South_Street_Construction_Contract,_ITB_25-012.pdf

DRAFT CONTRACT (CONSTRUCTION)

THIS AGREEMENT will activate on the effective date (the date the last party signs it) between THE CITY OF FORT MYERS (hereinafter called CITY) and >TBD. (hereinafter called Contractor).

City and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows:

1. TERM

This Agreement will be in effect for a term of until completed.

2. PARTIES

WHEREAS, the City desires to obtain the Services of said Contractor to provide and perform Services as further described hereinafter concerning the solicitation to be referred to and identified as: South Street Sidewalk from US 41/Cleveland Avenue to SR 739/Fowler Street

(FDOT 438101-2-58-01/4388101-2-68- 01).

WHEREAS, the Contractor hereby certifies that Contractor has been granted and possesses valid, current licenses to do business in the State of Florida, in Lee County, and the City of Fort Myers, issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Services to be provided and performed by the Contractor pursuant to this Agreement; and NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Contract shall exist between both parties consisting of:

3. CONTRACT DOCUMENTS

The Contract Documents, which comprise the entire agreement between the City and the Contract Manager concerning the Work consist of this document plus: Attachment A-Scope of Services, Attachment B-Bid Schedule/ Schedule of Values and also incorporate by reference: the Solicitation, Drawings/Plans (if applicable), addenda (if applicable), all Purchase Orders issued pursuant to the Solicitation documents, all amendments that may after the date of award be executed by the PROVIDER and the City, Certificates of Insurance, any other Solicitation Documents.

These items constitute the entire contract/agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matters set forth herein, and any such prior agreements or understandings shall have no force or effect whatever on this Agreement.

If there is a conflict between the contract and solicitation the more stringent applies. The order of Precedence is as follows:

1) Amendments created after execution of the Contract

2) Permits (if applicable), incorporated by reference

3) This Agreement

4) Solicitation addenda and written questions/answers via OpenGov Q&A

5) Solicitation, incorporated by reference

6) PROVIDER's submittal, incorporated by reference

4. NOTICES

1. 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, clerk@cityftmyers.com, and leg@cityftmyers.com.

Copy to:

City Attorney's Office, City of Fort Myers, 2200 Second Street, Fort Myers, FL 33901

2. NOTICES BY CITY TO CONSULTANT. 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:

NA

NA

NA

NA

NA

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.

5. WORK

PROVIDER shall complete all Work as specified or indicated in the Contract Documents.

6. CONTRACT AMOUNT

City shall pay PROVIDER for completion of the Work in accordance with the Contract Documents in the amount of na

7. CONTRACT TIME

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

1. Substantial Completion. The Work will be substantially completed within 180 calendar days until substantial work is completed consecutive calendar days from the date when the Contract Time commences and finally completed within 210 calendar days until final work is completed consecutive calendar days from the date when the Contract Time commences to run.

2. Liquidated Damages. City and PROVIDER recognize that time is of the essence of this Agreement and that City will suffer financial loss if the Work is not completed within the times specified in the paragraph above, plus any extensions thereof allowed. They also recognize the delays, expense and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by City if the Work is not completed on time. Accordingly, instead of requiring any such proof, City and PROVIDER agree that as liquidated damages for delay (but not as a penalty) PROVIDER shall pay City $1669.00 for each day for each day that expires after the time specified above for Substantial Completion if PROVIDER shall neglect, refuse or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by City, PROVIDER shall pay City $1669.00 for uncompleted work for each day for each day that expires after the time specified in the paragraph above for completion and readiness for final payment.

8. PROVIDER'S REPRESENTATION

In order to induce City to enter into this Agreement PROVIDER makes the following representations:

1. PROVIDER has familiarized themselves with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work.

2. PROVIDER has studied carefully all reports of exploration and tests of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions (if applicable) and the General Conditions, and accepts the determination set forth in the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which PROVIDER is entitled to rely.

3. PROVIDER has obtained and carefully studied (or assumes responsibility for obtaining and carefully studying) all such examinations, investigations, explorations, tests, reports and studies (in addition to or to supplement those referred to in "Time and Schedule of Performance" which pertain to the subsurface or physical conditions, at or contiguous to, the site or otherwise may affect the cost, progress, performance or furnishing of the Work as PROVIDER considers necessary for the performance or furnishing of the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of the General Conditions found in the solicitation; and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are, or will be, required by PROVIDER for such purposes.

