AGREEMENT FOR PROFESSIONAL SERVICES (3)AGREEMENT
FOR
PROFESSIONAL SERVICES
This AGREEMENT is made and entered into on the C? H1 day of aci 2021 by and
between the City of Clearwater, Florida (CITY) and KIMLEY-HORN AND ASSOCIATES, INC.
(CONSULTANT).
WITNESSETH:
WHEREAS, the CITY desires to engage the CONSULTANT to perform certain professional
services pertinent to such work in accordance with this Agreement; and
WHEREAS, the CONSULTANT desires to provide such professional services in accordance with
this Agreement; and
WHEREAS, in accordance with the competitive selection process described in Section 287.055 of
the Florida Statutes, the CITY selected the CONSULTANT based on Request For Qualifications
("RFQ") #37-21 and responses by the CONSULTANT to RFQ #37-21.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good
and valuable consideration, the Parties agree that the above terms, recitals, and representations are
true and accurate and are incorporated herein by reference, and the Parties further agree as follows:
1.0 GENERAL SCOPE OF THIS AGREEMENT
The relationship of the CONSULTANT to the CITY will be that of a professional
consultant, and the CONSULTANT will provide the professional and technical services
required under this Agreement in accordance with acceptable engineering and/or
architectural practices and ethical standards.
2.0 PROFESSIONAL TECHNICAL SERVICES
2.1 It shall be the responsibility of the CONSULTANT to work with and for the CITY
to perform an array of services for the City as set forth in RFQ #37-21, Scope of
Services.
2.2 The CONSULTANT'S services under this Agreement will be provided under a
project specific Work Order(s). Each Work Order will include the services for a
single project, phase, task or assignment, and will contain a mutually agreed-upon
detailed scope of services, project goals, fee and schedule of performance in
accordance with applicable fiscal and budgetary constraints. Total compensation for
services shall not exceed $100,000 per Work Order, unless specifically authorized
by City Council.
2.3 The CONSULTANT shall maintain an adequate and competent staff of
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professionally qualified personnel available to the CITY for the purpose of rendering
the required engineering and/or consultant services hereunder and shall diligently
execute the work to meet the completion time established in the Work Orders. The
CONSULTANT shall notify the CITY by U.S. Mail addressed to the City Engineer
of any changes in company contact information, including but not limited to contact
phone, address, project manager, email addresses, etc.
2.4 The CITY reserves the right to enter into contracts with other engineering and/or
architect firms for similar services. The CONSULTANT will, when directed to do
so by the CITY, coordinate and work with other engineering and/or architectural
firms retained by the CITY.
2.5 The CITY reserves the right to remove any and all projects, phases, tasks, or
assignments related to this Agreement. The CITY further reserves the right to enter
into contracts with other engineering firms for services related to such projects,
phases, tasks, or assignments. The CONSULTANT will, when directed to do so by
the CITY, coordinate and work with other firms retained by the CITY.
3.0 PERIOD OF SERVICES
3.1 The CONSULTANT shall begin work promptly after receipt of a fully executed
Work Order, in accordance with Paragraph 2.2 above. Receipt of a fully executed
Work Order shall constitute written notice to proceed.
3.2 If the CONSULTANT'S services are delayed for reasons beyond the
CONSULTANT'S control, the time of performance shall be adjusted as appropriate.
3.3 It is the intent of the parties hereto that this Agreement continue in force for a period
not to exceed to four (4) years from date of initiation, 08/01/2021 ("Effective Date"),
subject to the provisions for termination contained herein. Assignments that are in
progress at the Termination Date shall be completed by the CONSULTANT unless
specifically terminated by the CITY. Should the CONSULTANT be in the progress
of completing work under this Agreement at the Termination Date, this Agreement
shall continue with all terms, conditions and obligations being in full force and effect
until such time as the work is completed. All provisions expressly intended to survive
termination shall do so.
4.0 INSURANCE REQUIREMENTS
4.1 Reference pages 11-13
5.0 PROFESSIONAL SERVICES/CONSULTANT'S COMPETITIVE
NEGOTIATION ACT (CCNA)
Professional Services provided under this Agreement are within the scope of the practice
of architecture, landscape architecture, professional engineering, or registered land
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surveying and mapping, as defined by the laws of the State of Florida. Provisions of
F.S. apply.
