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CONSULTING SERVICES AGREEMENTCONSULTING SERVICES AGREEMENT THIS AGREEMENT, entered into this day ofNpven bev, 20; by and between the CITY OF CLEARWATER (the "City"), a Florida municipal corporation, whose address is P.O. Box 4748, Clearwater, Florida 33758, and Cost Management Inc. (the "Consultant"), a (State) corporation, whose address is (Company Address). WHEREAS, The City desires to establish an agreement with qualified consultants to provide on-call construction cost estimating, independent cost validation, change order review, schedule analysis, market analysis, and related advisory services in support of the City's Capital Improvement Program and construction projects; and WHEREAS, the services provided under this Agreement are advisory, analytical, and administrative in nature and do not constitute professional services requiring licensure under Section 287.055, Florida Statutes; and WHEREAS, the Consultant represents that it possesses the qualifications, experience, personnel, and resources necessary to perform the requested services; and WHEREAS, the City selected the Consultant pursuant to RFP No. 40-26, On -Call Construction Cost Estimating and Advisory Services, and the Consultant's response thereto. NOW, THEREFORE, the parties agree as follows: 1. SCOPE OF SERVICES The Consultant shall provide on-call construction cost estimating and advisory services on an as - needed basis in accordance with this Agreement, Exhibit A — Scope of Services, Exhibit C — Pricing, and the Consultant's proposal, all of which are incorporated herein by reference. Services shall be performed only upon written authorization by the City through a Task Work Order or other written authorization approved by the City. Nothing contained in this Agreement shall be construed as a guarantee of any minimum amount of work, compensation, or expenditures by the City. The Consultant shall perform only those services specifically authorized by the City. The specific services, limitations, and responsibilities of the Consultant are set forth in Exhibit A — Scope of Services, which is incorporated herein by reference. 2. TERM OF AGREEMENT The initial term of this Agreement shall commence on 1101161 X , 20 Yo, and shall continue for a period of four (4) years, unless earlier terminated in accordance with the terms of this Agreement, Exhibit D — Standard Terms. 3. TASK WORK ORDERS Services shall be performed only upon issuance of a written task work order or other written authorization from the City. Task Work Orders may be issued electronically and shall become part of this Agreement upon execution by the City. Each task work order shall identify, as applicable: • project name • scope of services • schedule • assigned personnel • compensation method • not -to -exceed amount, if applicable • deliverables The City reserves the right to issue task work orders based upon: • consultant expertise; • availability; • project requirements; • prior project involvement; or • any other factor determined to be in the City's best interest. Nothing herein guarantees the Consultant any minimum amount of work. In the event of a conflict between this Agreement, a Task Work Order, and Exhibit A, the terms of this Agreement shall govern, unless otherwise specifically stated in the applicable Task Work Order 4. COMPENSATION The Consultant shall be compensated in accordance with Exhibit C — Pricing. The Consultant shall be compensated in accordance with Exhibit C — Pricing. Hourly rates shall be fully burdened and include all labor, supervision, overhead, profit, travel, administrative expenses, equipment, supplies, and all other costs necessary to perform the services requested by the City. The City shall pay only for services specifically authorized and satisfactorily performed. 4. METHOD OF PAYMENT AND ANNUAL APPROPRIATIONS The Consultant shall submit invoices for authorized services performed under this Agreement in accordance with Exhibit C — Pricing. Invoices shall be submitted monthly, unless otherwise approved by the City, and shall include the applicable Task Work Order number, personnel performing the services, hours worked, hourly rates, a description of the services performed, and any other supporting documentation reasonably requested by the City. Payment shall be made 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 Agreement are contingent upon the annual appropriation of funds by the Clearwater City Council. 5. INSURANCE The Consultant shall procure and maintain insurance throughout the term of this Agreement in accordance with Exhibit B — Insurance Requirements, which is incorporated herein by reference. EXHIBIT A SCOPE OF SERVICES PURPOSE. The City of Clearwater seeks to establish agreements with qualified consultants to provide on-call construction cost estimating, independent cost validation, 'change order review, schedule analysis, market analysis, and related advisory services in support of the City's Capital Improvement Program and construction projects. Services shall be performed on an as -needed basis and only upon issuance of a Task Work Order or other written authorization by the City. The services described herein are advisory, analytical, and administrative in nature and do not constitute professional services requiring licensure under Section 287.055, Florida Statutes. GENERAL REQUIREMENTS. The Consultant shall: • Perform only those services authorized by the City. • Provide qualified personnel experienced in the requested service. • Coordinate with City staff throughout each