4. PROVIDER has reviewed and checked all information and data shown, or indicated on the Contract Documents, with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests, reports, studies or similar information or data in respect of said Underground Facilities are, or will be, required by PROVIDER in order to perform and furnish the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of the General Conditions.

5. PROVIDER has correlated the results of all such observations, examinations, tests, reports and studies with the terms and conditions of the Contract Documents.

6. PROVIDER has given City written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents, and the written resolution thereof by City is acceptable to

PROVIDER.

9. OBLIGATION'S OF THE CITY

1. DESIGNATION OF CITY’S REPRESENTATIVE

The City agrees, after the execution of this Agreement, to promptly advise the PROVIDER, in writing, of the person designated to serve and act as the City’s Representative. Such notification shall be provided to the PROVIDER by the City’s Contract Administrator.

2. AVAILABILITY OF CITY INFORMATION

2.1. PROJECT GUIDELINES AND CRITERIA

Guidelines to the PROVIDER regarding requirements the City has established, or suggests relative to the Project including, but not limited to, such items as: goals, objectives, constraints, and any special financial, budgeting, space, site, operational, equipment, technical, construction, time and scheduling criteria are set forth in "Project Guidelines and Criteria" is attached and made a part of this Agreement.

2.2. CITY TO PROVIDE PERTINENT REFERENCE MATERIAL

At the PROVIDER’s request, the City agrees to provide to the PROVIDER, at no cost, all pertinent information known to be available to the City to assist the PROVIDER in providing and performing the required services. Such information may include, but not be limited to: previous reports, plans, drawings and specifications, maps; property, boundary, easement, right-of-way, topographic, reference monuments, control points, plats and related survey data; data prepared, or services furnished by others to the City such as sub-surface investigations, laboratory tests, inspections of natural and man-made materials, property appraisals, studies, designs and reports.

3. AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

The City agrees that the City Representative shall be available within a reasonable period of time, with reasonable prior notice given by the PROVIDER, to meet and/or consult with the PROVIDER on matters pertaining to the services to be provided and performed by the PROVIDER. The City further agrees to respond within a reasonable period-of-time to written requests submitted by the PROVIDER.

4. ACCESS TO CITY PROPERTY

The City agrees to provide the PROVIDER with access within a reasonable period of time to City property, facilities, buildings and structures, to enable the PROVIDER to provide and perform the required Services and work pursuant to this Agreement. Such rights of access shall not be exercised in such a manner, or to such an extent, as to impede or interfere with City operations, or the operations carried on by others under a lease, or other contractual arrangement with the City, or in such a manner as to adversely affect public health and safety. Such access may, or may not be, within the PROVIDER's normal office and/or field workdays and/or work hours.

5. PLANS REVIEW

If applicable, Plan reviews by City staff is only for conformance with the design concept of the project and for compliance with the information given in the contract documents, and shall not extend to means, methods, techniques, sequences, or procedures of construction or to safety precautions or programs incident. The review does not relieve the PROVIDER from responsibility for errors or omissions or from responsibility for having the design comply with the provisions of all codes having jurisdiction.

10. TIME AND SCHEDULE OF PERFORMANCE

1. TIME OF PERFORMANCE

Should the PROVIDER be obstructed or delayed in the execution or completion of its obligations under this Agreement and its Amendment(s), as a result of causes beyond the control of the PROVIDER, or its subcontractor(s) and/or subconsultant(s), and not due to their fault or neglect, the PROVIDER shall notify the City, in writing, within five (5) calendar days after the commencement of such delay, stating the cause(s) and requesting an extension of the PROVIDER’s time of performance. Upon receipt of the PROVIDER’s request for an extension of time, the City will determine with the PROVIDER, within 7 days, the length of extension and legitimacy of cause.