6.0 GENERAL CONSIDERATIONS
6.1 All documents including field books, drawings, specifications, calculations,
geotechnical investigation reports, etc., used in the preparation of the work shall
be supplied by the CONSULTANT and shall become the property of the CITY.
The CITY acknowledges that such documents are not intended or represented to
be suitable for use by the CITY or others for purposes other than those for which
the documents are prepared. Any reuse of these documents without written
verification or adaptation by the CONSULTANT for the specific purpose intended
will be at the CITY's sole risk without liability or legal exposure to the
CONSULTANT.
6.2 The CONSULTANT shall prepare preliminary construction cost estimates with
each design submittal to verify the proposed design is within the City project
budgets. The CONSULTANT shall prepare a final estimate of probable
construction costs, following CITY approval of the bid documents and other pre-
bid activities. The CITY hereby acknowledges that estimates of probable
construction costs cannot be guaranteed, and such estimates are not to be construed
as a promise that designed facilities will not exceed a cost limitation.
6.3 The CONSULTANT will provide expert witnesses, if required, to testify in
connection with any suit at law. A supplemental agreement will be negotiated
between the CITY and the CONSULTANT describing the services desired and
providing a basis for compensation to the CONSULTANT.
6.4 Upon the CONSULTANT'S written request, the CITY will furnish or cause to be
furnished such reports, studies, instruments, documents, and other information as
the CONSULTANT and CITY mutually deem necessary.
6.5 The CITY and the CONSULTANT each bind themselves and their successors,
legal representatives, and assigns to the other party to this Agreement and to the
partners, successors, legal representatives and assigns of each other party, in
respect to all covenants of this Agreement; and, neither the CITY nor the
CONSULTANT will assign or transfer its interest in this Agreement without
written consent of the other.
6.6 To the fullest extent permitted by law, the CONSULTANT agrees to indemnify
and hold harmless the CITY, and its officers and employees, from liabilities,
damages, losses, and costs, including, but not limited to, reasonable attorneys'
fees, to the extent caused by the negligence, recklessness, or intentionally
wrongful conduct of the CONSULTANT and other persons employed or utilized
by the CONSULTANT in the performance of this CONSULTANT under this
AGREEMENT. Notwithstanding any provision herein to the contrary, this
paragraph shall not be construed as a waiver of any immunity to which CITY is
entitled or the extent of any limitation of liability pursuant to § 768.28, Florida
Statutes. Furthermore, this provision is not intended to nor shall it be interpreted
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as limiting or in any way affecting any defense CITY may have under § 768.28,
Florida Statutes or as consent to be sued by third parties. The obligations under this
paragraph shall expressly survive termination or expiration of this Agreement.
IN ACCORDANCE WITH SECTION 558 ET SEQ OF THE FLORIDA STATUTES
AND TO THE FULLEST EXTENT PERMITTED BY LAW, CITY ACKNOWLEDGES
AND AGREES THAT NO INDIVIDUAL EMPLOYEE OR AGENT OF CONSULTANT
SHALL BE HELD INDIVIDUALLY LIABLE FOR DAMAGES RESULTING FROM
NEGLIGENCE OCCURRING WITHIN THE SCOPE AND COURSE OF THIS
AGREEMENT.
6.7 The CONSULTANT agrees not to engage the services of any person or persons
in the employ of the CITY to an allied capacity, on either a full or part-time basis,
on the date of the signing of this Agreement, or during its term.
6.8 Key personnel assigned to CITY projects by the CONSULTANT shall not be
removed from the projects until alternate personnel acceptable to the CITY are
approved in writing by the CITY. Key personnel are identified as: Project
Manager and technical experts.
6.9 The CONSULTANT shall attach a brief status report on the projects with each
request for payment.
6.10 Unless otherwise required by law or judicial order, the CONSULTANT agrees that
it shall make no statements, press releases or other public communication
concerning this Agreement or its subject matter or otherwise disclose or permit to
be disclosed any of the data, technical processes, business affairs or other
information obtained or furnished in the conduct of work under this Agreement
without first notifying the CITY and securing its consent in writing. The
CONSULTANT also agrees that it shall not publish copyright or patent any of the
site-specific data or reports furnished for or resulting from work under this
Agreement. This does not include materials previously or concurrently developed
by the CONSULTANT for "In House" use. Only data and reports generated by
the CONSULTANT under this Agreement shall be the property of the CITY.
