service_agreement-draft.pdf

SERVICE AGREEMENT

THE CITY OF FORT MYERS

And

For the project known as

TBD

Service Agreement-Test

1. SCOPE OF PROFESSIONAL SERVICES

CONSULTANT, hereby agrees to provide and perform the Services required and necessary to complete the services and work as set forth in the scope section of the solicitation EXHIBIT "A" is attached hereto and made a part of this Agreement. In addition, the Consultants response Exhibit "B" is attached hereto and made a part of this Agreement.

2. DEFINITIONS

2.1. ADDITIONAL SERVICES

The term Additional Services shall refer to such Professional Services as the CITY may request and authorize, in writing, the CONSULTANT to provide and perform relative to this Agreement, which are not included in the Basic Services. Additional Services shall be authorized by the execution of both parties to this Agreement of either a Supplemental Agreement or a Change Order Agreement.

2.2. AMENDMENT

An agreed addition to, deletion from, correction or modification of a document or contract.

2.3. BASIC SERVICES

The term Basic Services shall refer to the Professional Services set forth and required pursuant to this Agreement, and as described in further detail in the attached Exhibit “A”, under "Scope Of Professional Services", which Exhibit “A” is attached hereto and made a part of this Agreement.

2.4. CHANGE ORDER

The term Change Order shall refer to a written document, Change Order Agreement, executed by both parties to this Agreement setting forth and authorizing changes to the agreed upon Scope Of Professional Services and Tasks, Compensation and Method of Payment, Time and Schedule of Performance, or Project Guidelines and Criteria as such were set forth and agreed to in the initial Agreement, Supplemental Agreements, or previous Change Orders issued thereto. The Change Order document, which shall be executed on a City of Fort Myers standard form, shall set forth the authorized changes to the: Scope Of Professional Services, tasks, work or materials to be performed or provided by the CONSULTANT; the compensation and method of payment; the schedule or time period for performance and completion, and the guidelines, criteria and requirements pertaining thereto.

The amount of the change in contract compensation and time set forth in any and all Change Orders executed and issued under this Agreement shall be understood and agreed by both Parties to this Agreement to be fair, equitable, adequate and complete. The changed compensation shall be understood and agreed to be the total of all costs associated with or impacted by the Change Order including, but not limited to, any and all direct costs, indirect costs and associated costs which may result from or be caused by the Change Order, and shall be understood and agreed to include a fair, equitable and adequate adjustment to cover the CONSULTANT'S general administrative and overhead costs and profit.

In the event the CITY decides to delete all, or portions, of the Scope of Services, Task(s), or Requirements set forth in the initial Agreement, Supplemental Agreements or previously authorized Change Orders, the CITY may do so by the unilateral issuance of a written Change Order to the CONSULTANT. Such a unilaterally issued Change Order shall set forth, if appropriate, (1) an agreement by both the CITY and the CONSULTANT establishing changes in the amount of compensation to be paid the CONSULTANT as a result of the deletion or decrease in services required, or (2) in the absence of such an agreement concerning compensation, the unilaterally issued Change Order shall set forth the basis to be used in subsequently considering, and reaching agreement on change(s) in the compensation to be paid the CONSULTANT.

The failure on the part of the CONSULTANT to execute a Change Order issued unilaterally by the CITY, to effect a deletion or decrease in the services required, shall have no effect on, or otherwise prevent the CITY from exercising its rights to direct the stated deletion or decrease in the services to be provided or performed by the CONSULTANT.

2.5. CITY

The term CITY shall refer to the City of Fort Myers, Florida, a municipal corporation in the State of Florida, and any official and/or employees thereof who shall be duly authorized to act on the CITY'S behalf relative to this Agreement.

2.6. CONSULTANT

The term CONSULTANT shall refer to the individual or firm offering Professional Services, which by execution of this Agreement, shall be legally obligated, responsible, and liable for providing and performing any and all of the services, work and materials, including services and/or work of Sub- Consultants and Sub-Contractors, required under the covenants, terms and provisions contained in this Agreement, and any and all Amendments, Supplemental Agreements, or Change Orders thereto.

2.7. CONTRACT ADMINISTRATOR

The term Contract Administrator shall refer to the person employed by the City of Fort Myers to serve and act on the CITY'S behalf as the CITY'S Contract Administrator. The City Manager shall act on behalf of the CITY to execute any and all Supplemental Agreements(S) or Change Order(s) approved by the CITY and issued to the CONSULTANT pursuant to this Agreement. The Contract Administrator, within the authority conferred by the City of Fort Myers, acting as the CITY'S designated representative shall issue written notification to the CONSULTANT of any and all changes approved by the CITY in the CONSULTANT'S: (1) compensation (2) time and/or schedule of service delivery; (3) scope of services;

and (4) any Amendment(s) or other change(s) relative to Basic Services and Additional Services pursuant to this Agreement, or Supplemental Agreements (S), or Change Order(s) pertaining thereto. The Contract Administrator shall be responsible for acting on the CITY'S behalf to administer, coordinate, interpret and otherwise manage the contractual provisions and requirements set forth in this Agreement, or any Amendment(s), Change Order(s) or Supplemental Agreements (S) issued there under.