2. PROVIDER WORK SCHEDULE

The PROVIDER shall be required, as a condition of this Agreement, to prepare and submit to the City, on a monthly basis, commencing with the issuance of the Notice to Proceed, a PROVIDER’s Work Schedule. Said Schedule shall be updated at each pay request. The Work Schedule shall set forth the time and manpower scheduled for all of the various phases and/or tasks required to provide, perform and complete all of the services and work required for completion of the various phases, and/or tasks of the project services set forth and described in this Agreement, pursuant to this Agreement in such a manner that the PROVIDER’s planned and actual work progress can be readily determined. The PROVIDER’s Work Schedule of planned and actual work progress shall be updated and submitted by the PROVIDER to the City on a monthly basis.

3. FAILURE TO PERFORM IN A TIMELY MANNER

Notwithstanding anything to the contrary in paragraph "PROVIDER Work Schedule" above, should the PROVIDER fail to commence, provide, perform and/or complete any of the services and work 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 his obligations in such a manner as to get back on schedule in accordance with the time and schedule of performance requirements set forth in the Agreement, or any Supplemental Agreement(s), or Change Order(s) or Amendment(s) issued thereto.

11. CONFLICT OF INTEREST

The PROVIDER 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 PROVIDER further agrees that no person having any such interest shall be employed or engaged by the PROVIDER for said performance.

If PROVIDER, for itself and on behalf of its subcontractors, 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 PROVIDER or such subcontractor 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 PROVIDER, 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, PROVIDER or such subcontractor 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 PROVIDER or subcontractor 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 PROVIDER or such subcontractor under this Agreement, then the PROVIDER or subcontractor agrees to promptly terminate such representation. PROVIDER shall require each of such subcontractors to comply with the provision of this Section.

Should the PROVIDER 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 PROVIDER fail to discontinue such representation, the City may consider such failure as justifiable cause to terminate this Agreement.

12. ASSIGNMENT, TRANSFER AND SUB-CONTRACTS

The PROVIDER shall not assign or transfer any of its rights, benefits or obligations hereunder, without prior written approval from the City, 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 practice and the establishment of a successor PROVIDER, or consulting organization. Nor shall the PROVIDER sub-contract any of its service obligations hereunder to third parties, except as otherwise authorized in this Agreement or Amendment(s) thereto, 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 subcontractors and/or subconsultants to PROVIDER in connection with PROVIDER providing and performing services and work pursuant to the requirements of this Agreement. The City shall have the right and be entitled to withhold such approval. Such approval shall not be unreasonably withheld.

In the event that the PROVIDER in providing and performing the services and work required pursuant to this Agreement, PROVIDER intends to engage the assistance of the subcontractors(s) and/or subconsultants(s).

13. APPLICABLE LAW

Unless otherwise specified, this Agreement shall be governed by the laws, rules, and regulations of the State of Florida, or the laws, rules, and regulations of the United States when providing services funded by the United States Government. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the State or Federal courts in Lee County, Florida, for any and all claims or causes of action arising from or related to this Agreement.

14. INSURANCE

14.1. INSURANCE COVERAGE TO BE OBTAINED

14.1.1. The PROVIDER shall obtain and maintain such insurance as will protect the PROVIDER 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 PROVIDER, 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.

14.1.2. 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.

14.1.3. Subcontractors. Unless expressly specified otherwise in this solicitation, a PROVIDER and its subcontractors of any tier will be required at their own expense to maintain in effect at all times during the performance of the work insurance coverages with limits not less than those set forth below with insurers and under forms of policies satisfactory to the City. It shall be the responsibility of the PROVIDER to maintain the required insurance coverages and to assure that subcontractors maintain required insurance coverages at all times. Failure of a PROVIDER to maintain adequate coverage shall not relieve it of any contractual responsibility or obligation. The requirements specified herein as to types, limits, and City’s approval of insurance coverage to be maintained by a PROVIDER and its subcontractors are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the PROVIDER and its subcontractors under a contract. Any insurance carried by the City that may be applicable shall be deemed to be excess insurance and the PROVIDER(s) insurance primary for all purposes despite any conflicting provision in the PROVIDER(s) policies to the contrary.

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

14.1.5. The insurance coverage to be obtained by the PROVIDER, as set forth in Agreement 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 PROVIDER, then the PROVIDER 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 PROVIDER to obtain such additional insurance coverage.