6.11 Public Records. The CONSULTANT will be required to comply with Section
119.0701, Florida Statutes, as may be amended from time to time, specifically to:
IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT: 727-562-4092;
Rosemarie.Call@myclearwater.com, 600 Cleveland Street, Suite 600, Clearwater, FL
33755.
The CONSULTANT's agreement to comply with public records law applies specifically
to:
a. Keep and maintain public records required by the City of Clearwater
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(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:
i. The court determines that the contractor unlawfully refused to
comply with the public records request within a reasonable time;
and
ii. At least 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.
7.0 COMPENSATION
7.1 The CONSULTANT shall be compensated for services rendered under this
Agreement in accordance with the provisions of each Work Order, upon
presentation of CONSULTANT'S invoice and as provided in this Agreement.
7.2 Compensation for services shall be invoiced by the CONSULTANT and paid by
the CITY in accordance with the Florida Local Government Prompt Payment Act,
§ 218.70, Florida Statutes.
7.3 The CONSULTANT agrees to allow full and open inspection of payroll records
and expenditures in connection with hourly rate and cost-plus fixed fee work
assignments upon request of the CITY.
8.0 PROHIBITION AGAINST CONTINGENT FEES
The CONSULTANT warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the CONSULTANT to solicit
or secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual, or firm, other than a bona fide employee working for the
CONSULTANT any fee, commission, percentage, gift, or any other consideration,
contingent upon orresulting from the award or making of this Agreement.
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9.0 TERMINATION FOR CAUSE
This Agreement may be terminated by either party with seven (7) days prior written
notice, in the event of substantial failure to perform in accordance with the terms hereof
by the other party through no fault of the terminating party. If this Agreement is
terminated, the CONSULTANT shall be paid in accordance with the provisions of
outstanding Work Orders for all work performed up to the date of termination.
10.0 SUSPENSION, CANCELLATION, OR ABANDONMENT
If the project described in any Work Order is suspended, canceled, or abandoned by the
CITY, without affecting any other Work Order or this Agreement, the CONSULTANT
shall be given five (5) days prior written notice of such action and shall be compensated
for professional services provided up to the date of suspension, cancellation, or
abandonment.
10.5 This Agreement shall be administered and interpreted under the laws of the State of
Florida. The exclusive venue for any proceeding or suit in law or equity arising from or
incident to this Agreement will be in Pinellas County Florida.
11.0 TERMINATION FOR CONVENIENCE
Either the CITY or the CONSULTANT may terminate the Agreement at any time by
giving written notice to the other of such termination and specifying the effective date
of such termination at least thirty (30) days before said termination date. If the
Agreement is terminated by the CITY as provided herein, the CONSULTANT will be
paid for services rendered through the date of termination.
12.0 PUBLIC ENTITY CRIMES
Pursuant to Florida Statute § 287.132-133, the City of Clearwater, as a public entity,
may not accept any proposal from, award any contract to, or transact any business in
excess of the threshold amount provided in § 287.017, F.S., for Category Two (currently
$35,000) with any person or affiliate on the convicted vendor list for a period of 36
months from the date that person or affiliate was placed on the convicted vendor list
unless that person of affiliate has been removed from the list pursuant to § 287.133
(3)(f), F.S. By submitting a proposal, CONSULTANT is certifying that Florida Statute
287.132 and 287.133 does not restrict submission.