2.8. LUMP SUM FEE(S)

Lump Sum Fee(s), hereinafter identified as L.S., are understood and agreed to include all direct and indirect labor costs, personnel related costs, overhead and administrative costs, costs of Sub- Consultant(s) and/or Sub-Contractor(s), out-of-pocket expenses and costs, Professional Service Fee(s) and any other costs or expenses which may pertain to the services and/or work to be performed, provided and/or furnished by the CONSULTANT as may be required and/or necessary to complete each and every task set forth in the Scope Of Professional Services, or as may be set forth in subsequent Supplemental Agreements, and/or Change Orders agreed to in writing by both parties to this Agreement.

2.9. NOT-TO-EXCEED FEE(S)

When all, or any portion, of the CONSULTANT'S compensation to provide and perform the services and work necessary and required pursuant to the Tasks set forth in Agreement Exhibit “B”, and any Supplemental Agreements and Change Orders authorized thereto, is established to be made on a Not-To- Exceed (N.T.E.) amount basis, it is mutually understood and agreed that such compensation for each completed Task shall be made on the following basis:

For the actual hours necessary, required and expended by the CONSULTANT'S professional and technical personnel, multiplied by the applicable hourly rates for each classification or position as set forth to the above referenced Agreement and any Supplemental Agreements or Change Orders authorized thereto;

and

The actual necessary, required and expended non-personnel reimbursable expenses shall be included in the Professional Services cost(s) for the above referenced Agreement and any Supplemental Agreements or Change Orders authorized thereto; and

With the understanding and agreement that the CITY shall pay the CONSULTANT for all such costs and expenses within the established Not-To-Exceed amount for each Task or Sub-Task subject to the CONSULTANT presenting an itemized and detailed invoice with appropriate supporting documentation, including payrolls, and all SUB-CONSULTANT and SUB-CONTRACTOR fees attached thereto to show evidence satisfactory to the CITY covering all such costs and expenses; and

With the understanding and agreement that the CONSULTANT'S invoices, and all payments to be made for all Not-To-Exceed amounts, shall be subject to the review (including independent audit, if desired), acceptance and approval of the CITY; and

With the understanding and agreement that when the CONSULTANT'S compensation is established on a Not-To-Exceed basis for a specific Task(s) or Sub-Task(s), the total amount of compensation to be paid the CONSULTANT to cover all personnel costs, non-personnel reimbursable expenses and costs, and Sub- Consultant and Sub-Contractor costs for any such specific Task(s) or Sub-Task(s) shall not exceed the amount of the total Not-To-Exceed compensation established and agreed to for each specific Task(s) or Sub-Task(s). In the event the amount of compensation for any Task(s) or Sub-Task(s) to which the CONSULTANT is entitled on the Not-To-Exceed basis set forth above is determined to be necessary, required and actually expended and is determined to be actually less than the Not-To-Exceed amount established for the specific Task or Sub-Task, it is understood and agreed that any unexpended amount under a specific Task or Sub-Task may not be used, applied, transferred, invoiced or paid for services or work provided or performed on any other Task(s) or Sub-Task(s), unless otherwise directed by the City’s Project Manager, through an approved Change Order.

2.10. PROFESSIONAL SERVICES

The term Professional Services shall refer to all of the services, work, materials and all related professional, technical and administrative activities which are necessary to be provided and performed by the CONSULTANT and its employees, and any and all Sub-Consultants and Sub-Contractors the CONSULTANT may engage to provide, perform and complete the services required pursuant to the covenants, terms and provisions of this Agreement.

2.11. PROJECT

The term Project shall refer to such facility, system, program or item as described in the summary statement set forth in the Preamble on Page One (1) of this Agreement.

2.12. PROJECT MANAGER

The term Project Manager shall refer to the person employed or retained by the CITY and designated, in writing, to serve and act on the CITY'S behalf to provide direct contact and communication between the CITY and CONSULTANT with respect to providing information, assistance, guidance, coordination, review, approval and acceptance of the Professional Services, work and materials to be provided and performed by the CONSULTANT pursuant to this Agreement and such written Supplemental Agreement(s) and Change Order(s) as are authorized. The Project Manager is not authorized to, and shall not, issue any verbal, or written, request or instruction to the CONSULTANT that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatever the: (1) Scope of Services to be provided and performed by the CONSULTANT; (2) The time the CONSULTANT is obligated to commence and complete all such services; (3) The amount of compensation the CITY is obligated or committed to pay the CONSULTANT. The Project Manager shall review and make appropriate recommendations on all requests submitted by the CONSULTANT for payment of services and work provided and performed, and expense, as provided for in this Agreement and approved Supplemental Agreement(s), Change Order(s), and Amendment(s) thereto.

