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RFP#52-21 DIVERSITY, EQUITY, AND INCLUSION CULTURE ASSESSMENTCONTRACT BETWEEN CITY OF CLEARWATER AND THE KALEIDOSCOPE GROUP, LLC RFP #52-21 DIVERSITY, EQUITY, AND INCLUSION CULTURE ASSESSMENT THIS CONTRACT, entered into this 17 day of December, 2021, by and between the CITY OF CLEARWATER, a Florida municipal corporation ("City"), P.O. Box 4748, Clearwater, Florida 33758 and The Kaleidoscope Group, LLC ("Vendor"), 416 W. Ontario, Unit C-2, Chicago, IL 60654. WHEREAS, the City seeks an experienced firm specializing in Diversity, Equity, and Inclusion (DEI) to conduct a culture assessment. This assessment will expound on the City's Office of Diversity and Equity Services' (ODES) analysis to identify and provide sound recommendations to eliminate systemic issues and bias that may contribute to recruitment and retention issues of diverse applicants and staff. WHEREAS, the City selected Vendor based on Request for Proposal ("RFP") #52-21 and responses by Vendor to RFP #52-21. WHEREAS, Vendor agrees to provide the services as outlined in RFP #52-21. 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. SCOPE OF PROJECT. Vendor agrees to provide the services under the terms and conditions set forth in RFP #52- 21, Diversity, Equity, and Inclusion Culture Assessment, and responses by Vendor dated November 30, 2021, and further described in attached Exhibit A — Statement of Work Agreement. 1 2. TIME OF PERFORMANCE. The initial Contract Term shall commence upon execution of this Contract and will be for a term of one year or upon completion of the services set forth in Exhibit A. 3. COMPENSATION. Total compensation for all services shall not exceed $241,980.00 as described in attached Exhibit A, inclusive of all reasonable and necessary direct expenses. The City may, from time to time, require changes in the scope of the project. Such changes, including any increase or decrease in the amount of Vendor's compensation, and any other changes in the terms of this Contract shall be effective when incorporated in written amendment to this Contract, upon mutual agreement. 4. METHOD OF PAYMENT AND ANNUAL APPROPRIATIONS. The professional fees and reimbursable expenses will be invoiced monthly and submitted to the City for approval and payment in accordance with the Florida Local Government Prompt Payment Act, Section 218.70, Florida Statutes. The City's performance and obligation to pay under this Contract is contingent upon an annual appropriation of the City's budget. 5. NOTICES AND CHANGES OF ADDRESS. Any notice required or permitted to be given by the provisions of this Contract shall be conclusively deemed to have been received by a party hereto on the date it is hand delivered to such party at the address indicated below (or at such other address as such party shall specify to the other party in writing), or if sent by registered or certified mail (postage prepaid) on the fifth (5th) business day after the day on which such notice is mailed and properly addressed. The Kaleidoscope Group Christina Georgas Chief Operating Officer 2 City of Clearwater Jennifer Poirrier Director of Human Resources 416 W Ontario Street, C-2 P.O. Box 4748 Chicago, Illinois 60654 Clearwater, Florida 33758 312-274-9022 727-562-4885 6. RFP #52-21, STANDARD TERMS AND CONDITIONS. All terms and conditions as set forth in RFP #52-21, Standard Terms and Conditions are incorporated by reference and attached herein as Exhibit B. 7. INSURANCE REQUIREMENTS. Insurance Requirements are set forth in Exhibit C, which is incorporated by reference and attached hereto. 8. INTERESTS OF PARTIES. Vendor covenants that its officers, employees and shareholders have no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance and/or provision of services required under the terms and conditions of this Contract. 9. CONFORMANCE WITH LAWS. Vendor agrees to comply with all applicable federal, state, and local laws during the life of this Contract. Vendor shall be responsible for obtaining and maintaining any licenses, permits, documents, or other permissions necessary for Vendor's operation. 10. ATTORNEY FEES. In the event that either party seeks to enforce this Contract through attorneys at law, then the parties agree that each party shall bear its own attorney fees and costs. 11. GOVERNING LAW AND VENUE. The laws of the State of Florida shall govern this Contract, and any action brought by either party shall lie in Pinellas County, Florida. 