13.0 The CONSULTANT will be required to comply with Section 287.135, Florida Statutes,
specifically to comply with the following and execute forms as reflected on pages 16 -
17 (attached hereto and incorporated herein by reference):
SCRUTINIZED COMPANIES AND BUSINESS OPERATIONS WITH CUBA
AND SYRIA
(a) The vendor, company, individual, principal, subsidiary, affiliate, or owner is aware
of the requirements of section 287.135, Florida Statutes, regarding companies on
the Scrutinized Companies with Activities in Sudan List, the Scrutinized
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Companies with Activities in the Iran Petroleum Energy Sector List, or engaging
in business operations in Cuba and Syria; and
(b) The vendor, company, individual, principal, subsidiary, affiliate, or owner is
eligible to participate in this solicitation and is not listed on either the Scrutinized
Companies with Activities in Sudan List, the Scrutinized Companies with
Activities in the Iran Petroleum Sector List, or engaged in business operations in
Cuba and Syria; and
(c) Business Operations means, for purposes specifically related to Cuba or Syria,
engaging in commerce in any form in Cuba or Syria, including, but not limited to,
acquiring, developing, maintaining, owning, selling, possessing, leasing or
operating equipment, facilities, personnel, products, services, personal property,
real property, military equipment, or any other apparatus of business or commerce;
and
(d) If awarded the Contract (or Agreement), the vendor, company, individual,
principal, subsidiary, affiliate, or owner will immediately notify the City of
Clearwater in writing, no later than five (5) calendar days after any of its principals
are placed on the Scrutinized Companies with Activities in Sudan List, the
Scrutinized Companies with Activities in the Iran Petroleum Sector List, or engages
in business operations in Cuba and Syria.
SCRUTINIZED COMPANIES THAT BOYCOTT ISRAEL LIST
(a) The vendor, company, individual, principal, subsidiary, affiliate, or owner is aware
of the requirements of section 287.135, Florida Statutes, regarding companies on
the Scrutinized Companies that Boycott Israel List, or engaged in a boycott of
Israel; and
(b) The vendor, company, individual, principal, subsidiary, affiliate, or owner is
eligible to participate in this solicitation and is not listed on the Scrutinized
Companies that Boycott Israel List, or engaged in a boycott of Israel; and
(c) "Boycott Israel" or "boycott of Israel" means refusing to deal, terminating business
activities, or taking other actions to limit commercial relations with Israel, or
persons or entities doing business in Israel or in Israeli -controlled territories, in a
discriminatory manner. A statement by a company that it is participating in a
boycott of Israel, or that it has initiated a boycott in response to a request for a
boycott of Israel or in compliance with, or in furtherance of, calls for a boycott of
Israel, may be considered as evidence that a company is participating in a boycott
of Israel; and
(d) If awarded the Contract (or Agreement), the vendor, company, individual,
principal, subsidiary, affiliate, or owner will immediately notify the City of
Clearwater in writing, no later than five (5) calendar days after any of its principals
are placed on the Scrutinized Companies that Boycott Israel List, or engaged in a
boycott of Israel.
14.0 RFQ #37-21, TERMS AND CONDITIONS
All terms and conditions as set forth in RFQ #37-21, Terms of Conditions are
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incorporated by reference and hereto attached as Exhibit A Terms and Conditions.
15.0 ORDER OF PRECEDENCE
Any inconsistency in documents relating to this Agreement shall be resolved by giving
precedence in the following order: (i) this Agreement and subsequent Amendments; (ii)
RFQ #37-21, Terms and Conditions; and (iii) Work Orders.
16.0 TERMINATION FOR LACK OF FUNDING
The CITY'S performance and obligation to pay under this Agreement is contingent
upon an annual appropriation by the Clearwater City Council. In the event the
Clearwater City Council does not appropriate funds for CITY to perform its obligations
hereunder, CITY may terminate this Agreement upon thirty (30) days written notice to
CONSULTANT. CONSULTANT will be paid for all work performed to the date of
termination.
17.0 E -VERIFY
CONSULTANT and its Subcontractors shall register with and use the E -Verify system
to verify the work authorization status of all newly hired employees. CONSULTANT
will not enter into a contract with any Subcontractor unless each party to the contract
registers with and uses the E -Verify system. Subcontractor must provide
CONSULTANT with an affidavit stating that Subcontractor does not employ, contract
with, or subcontract with an unauthorized alien. CONSULTANT shall maintain a copy
of such affidavit.
The CITY may terminate this Agreement on the good faith belief that CONSULTANT
or its Subcontractors knowingly violated Florida Statutes 448.09(1) or 448.095(2)(c). If
this Agreement is terminated pursuant to Florida Statute 448.095(2)(c),
CONSULTANT may not be awarded a public contract for at least 1 year after the date
of which this Agreement was terminated. CONSULTANT is liable for any additional
costs incurred by the CITY as a result of the termination of this Agreement.