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

14.1.7. Additional Insureds. All insurance coverages furnished under a contract except Workers’ Compensation, Employers’ Liability and any Professional Liability Policy shall include the City and its officers, elected officials, and employees as additional insureds with respect to the activities of the PROVIDER and its subcontractors. The City shall not by reason of their inclusion under these policies incur liability to the insurance carrier for payment of premium for these policies.

14.1.8. Waiver of Subrogation. The PROVIDER and its subcontractors shall require their insurance carriers, with respect to all insurance policies, to waive all rights of subrogation against the City, its officers, elected officials, agents, and employees and against other PROVIDER and subcontractors.

14.2. INSURANCE CERTIFICATE(S) REQUIRED

14.2.1. Certificates of Insurance. Prior to commencing work at the jobsite, and as a condition precedent to the PROVIDER(s) and their subcontractors’ initiation of performance, the PROVIDER and its subcontractors shall furnish the City with certificates of insurance as evidence that policies providing the required coverage and limits of insurance are in full force and effect.

The certificates shall provide that any company issuing an insurance policy for the work under a contract shall provide not less than 30 days advance notice in writing to the City prior to cancellation, termination, or material change of any policy of insurance (except for notice of non-payment of premium for which not less than 10 days advance notice in writing shall be required). In addition, the PROVIDER shall immediately provide written notice to the City upon receipt of notice of cancellation of an insurance policy or a decision to terminate an insurance policy. All certificates of insurance shall clearly state that all applicable requirements have been satisfied, including certification that the policies are of the “occurrence” type. Certificates of insurance for a PROVIDER and subcontractor-furnished insurance and notices of any cancellations, terminations, or alterations of such policies shall be mailed to the Procurement Services at the address set forth for delivery of the Solicitation.

14.2.2. 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.

14.2.3. 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.

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

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

14.2.4.2. 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

14.2.4.3. The date of expiration of coverage; and

14.2.4.4. The designation of the City of Fort Myers, both as an additional insured to the GL & AL on a primary and non-contributory basis, and as a certificate holder. (This requirement is exempted for Professional Liability Insurance and for Workers' Compensation Insurance); and

14.2.4.5. A specific reference to this Agreement and the Project to which it pertains. (This requirement may be exempted for Professional Liability Insurance); or In the event the PROVIDER has, or expects to enter into an agreement for Professional Services other than those provided for in this Agreement; the PROVIDER 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."

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

14.2.4.6. An identifying statement indicating the identification of any services or work that is included in, or required under, the Scope of Services set forth in Exhibit “A” that is specifically excluded or exempted from coverage under the provisions, terms, conditions or endorsements of the PROVIDER(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.

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

14.2.4.8. 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.

14.2.4.9. 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 PROVIDER(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 PROVIDER to provide the CITY with such renewal certificate(s) shall be considered justification for the CITY to terminate this Agreement.

14.2.5. 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 PROVIDER, 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 DBT 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 PROVIDER. 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 DBT(s) services or work is suspended, as provided above, for failure to comply with the insurance requirements set forth in the Agreement, the DBT 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.

14.3. INSURANCE COVERAGES REQUIRED

Insurance will be provided by the PROVIDER. If required, the awarded PROVIDER (and its subcontractors to the same extent and on the same terms as set forth below for PROVIDER) shall maintain the following coverages and furnish the certificate(s) of insurance on the policies and renewals thereof which indicate that insurance coverage has been obtained meeting the requirements of the contract.

14.3.1. Workers Compensation and Employer’s Liability. This insurance shall protect the PROVIDER against all claims under applicable state workmen’s compensation laws. The PROVIDER shall also be protected against claims for injury, disease, or death of employees that, for any reason, may not fall within the provisions of a workmen’s compensation law. This policy shall include an “all states” or “other states” endorsement. Exemption certificates shall be accepted if valid during the term of the contract, but only for those eligible corporate officers pursuant to Chapter 440 of the Florida Statutes. Proof of workers’ compensation coverage must still be provided for all employees, sub-contractors not eligible for exemption. The liability limits shall not be less than:

14.3.1.1. Employer's Liability with a minimum limit per accident in accordance with statutory requirements, or a minimum limit of $1,000,000 for each accident which limit is greater.

14.3.1.2. Notice of Cancellation and/or Restriction - The policy must be endorsed to provide the CITY with thirty (30) days prior written notice of cancellation and/or restriction.

