AGREEMENT FOR EXECUTIVE RECRUITMENT SERVICES - CITY MANAGER - RFP 15-21• bakertitly
Baker Tilly US, LLP
2500 Dallas Parkway, Suite 300
Plano, TX 75093
T: +1 (972) 748 0300
March 4, 2021
The Honorable Frank Hibbard, Mayor
City of Clearwater Offices of the Mayor and City Council
P.O. Box 4748
One Clearwater Tower, 6th Floor
600 Cleveland Street
Clearwater, FL 33758.4748
Dear Mayor Hibbard:
This letter documents the City of Clearwater's ("you/r" or "Client") engagement of Baker Tilly US, LLP ("we" or
"Baker Tilly") to conduct an executive search for the position of City Manager (the "Project"). This letter defines
our and your respective obligations for the Project. Our proposal dated February 11, 2021, responding to RFP #
15-21 to provide executive recruiting services is incorporated by reference.
Scope, Objectives and Approach
A team approach, which uses a combination of your personnel and ours, is critical to the success of the Project.
Your organization and its team members bring the knowledge of your particular needs and we bring a deep
understanding of public sector executive recruitment and selection practices in Florida and throughout the
country. The Project Leader for this executive recruitment process will be Art Davis with additional support from
the Baker Tilly executive recruitment team. We will work closely and coordinate with the City of Clearwater's
Human Resources Director, and others as requested, to assist us in scheduling meetings, distributing
information and ensuring we are providing timely updates and working closely with the Mayor and City Council
on this extremely important project.
Phase
Description of Baker Tilly's Professional Services
Phase I
Task 1 — Develop the candidate profile and define the advertising and marketing
strategy (includes up to one day of meetings by Project Team Leader).
Task 2 — Identify qualified candidates that meet the profile.
Phase II
Task 3 — Screen and submit list of recommended semi-finalists to client (includes
meetings with the Project Team Leader).
Task 4 — Conduct reference checks, and academic verifications. A criminal, full
background and reference checks, and a credit history report may also be conducted at
this Phase or at the conclusion of Phase Ill, as specified by you.
Phase Ill
Task 5 — Final process/on-site interviews with finalists (includes up to two days of
meetings by Project Team Leader).
Task 6 — Assist Client in making offer, which may be made contingent upon the
successful completion of a background check as specified by you.
Conclusion
Acceptance of offer by candidate.
Baker Tilly US, LLP, trading as Baker Tilly, is a member of the global network of Baker Tilly International Ltd., the members of which are
separate and Independent legal entities. ® 2021 Baker Tilly US, LLP
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bakertitty
Baker Tilly US, LLP
2500 Dallas Parkway, Suite 300
Plano, TX 75093
T: +1 (972) 748 0300
Project Timing and Budget
The Project will commence upon your execution of this engagement letter and will remain in effect for the period
necessary for successful completion of the Project.
1. CONSULTANT will lead the engagement, and other professionals will be involved as required. The all-
inclusive professional fee to complete the Project is $26.500 (the "Fee") and includes the cost of
professional services by the Project Team Leader and the project support staff, and all project -related
expenses such as advertising, printing, candidate background and reference checks, and any travel
expenses for possible on-site visits conducted by the Project Team Leader. Travel expenses incurred by
candidates for on-site interviews with the Client are not the responsibility of Baker Tilly and shall be handled
directly by the Client. The Client will make payments upon receipt of an invoice submitted by Baker Tilly.
Payment to Baker Tilly is due upon receipt. All invoices will be forwarded to the Client for processing unless
otherwise directed. For reporting purposes, Baker Tilly's tax identification number is 39-0859910.
2. The Fee will be billed in four installments; 30% of the Fee will be billed upon execution of this Letter; 30% at
the completion of Phase I; 30% at the completion of Phase II; and the final 10% upon acceptance of offer
by the candidate. The Fee is not contingent. If you terminate this engagement before completion, Baker
Tilly shall invoice you for any unpaid portion of the Fee.
3. If Client requests Baker Tilly to perform additional services beyond the services described above, such as
conducting an employee/community survey or making additional on-site visits, such additional services
shall result in additional fees. For an employee/community survey, the additional fee shall be $2,000. For
additional days of virtual meetings or on-site visits (beyond the three sets of on-site/virtual visits which
include four consulting days) described above, the additional fee would be our standard daily rate of $1,800
plus expenses. Additional services requested beyond what is included in the Proposal must be mutually
agreed to in writing and result in an additional fee of $220 per hour.
Baker Tilly's Guarantees
1. Baker Tilly shall remain on the Project until you find a candidate to hire. If you are unable to make a
selection from the initial group of semifinalists or finalists, Baker Tilly will work to identify additional
candidates for your selection.
2. We promise that if the candidate you select is terminated or resigns within 12 months from being hired,
Baker Tilly will conduct an additional search for you for no additional professional fee, but only for project -
related expenses. Internal candidates selected from within your organization do not qualify for this
guarantee. Except as stated above, Baker Tilly cannot guarantee the success of any candidate or
guarantee that he or she shall perform to your expectations, as those things are beyond Baker Tilly's
control.