See Section 448.095, Florida Statutes (2020).
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IN WITNESS IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement on the date and year first above written.
Countersigned:
Frank Hibbard
Mayor
Approved as to form and
correctness:
Assistant City Attorney
KIMLEY-HO
By:
Print Name:
Title: Associate
WITNESS:
By:
Print Name: Kelly
Title: Vice Presi.ent
(loch
CITY OF CLEARWATER
By:
William B. Horne II
City Manager
ATTEST:
By:
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t4ifvualk__- 0 a
Rosemarie Call
City Clerk
RISK MANAGEMENT / INSURANCE REQUIREMENTS
FOR
AGREEMENTS AND CONTRACTS
STATEMENT OF PURPOSE: The City of Clearwater enters into agreements and contracts for
services and/or products with other parties.
Agreements and contracts shall contain Risk Management/Insurance terms to protect the City's
interest and to minimize its potential liabilities. Whenever applicable, the following terms shall
be included in agreements and contracts.
CITY DEFINED: The term "City" (whenever it may appear in this section) is defined to mean
the City of Clearwater itself, its Council, the Community Redevelopment Agency of the City of
Clearwater, a Florida governmental agency created pursuant to Part III, Chapter 163, Florida
Statute, its duly appointed officers, or other public bodies, officers, employees, volunteers,
representatives and agents.
OTHER PARTY DEFINED: The term "Other Party" (whenever it may appear in this section)
is defined to mean the other person or entity which is a party to this agreement or contract with the
City, any subsidiaries or affiliates, officers, employees, volunteers, representatives, agents,
contractors, and subcontractors.
HOLD HARMLESS DEFINED: The term "Hold Harmless" (whenever it may appear in this
section) is defined to mean that the Other Party shall indemnify and hold harmless the City, and
its officers, employees, from liabilities, damages, losses, and costs, including, but not limited to,
reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or intentionally
wrongful conduct of the Other Party and other persons employed or utilized by the Other Party in
the performance of this Agreement and any Work Orders issued under this Agreement.
PAYMENT ON BEHALF OF CITY DEFINED: The term "Payment on Behalf of City"
(whenever it may appear in this section) is defined to mean the Other Party agrees to pay on behalf
of the City, and to pay the cost of the City's legal defense, as may be selected by the City, for
claims or suits arising from the fault of the Other Party or other persons employed or utilized by
the Other Party in performance of the contract. Such payment on behalf of the City shall be in
addition to any and all other legal remedies available to the City and shall not be considered to be
the City's exclusive remedy.
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INSURANCE REQUIREMENTS. The CONSULTANT 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 CONSULTANT deductible or self-
insured retention and to require that it be reduced or eliminated.
Specifically the CONSULTANT 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. Unless waived by the State of Florida, 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 $100,000 (one hundred thousand dollars) each
employee each accident, $100,000 (one hundred thousand dollars) each employee by
disease and $500,000 (five hundred thousand dollars) aggregate by disease with
benefits afforded under the laws of the State of Florida. 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.
d. If the CONSULTANT is using its own property, or the property of the City or other
provider, in connection with the performance of its obligations under this Agreement,
then CONSULTANT's Equipment Insurance or Property Insurance on an "All
Risks" basis with replacement cost coverage for property and equipment in the care,
custody and control of others is required.
e. Professional Liability Insurance coverage appropriate for the type of business
engaged in by the CONSULTANT with minimum limits of $1,000,000 (one 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 prior policy was extended indefinitely to cover prior acts. Coverage shall be
extended beyond the policy year either by a supplemental extended reporting period
(ERP) 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.
The above insurance limits may be achieved by a combination of primary and umbrella/excess
liability policies.
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OTHER INSURANCE PROVISIONS.
a. Prior to the execution of this Agreement, and then annually upon the anniversary
date(s) of the insurance policy's renewal date(s) for as long as this Agreement remains
in effect, the CONSULTANT 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." In addition when requested in writing from the City,
CONSULTANT 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
Engineering, RFQ #37-21
P.O. Box 4748
Clearwater, FL 33758-4748
b. CONSULTANT shall provide thirty (30) days written notice of any cancellation, non-
renewal, termination, material change or reduction in coverage.
c. CONSULTANT's insurance as outlined above shall be primary and non-contributory
coverage for CONSULTANT's negligence.
d. CONSULTANT reserves the right to appoint legal counsel to provide for the
CONSULTANT's defense, for any and all claims that may arise related to Agreement,
work performed under this Agreement, or to CONSULTANT's design, equipment, or
service. CONSULTANT agrees that the City shall not be liable to reimburse
CONSULTANT for any legal fees or costs as a result of CONSULTANT 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 failure to request evidence of this insurance shall not be construed
as a waiver of CONSULTANT's obligation to provide the insurance coverage specified.