2.13. SUB-CONSULTANT

The term Sub-Consultant shall refer to any individual or firm offering Professional Services which is engaged by the CONSULTANT to assist the CONSULTANT in providing and performing the Professional Services, work and materials for which the CONSULTANT is contractually obligated, responsible, and liable to provide and perform under this Agreement. The CITY shall not be a party to, responsible or liable for, or assume any obligation whatever for any Agreement entered into between the CONSULTANT and any SUB-CONSULTANT.

2.14. SUB-CONTRACTOR

The term Sub-Contractor shall refer to any individual, company or firm providing other than Professional Services, which is engaged by the CONSULTANT to assist the CONSULTANT in providing and performing services, work and materials for which the CONSULTANT is contractually obligated, responsible, and liable to provide and perform under this Agreement. The CITY shall not be a party to, responsible or liable for, or assume any obligation whatever for any Agreement entered into between the CONSULTANT and any Sub-Contractor.

2.15. SUPPLEMENTAL AGREEMENT

The term Supplemental Agreement shall refer to a written document executed by both parties to this Agreement setting forth and authorizing professional service tasks, which were not set forth in, and are supplemental to the Scope of Services contained in the initial Professional Services Agreement or other Supplemental Agreements issued thereto. The Supplemental Agreement, which shall be executed on a City of Fort Myers standard form, shall set forth the authorized supplement(s) to the: Scope of the Professional Services tasks, work or materials to be performed or provided by the CONSULTANT; the compensation and method of payment; the schedule or time period for performance and completion; and the guidelines, criteria, or requirements pertaining thereto. The amount of the change in contract compensation and time set forth in any and all Supplemental Agreements executed and issued under this Agreement shall be understood and agreed by both Parties to this Agreement to be fair, equitable, adequate and complete. The changed compensation shall be understood and agreed to be the total of all costs associated with or impacted by the Supplemental Agreements including, but not limited to any costs which may result from or be caused by the Supplemental Agreements, and shall be understood and agreed to include a fair, equitable and adequate adjustment to cover the CONSULTANT'S general administrative and overhead costs and profit.

3. OBLIGATIONS OF THE CONSULTANT

The obligations of the Provider with respect to all the Basic Services and Additional Services authorized pursuant to this Agreement shall include, but not be limited to, the following:

3.1. LICENSES

The CONSULTANT agrees to obtain and maintain throughout the period this Agreement is in effect, all such licenses as are required to do business in the State of Florida and in the City of Fort Myers, Florida, including, but not limited to, licenses required by the respective State Boards and other governmental agencies responsible for regulating and licensing the professional services provided and performed by the CONSULTANT pursuant to this Agreement.

3.2. STANDARDS OF SERVICE

The Provider agrees to provide and perform all services pursuant to this Agreement in accordance with generally accepted standard practice and, in accordance with the laws, statutes, ordinances, codes, rules, regulations and requirements of governmental agencies which regulate or have jurisdiction over the services to be provided and/or performed.

3.3. CORRECTION OF ERRORS, OMISSIONS OR OTHER DEFICIENCIES

A. RESPONSIBILITY TO CORRECT

In accordance with the generally accepted standards of the engineering profession, the CONSULTANT agrees to be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and other services, work and materials performed, provided, and/or furnished by the CONSULTANT or by any Sub-Consultant(s) and/or Sub-Contractor(s) retained or engaged by the CONSULTANT pursuant to this Agreement. The CONSULTANT shall, without additional compensation, correct, revise, or have corrected or revised any errors, omissions and other deficiencies in such data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents, and instruments, and other services, work and materials resulting from the negligent act, errors or omissions or intentional misconduct of the CONSULTANT or any Sub-Consultant(s) or Sub-Contractor(s) engaged by the CONSULTANT.

B. CITY'S APPROVAL SHALL NOT RELIEVE CONSULTANT OF RESPONSIBILITY

Neither review, approval, or acceptance by the CITY of data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and incidental Professional Services, work and materials furnished hereunder by the CONSULTANT, or any Sub-Consultant(s) or Sub- Contractor(s) engaged by the CONSULTANT, shall not in any way relieve CONSULTANT of responsibility for the adequacy, completeness and accuracy of its services, work and materials and the services, work and materials of any and all Sub-Consultants and/or Sub-Contractors engaged by the CONSULTANT to provide and perform services in connection with this Agreement. Neither the CITY'S review, approval or acceptance of, nor payment for, any of the CONSULTANT'S services, work and materials shall be construed to operate as a waiver of any of the CITY'S rights under this Agreement, or any cause of action it may have arising out of the performance of this Agreement.