3 12. E-VERIFY. Vendor and its subcontractors shall register with and use the E-Verify system to verify the work authorization status of all newly hired employees. Vendor 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 Vendor with an affidavit stating that subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Vendor shall maintain a copy of such affidavit. The City may terminate this Agreement on the good faith belief that Vendor 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), Vendor may not be awarded a public contract for at least 1 year after the date of which this Agreement was terminated. Vendor 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). [Remainder of Page Intentionally Left Blank] 4 IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the date set forth above. Attest: Print 1V ame: Amy Zimmerman Title: Executive Assistant THE KALEIDOSCOPE GROUP By: Opiziatete.ln ,ffJ Print Name: Christina M. Georges Title: coo CITY OF CLEARWATER, FLORIDA Frank Hibbard Jon ing Mayor City Manager Approved as to form: Owen Kohler Assistant City Attorney Attest: aLLtu C. (at Rosemarie Call City Clerk 5 THE KALEIDOSCOPE GROUP STATEMENT OF WORK AGREEMENT FOR CITY OF CLEARWATER FLORIDA 1 I /30/2021 THE KALEIDOSCOPE GROUP STATEMENT OF WORK FOR CITY OF CLEARWATER FLORIDA SECTION I: ABOUT THE KALEIDOSCOPE GROUP The Kaleidoscope Group, LLC is a full-service diversity, equity, and inclusion (IDE) consulting firm. We are committed to providing customized strategic solutions to address the specific needs of an organization's culture. We drive sustainable measurable results in the workforce, workplace, community, supplier base, and marketplace through a tailored IDE journey leading to organization change and impact. We have had the distinct pleasure to serve and partner with over 900 clients across every industry. Founded in 1993, The Kaleidoscope Group is recognized among the top ten pioneers in the IDE industry. Our clients trust us as a leader in the areas of IDE, culture change, competence development via education and coaching, and organization development -assessment, strategy, and measurement. We are a certified minority business enterprise (MBE). The Kaleidoscope has a few factors that make it unique against our competitors: We are a long-standing pioneer in this industry; Diversity, Equity and Inclusion is all we do; while we have many frameworks and models that have been created and tested throughout time, everything we do is tailored for each client for maximum impact and relevance; tangible impact and connection to business success; and finally, our mantra and approach to the work through our People—Real People, having Real Conversations, about Real Issues to create Real Change leading to Real Impact! Headquarters: 416 W. Ontario, Unit C-2, Chicago, IL 60654 Number of Employee: 35; 20 other Associates used as needed, located around the world Vision: Unity: We Are Better Together SECTION II: CONFIRMING THE NEED The City of Clearwater Florida is looking to engage the services of The Kaleidoscope Group, L.L.C. to design and deliver a 3 -year DEI strategic plan within 8-12 months to commence starting in 2022. This assessment will expound on the City's Office of Diversity and Equity Services' (ODES) 5 -year analysis to identify and provide sound recommendations to eliminate systemic issues and bias that may contribute to recruitment and retention issues of diverse applicants and staff. This scope of work is to complete Phase I assessment (survey, focus groups, interviews and analysis of policies, processes and practices) that contribute to the experience of talent in culture and the supporting systems for talent management. The assessment findings will guide the development of actionable recommendations to build a comprehensive 3 -year DEI strategic roadmap that addresses the workplace (culture) and workforce (best talent of all backgrounds pipeline and systems) strategic focus areas. The work will build on the current DEI foundation and will be positioned to guide Phase 2 implementation, which will be a separate scope of work. Finally, this approach would also serve as a blueprint to expand the DEI program citywide as an organizational priority that is actionable, sustainable, and impactful. The overall project goals is to create an organizational culture that embraces diversity, champions inclusive practices, makes intentional decisions through equitable lenses, and ensures a safe space where all can feel respected and have a sense of belonging. The formal workplan, budget and timeline can be found in Section III. THE KALEIDOSCOPE GROUP STATEMENT OF WORK FOR CITY OF CLEARWATER FLORIDA SECTION II: ENGAGEMENT STEPS AND INVESTMENT Phase Activities/Tasks Deliverables Timeline Investment Engagement Launch Kick-off meeting High level policy review NA Month 1 Professional Fees: $14,700 Phase 1: Leadership Visioning 1. Customize and deliver leadership alignment session 2. Establish leadership commitment and alignment on vision 3. Establish preliminary accountability and performance measurement and metrics. 