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PROVISION OF PAYMENT
PARKING CONSULTING OF RECORD: KIMLEY-HORN AND ASSOCIATES, INC.
BASIS FOR PAYMENT
The owner shall pay CONSULTANT and CONSULTANT agrees to accept as full compensation for its
services (as established by Work Order) compensation as computed by one of the following methods:
Method "A" — Hourly Rate —
Compensation in the form of burdened hourly rates.
Burdened (direct + indirect) Hourly Rate + Subconsultant Cost + Other Direct Costs.
Direct cost includes labor hourly rate. Indirect costs include fringe benefit rate, overhead, operating
margin and profit.
Subconsultant Costs are actual costs incurred times a factor of 1.00. Actual costs shall be based on
billing rates for required labor classifications.
Other Direct Costs are actual costs incurred for travel outside of Tampa Bay area, printing, copying, long
distance telephone calls, etc.
Method "B" — Lump Sum —
Compensation in the form of "lump sum" for all work associated with a Work Order or task and shall be
determined by mutual agreement between the CONSULTANT and the City. The lump sum amount shall
be negotiated based upon the Work Order scope of services and approved by both the City and the
CONSULTANT.
Hourly Rates -
The estimated hourly rates below represent 2021 costs and categories. Periodic changes are
anticipated, and modifications may be made annually in writing to the City for review and
approval.
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CITY OF CLEARWATER PARKING CONSULTANT OF RECORD, RFQ #37-21
8/1/21 to 7/31/25
PARKING CONSULTANT OF RECORD: KIMLEY-HORN AND ASSOCIATES, INC.
Job Classification
Burdened Hourly Rate
Senior Professional II
$280.00
Senior Professional I
$255.00
Project Professional
$220.00
Professional
$175.00
Analyst
$155.00
Senior Technical Support Staff
$175.00
Technical Support Staff
$145.00
Clerical Staff
$100.00
Note: These rates are valid from August 1, 2021 through July 31, 2022. Per the contract, rates will be
reviewed and may be adjusted annually.
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SCRUTINIZED COMPANIES AND BUSINESS OPERATIONS WITH
CUBA AND SYRIA CERTIFICATION FORM
The affiant, by virtue of the signature below, certifies that:
1. The vendor, company, individual, principal, subsidiary, affiliate, or owner is aware of the
requirements of section 287.135, Florida Statutes, regarding companies on the Scrutinized
Companies with Activities in Sudan List, the Scrutinized Companies with Activities in the Iran
Petroleum Energy Sector List, or engaging in business operations in Cuba and Syria; and
2. The vendor, company, individual, principal, subsidiary, affiliate, or owner is eligible to participate
in this solicitation and is not listed on either the Scrutinized Companies with Activities in Sudan
List, the Scrutinized Companies with Activities in the Iran Petroleum Sector List, or engaged in
business operations in Cuba and Syria; and
3. Business Operations means, for purposes specifically related to Cuba or Syria, engaging in
commerce in any form in Cuba or Syria, including, but not limited to, acquiring, developing,
maintaining, owning, selling, possessing, leasing or operating equipment, facilities, personnel,
products, services, personal property, real property, military equipment, or any other apparatus of
business or commerce; and
4. If awarded the Contract (or Agreement), the vendor, company, individual, principal, subsidiary,
affiliate, or owner will immediately notify the City of Clearwater in writing, no later than five (5)
calendar days after any of its principals are placed on the Scrutinized Companies with Activities in
Sudan List, the Scrutinized Companies with Activities in the Iran Petroleum Sector List, or engages
in business operations in Cuba and Syria.
STATE OF c‘ OY % ( rcL
COUNTY OFiht\V:LS
Authorized Signature
Dawn Dodge
Printed Name
Associate
Title
Kimley-Horn and Associates, Inc.