In the performance of the services to be provided in accordance with Exhibit “A” and as set forth in subsequent Supplemental Agreements and Change Orders, CONSULTANT may be required to rely upon data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and/or other services, work and materials performed and subsequently provided or furnished to the CONSULTANT by the CITY or others on behalf of the CITY. CONSULTANT shall rely and utilize this information without independent review or verification as to its accuracy and completeness unless otherwise provided for in Exhibit “A” and subsequent Supplemental Agreements, and Change Orders.

3.4. LIABILITY

CONSULTANT TO HOLD CITY HARMLESS

The Provider shall be liable and agrees to be liable for, and shall indemnify, defend, and hold the City harmless for all claims, suits, judgments or damages, losses and expenses including court costs, expert witness and professional services, and attorneys' fees arising out of the Provider’s recklessness, intentional wrongful conduct, errors, omissions, and/or negligence. The Provider shall not be liable to, nor be required to indemnify the City for any portion of damages resulting solely and exclusively from the negligence of the City, its officers, officials, employees, agents, or representatives. The foregoing shall not constitute a waiver of sovereign immunity beyond the limits set forth if Florida Statutes, Section 768.28.

3.5. NOT TO DIVULGE CERTAIN INFORMATION

Provider agrees, not to divulge, any non-public information to any third person, firm, or organization, without the City’s prior written consent, unless required by law. Provider shall require all its employees and subcontractor(s) to comply with the provisions of this paragraph.

3.6. CONSULTANT TO REPAIR PROPERTY DAMAGE CAUSED BY THE CONSULTANT

Provider agrees, not to divulge, any non-public information to any third person, firm, or organization, without the City’s prior written consent, unless required by law. Provider shall require all its employees and subcontractor(s) to comply with the provisions of this paragraph.

3.7. RESPONSIBILITY FOR ESTIMATES

In the event the services required, pursuant to this Agreement, include the Provider preparing and submitting to the City any fees, the Provider, by exercise of their experience and judgement, shall develop its best cost estimates and shall be held accountable, responsible, and liable for the accuracy, completeness, and correctness of any and all such fees to the extent provided.

3.8. ADDITIONAL SERVICES

Should the City request the Provider to provide and perform services under this Agreement which are not set forth in Exhibit "B", the Provider agrees to provide and perform such Additional Services as may be agreed to in writing by both parties.

Additional Services shall be administered and executed as "Change Order(s)" to the purchase order. The Provider shall not provide or perform, nor shall the City incur or accept any obligation to compensate the Provider for any Additional Services, unless a Change Order or revised purchase order is received by the Provider.

4. COMPENSATION AND METHOD OF PAYMENT

4.1. BASIC SERVICES

The City shall pay the Provider for all requested and authorized services rendered by the Provider and completed in accordance with the requirements, provisions, and/or terms of this Agreement as set forth in Exhibit "C", which is attached and made a part of this Agreement.

4.2. ADDITIONAL SERVICES

The City shall pay the Provider for all Additional Services that have been requested and authorized by the City in accordance with the terms for compensation and payment of said Additional Services as stated on the change order or revised purchase order.

4.3. METHOD OF PAYMENT

A. MONTHLY STATEMENTS

The Provider’s invoice shall be itemized to correspond to the basis of compensation as set forth in the purchase order or change order. The Provider’s invoice shall show the Purchase Order number and contain a breakdown of charges, description of service(s) and work provided and/or performed.

B. PAYMENT SCHEDULE

The City shall issue payment to the Provider within forty-five (45) calendar days after receipt of an invoice from the Provider in an acceptable form and containing the requested breakdown, detailed description, and documentation of charges. Should the City object or take exception to the amount of any Provider’s invoice, the City shall notify the Provider of such objection or exception within the forty-five (45) calendar day payment period. If such objection or exception remains unresolved at the end of forty-five (45) calendar day period, the City shall withhold the disputed amount and make payment to the Provider of the amount not in dispute. Payment of any disputed amount will be resolved by the mutual agreement of the parties to this Agreement in accordance with a dispute resolution procedure established pursuant to the Florida Local Government Prompt Payment Act, F.S. 218.70 et seq.

C. NON-APPROPRIATION

The parties acknowledge that appropriation of funds is a governmental function which the City cannot contractually commit itself in advance to perform and this Agreement does not constitute such commitment. The CITY’S obligation to pay under this Agreement is contingent upon CITY’S annual appropriation of funds for such purpose, and the non-appropriation of funding for such purpose in any fiscal year shall immediately relieve both parties of their respective obligations hereunder, as of the last day for which funds have been appropriated. The CITY shall endeavor, upon determining that sufficient funds will not be budgeted and appropriated in any fiscal year under this Agreement, to provide prompt written notice to the CONSULTANT of such event.