3. Baker Tilly will not solicit the candidate you select for any other position while the candidate is employed by
your organization.
4. When Baker Tilly obtains a criminal or credit history report on the candidates, Baker Tilly shall comply with
the Fair Credit Reporting Act (the "FCRA") in obtaining the reports. Baker Tilly cannot guarantee the
completeness or accuracy of the information in the reports.
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� bakertilly
Baker Tilly US, LLP
2500 Dallas Parkway, Suite 300
Plano, TX 75093
T: +1 (972) 748 0300
5. In identifying and screening candidates, Baker Tilly will not discriminate against any candidate on the basis
of age, race, creed, color, religion, sex, sexual orientation, national origin, disability, marital status or any
other basis that is prohibited by federal, state or local law. Proactively, we shall make a good faith effort to
include a diverse pool of qualified candidates in our search assignments.
6. Baker Tilly will work closely with the Human Resources Director and City Attorney to ensure we are
transparent and in compliance with Florida's broad public records laws.
Client's Obligations
1. You agree that you are responsible for candidate selections and that you will not discriminate against any
candidate on the basis of age, race, creed, color, religion, sex, sexual orientation, national origin, disability,
marital status or any other basis that is prohibited by federal, state or local law.
2. If you decide to not hire a candidate as a result of a criminal or credit history report, you agree to
comply with the FCRA with regard to any pre- or post -adverse action notices and requirements.
3. You agree to respond to drafts of documents and reports in a timely manner. Failure to do so on your part
will protract timelines and can negatively influence the outcome of the process.
All terms and conditions as set forth in RFP#15-21, Standard Terms and Conditions, are incorporated by
reference and attached hereto as Exhibit A.
Insurance Requirements are set forth in Exhibit B, which are incorporated by reference and attached hereto
as Exhibit B.
If this letter is in agreement with your understanding, please sign below and return one copy to us for our
files. We look forward to working with you on this important project.
Sincerely,
Chuck Rohre, Firm Director
Baker Tilly US, LLP
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CLIENT SIGNATURE
Countersigned:
VitleA-01/
CITY OF CLEARWATER
)j Q L4
Frank Hibbard William B. Horne, II
Mayor City Manager
Approved as to form:
Owen Kohler
Attest:
bakertilly
Baker Tilly US, LLP
2500 Dallas Parkway, Suite 300
Plano, TX 75093
T: +1 (972) 748 0300
Rosemarie Call
Assistant City Attorney City Clerk
Page 14
Exhibit A
S.1 DEFINITIONS. Uses of the following terms are interchangeable as referenced: "vendor, contractor,
supplier, proposer, company, parties, persons", "purchase order, PO, contract, agreement", "city,
Clearwater, agency, requestor, parties", "bid, proposal, response, quote".
S.2 INDEPENDENT CONTRACTOR. It is expressly understood that the relationship of Contractor to
the City will be that of an independent contractor. Contractor and all persons employed by
Contractor, either directly or indirectly, are Contractor's employees, not City employees.
Accordingly, Contractor and Contractor's employees are not entitled to any benefits provided to
City employees including, but not limited to, health benefits, enrollment in a retirement system, paid
time off or other rights afforded City employees. Contractor employees will not be regarded as City
employees or agents for any purpose, including the payment of unemployment or workers'
compensation. If any Contractor employees or subcontractors assert a claim for wages or other
employment benefits against the City, Contractor will defend, indemnify and hold harmless the City
from all such claims. Contractor shall have no authority to bind the City to any third party
agreements. Though the services may include Contractor's advice and recommendations, all
decisions regarding the implementation of any such advice or recommendation, including, without
limitation, the decision to hire or not to hire a particular candidate, shall be the responsibility of, and
made by, the City.
S.3 SUBCONTRACTING. Contractor may not subcontract work under this Agreement without the
express written permission of the City. If Contractor has received authorization to subcontract work,
it is agreed that all subcontractors performing work under the Agreement must comply with its
provisions. Further, all agreements between Contractor and its subcontractors must provide that
the terms and conditions of this Agreement be incorporated therein.
S.4 ASSIGNMENT. This Agreement may not be assigned either in whole or in part without first
receiving the City's written consent. Any attempted assignment, either in whole or in part, without
such consent will be null and void and in such event the City will have the right at its option to
terminate the Agreement. No granting of consent to any assignment will relieve Contractor from
any of its obligations and liabilities under the Agreement.
S.5 SUCCESSORS AND ASSIGNS, BINDING EFFECT. This Agreement will be binding upon and
inure to the benefit of the parties and their respective permitted successors and assigns.
S.6 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the exclusive benefit of the
parties. Nothing set forth in this Agreement is intended to create, or will create, any benefits, rights,
or responsibilities in any third parties.
S.7 NON- EXCLUSIVITY. The City, in its sole discretion, reserves the right to request the materials or
services set forth herein from other sources when deemed necessary and appropriate. No
exclusive rights are encompassed through this Agreement.
S.8 AMENDMENTS. There will be no oral changes to this Agreement. This Agreement can only be
modified in a writing signed by both parties. No charge for extra work or material will be allowed
unless approved in writing, in advance, by the City and Contractor.