14.3.2. Commercial General Liability. This insurance shall be an “occurrence” type policy written in comprehensive form and shall protect the PROVIDER and the additional insureds against all claims arising from bodily injury, sickness, disease, or death of any person or damage to property of the City or others arising out of any act or omission of the PROVIDER or its agents, employees, or subcontractors. This policy shall also include protection against claims insured by usual bodily injury liability coverage, a “contractual liability” endorsement to insure the contractual liability assumed by the PROVIDER under its contract with the City, and “Completed Operations and Products Liability” coverage (to remain in force for 2 years after final payment and subsequent to project completion). If the PROVIDER(s) work, or work under its direction, requires blasting, explosive conditions, or underground operations, the comprehensive general liability coverage shall contain no exclusion relative to blasting, explosion, collapse of structures, or damage to underground property. The liability limits shall not be less than:

14.3.2.1. Minimum limits of $1,000,000 per occurrence combined single limit; $1,000,000 aggregate. This shall include premises and/or Operations, Independent Contractors, and Sub- Contractors and/or Completed Operations, Broad Form Property Damage, and a Contractual Liability Endorsement.

14.3.2.2. Contractual coverage applicable to this specific Agreement including any hold harmless and/or such indemnification agreement excluding professional acts.

14.3.3. Comprehensive Automobile Liability. This insurance shall be written in comprehensive form and shall protect the PROVIDER and the additional insureds against all claims for injuries to members of the public and damage to property of others arising from the use of motor vehicle and shall cover operation on or off the site of all motor vehicles licensed for highway use, whether they are owned, non-owned, or hired. The liability limits shall not be less than:

14.3.3.1. Minimum limits of $1,000,000 combined single limit liability.

14.3.1.2. Coverage shall include owned vehicles, hired, leased, non-owned vehicles, employee non-ownership.

14.3.1.3. Such additional requirements as are set forth in in 1.1 and 1.2 above.

14.4. Commercial Crime. Prior to performance as a result of award of this solicitation, the PROVIDER shall secure and maintain Commercial Crime Insurance or the equivalent covering all of PROVIDER(s)) employees engaged in work as specified herein or having access to City buildings.

The Commercial Crime Policy, with endorsement CR04010300 covering client’s property shall provide a minimum coverage of $300,000 per employee/owner per occurrence and shall remain in effect for the entire contract period and any subsequent renewals. Evidence of required Commercial Crime Insurance shall be submitted to the Procurement and Contracts Division prior to commencing work.

14.5. PROFESSIONAL LIABILITY

The PROVIDER shall also purchase, maintain, and keep in full force, effect, and good standing, a professional liability/errors and omissions insurance policy having minimum limits of $1,000,000, with a maximum deductible of $100,000 per claim and in the annual aggregate, or the PROVIDER shall provide the City with policy coverage wherein the insurer agrees to pay claims (up to the limits of coverage), and will thereafter recover the deductible from the insured PROVIDER. The errors and omissions policy shall be in effect and shall insure the PROVIDER(s) performance on City projects.

Coverage must include the following:

14.5.1. A minimum combined single limit of $1,000,000 aggregate

14.5.2. Such additional requirements as are set forth under "insurance coverages required" above.

14.5.3. Should the Professional Liability Insurance Policy issued pursuant to the above requirements and limits be written, so as to provide an applicable deductible amount, or other exclusion or limitation as to the amount of coverage to be provided within the minimum coverage limits set forth above, the CITY shall hold the PROVIDER responsible and liable for any such difference in the amount of coverage provided by the insurance policy. In the event of any such deductible amount, exclusion or limitation, the PROVIDER shall be required to provide written documentation that is acceptable to the CITY establishing that the PROVIDER has the financial resources readily available to cover damages, injuries and/or losses which are not covered by the policy's deductible amounts, exclusions and/or limitations as stated above.

15. COVENANTS AGAINST DISCRIMINATION

15.1. FOR PROJECTS WITH FUNDS APPROPRIATED FROM GENERAL CITY REVENUES

The PROVIDER for itself, its successors in interest, and assigns as part of the consideration, does hereby covenant and agree that in the furnishing services to City, no person on the grounds of race, religion, national origin, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. The PROVIDER shall make every effort to comply with any MBE goals, which have been established for this project.