4.4. PAYMENT WHEN SERVICES ARE TERMINATED FOR CONVENIENCE BY THE CITY

In the event of termination of this Agreement at the convenience of the City, the City shall compensate the Provider for: (1) all services performed prior to the effective date of termination; (2) reimbursable expenses then due; and (3) reasonable expenses incurred by the Provider prior to the termination of services by submitting required documentation to the City.

4.5. NON-APPROPRIATIONS

The City’s obligation to pay under this Agreement is contingent upon City’s annual appropriation of funds for such purpose. The non-appropriation of funds in any fiscal year shall immediately relieve both parties of their respective obligations, as of the last day for which funds have been appropriated. The City shall endeavor to provide prompt written notice to the Provider upon determining that sufficient funds will not be budgeted and appropriated for this Agreement.

5. TIME AND SCHEDULE OF PERFORMANCE

5.1. PURCHASE ORDER

Following the execution of this Agreement by both parties, and after the Provider has complied with the insurance and E-Verify requirements, the City shall issue the Provider a Purchase Order. Upon issuance of the Purchase Order the Provider shall provide services in a timely and diligent manner to completion.

5.2. TIME OF PERFORMANCE

Should the Provider be delayed in completing their obligations under this Agreement as a result of causes beyond the control of the Provider and not due to their fault or neglect, the Provider shall notify the City, in writing, within two (2) calendar days after the commencement of such delay, stating the cause(s) and requesting an extension. Upon receipt of the Provider’s request for an extension, the City shall grant the extension if the City determines the delay(s) encountered by the Provider, is due to unforeseen causes and not attributable to their fault or neglect.

5.3. FAILURE TO PERFORM IN A TIMELY MANNER

Should the Provider fail to commence, provide, perform, and/or complete any of the services required pursuant to this Agreement in a timely and diligent manner, the City may consider such failure as justifiable cause to terminate this Agreement. As an alternative to termination, the City at its option may, upon written notice to the Provider, withhold any or all payments due and owing to the Provider, not to exceed the amount of the compensation for the work in dispute, until such time as the Provider resumes performance of their obligations in such a manner as to get back on schedule in accordance with the time and schedule of performance requirements as set forth in this Agreement.

6. CONFLICT OF INTEREST

The CONSULTANT represents that to the best of its knowledge and belief, it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder. The CONSULTANT further agrees that no person having any such interest shall be employed or engaged by the CONSULTANT for said performance.

If CONSULTANT, for itself and on behalf of its Sub-Consultants, is about to engage in representing another client, which it in good faith believes could result in a conflict of interest with the work being performed by CONSULTANT or such Sub-Consultant under this Agreement, then it will promptly bring such potential conflict of interest to the CITY'S attention, in writing. The CITY will then advise the CONSULTANT, in writing, within ten (10) calendar days as to the period-of-time required by the CITY to determine if such a conflict of interest exists. If the CITY determines that there is a conflict of interest, CONSULTANT or such Sub-Consultant shall decline the representation upon written notice by the CITY.

If the CITY determines that there is no such conflict of interest, then the CITY shall give its written consent to such representation. If CONSULTANT or Sub-Consultant accepts such a representation without obtaining the CITY'S prior written consent, and if the CITY subsequently determines that there is a conflict of interest between such representation and the work being performed by CONSULTANT or such Sub-Consultant under this Agreement, then the CONSULTANT or Sub-Consultant agrees to promptly terminate such representation. CONSULTANT shall require each of such Sub-Consultants to comply with the provision of this Section.

Should the CONSULTANT fail to advise or notify the CITY, as provided hereinabove, of representation which could, or does, result in a conflict of interest, or should the CONSULTANT fail to discontinue such representation, the CITY may consider such failure as justifiable cause to terminate this Agreement.

7. ASSIGNMENT, TRANSFER AND SUB-CONTRACTS

The Provider shall not assign or transfer any of its rights, benefits, or obligations, except for transfers that result from: (1) the merger or consolidation of Provider with a third party; or (2) the disestablishment of the Provider’s professional practice and the establishment of the successor Provider. Nor shall the Provider sub-contract any of its service obligations hereunder to third parties without prior written approval of the City. The Provider shall have the right, subject to the City’s prior written approval, to employ other persons and/or firms to serve as sub-contractors to Provider in connection with the Provider performing services and work pursuant to the requirements of this Agreement. The Provider must notify the City Procurement Services Division of any change, complete a new vendor registration form, provide an updated W-9, provide an updated certificate of insurance, provide a new E-Verify Memorandum of Understanding, and provide written notification of such change on official company letterhead.