S.9 TIME OF THE ESSENCE. Time is of the essence to the performance of the parties' obligations
under this Agreement.
S.10 COMPLIANCE WITH APPLICABLE LAWS.
a. General. Contractor must procure all permits and licenses, and pay all charges and fees
necessary and incidental to the lawful conduct of business. Contractor must stay fully informed
of existing and future federal, state, and local laws, ordinances, and regulations that in any
manner affect the fulfillment of this Agreement and must comply with the same at its own
expense. Contractor bears full responsibility for training, safety, and providing necessary
equipment for all Contractor personnel to achieve throughout the term of the Agreement. Upon
request, Contractor will demonstrate to the City's satisfaction any programs, procedures, and
other activities used to ensure compliance.
b. Drug -Free Workplace. Contractor is hereby advised that the City has adopted a policy
establishing a drug-free workplace for itself and those doing business with the City to ensure
the safety and health of all persons working on City contracts and projects. Contractor will
require a drug-free workplace for all Contractor personnel working under this Agreement.
Specifically, all Contractor personnel who are working under this Agreement must be notified
in writing by Contractor that they are prohibited from the manufacture, distribution,
dispensation, possession, or unlawful use of a controlled substance in the workplace.
Contractor agrees to prohibit the use of intoxicating substances by all Contractor personnel
and will ensure that Contractor personnel do not use or possess illegal drugs while in the course
of performing their duties.
c. Federal and State Immigration Laws. Contractor agrees to comply with the Immigration
Reform and Control Act of 1986 (IRCA) in performance under this Agreement and to permit the
City and its agents to inspect applicable personnel records to verify such compliance as
permitted by law. Contractor will ensure and keep appropriate records to demonstrate that all
Contractor personnel have a legal right to live and work in the United States.
(i)
As applicable to Contractor, under this provision, Contractor hereby warrants to the City
that Contractor and each of its subcontractors will comply with, and are contractually
obligated to comply with, all federal immigration laws and regulations that relate to their
employees (hereinafter "Contractor Immigration Warranty").
(ii) A breach of the Contractor Immigration Warranty will constitute as a material breach of this
Agreement and will subject Contractor to penalties up to and including termination of this
Agreement at the sole discretion of the City.
(iii) The City retains the legal right to inspect the papers of all Contractor personnel who provide
services under this Agreement to ensure that Contractor or its subcontractors are
complying with the Contractor Immigration Warranty. Contractor agrees to assist the City
in regard to any such inspections.
(iv) The City may, at its sole discretion, conduct random verification of the employment records
of Contractor and any subcontractor to ensure compliance with the Contractor Immigration
Warranty. Contractor agrees to assist the City in regard to any random verification
performed.
(v) Neither Contractor nor any subcontractor will be deemed to have materially breached the
Contractor Immigration Warranty if Contractor or subcontractor establishes that it has
complied with the employment verification provisions prescribed by Sections 274A and
274B of the Federal Immigration and Nationality Act.
d. Nondiscrimination. Contractor represents and warrants that it does not discriminate against
any employee or applicant for employment or person to whom it provides services because of
race, color, religion, sex, national origin, or disability, and represents and warrants that it
complies with all applicable federal, state, and local laws and executive orders regarding
employment. Contractor and Contractor's personnel will comply with applicable provisions of
Title VII of the U.S. Civil Rights Act of 1964, as amended, Section 504 of the Federal
Rehabilitation Act, the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), and
applicable rules in performance under this Agreement.
S.11 SALES/USE TAX, OTHER TAXES.
a. Contractor is responsible for the payment of all taxes including federal, state, and local taxes
related to or arising out of Contractor's services under this Agreement, including by way of
illustration but not limitation, federal and state income tax, Social Security tax, unemployment
insurance taxes, and any other taxes or business license fees as required. If any taxing
authority should deem Contractor or Contractor employees an employee of the City, or should
otherwise claim the City is liable for the payment of taxes that are Contractor's responsibility
under this Agreement, Contractor will indemnify the City for any tax liability, interest, and
penalties imposed upon the City.
b. The City is exempt from paying state and local sales/use taxes and certain federal excise taxes
and will furnish an exemption certificate upon request.
S.12 AMOUNTS DUE THE CITY. Contractor must be current and remain current in all obligations due
to the City during the performance of services under the Agreement. Payments to Contractor may
be offset by any delinquent amounts due the City or fees and charges owed to the City.
S.13 OPENNESS OF PROCUREMENT PROCESS. Written competitive proposals, replies, oral
presentations, meetings where vendors answer questions, other submissions, correspondence,
and all records made thereof, as well as negotiations or meetings where negotiation strategies are
discussed, conducted pursuant to this RFP, shall be handled in compliance with Chapters 119 and
286, Florida Statutes.
Proposals or replies received by the City pursuant to this RFP are exempt from public disclosure
until such time that the City provides notice of an intended decision or until 30 days after opening
the proposals, whichever is earlier. If the City rejects all proposals or replies pursuant to this RFP
and provides notice of its intent to reissue the RFP, then the rejected proposals or replies remain
exempt from public disclosure until such time that the City provides notice of an intended decision
concerning the reissued RFP or until the City withdraws the reissued RFP. A proposal or reply shall
not be exempt from public disclosure longer than 12 months after the initial City notice rejecting all
proposals or replies.
