions, original works of authorship or other tangible or intangible work product in whole or in part conceived, produced, commissioned or acquired by Consultant in connection with the Services. Consultant shall supply all Deliverables to Owner in accordance with the requirements of this Agreement. The Agreement Number, specification number, item number, and any other required identification must appear on all Deliverables submitted to Owner. Consultant is and shall be fully responsible for the preparation and accuracy of all Deliverables and the strict compliance of the Deliverables with all requirements hereof. Owner’s review, approval, action or inaction taken on the Deliverables is for Owner’s convenience and/or to express Owner’s opinion and shall not relieve or discharge Consultant either expressly or by implication from its responsibilities and obligations hereunder.

13. OWNERSHIP OF DELIVERABLES.

A. Title to all Deliverables shall be and remain the sole and exclusive property of Owner when produced, whether or not fixed in a tangible medium of expression. In the event of early termination of the Services hereunder, Consultant shall deliver to Owner all Deliverables whether complete or not.

B. Without limiting the foregoing, Consultant agrees that any Deliverables shall be deemed to be "works made for hire" for Owner as the author, creator, or inventor upon creation; provided, SA however, that in the event and to the extent that such Deliverables are determined not to constitute "works made for hire" as a matter of law, Consultant hereby irrevocably assigns and transfers such property, and all right, title and interest therein, whether now known or hereafter existing, including but not limited to patents and copyrights, to Owner and its successors and assigns. Consultant grants to Owner all rights including, without limitation, reproduction, manufacturing and moral rights, throughout the universe in perpetuity and in all languages and in any and all media whether now or hereafter known, with respect to such Deliverables. Consultant acknowledges that Owner is the motivating force and factor, and for purposes of copyright or patent, has the right to such copyrightable or patentable Deliverables produced by Consultant under this Agreement. Consultant shall deliver all Works to Owner promptly upon their completion or the sooner termination of Consultant's services hereunder. Consultant agrees to execute any and all documents and do such other acts as requested by Owner to further evidence any of the transfers, assignments and exploitation rights provided for herein.

C. The provisions of this Section shall survive the expiration or earlier termination of this Agreement.

14. BOOKS AND RECORDS. Consultant shall maintain, in accordance with generally accepted accounting principles, comprehensive books and records relating to all Services performed under this Agreement, which shall be retained by Consultant for a period of at least four (4) years from and after the completion of all Services. Owner, or its authorized representatives, shall have the right to audit such books and records at all reasonable times upon two days prior notice to Consultant.

15. PROMOTION/CONFIDENTIALITY. The Consultant, by virtue of this Agreement, shall acquire no right to use, and shall not use, the name of the Owner or the Owner’s Representative (either alone or in conjunction with or as a part of any other word, mark or name) or any marks, fanciful characters or designs of either of them or any related, affiliated or subsidiary companies: in any advertising, publicity or promotion; to express or imply any endorsement of the Consultant's Work or Services; or in any other manner whatsoever (whether or not similar to the uses hereinabove specifically prohibited).

Consultant may, during the course of its engagement hereunder, have access to and acquire knowledge regarding plans, concepts, designs, materials, data, systems and other information of or with respect to Owner or Owner’s Representative, or any subsidiaries or affiliated companies thereof, which may not be accessible or known to the general public (“Confidential Information”). Confidential Information that is specific as to techniques, equipment, processes, products, concepts or designs, etc. shall not be deemed to be within the knowledge of the general public merely because it is embraced by general disclosures in the public domain. Any knowledge acquired by Consultant from such Confidential Information or otherwise through its engagement hereunder shall not be used, published or divulged by Consultant to any other person, firm or corporation, or used in any advertising or promotion regarding Consultant or its services, or in any other manner or connection whatsoever without first having obtained the written permission of Owner, which permission Owner may withhold in its sole discretion. Consultant specifically agrees that the foregoing confidentiality obligation applies to, but is not limited to, any information disclosed to Consultant in any document provided to Consultant pursuant to or in connection with this Agreement, including but not limited to solicitations except to the extent Consultant must disclose such information to compile and prepare its proposed price for work or services performed hereunder. The provisions of this Section shall survive the expiration or earlier termination of this Agreement.