8. APPLICABLE LAW

This Agreement shall be governed by Federal, State, and Local laws, rules, regulations, and ordinances.

9. NON-DISCRIMINATION

The Provider for itself and its successors as part of the consideration does hereby agree that in furnishing services to the City, no person on the grounds of race, color, religion, sexual orientation, gender identity, national origin, handicap, or sex shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. Should Provider authorize another person, with the City’s prior written consent, to provide services to the City, Provider shall undertake the obligations contained in this Section.

10. WAIVER OF BREACH

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

11. INSURANCE

11.1. INSURANCE COVERAGE TO BE OBTAINED

A. The CONSULTANT shall obtain and maintain such insurance as will protect the CONSULTANT from: (1) claims under workers' compensation laws, disability benefit laws, or other similar employee benefit laws; (2) claims for damages because of bodily injury, occupational sickness or disease or death of his or her employees including claims insured by usual personal injury liability coverage; (3) claims for damages because of bodily injury, sickness or disease, or death of any person other than his employees including claims insured by usual personal injury liability coverage; and (4) from claims for injury to or destruction of tangible property including loss or use resulting there from; any or all of which claims may arise out of, or result from, the services, work and operations carried out pursuant to and under the requirements of this Agreement, whether such services, work and operations be by the CONSULTANT, its employees, or by any Sub-Consultant(s), Sub-Contractor(s), or anyone employed by or under the supervision of any of them, or for whose acts any of them may be legally liable.

B. The insurance protection set forth hereinabove shall be obtained and written for not less than the limits of liability specified hereinafter, or as required by law, whichever is greater.

C. The CONSULTANT shall require, throughout the time this Agreement is in effect, that any and all of its Sub-Consultants and/or Sub-Contractors obtains and maintains until the completion of that SUB-Consultant’s and/or Sub-Contractor’s work, such of the insurance coverage described in Article 13.01, as are required by law, be provided on behalf of their employees and others.

D. The CONSULTANT shall obtain, have and maintain during the entire period of this Agreement, all such insurance policies as are set forth and required herein.

E. The insurance coverage to be obtained by the CONSULTANT, as set forth in Agreement Article

13.03 for: (1) Worker's Compensation; (2) Commercial General Liability; (3) Commercial Automobile Liability; or (4) Professional Liability is understood and agreed to cover any and all of the services or work set forth in Exhibit “A” of this Agreement, or in any and all subsequently executed Change Order(s), or Supplemental Agreement(s). If the total amount of insurance coverage established in, and required by, a Change Order or Supplemental Agreement exceeds the amount of insurance coverage carried by the CONSULTANT, then the CONSULTANT shall be required and expected to acquire such additional insurance, and the compensation established for the Change Order, or Supplemental Agreement, shall include consideration of any additional premium cost incurred by the CONSULTANT to obtain such additional insurance coverage.

F. The purchasing of any insurance on the behalf of the CITY shall not waive any defense under Sovereign Immunity.

11.2. CONSULTANT REQUIRED TO FILE INSURANCE CERTIFICATE(S)

A. The CONSULTANT, before the Agreement is approved and executed by the CITY, shall submit to Procurement Services all such original insurance certificates, including all supporting endorsement, and related documentation as are required under this Agreement. Before the CITY shall provide the CONSULTANT with written Notice to Proceed, and before the CONSULTANT shall commence any service or work pursuant to the requirements of this Agreement, the CONSULTANT shall obtain and maintain insurance coverages of the types, and to the limits specified hereinafter, and the CONSULTANT shall file with the CITY certificates and endorsements of all such insurance coverages. All such Certificates of Insurance are subject to review and approval by the CITY with respect to compliance with the insurance requirements set forth in the Agreement.

B. All such insurance certificates shall be in a form and underwritten by an insurance company(s) acceptable to the CITY and licensed in the State of Florida.

C. Each Certificate of Insurance submitted to the CITY shall be an original and shall be executed by an authorized representative of the insurance company affording coverage.

D. Each Certificate of Insurance shall specifically include all of the following:

1. The name and type of policy and coverages provided; and

2. The amount or limit applicable to each coverage provided and the deductible amount, if any, applicable to each type of insurance coverage being provided; and

3. The date of expiration of coverage; and

4. The designation of the City of Fort Myers, both as an additional insured to the GL & AL, and as a certificate holder. (This requirement is excepted for Professional Liability Insurance and for Workers' Compensation Insurance); and

5. A specific reference to this Agreement and the Project to which it pertains. (This requirement may be excepted for Professional Liability Insurance); or In the event the CONSULTANT has, or expects to enter into an agreement for Professional Services other than those provided for in this Agreement; the CONSULTANT may elect to submit a Certificate of Insurance containing the following statement:

"This policy covers the services or work provided or performed by the Named Insured for any and all projects undertaken for the City of Fort Myers pursuant to one or more written Professional Services AGREEMENTS, or written Supplemental Agreements or Change Orders thereto, and the limit(s) of liability shown shall not be intended or construed as applying to only one project."