Oral presentations, meetings where vendors answer questions, or meetings convened by City staff
to discuss negotiation strategies, if any, shall be closed to the public (and other proposers) in
compliance with Chapter 286 Florida Statutes. A complete recording shall be made of such closed
meeting. The recording of, and any records presented at, the exempt meeting shall be available to
the public when the City provides notice of an intended decision or until 30 days after opening
proposals or final replies, whichever occurs first. If the City rejects all proposals or replies pursuant
to this RFP and provides notice of its intent to reissue the RFP, then the recording and any records
presented at the exempt meeting remain exempt from public disclosure until such time that the City
provides notice of an intended decision concerning the reissued RFP or until the City withdraws the
reissued RFP. A recording and any records presented at an exempt meeting shall not be exempt
from public disclosure longer than 12 months after the initial City notice rejecting all proposals or
replies.
Jn addition to all other contract reauirements as provided by law. the contractor executing
this aareement aarees to reasonably assist the Citv with the Citv's obliaation to comply with
public records law,
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS, Rosemarie Call, phone: 727-562-4092 or Rosemarie.Call(aimyclearwater.conl,
600 Cleveland Street, Suite 600, Clearwater, FL 33755.
The contractor's agreement to comply with public records law applies specifically to reasonably assist
the City with the City's obligation, with respect to public records laws, to:
a) Keep and maintain public records required by the City of Clearwater (hereinafter "public
agency") to perform the service being provided by the contractor hereunder.
b) Upon request from the public agency's custodian of public records, provide the public agency
with a copy of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided for in Chapter 119, Florida
Statutes, as may be amended from time to time, or as otherwise provided by law.
c) Ensure that the public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
contract term and following completion of the contract if the contractor does not transfer the
records to the public agency.
d) Upon completion of the contract, transfer, at no cost, to the public agency all public records in
possession of the contractor or keep and maintain public records required by the public agency
to perform the service. If the contractor transfers all public records to the public agency upon
completion of the contract, the contractor shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure requirements. If the
contractor keeps and maintains public records upon completion of the contract, the contractor
shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the public agency, upon request from the public agency's
custodian of public records, in a format that is compatible with the information technology
systems of the public agency.
e) A request to inspect or copy public records relating to a public agency's contract for services
must be made directly to the public agency. If the public agency does not possess the
requested records, the public agency shall immediately notify the contractor of the request and
the contractor must provide the records to the public agency or allow the records to be
inspected or copied within a reasonable time.
f) The contractor hereby acknowledges and agrees that if the contractor does not comply with
the public agency's request for records, the public agency shall enforce the contract provisions
in accordance with the contract.
g)
A contractor who fails to provide the public records to the public agency within a reasonable
time may be subject to penalties under Section 119.10, Florida Statutes.
h) If a civil action is filed against a contractor to compel production of public records relating to a
public agency's contract for services, the court shall assess and award against the contractor
the reasonable costs of enforcement, including reasonable attorney fees, if:
1. The court determines that the contractor unlawfully refused to comply with the
public records request within a reasonable time; and
2. At least eight (8) business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the contractor has not
complied with the request, to the public agency and to the contractor.
i) A notice complies with subparagraph (h)2. if it is sent to the public agency's custodian of public
records and to the contractor at the contractor's address listed on its contract with the public
agency or to the contractor's registered agent. Such notices must be sent by common carrier
delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or
shipping paid by the sender and with evidence of delivery, which may be in an electronic format.
A contractor who complies with a public records request within 8 business days after the notice is
sent is not liable for the reasonable costs of enforcement.
S.14 AUDITS AND RECORDS. Contractor must preserve the records related to this Agreement for five
(5) years after completion of the Agreement. Any duly authorized state or federal regulatory body
shall have the right to inspect any records related to the performance of work specified herein. In
addition, the City may inspect any and all payroll, billing or other relevant records kept by Contractor
in relation to the Agreement for the purposes of substantiating Contractor's invoices issued
hereunder. Contractor will permit such inspections and audits during normal business hours and
upon reasonable notice by the City. The audit of records may occur at Contractor's place of
business or at City offices, as determined by the City.
S.15 BACKGROUND CHECK. The City may conduct criminal, driver history, and all other requested
background checks of Contractor personnel who would perform services under the Agreement or
who will have access to the City's information, data, or facilities in accordance with the City's
current background check policies. Any officer, employee, or agent that fails the background
check must be replaced immediately for any reasonable cause not prohibited by law.
S.16 SECURITY CLEARANCE AND REMOVAL OF CONTRACTOR PERSONNEL. The City will have
final authority, based on security reasons: (i) to determine when security clearance of Contractor
personnel is required; (ii) to determine the nature of the security clearance, up to and including
fingerprinting Contractor personnel; and (iii) to determine whether or not any individual or entity
may provide services under this Agreement. If the City objects to any Contractor personnel for any
reasonable cause not prohibited by law, then Contractor will, upon notice from the City, remove
any such individual from performance of services under this Agreement.