16. SUBCONSULTANT. If Consultant, as part of the performance of its Services hereunder, is required to commission other consultants (“Subconsultant”), then the following provisions shall apply:

A. Owner reserves the right to approve or disapprove the use of any Subconsultant for this

Agreement;

B. Consultant shall direct and coordinate the services of any Subconsultant commissioned by

Consultant;

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C. Consultant shall bear full responsibility under this Agreement for all services of its Subconsultant(s), including without limitation each Subconsultant's negligent errors and omissions;

D. The costs of all Subconsultants’ services for the performance of Additional Services compensated on a time-and-materials or cost-reimbursable basis shall be billed to Owner without markup;

E. Owner shall have no obligation to pay, or be responsible in any way, for the payment of any monies to any Subconsultant, except as may otherwise be required by law;

F. All agreements between Consultant and any Subconsultants shall reflect the terms of this Agreement and require the Subconsultant, to the extent of the Services to be performed by the Subconsultant, to assume toward the Consultant all the obligations which Consultant by this Agreement assumes towards the Owner, it being understood that nothing herein shall in any way relieve Consultant from any of its duties under this Agreement.

G. Owner shall be a third party beneficiary of all obligations under all agreements between Consultant and any Subconsultants; provided, however, that nothing contained herein or therein shall create any contractual relationship between Owner and any Subconsultant or any obligation of Owner to any Subconsultant.

17. NOTICE.

A. Notices required or permitted to be given hereunder shall be in writing, may be delivered personally to an officer or designated representative of the party to be served or sent by first class mail, facsimile to be confirmed by first class mail, or messenger services and shall be deemed given when received by the addressee. Notices shall be addressed as follows:

If to Owner: CENTRAL FLORIDA TOURISM OVERSIGHT DISTRICT

Attention: Contracting Officer 10450 Turkey Lake Road, Box # 690519 Orlando, FL 32869

If to Consultant: {CMEXTERNALPARTYNAME363} Attention: {cmexternalpartycontactname343} {cmexternalpartyaddress335} {cmexternalpartycity336}, {cmexternalpartystate340} {cmexternalpartyzipcode341} or to such other address as either party may direct by written notice given to the other as hereinabove provided.

B. Notwithstanding the foregoing, any notice sent to the last designated address of the party to whom a notice may be or is required to be delivered hereunder shall not be deemed ineffective if actual delivery cannot be made due to an unnoticed change of address of the party to whom the notice is directed or the failure or refusal of such party to accept delivery of the notice.

18. THE OWNER’S REPRESENTATIVE.

A. The Owner's authorized representative (herein referred to as the “Owner's Representative”) shall be {cmsrespindividual348} whose mailing address is 10450 Turkey Lake Road, Box #690519, Orlando, Florida 32869; provided, however, that the Owner may, without liability to the Consultant, unilaterally amend this Section from time to time by designating a different person or organization to act as its representative and so advising the Consultant in writing, at which time the person or organization so designated shall be the Owner's Representative for purposes of this Agreement. Except as otherwise provided in this Agreement, and until the Consultant is notified in writing to the contrary, all actions to be taken by, all approvals, notices, consent, directions and instructions to be given by, all notices and other matters to be delivered to, all determinations and decisions to be made by and, in general, all other action to be taken by, or given to, the Owner

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shall be taken, given and made by, or delivered or given to, the Owner’s Representative in the name of and on behalf of the Owner; provided, however, that the Owner (and not the Owner’s Representative) shall be solely obligated to the Consultant for all sums required to be paid by the Owner to the Consultant hereunder.

B. Nothing contained in this Agreement shall create any contractual relationship between the Consultant and the Owner’s Representative; provided, however, that the Owner’s Representative shall be deemed to be a third party beneficiary of those obligations of the Consultant to the Owner as imposed by this Agreement.