4. Develop foundation for 3-5 year strategic plan based on assessment findings and leadership vision (see Phase 3). Report on baseline assessment, 3-5 year strategic plan, design accountability scorecards it equity tools as needed. Months 2-3 Professional Fees: $18,000 Phase 2: Culture Assessment 1. Detailed policy review in selected areas (e.g., policies associated with unsheltered population, downtown revitalization) 2. Baseline assessment that may include: a. Qualitative data collection that may include interviews with City executives and leaders, focus groups with people managers and employees. b. Customize and deploy workplace climate assessment survey. c. Collect/analyze all data and develop findings and recommendations 3. Conduct 3P Review (Policies, Procedures, Processes related to talent management and "people processes". 4. Evaluation of current Diversity Leadership Council Comprehensive baseline culture assessment Findings and recommendations related HR/talent management Findings and recommendations related to Diversity Leadership Council with focus on opportunities for efficacy and efficiency improvements Months 3-4 Professional Fees: $61,100 Assessment Instrumentation: $9,000 Phase 3: Feedback and Reporting 1. Finalize data analysis 2. Develop comprehensive report draft for City Review Baseline assessment, including findings and recommendations. Months 5-6 Professional Fees: $74,900 © The Kaleidoscope Group LLC. All rights reserved. No duplication without written permission. THE KALEIDOSCOPE GROUP STATEMENT OF WORK FOR CITY OF CLEARWATER FLORIDA © The Kaleidoscope Group LLC. All rights reserved. No duplication without written permission. 3. City reviews, offers feedback, clarification on findings and recommendations (Co- production effort) 4. Develop individual reports for each Department and/or functional work unit 5. Finalization of DEI Audit report, presentation to stakeholders as necessary. 6. Design content recommendations for DEI webpage and community communication strategy Guidance and content recommendations for City -hosted DEI webpage and community communication strategy Phase 4: Strategic Planning 1. Analyze relationship between leadership vision (see phase 1) and baseline assessment (see phase 2) 2. Design comprehensive 3-5 year strategic plan, including strategic roadmaps for City and individual Departments and functional work units. 3. Design succession plan 4. Develop incremental implementation strategy 3-5 year strategic planning document Strategic roadmaps to guide future efforts, including professional development Succession plan Implementation strategy Months 7-8 Professional Fees: $39,200 Phase 5: Presentations and Engagement Closure 1. Up to 3 formal presentations that may include City executives/leaders, City Council, employees Presentations Final comprehensive project report Month 9 Professional Fees: $10,000 Total investment Professional Fees: $217,900 Assessment Instrumentation: $10,700 Travel: $15,000 GRAND TOTAL $241,980 © The Kaleidoscope Group LLC. All rights reserved. No duplication without written permission. THE KALEIDOSCOPE GROUP STATEMENT OF WORK FOR CITY OF CLEARWATER FLORIDA City of Clearwater High Level Project Overview S Engagement Launch E �v 3 o High Level Organization Review Leadership Alignment Session Establish Preliminary Accountability and Performance Metrics Strategic Plan Foundational Development Culture Assessment Detailed Policy Review in Selected Areas Baseline Assessment Deployment 3 P's Review Evaluation of Current Diversity Leadership Council a o cc Create master assessment report and functional workgroup reports Design Content Recommendations for DEI Webpage Reporting and Presentations Design 3-5 Year Strategic Plan Design Succession Plan & Implementation Strategy Deliver Comprehensive Report and Presentations Jan - Feb 2022 Mar -Apr 2022 May - June 2022 July -- August 2022 IMM 1111. • © The Kaleidoscope Group LLC. All rights reserved. No duplication without written permission. Sept - October 2022 Nov 2022 THE KALEIDOSCOPE GROUP STATEMENT OF WORK FOR CITY OF CLEARWATER FLORIDA SECTION III: THE KALEIDOSCOPE GROUP TERMS & CONDITIONS Project Scope: The professional fees shown above are estimates only: additional cost will not be incurred without written consent of the client. Payment: Payment schedule for services described in this statement of work: • The professional fees and reimbursable expenses will be invoiced monthly and submitted to the client for approval and payment in accordance with the Florida Local Government Prompt Payment Act, Section 218.70. Florida Statutes. (Travel and reimbursable expenses will be invoiced as incurred and billed according to the client's policy or guidelines) • All prices are guaranteed for twelve (12) months from the date of execution of the contract Reimbursements: Travel and out-of-pocket expenses (e.g., airfare, hotel, rental car, ground transportation, parking, mileage, meals, etc.) will