S.17 DEFAULT.
a. A party will be in default if that party:
(i) Is or becomes insolvent or is a party to any voluntary bankruptcy or receivership
proceeding, makes an assignment for a creditor, or there is any similar action that affects
Contractor's capability to perform under the Agreement;
(ii) Is the subject of a petition for involuntary bankruptcy not removed within sixty (60) calendar
days;
(iii) Conducts business in an unethical manner or in an illegal manner; or
(iv) Fails to carry out any term, promise, or condition of the Agreement.
b. Contractor will be in default of this Agreement if Contractor is debarred from participating in
City procurements and solicitations in accordance with Section 27 of the City's Purchasing and
Procedures Manual.
c. Notice and Opportunity to Cure. In the event a party is in default then the other party may,
at its option and at any time, provide written notice to the defaulting party of the default. The
defaulting party will have thirty (30) days from receipt of the notice to cure the default; the thirty
(30) day cure period may be extended by mutual agreement of the parties, but no cure period
may exceed ninety (90) days. A default notice will be deemed to be sufficient if it is reasonably
calculated to provide notice of the nature and extent of such default. Failure of the non -
defaulting party to provide notice of the default does not waive any rights under the Agreement.
d. Anticipatory Repudiation. Whenever the City in good faith has reason to question
Contractor's intent or ability to perform, the City may demand that Contractor give a written
assurance of its intent and ability to perform. In the event that the demand is made and no
written assurance is given within five (5) calendar days, the City may treat this failure as an
anticipatory repudiation of the Agreement.
S.18 REMEDIES. The remedies set forth in this Agreement are not exclusive. Election of one remedy
will not preclude the use of other remedies. In the event of default:
a. The non -defaulting party may terminate the Agreement, and the termination will be effective
immediately or at such other date as specified by the terminating party.
b. The City may purchase the services required under the Agreement from the open market,
complete required work itself, or have it completed at the expense of Contractor. If the cost of
obtaining substitute services exceeds the contract price, the City may recover the excess cost
by: (i) requiring immediate reimbursement to the City; (ii) deduction from an unpaid balance
due to Contractor; (iii) collection against the proposal and/or performance security, if any; (iv)
collection against liquidated damages (if applicable); or (v) a combination of the
aforementioned remedies or other remedies as provided by law. Costs includes any and all,
fees, and expenses incurred in obtaining substitute services and expended in obtaining
reimbursement, including, but not limited to, administrative expenses, attorneys' fees, and
costs.
c. The non -defaulting party will have all other rights granted under this Agreement and all rights at law
or in equity that may be available to it.
d. Neither party will be liable for incidental, special, or consequential damages.
S.19 CONTINUATION DURING DISPUTES. Contractor agrees that during any dispute between the parties,
Contractor will continue to perform its obligations until the dispute is settled, instructed to cease
performance by the City, enjoined or prohibited by judicial action, or otherwise required or obligated to
cease performance by other provisions in this Agreement.
S.20 TERMINATION FOR CONVENIENCE. The City reserves the right to terminate this Agreement in part
or in whole upon thirty (30) calendar days' written notice.
S.21 CONFLICT OF INTEREST F.S. Section 112. Pursuant to F.S. Section 112, the City may cancel this
Agreement after its execution, without penalty or further obligation, if any person significantly involved
in initiating, securing, drafting, or creating the Agreement for the City becomes an employee or agent
of Contractor.
S.22 TERMINATION FOR NON -APPROPRIATION AND MODIFICATION FOR BUDGETARY
CONSTRAINT. The City is a governmental agency which relies upon the appropriation of funds by its
governing body to satisfy its obligations. If the City reasonably determines that it does not have funds
to meet its obligations under this Agreement, the City will have the right to terminate the Agreement
without penalty on the last day of the fiscal period for which funds were legally available. In the event
of such termination, the City agrees to provide written notice of its intent to terminate thirty (30) calendar
days prior to the stated termination date.
S.23 PAYMENT TO CONTRACTOR UPON TERMINATION. Upon termination of this Agreement,
Contractor will be entitled only to payment for those services performed up to the date of termination,
and any authorized expenses already incurred up to such date of termination. The City will make final
payment within thirty (30) calendar days after the City has both completed its appraisal of the materials
and services provided and received Contractor's properly prepared final invoice.
S.24 NON -WAIVER OF RIGHTS. There will be no waiver of any provision of this agreement unless approved
in writing and signed by the waiving party. Failure or delay to exercise any rights or remedies provided
herein or by law or in equity, or the acceptance of, or payment for, any services hereunder, will not
release the other party of any of the warranties or other obligations of the Agreement and will not be
deemed a waiver of any such rights or remedies.