19. NO AGENCY. It is the express intention of the parties that Consultant is an independent contractor and not an employee, agent, joint venturer or partner of Owner. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Owner and Consultant or any employee or agent of Consultant. Both parties acknowledge that Consultant is not an employee for state or federal tax purposes. Consultant shall retain the right to perform services for others during the term of this Agreement.

20. PUBLIC RECORDS. The Consultant shall comply with all applicable provisions of the Florida Public Records Act, Chapter 119, Florida Statutes. Specifically, the Consultant shall:

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

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

C. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Consultant does not transfer the records to the public agency.

D. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the Consultant or keep and maintain public records required by the public agency to perform the service. If the Consultant transfers all public records to the public agency upon completion of the contract, the Consultant shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Consultant keeps and maintains public records upon completion of the contract, the Consultant shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

IF THE CONSULTANT HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE

CONSULTANT’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO

THIS AGREEMENT, CONTACT THE OWNER’S CUSTODIAN OF

PUBLIC RECORDS AT TELEPHONE NUMBER 407-939-3240, EMAIL

ADDRESS PUBLICRECORDS@OVERSIGHTDISTRICT.ORG, MAILING

ADDRESS CENTRAL FLORIDA TOURISM OVERSIGHT DISTRICT,

ATTN: PUBLIC RECORDS ADMINISTRATOR, P.O. BOX 690519,

ORLANDO, FLORIDA 32869.

21. E-VERIFY COMPLIANCE. The Consultant and its subconsultants warrant compliance with all federal

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mailto:PUBLICRECORDS@OVERSIGHTDISTRICT.ORG immigration laws and regulations that relate to their employees. The Consultant agrees and acknowledges that the Owner is a public employer that is subject to the E-Verify requirements as set forth in Section 448.095, Florida Statutes, and that the provisions of F.S. Sec. 448.095 apply to this Agreement. Notwithstanding the provisions of this Section hereof, if the Owner has a good faith belief that the Consultant has knowingly hired, recruited or referred an alien who is not duly authorized to work by the immigration laws of the Attorney General of the United States for employment under this Agreement, the Owner shall terminate the Agreement. If the Owner has a good faith belief that a subconsultant performing work under this Agreement knowingly hired, recruited or referred an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States for employment under this Agreement, the Owner shall promptly notify the Consultant and order the Consultant to immediately terminate the contract with the subconsultant. The Consultant shall be liable for any additional costs incurred by the Owner as a result of termination of a contract based on Consultant’s failure to comply with E-Verify requirements referenced herein.

22. SCRUTINIZED COMPANIES. By executing this Agreement, the Consultant certifies that it is eligible to bid on, submit a proposal for, enter into, or renew a contract with the Owner for goods or services pursuant to Section 287.135, Florida Statutes. Owner may terminate Agreement immediately upon discovering that Consultant: (A) has been placed on the Scrutinized Companies or Other Entities that Boycott Israel List; (B) is engaged in a boycott of Israel; (C) has been placed on the Scrutinized Companies with Activities in Sudan List; (D) has been placed on the Scrutinized Companies with Activities in Iran Terrorism Sectors List; or (E) has been engaged in business operations in Cuba or Syria. This Agreement may also be terminated immediately if the Consultant falsely certified or has become ineligible to bid and contract with local government entities under F.S. 287.135. If this Agreement is terminated by the Owner as provided above the Owner reserves the right to pursue any and all legal remedies against the Consultant, including, but not limited to the remedies described in Section 287.135, Florida Statutes; and the Consultant shall be paid only for services completed as of the date of the Owner’s termination. Unless explicitly stated in this Section, no other damages, fees or costs may be assessed against the Owner for its termination of the Agreement pursuant to this Section.

23. LEGAL PROCEEDINGS.

A. The Contract Documents shall be construed and interpreted in accordance with the laws of the State of Florida, to the exclusion of its rules concerning conflicts of laws, and shall constitute the entire and sole understanding of the parties hereto notwithstanding any prior oral or written statements, instructions, agreements, representations, or other communications.