15.2. FOR PROJECTS WITH FUNDS APPROPRIATED EITHER IN PART OR WHOLLY FROM

FEDERAL, STATE SOURCES OR OTHER SOURCES

The PROVIDER for itself, its successors in interest, and assigns as part of the consideration, does hereby covenant and agree that in the furnishing services to City, no person on the grounds of race, national origin, religion, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. The PROVIDER shall comply with the Office of Federal Contract Compliance Programs (OFCCP) and Executive Order 11246 Affirmative Action. PROVIDER who are uncertain of their obligations regarding MBE for this project must obtain a copy of all relevant federal, state or other grantor’s guidelines from the City Procurement Services. The failure of the PROVIDER to adhere to relevant guidelines shall subject the PROVIDER to any sanctions, which may be imposed upon the City.

16. DUTIES AND OBLIGATIONS IMPOSED ON THE PROVIDER

The duties and obligations imposed upon the PROVIDER by this Agreement, and the rights and remedies available hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law or statute.

17. REPRESENTATION OF THE CITY

The PROVIDER in providing and performing the services and work required pursuant to this Agreement, and Amendments thereto, shall only represent the City in the manner and to the extent specifically set forth in writing in this Agreement or Amendments thereto, and as provided in any written Supplemental Agreement(s), and Change Order(s) issued there under.

In the event the PROVIDER’s services or work involves construction contract administrative support services, the PROVIDER is not authorized to act on the City’s behalf, and shall not act on the City’s behalf, in such a manner as to result in change(s) to (1) the cost or compensation to be paid the construction PROVIDER, or (2) the time for completing the work as required and agreed to in the construction contract, or (3) the scope of the work set forth in the construction contract documents, unless such representation is specifically provided for, set forth and authorized in this Agreement or Amendment thereto.

The City will neither assume nor accept any obligation, commitment, responsibility or liability, which may result from representation by the PROVIDER, not specifically provided for and authorized as stated hereinabove.

18. 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.

19. OWNERSHIP OF DOCUMENTS

All documents such as drawings, tracings, notes, computer files, photographs, plans, specifications, maps, evaluations, reports and other records and data relating to this project, other than working papers, specifically prepared or developed by the PROVIDER under this Agreement, shall be property of the PROVIDER until the PROVIDER has been paid for providing and performing the services and work required to produce such documents.

Upon completion or termination of this Agreement, or upon the issuance by the City of a written Change Order deleting all or portions of the scope of services or task(s) to be provided or performed by the PROVIDER, all of the above documents, to the extent requested in writing by the City, shall be delivered by the PROVIDER to the City within seven (7) calendar days of the City making such a request. In the event the City gives the PROVIDER a written Notice of Termination of all, or part of, the services or work required, or upon the issuance to the PROVIDER by the City of a written Change Order deleting all, or part of, the services or work required, the PROVIDER shall deliver to the City the requested documents as set forth hereinabove, with the mutual understanding and commitment by the City that compensation earned or owing to the PROVIDER, for services or work provided or performed by the PROVIDER prior to the effective date of any such termination or deletion, will be paid to the PROVIDER within thirty (30) calendar days of the date of issuance of the Notice of Termination or Change Order. Effective date of any such termination or deletion will be paid to the PROVIDER within thirty (30) calendar days of the date of issuance of the Notice of Termination or Change Order.

The PROVIDER, at its expense, may make and retain copies of all documents delivered to the City for reference and internal use. The PROVIDER shall not, and agrees not to, use any of these documents, and data and information contained therein, on any other project, or for any other client, without the prior expressed written permission of the City.

20. FLORIDA PUBLIC RECORD LAW

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:

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

2. 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;

3. 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;

4. 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.

21. HEADINGS

The HEADINGS of the Articles, Sections, Exhibits, Attachments, Phases or Tasks, 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, Sections, Exhibits, Attachments, Phases or Tasks.