S.25 INDEMNIFICATION/LIABILITY.
a. To the fullest extent permitted by law, Contractor agrees to defend, indemnify, and hold the City, its
officers, agents, and employees, harmless from and against any and all third party liabilities,
demands, claims, suits, losses, damages, causes of action, fines or judgments, including costs,
attorneys', witnesses', and expert witnesses' fees, and expenses incident thereto, relating to,
arising out of, or resulting from: (i) Contractor's willful misconduct or fraud in the context of services
provided by Contractor personnel under this Agreement; (ii) any grossly negligent acts, errors,
mistakes or omissions by Contractor or Contractor personnel; and (iii) reserved.
b. Contractor will update the City during the course of the litigation to timely notify the City of any
issues that may involve the independent negligence of the City that is not covered by this
indemnification.
c. The City assumes no liability for actions of Contractor and will not indemnify or hold Contractor or
any third party harmless for claims based on this Agreement or use of Contractor -provided supplies
or services.
d. The liability (including attorney's fees and all other costs) of Contractor and its present or former
partners, principals, agents or employees related to any claim for damages relating to the Services
performed under this Agreement shall not exceed the fees paid to Contractor under this Agreement,
except to the extent finally determined to have resulted from the willful misconduct or fraudulent
behavior of Contractor relating to such Services. This limitation of liability is intended to apply to the
full extent allowed by law, regardless of the grounds or nature of any claim asserted, including the
negligence of either party. Additionally, in no event shall either party be liable for any lost profits,
lost business opportunity, lost data, consequential, special, incidental, exemplary or punitive
damages, delays, interruptions or viruses arising out of or related to this Agreement even if the
other party has been advised of the possibility of such damages.
e. The City accepts and acknowledges that any legal proceedings arising from or in conjunction with
the Services provided under this Agreement must be commenced within twelve (12) months after
the performance of the Services for which the action is brought, without consideration as to the time
of discovery of any claim or any other statutes of limitations or repose.
S.26 WARRANTY. Contractor warrants that the services and materials will conform to the requirements of
the Agreement and be performed in accordance with generally accepted industry standards of care and
competence. Additionally, Contractor warrants that all services will be performed in a good, workman-
like and professional manner. The City's acceptance of service or materials provided by Contractor will
not relieve Contractor from its obligations under this warranty. If any materials or services are of a
substandard or unsatisfactory manner as determined by the City, Contractor, at no additional charge to
the City, will provide materials or redo such services until in accordance with this Agreement and to the
City's reasonable satisfaction.
Unless otherwise agreed, Contractor warrants the services will be consistent with the Baker Tilly
Guarantee in the letter to which these terms are attached.
S.27 THE CITY'S RIGHT TO RECOVER AGAINST THIRD PARTIES. Contractor will do nothing to prejudice
the City's right to recover against third parties for any loss, destruction, or damage to City property, and
will at the City's request and expense, furnish to the City reasonable assistance and cooperation,
including assistance in the prosecution or defense of suit and the execution of instruments of
assignment in favor of the City in obtaining recovery.
S.28 NO GUARANTEE OF WORK. Contractor acknowledges and agrees that it is not entitled to deliver any
specific amount of materials or services or any materials or services at all under this Agreement and
acknowledges and agrees that the materials or services will be requested by the City on an as needed
basis at the sole discretion of the City. Any document referencing quantities or performance frequencies
represent the City's best estimate of current requirements, but will not bind the City to purchase, accept,
or pay for materials or services which exceed its actual needs.
S.29 OWNERSHIP. All deliverables, services, and information provided by Contractor or the City pursuant
to this Agreement (whether electronically or manually generated) including without limitation, reports,
test plans, and survey results, graphics, and technical tables, originally prepared in the performance of
this Agreement, are the property of the City and will not be used or released by Contractor or any other
person except with prior written permission by the City. Notwithstanding the foregoing, Contractor will
maintain all ownership right, title and interest to all of Contractor's Knowledge. For purposes of this
Agreement "Contractor's Knowledge" means Contractor's proprietary programs, modules, products,
inventions, designs, data, or other information, including all copyright, patent, trademark and other
intellectual property rights related thereto, that are (1) owned or developed by Contractor prior to the
Effective Date of this Agreement ("Contractor's Preexisting Knowledge") (2) developed or obtained by
Contractor after the Effective Date, that are reusable from client to client and project to project, where
the City has not paid for such development; and (3) extensions, enhancements, or modifications of
Contractor's Preexisting Knowledge which do not include or incorporate the City's confidential
information. To the extent that any Contractor Knowledge is incorporated into the deliverables,
Contractor grants to the City a non-exclusive, paid up, perpetual royalty -free worldwide license to use
such Contractor Knowledge in connection with the deliverables, and for no other purpose without the
prior written consent of Contractor.
S.30 USE OF NAME. Contractor will not use the name of the City of Clearwater in any advertising or publicity
without obtaining the prior written consent of the City.
S.31 PROHIBITED ACTS. Pursuant to Florida Constitution Article II Section 8, a current or former public
officer or employee within the last two (2) years shall not represent another organization before the City
on any matter for which the officer or employee was directly concerned and personally participated in
during their service or employment or over which they had a substantial or material administrative
discretion.
S.32 FOB DESTINATION FREIGHT PREPAID AND ALLOWED. All deliveries will be FOB destination
freight prepaid and allowed unless otherwise agreed.