assignment. • Attend meetings when requested by the City. • Perform site visits when requested. • Provide written reports, memoranda, estimates, analyses, and recommendations as required. • Maintain documentation supporting all opinions, analyses, and recommendations. • Complete assignments within the timeframes established in each Task Work Order. • Perform all services in accordance with generally accepted industry standards applicable to construction cost estimating and advisory services. LIMITATIONS OF SERVICES. The Consultant shall act solely in an advisory capacity and shall not: • Perform engineering or architectural services. • Prepare signed or sealed documents. • Certify designs. • Direct contractor means or methods. • Negotiate or execute contracts on behalf of the City. • Authorize changes to contracts. • Bind the City financially or contractually. SERVICES. The Consultant shall provide one or more of the following services, as authorized by the City through an issued Task Work Order. The specific services requested will vary by assignment, and the Consultant shall only perform those services identified in the applicable Task Work Order. A. BUDGET PREPARATION AND COST ESTIMATING. The Consultant shall prepare high- level conceptual cost estimates based on project descriptions, program requirements, historical data, and publicly available cost information. Estimates shall be prepared using recognized estimating methodologies and appropriate cost data available at the time the estimate is developed. Estimates shall include clearly documented assumptions, methodologies, and escalation factors tied to the anticipated construction year. Conceptual estimates may be used to support the development, evaluation, and updating of Capital Improvement Program (CIP) projects, including annual escalation adjustments and scope or cost revisions. These services are intended for planning and budgeting purposes only and shall not include the preparation of design documents, technical specifications, or engineered quantities. B. INDEPENDENT COST VALIDATION. The Consultant shall review construction cost estimates prepared by the Engineer of Record (EOR), Construction Manager, or Contractor and provide independent opinions regarding cost reasonableness based on current market conditions, regional pricing, and industry -standard estimating practices. i. Independent Government Estimates (IGE). The Consultant shall: o Prepare IGEs based on available design documents (30/60/90/IFC), as applicable to the stage of the project o Include appropriate markups, contingencies, insurance, and contractor fees based on the anticipated procurement method o Develop planning -level or long-range estimates (LREs) for budgeting and financial planning purposes The Consultant shall rely on information provided by others and shall not be responsible for verifying the accuracy or completeness of design documents. ii. Review Pricing and Validate Cost Assumptions. The Consultant shall: o Evaluate labor, equipment, subcontractor, and material pricing using cost databases, market intelligence, and comparable project data o Identify pricing that appears inconsistent with current market conditions or typical production rates o Flag items that are underpriced, overpriced, duplicated, or unsupported o Identify significant variances between submitted estimates and industry benchmarks iii. Assist Owner in Negotiations (Advisory Only). The Consultant shall: o Participate in meetings with the City, EOR, Construction Manager, or Contractor to discuss pricing assumptions o Assist in reconciling cost differences through analysis and supporting data o Prepare negotiation briefing materials identifying key cost drivers, risks, and areas requiring clarification The Consultant's role is strictly advisory and shall not include negotiating on behalf of, or binding, the City in any contractual or financial matter. C. CHANGE ORDER AND PROJECT HISTORY REVIEW. The Consultant shall provide advisory review of proposed change orders and supporting project documentation for completeness, reasonableness, and consistency with the applicable contract documents. i. Prepurchase and City -Procured Equipment o Review proposed equipment pricing for reasonableness o Provide advisory support during vendor discussions, when authorized by the applicable Task Work Order. ii. Change Order Evaluation. The Consultant shall: o Review proposed cost and schedule modifications for completeness, accuracy, and consistency with contract requirements o Evaluate documentation supporting the change, including scope descriptions and cost breakdowns o Identify: > Duplicate or overlapping costs > Excessive labor hours or crew sizes > Unsupported equipment charges > Improper or excessive markups o Evaluate whether claimed schedule impacts align with project records and sequencing o Provide written advisory memoranda identifying recommended adjustments, reductions, or additional documentation needs o Maintain tracking logs of pending change orders and notify the City of items approaching decision deadlines iii. Risk -Sharing Assessment. The Consultant shall: o Analyze project records including RFIs, submittals, meeting minutes, directives, prior estimates, and schedule updates o Identify factors contributing to cost and schedule impacts o Provide non-binding advisory opinions regarding allocation of responsibility, including: ➢ Owner -directed changes ➢ Contract interpretation or coordination issues > Contractor means, methods, or productivity assumptions o Summarize findings in a responsibility tracking format to support