Name of Entity/Corporation
r4.
The foregoin ig�nsyv
trument asacknowledged before me on this cal day of 3".;4
01
2O , by
yvr(name of person whose signature is being
notarized) as the QtN.h•OncotriZtactwsNer (title) of $y„mr,., cord Asspc.'44c1,44pame
of corporation/entity), personally known to me as described herein v/ , or produced a
(type of identification) as identification, and who did/did not take an
oath.
•.." JINNETTE BONILIA
:'= E501717/1 June 2. 2023
C0=1440011(30340874` r Bonded Thin hal Fain hum 803485-1019
My Commission Expires:
NOTARY SEAL ABOV
Nott' Public
r.c c e• ^ risk\Cy
Printed Name
16
SCRUTINIZED COMPANIES THAT BOYCOTT ISRAEL LIST CERTIFICATION FORM
PER SECTION III, ITEM 25, THIS FORM MUST BE COMPLETED AND SUBMITTED WITH
THE BID PROPOSAL. FAILURE TO SUBMIT THIS FORMAS REQUIRED, MAY DEEM YOUR
SUBMITTAL NONRESPONSIVE.
The affiant, by virtue of the signature below, certifies that:
1. The vendor, company, individual, principal, subsidiary, affiliate, or owner is aware of the requirements
of section 287.135, Florida Statutes, regarding companies on the Scrutinized Companies that Boycott
Israel List, or engaged in a boycott of Israel; and
2. The vendor, company, individual, principal, subsidiary, affiliate, or owner is eligible to participate in
this solicitation and is not listed on the Scrutinized Companies that Boycott Israel List, or engaged in a
boycott of Israel; and
3. "Boycott Israel" or "boycott of Israel" means refusing to deal, terminating business activities, or taking
other actions to limit commercial relations with Israel, or persons or entities doing business in Israel or
in Israeli -controlled territories, in a discriminatory manner. A statement by a company that it is
participating in a boycott of Israel, or that it has initiated a boycott in response to a request for a boycott
of Israel or in compliance with, or in furtherance of, calls for a boycott of Israel, may be considered as
evidence that a company is participating in a boycott of Israel; and
4. If awarded the Contract (or Agreement), the vendor, company, individual, principal, subsidiary,
affiliate, or owner will immediately notify the City of Clearwater in writing, no later than five (5)
calendar days after any of its principals are placed on Scrutinized C9mpanies that Boycott Israel
List, or engaged in a boycott of Israel.
STATE OF OVc
COUNTY OF'3 vncj►\OS
Authdri1'ed Signature
Dawn Dodge
Printed Name
Associate
Title
Kimley-Horn and Associates, Inc.
Name of Entity/Corporation
The foregoin instrument was acknowledged before me on this aq1 day of u\.(
204\ , by r —14;X:(name of person whose sig ture is being notarized)
as thel3mick.efeiz.etA st& €r (title) of if_trvAtA ptahrr, 0h6 Assoeko,}c c.. (name of
corporation/entity), personally known to me as described herein ✓ , or produced a
identification) as identification, and who did/did not take an oath.
My Commission Expires:
NOTARY SEAL ABOV
17
ary Public
Printed Name
VERIFICATION OF EMPLOYMENT ELIGIBILITY FORM
PER FLORIDA STATUTE 448.095, CONTRACTORS AND SUBCONTRACTORS MUST
REGISTER WITH AND USE THE E -VERIFY SYSTEM TO VERIFY THE WORK
AUTHORIZATION STATUS OF ALL NEWLY HIRED EMPLOYEES.
THIS FORM MUST BE COMPLETED AND SUBMITTED WITH THE
BID/PROPOSAL. FAILURE TO SUBMIT THIS FORMAS REQUIRED MAY DEEM YOUR
SUBMITTAL NONRESPONSIVE.
The affiant, by virtue of the signature below, certifies that:
1. The Contractor and its Subcontractors are aware of the requirements of Florida Statute 448.095.
2. The Contractor and its Subcontractors are registered with and using the E -Verify system
to verify the work authorization status of newly hired employees.
3. The Contractor will not enter into a contract with any Subcontractor unless each party to the
contract registers with and uses the E -Verify system.