B. Any legal proceeding of any nature brought by either party against the other to enforce any right or obligation under this Agreement, or arising out of any matter pertaining to this Agreement, the Contract Documents or the Services to be performed hereunder (a “Proceeding”), shall be submitted for trial, without jury, solely and exclusively before the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida; provided, however, that if such Circuit Court does not have jurisdiction, then such Proceeding shall be submitted solely and exclusively before the United States District Court for the Middle District of Florida (Orlando Division); and provided further that if neither of such courts has jurisdiction, then such Proceeding shall be submitted solely and exclusively before any other court sitting in Orange County, Florida, having jurisdiction. The parties

(i) expressly waive the right to a jury trial, (ii) consent and submit to the sole and exclusive jurisdiction of the requisite court as provided herein and (iii) agree to accept service of process outside the State of Florida in any matter related to a Proceeding in accordance with the applicable rules of civil procedure.

C. If any provision of the Contract Documents is judicially construed to be invalid by a court of competent jurisdiction, such provision shall then be construed in a manner allowing its validity or, if this leads to an impracticable result, shall be stricken but, in either event, all other provisions of the Contract Documents shall remain in full force and effect.

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24. ASSIGNMENT. This Agreement is for the personal services of Consultant and may not be assigned by Consultant, nor shall it be assignable by operation of law, without the prior written consent of Owner, which consent Owner may withhold in its sole discretion. Owner reserves the right to assign or novate all or any portion of this Agreement and Consultant agrees to execute all documents that are required (if any) to effectuate such assignment or novation.

25. EFFECTIVE DATE. Any Services performed or caused to be performed by Consultant prior to the effective date of this Agreement shall be deemed to have been performed under this Agreement when agreed to by the Owner.

26. HEADINGS. The headings contained in this Agreement are inserted for convenience of reference only and shall not be construed in any manner for the purpose of interpreting the provisions thereof.

27. ENTIRE AGREEMENT.

A. This Agreement supersedes any and all discussions, understandings or other agreements, either oral or written, between the parties hereto with respect to the Services and contains all the covenants and agreements between the parties with respect to the Services. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, course of dealing usage of trade, or promise not contained in this Agreement shall be valid or binding or used to interpret this Agreement. Any modification or amendment of this Agreement will be effective only if it is in writing and signed by both parties.

B. Any failure by Owner to require strict compliance with any provision of this Agreement shall not be construed as a waiver of such provision, and Owner may subsequently require strict compliance at any time, notwithstanding any prior failure to do so.

28. CONTRACT DOCUMENTS.

A. The Contract Documents which comprise the entire understanding between the Owner and

Consultant shall only include this Agreement and those documents listed in this section as Exhibits to the Agreement. Each Exhibit is incorporated herein by reference for all purposes.

Exhibit A: Scope of Services and Deliverables (A-1 through A-_) Exhibit B: Key Employees (B-1) Exhibit C: Rate Schedule (C-1)

B. If there is a conflict between the terms of this Agreement and the Exhibits, then the terms of this Agreement shall control, amend, and supersede any conflicting terms contained in the Exhibits.

SIGNATURES FOLLOWING PAGE

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the day and year first above written.

OWNER CONSULTANT

CENTRAL FLORIDA TOURISM {CMEXTERNALPARTYNAME363}

OVERSIGHT DISTRICT

Signature: Signature:

Print Name: S.C. Kopelousos Print Name:

Title: District Administrator Title:

Date: Date:

EXHIBIT A

SCOPE OF SERVICES AND DELIVERABLES

A - 1

SCOPE OF SERVICES

Consultant shall provide the following Services:

{ScopeOfService}

DELIVERABLES

Consultant shall submit to Owner the following Deliverables:

• [Insert List of Deliverables]

[Indicate the date each deliverable is due]

ELECTRICAL SAFETY POLICY

Implicit on all electrical work performed at any of the Owner’s properties is the Consultant’s (and its Subconsultant's and Sub-subconsultant's) strict compliance with the Owner’s Electrical Safety Policy (“policy”).