consistent evaluation and negotiation All services under this section are limited to cost, schedule, and documentation review and shall not include evaluation of engineering design adequacy or professional standard of care. D. SCHEDULE REVIEW, LEAD TIME ANALYSIS, AND CONSTRUCTION SEQUENCING ADVISORY. The Consultant shall provide advisory review of project schedules and sequencing. i. Schedule Review. The Consultant shall: o Review schedule logic, sequencing, float, milestone alignment, and activity dependencies o Identify critical path activities and potential schedule risks o Evaluate schedule feasibility based on construction assumptions o Assist in discussions regarding delays, schedule performance, and recovery strategies ii. Lead Time Analysis. The Consultant shall: o Identify long -lead materials, equipment, and procurement constraints o Evaluate whether procurement durations align with project schedules o Provide input on potential impacts to cost, sequencing, and risk iii. Construction Sequencing Commentary. The Consultant shall: o Provide observations regarding sequencing, staging, and coordination between trades o Evaluate work area access, phasing, and installation sequencing o Identify impacts to productivity, cost, and project delivery All sequencing and schedule -related services are advisory only and shall not direct or control contractor means, methods, techniques, or procedures. E. MARKET CONDITIONS, COST INDEXING, AND OWNER'S DIRECT PURCHASE FEASIBILITY. The Consultant shall: • Monitor regional construction market conditions, including labor, material costs, and subcontractor availability • Provide cost escalation trends and index updates • Analyze bidding activity, contractor participation, and bid competitiveness • Provide advisory input regarding procurement timing and Owner Direct Purchase (ODP) strategies F. ADDITIONAL SERVICES. When authorized by the applicable Task Work Order, the Consultant shall provide additional advisory and administrative support services, which may include: • Grant Support: Preparation of cost documentation and budget narratives • Construction Administration Advisory: Tracking project documentation, correspondence, and progress (does not replace EOR responsibilities) • Permitting Coordination: Administrative tracking and coordination only; no preparation of signed or sealed documents • Commissioning Coordination: Scheduling and documentation support • Financial Auditing and Cost Forensics: Analysis of project costs and payment applications • Process Improvement: Evaluation of workflows and recommendations for efficiency • Change Order and Claim Prevention: Development of strategies to reduce disputes • Owner's Representative Advisory Support: Monitoring cost, schedule, and procurement considerations TASK WORK ORDERS. Each Task Work Order shall identify, as applicable: • Project • Scope • Deliverables • Schedule • Personnel • Compensation • Not -to -Exceed Amount • Required Meetings • Reports DELIVERABLES. Deliverables shall be identified in the applicable Task Work Order and may vary depending on the nature and scope of the requested services. Depending on the assignment, deliverables may include: • Cost Estimates • Independent Government Estimates • Cost Validation Reports • Change Order Reviews • Schedule Reviews • Risk Assessments • Market Analyses • Escalation Studies • Meeting Summaries • Written Recommendations • Other reports requested by the City Deliverables shall be submitted in electronic format unless otherwise specified by the City. TASK ASSIGNMENT. The City may assign work to one or more Consultants based on project requirements, consultant expertise, availability, workload, prior project involvement, project familiarity, specialized experience, past performance, or any other factor determined by the City to be in its best interest. Nothing in this Agreement shall be construed as a guarantee of any minimum amount of work. EXHIBIT B INSURANCE REQUIREMENTS 1. Insurance Requirements The Consultant shall, at its own cost and expense, acquire and maintain (and cause any approved subcontractors, representatives, or agents to acquire and maintain) throughout the term of this Agreement sufficient insurance to adequately protect the respective interests of the parties. Coverage shall be obtained through insurance carriers having an A.M. Best Rating of A -VII or better. The City reserves the right to review the Consultant's deductible or self-insured retention and to require that it be reduced or eliminated. The Consultant shall maintain the following minimum types and amounts of insurance on an occurrence basis. If occurrence coverage is not commercially available, coverage may be provided on a claims -made basis with a minimum three (3) year extended reporting period (tail coverage) following the termination or expiration of this Agreement. 2. Commercial General Liability Insurance The Consultant shall maintain Commercial. General Liability Insurance, including, but not limited to, premises operations, products/completed operations, products liability, contractual liability, advertising injury, personal injury, death, and property damage with minimum limits of: • $1,000,000 (One Million Dollars) each occurrence; and • $2,000,000 (Two Million Dollars) general aggregate. 3. Commercial Automobile Liability Insurance The Consultant shall maintain Commercial Automobile Liability Insurance covering any owned, non -owned, hired, or borrowed automobile with a minimum combined single limit of: • $1,000,000 (One Million Dollars). 