4. The Subcontractor will provide the Contractor with an affidavit stating that the Subcontractor does
not employ, contract with, or subcontract with unauthorized alien.
5. The Contractor must maintain a copy of such affidavit.
6. The City may terminate this Contract on the good faith belief that the Contractor
or its Subcontractors knowingly violated Florida Statutes 448.09(1) or 448.095(2)(c).
7. If this Contract is terminated pursuant to Florida Statute 448.095(2)(c), the Contractor may not be
awarded a public contract for at least 1 year after the date on which this Contract was terminated.
8. The Contractor is liable for any additional cost inc by the ity as a result of the termination
of this Contract.
STATE OF ckbr. �C).—.
COUNTY OF' vr 2
The foregoing ins
this ACI'' -day of
signature is
y
Authorized Signatu
Dawn Dodge
Printed Name
Associate
Title
Kimley-Horn and Associates, Inc.
Name of Entity/Corporation
ent was acknowledged before me by means of R'physical presence or 0 online notarization on,
, 204, by 3c. ►A r ��
(name of person whose
notarized) as the q".br;
s vl of (title) of
�,M�€ o�n a 4AStoaicr}!1,.J lc((name of corporation/entity), personally known / , or produced
entification) as identifi ation, and who did/ id not take an oath.
;;m►, JINNETTE BONILLA
c•i Commission f GG 340874
Expires June 2, 2023
Baled Thu Troy Fain Neurance 800.385 7019
My Commission Expires:
NOTARY SEAL ABOV
18
Public
•
Printed Name
STANDARD TERMS AND CONDITIONS
S.1 DEFINITIONS. Uses of the following terms are interchangeable as referenced: "vendor, contractor,
consultant, 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.
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.
1
STANDARD TERMS AND CONDITIONS
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.
(1)
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. 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.
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.
2
STANDARD TERMS AND CONDITIONS
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 Invitation to Bid (ITB), shall be handled in compliance with
Chapters 119 and 286, Florida Statutes.
Proposals or replies received by the City pursuant to this ITB 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 ITB
and provides notice of its intent to reissue the ITB, 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 ITB or until the City withdraws the reissued ITB. 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 ITB and provides notice of its intent to reissue the ITB, 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 ITB or until the City withdraws the
reissued ITB. 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.
In addition to all other contract requirements as provided by law, the contractor executing
this agreement agrees 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.CallRmvclearwater.com,
600 Cleveland Street, Suite 600, Clearwater, FL 33755.
The contractor's agreement to comply with public records law applies specifically 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.
3
STANDARD TERMS AND CONDITIONS
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 eight (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. The City or its authorized agent reserves 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. 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
4
STANDARD TERMS AND CONDITIONS
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 the City's Purchasing Policy 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.
5
STANDARD TERMS AND CONDITIONS
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 TERMINATION FOR CONFLICT OF INTEREST Florida Statutes 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.
attorneys', witne,ses', and expert witne,scs' fees, and expenses incidcnt thcrcto, relating to,
Agreement; (ii) any negligent acts, errors, mistakes or omissions by Contractor or Contractor
obligations established by this Agreement.
b. Contractor will update the City during the course of the litigation to timely notify the City of any
indemnification.
c. The City assumes no liability for actions of Contractor and will not indemnify or hold Contractor
A - --.• • . _
supplies or services.
S.26 WARRANTY. Contractor warrants that the services and materials will conform to the requirements
of the Agreement. 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.
6
STANDARD TERMS AND CONDITIONS
Unless otherwise agreed, Contractor warrants that materials will be new, unused, of most current
manufacture and not discontinued, will be free of defects in materials and workmanship, will be
provided in accordance with manufacturer's standard warranty for at least one (1) year unless
otherwise specified, and will perform in accordance with manufacturer's published specifications.
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.
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
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STANDARD TERMS AND CONDITIONS
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 agreement will be administered by the Purchasing
Administrator and/or an authorized representative from the using department. All questions
regarding the agreement will be referred to the administrator for resolution. Supplements may be
written to the agreement for the addition or deletion of services. Payment will be negotiated and
determined by the contract administrator(s).
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 in the State of Florida 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
Purchasing 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.
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.
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STANDARD TERMS AND CONDITIONS
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.
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