S.33 RISK OF LOSS. Contractor agrees to bear all risks of loss, injury, or destruction of goods or equipment
incidental to providing these services and such loss, injury, or destruction will not release Contractor
from any obligation hereunder.
S.34 SAFEGUARDING CITY PROPERTY. Contractor will be responsible for any damage to City real
property or damage or loss of City personal property when such property is the responsibility of or in
the custody of Contractor or its employees.
S.35 WARRANTY OF RIGHTS. Contractor warrants it has title to, or the right to allow the City to use, the
materials and services being provided and that the City may use same without suit, trouble or hindrance
from Contractor or third parties.
S.36 PROPRIETARY RIGHTS INDEMNIFICATION. Without limiting the foregoing, Contractor will without
limitation, at its expense defend the City against all claims asserted by any person that anything
provided by Contractor infringes a patent, copyright, trade secret or other intellectual property right and
must, without limitation, pay the costs, damages and attorneys' fees awarded against the City in any
such action, or pay any settlement of such action or claim. Each party agrees to notify the other promptly
of any matters to which this provision may apply and to cooperate with each other in connection with
such defense or settlement. If a preliminary or final
judgment is obtained against the City's use or operation of the items provided by Contractor hereunder
or any part thereof by reason of any alleged infringement, Contractor will, at its expense and without
limitation, either: (a) modify the item so that it becomes non -infringing; (b) procure for the City the right
to continue to use the item; (c) substitute for the infringing item other item(s) having at least equivalent
capability; or (d) refund to the City an amount equal to the price paid, less reasonable usage, from the
time of installation acceptance through cessation of use, which amount will be calculated on a useful
life not less than five (5) years, plus any additional costs the City may incur to acquire substitute supplies
or services.
S.37 CONTRACT ADMINISTRATION. The contract will be administered by the Procurement Division and/or
an authorized representative from the using department. All questions regarding the contract will be
referred to the Procurement Division for resolution. Supplements may be written to the contract for the
addition or deletion of services.
S.38 FORCE MAJEURE. Failure by either party to perform its duties and obligations will be excused by
unforeseeable circumstances beyond its reasonable control, including acts of nature, acts of the public
enemy, riots, fire, explosion, legislation, and governmental regulation. The party whose performance is
so affected will within five (5) calendar days of the unforeseeable circumstance notify the other party of
all pertinent facts and identify the force majeure event. The party whose performance is so affected
must also take all reasonable steps, promptly and diligently, to prevent such causes if it is feasible to
do so, or to minimize or eliminate the effect thereof. The delivery or performance date will be extended
for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably
necessary to overcome the effect of the delay, provided however, under no circumstances will delays
caused by a force majeure extend beyond one hundred -twenty (120) calendar days from the scheduled
delivery or completion date of a task unless agreed upon by the parties.
S.39 COOPERATIVE USE OF CONTRACT. The City has entered into various cooperative purchasing
agreements with other Florida government agencies, including the Tampa Bay Area Purchasing
Cooperative. Under a Cooperative Purchasing Agreement, any contract may be extended for use by
other municipalities, school districts and government agencies with the approval of Contractor. Any
such usage by other entities must be in accordance with the statutes, codes, ordinances, charter and/or
procurement rules and regulations of the respective government agency.
Orders placed by other agencies and payment thereof will be the sole responsibility of that agency.
The City is not responsible for any disputes arising out of transactions made by others.
S.40 FUEL CHARGES AND PRICE INCREASES. No fuel surcharges will be accepted. No price increases
will be accepted without proper request by Contractor and response by the City's Procurement Division.
S.41 NOTICES. All notices to be given pursuant to this Agreement must be delivered to the parties at their
respective addresses. Notices may be (i) personally delivered; (ii) sent via certified or registered mail,
postage prepaid; (iii) sent via overnight courier; or (iv) sent via facsimile. If provided by personal delivery,
receipt will be deemed effective upon delivery. If sent via certified or registered mail, receipt will be
deemed effective three (3) calendar days after being deposited in the United States mail. If sent via
overnight courier or facsimile, receipt will be deemed effective two (2) calendar days after the sending
thereof.
S.42 GOVERNING LAW, VENUE. This Agreement is governed by the laws of the State of Florida. The
exclusive venue selected for any proceeding or suit in law or equity arising from or incident to this
Agreement will be Pinellas County, Florida. THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER.
S.43 INTEGRATION CLAUSE. This Agreement, including all attachments and exhibits hereto, supersede
all prior oral or written agreements, if any, between the parties and constitutes the entire agreement
between the parties with respect to the work to be performed.
S.44 PROVISIONS REQUIRED BY LAW. Any provision required by law to be in this Agreement is a part of
this Agreement as if fully stated in it.
S.45 SEVERABILITY. If any provision of this Agreement is declared void or unenforceable, such provision
will be severed from this Agreement, which will otherwise remain in full force and effect. The parties will
negotiate diligently in good faith for such amendment(s) of this Agreement as may be necessary to
achieve the original intent of this Agreement, notwithstanding such invalidity or unenforceability.