6. Upon receipt and approval of such a Certificate of Insurance, a separate Certificate of Insurance will not be required for each separate agreement.

7. An identifying statement indicating the identification of any services or work that is included in, or required under, the Scope Of Professional Services set forth in Exhibit “A” that is specifically excluded or exempted from coverage under the provisions, terms, conditions or endorsements of the CONSULTANT'S insurance policy(s). A statement which indicates any and all deductible amounts applicable to each type of insurance coverage required. In the absence of any such statements of deductible amount(s), or coverage statement of exclusions or exemptions, the CITY will proceed with the understanding, stipulation and condition that there are no deductible amount(s), or exclusions or exemptions to the insurance coverage(s) provided.

8. Name of the Project and/or Project Number should be clearly indicated.

E. Each Certificate of Insurance shall be issued by an insurance agent and/or agency duly authorized to do so by, and on behalf of, the insurance company affording the insurance coverage(s) indicated on each Certificate of Insurance.

F. If the initial or any subsequently issued Certificate of Insurance expires prior to completion of the work or termination of this Agreement, it is the CONSULTANT’S responsibility to furnish the CITY a renewal or replacement Certificate(s) of Insurance, including all endorsements, not later than thirty (30) calendar days prior to the date of their expiration. Failure of the CONSULTANT to provide the CITY with such renewal certificate(s) shall be considered justification for the CITY to terminate this Agreement.

G. It is vitally important that all insurance coverage(s) required under this Agreement be in effect throughout the entire period of this Agreement. If any of the insurance coverage(s) required by this Agreement should reach the date of expiration indicated on the Certificate(s) of Insurance on record with the CITY, without the CITY having received satisfactory evidence in the form of a Certified Binder or a Certificate of Insurance, that the required insurance coverage(s) has either been renewed or replaced, then the CONSULTANT, unless notified in writing by the CITY to continue, shall therefore automatically and without further notice from the CITY, stop performing all previously authorized services and work until such date as the CITY shall receive and approve satisfactory documentation that the expired insurance coverage(s) has been renewed or replaced. During any time period that the CONSULTANT shall fail to comply with the insurance requirements set forth in the Agreement, the CITY shall not be required to make, nor shall it make payment on any invoices submitted by the CONSULTANT. Payment for any such invoices shall be made promptly by the CITY after the CITY receives and approves the renewal or replacement Certificates of Insurance. During any time period that the CONSULTANT'S services or work is suspended, as provided above, for failure to comply with the insurance requirements set forth in the Agreement, the CONSULTANT shall not be entitled, as a result of such suspension, to any additional compensation or time to provide and perform the required services or work.

12. OWNERSHIP AND TRANSFER OF DOCUMENTS

The parties acknowledge and agree that all provisions of the Florida Public Records Law, Chapter 119, are and shall be binding and always enforced with regard to all action and activities under this Agreement. Provider recognizes that in contracting with the City, it has the burden of complying with the Florida Public Records Laws, Chapter 119, for any documents related to this agreement. Nothing in this Agreement shall prohibit or restrict or create any liability on the City for complying in good faith with the Florida Public Records Law, Chapter 119 of the Florida Statutes:

To the extent that Provider may meet the definition of a “contractor” as defined by Section 119.0701, Florida Statutes, it will:

A. keep and maintain public records required by the City to perform the contracted services;

B. 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;

C. ensure that public records that are confidential or exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term and following completion of the Agreement if the Provider does not transfer the records to the City;

D. upon completion of the Agreement, transfer, at no cost, to the City all public records in possession of the Provider or keep and maintain public records required by the City to perform the service. If the Provider transfers all public records to the public agency upon completion of the Agreement, the Provider shall destroy any duplicate public records that are confidential or exempt from the public records disclosure requirements. If the Provider keeps and maintains public records upon completion of the Agreement, the Provider shall meet all applicable requirements for retaining public records. 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.

IF THE PROVIDER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA

STATUTES, TO THE PROVIDER’S DUTY TO RETAIN AND PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CITY’S CUSTODIAN OF PUBLIC RECORDS AT (239) 321-7045, E-MAIL TO PUBLICRECORDS@CITYFTMYERS.COM, POST OFFICE BOX 2217, FORT MYERS, FLORIDA, 33902-2217.

13. MAINTENANCE OF RECORDS

The Provider will keep and maintain adequate records and supporting documentation applicable to all of the services, provided pursuant to the requirements of this Agreement. Said records will be retained by the Provider for a minimum of five (5) years from the date of termination of this Agreement, or for such period as required by law.