be billed as incurred. Time for Work: If work is pre -billed and work is not completed within twelve months of date of contract, the contract will expire, and any collected pre -billed funds will be forfeited. Audio and Video Recording: Audio and/or video recording of Kaleidoscope Group content, consultants, and/or events at any client venue is prohibited unless written consent is provided in advance by The Kaleidoscope Group. Additional fees may apply. Language Delivery: Costs assume that all communication is in English language. Based on availability, The Kaleidoscope Group can deliver in languages outside of English; additional costs will apply. Cancellation of Work: If the Client cancels this agreement, Client shall pay for work completed based on above terms. If scheduled delivery of facilitated sessions, virtual or in person, are cancelled by the client within twenty business days prior to the scheduled date, the charge will be one-half the cost of the work; if cancelled by the client within ten business days prior to the scheduled date, the charge will be the full cost of the work. Cancellation fees apply even if the work is rescheduled. The Client agrees to make good faith efforts to avoid cancellations. If The Kaleidoscope Group cancels this agreement, Kaleidoscope will reimburse client any unexpended funds from the payments that have been received to date towards pre -paid work. Property Rights: The Kaleidoscope Group shall copyright the materials that it develops for use with Client. All materials developed and used by The Kaleidoscope Group shall be the exclusive property of Kaleidoscope and the Client agrees that it will not disclose any materials to a third party or use materials to conduct its own diversity services without the prior written consent of The Kaleidoscope Group. Any material specifically developed for client may be copied, distributed, and reviewed by any employee of client without further charge. Confidentiality: The Kaleidoscope Group shall regard as confidential and proprietary all client "internal use" and "confidential" information communicated to it by the client in connection with this work plan. The Kaleidoscope Group shall not, without client's prior written consent, at any time (a) use such information for any purpose other than in connection with this work plan for the benefit of the client or (b) disclose any portion of such information to third parties. © The Kaleidoscope Group LLC. All rights reserved. No duplication without written permission. RFP #52-21, Exhibit B 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 1 RFP #52-21, Exhibit B STANDARD TERMS AND CONDITIONS S.11 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. 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 RFP #52-21, Exhibit B 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.Call(aamvclearwater.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. RFP #52-21, Exhibit B 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. 9) 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. 4 RFP #52-21, Exhibit B STANDARD TERMS AND CONDITIONS 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 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. RFP #52-21, Exhibit B STANDARD TERMS AND CONDITIONS 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 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. 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 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) the services provided by Contractor personnel under this Agreement; (ii) any negligent acts, errors, mistakes or omissions by Contractor or Contractor personnel; and (iii) Contractor or Contractor personnel's failure to comply with or fulfill the obligations established by this Agreement. 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. 6 RFP #52-21, Exhibit B STANDARD TERMS AND CONDITIONS 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. 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 7 RFP #52-21, Exhibit B STANDARD TERMS AND CONDITIONS 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, Tess reasonable usage, from the time of installation acceptance through cessation of use, which amount will be calculated on a useful life not Tess 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. 8 RFP #52-21, Exhibit B STANDARD TERMS AND CONDITIONS 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. 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. 9 EXHIBIT C 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'S 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. Specific work may require additional coverage on a case by case basis: 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. 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 Attn: Purchasing, RFQ #52-21 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.