S.46 SURVIVING PROVISIONS. Notwithstanding any completion, termination, or other expiration of this
Agreement, all provisions which, by the terms of reasonable interpretation thereof, set forth rights and
obligations that extend beyond completion, termination, or other expiration of this Agreement, will
survive and remain in full force and effect. Except as specifically provided in this Agreement, completion,
termination, or other expiration of this Agreement will not release any party from any liability or obligation
arising prior to the date of termination.
S.47 CONTRACTOR ENTITY. Baker Tilly US, LLP is an independent member of Baker Tilly International.
Baker Tilly International Limited is an English company. Baker Tilly International provides no
professional services to clients. Each member firm is a separate and independent legal entity and each
describes itself as such. Baker Tilly US, LLP is not Baker Tilly International's agent and does not have
the authority to bind Baker Tilly International or act on Baker Tilly International's behalf. None of Baker
Tilly International, Baker Tilly US, LLP, nor any of the other member firms of Baker Tilly International
has any liability for each other's acts or omissions. The name Baker Tilly and its associated logo is used
under license from Baker Tilly International Limited.
Exhibit B
INSURANCE REQUIREMENTS. The Vendor shall, at its own cost and expense, acquire and
maintain (and cause any subcontractors, representatives, or agents to acquire and maintain) during
the term with the City, sufficient insurance to adequately protect the respective interest of the parties.
Coverage shall be obtained with a carrier having an AM Best Rating of A -VII or better. In addition, the
City has the right to review the Contractor's deductible or self-insured retention and to require that it
be reduced or eliminated.
Specifically the Vendor must carry the following minimum types and amounts of insurance on an
occurrence basis or in the case of coverage that cannot be obtained on an occurrence basis, then
coverage can be obtained on a claims -made basis with a minimum three (3) year tail following the
termination or expiration of this Agreement:
a. Commercial General Liability Insurance coverage, including but not limited to, premises
operations, products/completed operations, products liability, contractual liability, advertising injury,
personal injury, death, and property damage in the minimum amount of $1,000,000 (one million
dollars) per occurrence and $2,000,000 (two million dollars) general aggregate.
b. Commercial Automobile Liability Insurance coverage for any owned, non -owned, hired or
borrowed automobile is required in the minimum amount of $1,000,000 (one million dollars)
combined single limit.
c. Professional Liability/Malpractice/Errors or Omissions Insurance coverage appropriate for the
type of business engaged in by the Respondent with minimum limits of $2,000,000 (two million
dollars) per occurrence. If a claims made form of coverage is provided, the retroactive date of
coverage shall be no later than the inception date of claims made coverage, unless the prior policy
was extended indefinitely to cover prior acts. Coverage shall be extended beyond the policy year
either by a supplemental extended reporting period (SERP) of as great a duration as available, and
with no less coverage and with reinstated aggregate limits, or by requiring that any new policy
provide a retroactive date no later than the inception date of claims made coverage.
d. Unless waived by the State of Florida and proof of waiver is provided to the City, statutory Workers'
Compensation Insurance coverage in accordance with the laws of the State of Florida, and
Employer's Liability Insurance in the minimum amount of $500,000 (five hundred thousand
dollars) each employee each accident, $500,000 (five hundred thousand dollars) each employee
by disease, and $500,000 (five hundred thousand dollars) disease policy limit. Coverage should
include Voluntary Compensation, Jones Act, and U.S. Longshoremen's and Harbor Worker's Act
coverage where applicable. Coverage must be applicable to employees, contractors,
subcontractors, and volunteers, if any.
The above insurance limits may be achieved by a combination of primary and umbrella/excess
liability policies.
Other Insurance Provisions.
a. Prior to the execution of this Agreement, and then promptly following the insurance policy's renewal
date(s) for as long as this Agreement remains in effect, the Vendor will furnish the City with a
Certificate of Insurance(s) (using appropriate ACORD certificate, SIGNED by the Issuer, and with
applicable endorsements) evidencing all of the coverage set forth above and naming the City as an
"Additional Insured" on the Commercial General Liability Insurance and the Commercial Automobile
Liability Insurance. In addition when requested in writing from the City, Vendor will provide the City
with certified copies of all applicable policies. The address where such certificates and certified
policies shall be sent or delivered is as follows:
City of Clearwater
Attn: Procurement Division, RFP #15-21
P.O. Box 4748
Clearwater, FL 33758-4748
b. Vendor shall provide thirty (30) days written notice of any cancellation, non -renewal, termination,
material change or reduction in coverage.
c. Vendor's insurance as outlined above shall be primary and non-contributory coverage for Vendor's
negligence.
d. Vendor reserves the right to appoint legal counsel to provide for the Vendor's defense, for any and
all claims that may arise related to Agreement, work performed under this Agreement, or to
Vendor's design, equipment, or service. Vendor agrees that the City shall not be liable to reimburse
Vendor for any legal fees or costs as a result of Vendor providing its defense as contemplated
herein.
The stipulated limits of coverage above shall not be construed as a limitation of any potential liability
to the City. and Citv's failure to reauest evidence of this insurance shall not be construed as a waiver
of Vendor's (or anv contractors'. subcontractors'. representatives' or agents') obliaation to provide the
Insurance coveraae specified