22. AMENDMENTS/MODIFICATIONS

Modifications to covenants, terms and provisions of this Agreement may be amended upon the mutual acceptance thereof, by both parties and shall only be valid when issued in writing as a properly executed Amendment(s), or Supplemental Agreement(s), or Change Order(s). In the event of any conflicts between the requirements, provisions, and/or terms of this Agreement and any written Amendment(s), Supplemental Agreement(s), and/or Change Order(s), the latest executed Amendment(s), Supplemental Agreement(s), and/or Change Order(s) shall take precedence.

In the event the City issues a purchase order, memorandum, letter, or other instruments covering the Services, work and materials to be provided and performed pursuant to this Agreement, it is hereby specifically agreed and understood that such purchase order, memorandum, letter or other instruments are for the City's internal control purposes only, and any and all terms, provisions and conditions contained therein, whether printed or written, shall in no way modify the covenants, terms and provisions of this Agreement and shall have no force or effect thereon.

No modification, waiver, or termination of the Agreement, or of any terms thereof, shall impair the rights of either party.

23. PROHIBITION AGAINST CONTINGENT FEES

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

24. LAP AGREEMENT PROVISIONS

24.1. The City of Fort Myers will be solely responsible for compliance with all applicable environmental regulations for any liability arising from non-compliance with these regulations and will reimburse the Department for any loss incurred in connection therewith. The City of Fort Myers will be responsible for securing any applicable permits. The recipient shall include in all contracts and subcontracts for amounts in excess of $150,000.00 a provision requiring compliance with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C.

7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).

24.2. The Department shall not be obligated or liable hereunder to any individual or entity not a party to this Agreement.

24.3. In no event shall the making by the Department of any payment to the City of Fort Myers constitute or be construed as a waiver by the Department of any breach of covenant or any default which may then exist on the part of the City of Fort Myers and the making of such payment by the Department while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to the Department with respect to such breach or default.

24.4. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected in such an instance, the remainder would then continue to conform to the terms and requirements of applicable law.

24.5. By execution of the Agreement, the Recipient represents that it has not paid and also agrees not to pay any bonus or commission for the purpose of obtaining an approval of its application for the financing hereunder.

24.6. Nothing in the Agreement shall require the City of Fort Myers to observe or enforce compliance with any provision or perform any act or do any other thing in contravention of any applicable state law. If any of the provisions of the Agreement violate any applicable state law, the Recipient will at once notify the Department in writing in order that appropriate changes and modifications may be made by the Department and the City of Fort Myers to the end that the Recipient may proceed as soon as possible with the Project.

24.7. In the event that this Agreement involves constructing and equipping of facilities, the City of Fort Myers shall submit to the Department for approval all appropriate plans and specifications covering the project. The Department will review all plans and specifications and will issue to the City of Fort Myers a written approval with any approved portions of the project and comments or recommendations covering any remainder of the project deemed appropriate. After resolution of these comments and recommendations to the Department’s satisfaction, the Department will issue to the Recipient a written approval with said remainder of the project. Failure to obtain this written approval shall be sufficient cause of nonpayment by the Department.

24.8. Upon completion of right-of-way activities on the project, the City of Fort Myers must certify compliance with all applicable federal and state requirements. Certification is required prior to authorization for advertisement for or solicitation of bids for construction of the project including if no right-of-way is required.

24.9. The City of Fort Myers will certify in writing prior to project closeout that the project was completed in accordance with applicable plans and specifications, is in place on the City of Fort Myers’ facility, adequate title is in the City of Fort Myers name and the project is accepted by the City of Fort Myers as suitable for the intended purpose.

24.10. The City of Fort Myers agrees that no federally-appropriated funds have been paid or will be paid by or on behalf of the City of Fort Myers to any person for influencing or attempting to influence any officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement and the extension, continuation, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. If any funds other than federally appropriated funds have been paid by the City of Fort Myers to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress or an employee of a Member of Congress in connection with this Agreement. The undersigned shall complete and submit Standard Form-LLL.

“Disclosure Form to Report Lobbying.” In accordance with its instructions. The City of Fort Myers shall require that the language of this paragraph be included in the award documents for all subawards at all tiers (including subcontracts, subgrants and contracts under grants, loans and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. No funds received pursuant to this contract may be expended for lobbying the Legislature, the judicial branch or a state agency.

24.11. The City of Fort Myers may not permit the Engineer of Record to…