The City and its authorized agents shall, with reasonable prior notice, have the right to audit, inspect and copy all such records and documentation as often as the City deems necessary during the period of this Agreement, and during the period as set forth in the paragraph above; provided, however, such activity shall be conducted only during normal business hours of the Provider and at the expense of the City.

14. HEADINGS

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

15. ENTIRE AGREEMENT

16. NOTICES AND ADDRESS OF RECORD

16.1. NOTICES BY CONSULTANT TO CITY

NOTICES BY PROVIDER TO CITY All notices required and/or made pursuant to this Agreement to be given by the Provider to the City shall be in writing and shall be given to the following electronic email addresses of record:

• cfmpurchasing@cityftmyers.com

• cityclerk@cityftmyers.com

• leg@cityftmyers.com

16.2. NOTICES BY CITY TO CONSULTANT

NOTICES BY CITY TO PROVIDER All notices required and/or made pursuant to this Agreement to be given by the City to the Provider shall be made in writing and shall be provided electronically to the email address below:

TBD

mailto:cfmpurchasing@cityftmyers.com mailto:cityclerk@cityftmyers.com mailto:leg@cityftmyers.com

16.3. CHANGE OR ADDRESS OF RECORD

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

17. TERMINATION

This Agreement will terminate once the agreement is fully satisfied and accepted by the CITY. This Agreement may also be terminated by the CITY at its convenience, or due to the fault of the CONSULTANT, by the CITY giving thirty (30) days written notice to the CONSULTANT.

If the CONSULTANT is adjudged bankrupt or insolvent; if it makes a general assignment for the benefit of its creditors; if a trustee or receiver is appointed for the CONSULTANT or for any of its property; if it files a petition to take advantage of any debtor's act or to reorganize under the bankruptcy or similar laws; if it disregards the authority of the CITY'S designated representatives; if it otherwise violates any provisions of this Agreement; or for any other just cause, the CITY may, without prejudice to any other right or remedy, and after giving the CONSULANT a thirty (30) calendar day written notice, terminate this Agreement.

In addition to the CITY'S contractual right to terminate this Agreement in its entirety, as set forth above, the CITY may also, at its convenience, stop, suspend, supplement or otherwise change all, or any part of, the Scope Of Professional Services, as set forth in Exhibit "A", or the Project Guidelines and Criteria, as set forth in Form 4, or as such may be established by Supplemental Agreement or Change Order. The CITY shall provide written notice to the CONSULTANT in order to implement a stoppage, suspension, supplement or change.

The CONSULTANT may request that this Agreement be terminated by submitting a written notice to the CITY dated not less than thirty (30) calendar days prior to the requested termination date and stating the reason(s) for such a request. However, the CITY reserves the right to accept, or not accept, the termination request submitted by the CONSULTANT, and no such termination request submitted by the CONSULTANT shall become effective unless, and until, CONSULTANT is notified, in writing, by the CITY of its acceptance.

CONSULTANT TO DELIVER MATERIALS ON TERMINATION

Upon termination, the CONSULTANT shall deliver to the CITY all papers, drawings, models, and other material in which the CITY has exclusive rights by virtue hereof or of any business done, or services or work performed or provided by the CONSULTANT on behalf of the CITY.

18. AMENDMENTS/MODIFICATIONS

Modifications to the terms and provisions of this Agreement shall only be valid when issued in writing as a properly executed amendment or change order. In the event of any conflicts between the requirements, provisions, and/or terms of this Agreement and any written change orders the change order shall take precedence.

19. VENUE

Venue for any administrative and/or legal action arising under this Agreement shall be in Lee County, Florida.

20. NO THIRD-PARTY BENEFICIARIES

Both parties explicitly agree, and this Agreement states that no third-party beneficiary status or interest is conferred to, or inferred to, any other person or entity.

21. ACCEPTANCE

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement on the dates shown below to be effective the day and year first shown above.

SIGNATURE PAGE TO FOLLOW

CITY OF FORT MYERS, FLORIDA

a Municipal Corporation ATTEST:

By:______________________________ _________________________________

Kevin B. Anderson, Mayor Mary Hagemann, CMC, City Clerk

Date:__________________________________

By:____________________________________

Marty K. Lawing, City Manager

Date:__________________________________

APPROVED AS TO FORM:

Grant Williams Alley, City Attorney

Company Witnesses

Witness

____________________________ By:_________________________________________

Authorized Signer Name

Name:______________________ Title: _______________________________________

____________________________ Date:_______________________________________

Name:______________________

CORPORATE SEAL

Attachments:

A - EXHIBIT A

B - EXHIBIT B

C - FORM 1 + ATTACHMENT 1 TO FORM 1

D - FORM 2

E - FORM 3

F - FORM 4

G - FORM 5

H - FORM 6

I - FORM 7