The policy is that all electrical work shall be performed de-energized as a standard work practice. This policy applies to the Consultant, its Subcontractors, Sub-subcontractors, Subconsultants, Sub-subconsultants and anyone who performs electrical work on or near electrical conductors or circuit parts which are or may be energized. Consultant is expected to exercise good judgment and take personal responsibility for reducing the hazard risk to its lowest level and to ensure strict compliance with all applicable federal, state and local laws, codes, regulations and rules.

The Consultant agrees that its employees and agents and the employees of any of its Subcontractors, Sub-subcontractors, Subconsultants, Sub-subconsultants or anyone who performs electrical work as described herein shall adhere to all posted warnings, wear appropriate personal protective equipment (“PPE”) and protective clothing and use appropriate tools until exposed energized electrical conductors or circuit parts are verified to be at a zero energy state.

In the narrowly limited circumstances when exposed energized parts are not de-energized, excluding diagnostic testing that cannot be performed de-energized, a documented job briefing shall be completed.

The intent of the briefing is to provide notification for performing energized work to the Owner’s Representative prior to performing the work. The job briefing shall include, but not be limited to, the following:

• Validation for energized work

• Hazards associated with scheduled work such as working in roadways or work performed within boundary, etc.

• Work procedures

• Energy source controls such as physical barriers or meter verification

• Personal protective equipment to be utilized

• Job work plan summary

• Record of the names of all workers involved in the work/briefing The Consultant understands and agrees that the Owner, throughout the term of the Agreement, may review the Consultant's, Subconsultant's, and Sub-subconsultant's safe work plan(s) to confirm for its operations and the safety and wellbeing of its cast, guests and invitees that adequate contingency plans have been considered in the event of an inadvertent interruption of electrical service.

Consultant shall establish or shall cause its Subconsultants or Sub-subconsultants to establish appropriate

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EXHIBIT A

SCOPE OF SERVICES AND DELIVERABLES

A - 2 boundaries to restrict access around the work based on the type of hazard present. A flash protection boundary shall be established by the qualified person of the Consultant or its Subconsultants or Sub-subconsultants a minimum of four feet away (600V, 600A max) from the exposed energized electrical conductors or circuit parts where the potential exists for an arc flash to occur, unless specific information is available indicating a different flash boundary is appropriate. Persons must not cross the flash protection boundary unless they are wearing the appropriate PPE and are under direct supervision of a qualified person.

A limited approach boundary shall be established by the qualified person of the Consultant or its Subconsultants or Sub-subconsultants a minimum of three feet six inches (3’-6”) away from the exposed fixed energized electrical conductors or circuit parts, 600V max, where the potential exists for an electric shock to occur, unless specific information is available indicating a different limited approach boundary is appropriate. The purpose of the limited approach boundary is to advise unqualified persons that an electrical shock hazard exists and to reduce the risk of contact with an exposed energized conductor. Only qualified persons and immediately supervised unqualified persons are allowed to cross the limited approach boundary.

The Consultant understands and agrees that it is the responsibility of the Consultant to ensure compliance with all applicable safety laws, codes regulations and rules as well as adherence to the policy for all electrical work. The Owner reserves the right to observe and/or audit the Consultant’s (or its Subconsultants’ or Sub-subconsultants’) work without notice. The Consultant expressly understands and unequivocally agrees that any failure to strictly comply with any applicable safety laws, codes, regulations, and the rules of this policy is a material breach of the Agreement and may result in an immediate work stoppage or termination of the Agreement at no additional cost to the Owner.

END OF EXHIBIT A

EXHIBIT B

KEY EMPLOYEES

B - 1

KEY EMPLOYEES

• [Insert Key Employees]

END OF EXHIBIT B

EXHIBIT C

RATE SCHEDULE

C - 1

I. Schedule of Billing Rates: The following establishes the hourly billing rates in effect throughout the term of the Agreement.

Labor Classification Fully Loaded Hourly Rate

II: Itemization of the Fee: The following itemizes the Fee and corresponds to completion of the Scope of

Services set forth in Exhibit A:

Labor Classification Total Hours (all tasks)

Loaded Hourly Rate

Total Fixed Fee

Total Fixed Fee: {cmsoriginal_t otalamt172}

END OF EXHIBIT C