4. Professional Liability / Malpractice / Errors and Omissions Insurance The Consultant shall maintain Professional Liability (Errors and Omissions) Insurance appropriate for the professional services provided under this Agreement with minimum limits of: • $2,000,000 (Two Million Dollars) per occurrence. If coverage is written on a claims -made basis, the retroactive date of coverage shall be no later than the inception date of the claims -made coverage unless the prior policy was extended indefinitely to cover prior acts. Coverage shall be extended beyond the policy year either through a Supplemental Extended Reporting Period (SERP) of the greatest duration available, with no less coverage and reinstated aggregate limits, or by requiring that any replacement policy provide a retroactive date no later than the inception date of the original claims -made coverage. 5. Workers' Compensation Insurance Unless waived by the State of Florida and proof of such waiver is provided to the City, the Consultant shall maintain statutory Workers' Compensation Insurance in accordance with the laws of the State of Florida and Employer's Liability Insurance with minimum limits of: • $1,000,000 (One Million Dollars) each employee, each accident; • $1,000,000 (One Million Dollars) each employee by disease; and • $1,000,000 (One Million Dollars) disease policy limit. Coverage shall include Voluntary Compensation, Jones Act, and U.S. Longshoremen's and Harbor Workers' Act coverage where applicable. Coverage shall apply to employees, contractors, subcontractors, and volunteers, if any. 6. Waiver of Subrogation With respect to any insurance policy that would pay third -party losses, the Consultant hereby grants the City a waiver of any right of subrogation that any insurer of the Consultant may acquire against the City by virtue of the payment of any loss under such insurance. The Consultant agrees to obtain any endorsement necessary to effect such waiver; however, this provision shall apply regardless of whether the City has received a waiver of subrogation endorsement from each insurer. The required insurance limits may be satisfied through a combination of primary and umbrella/excess liability policies. 7. Other Insurance Provisions Prior to execution of this Agreement, and annually thereafter upon each renewal of the applicable insurance policies for the duration of this Agreement, the Consultant shall furnish the City with Certificates of Insurance (using the appropriate ACORD certificate, signed by the issuer, together with applicable endorsements) evidencing all coverage required herein and naming the City of Clearwater as an Additional Insured on the Commercial General Liability and Commercial Automobile Liability policies. Upon written request by the City, the Consultant shall provide certified copies of all applicable insurance policies. Certificates of Insurance and certified policies shall be delivered to: City of Clearwater Attn: Procurement Division, RFP 40-26 P.O. Box 4748 Clearwater, FL 33758-4748 The Consultant shall provide thirty (30) days' written notice to the City of any cancellation, non- renewal, termination, material change, or reduction in coverage. The Consultant's insurance, as required herein, shall be primary and non-contributory with respect to the Consultant's negligence. The Consultant reserves the right to appoint legal counsel to provide for its defense with respect to any claims arising out of this Agreement, the services performed under this Agreement, or the Consultant's design, equipment, or services. The Consultant agrees that the City shall not be responsible for reimbursing the Consultant for any attorney's fees, litigation expenses, or other legal costs incurred in providing such defense. The insurance limits required herein shall not be construed as limiting the Consultant's potential liability to the City. The City's failure to request evidence of insurance shall not be construed as a waiver of the Consultant's, or any subcontractor's, representative's, or agent's obligation to maintain the insurance coverage required by this Exhibit. Exhibit C - Pricing Sheet SECTION 1 — BUDGET PREPARATION & COST ESTIMATING Line Item Description Unit of Measure Unit Cost No Bid 1 Senior Cost Estimator Per Hour 2 Cost Estimator Per Hour 3 - Junior Estimator / Analyst Per Hour $160.00 $120.00 $80.00 SECTION 2 — INDEPENDENT COST VALIDATION Line Item Description Unit of Measure Unit Cost No Bid 1 Senior Cost Estimator / Reviewer Per hour $160.00 2 Cost Analyst Per Hour $150.00 3 Construction Cost Specialist Per Hour $150.00 SECTION 3 — CHANGE ORDER & PROJECT HISTORY REVIEW Line Item Description Unit of Measure Unit Cost No Bid 1 Senior Construction Per hour Analyst $160.00 2 3 Change Order Specialist Per Hour Cost Auditor / Analyst Per Hour $150.00 $150.00 SECTION 4 — SCHEDULE REVIEW & SEQUENCING ANALYSIS Line Item Description Unit of Measure Unit Cost No Bid 1 Senior Scheduler (CPM) Per hour 2 Scheduler / Planning Per Hour Analyst 3 Construction Analyst Per Hour $150.00 $140.00 $140.00 SECTION 5 — MARKET ANALYSIS & COST INDEXING Line Item Description Unit of Measure Unit Cost No Bid 1 2 Market Analyst Cost Data Analyst Per hour Per Hour $150.00 $150.00 SECTION 6—ADDITIONALADVISORY SERVICES Line Item Description Unit of Measure Unit Cost No Bid 1 2 3 4 Project Controls Specialist Per hour Program Analyst Per Hour $140.00 $140.00 Grant / Funding Specialist Administrative Support Per Hour Per Hour $140.00 $80.00 EXHIBIT D STANDARD TERMS AND CONDITIONS In the event of a conflict between the Standard Terms & Conditions and the Professional Services Agreement, the terms of the Professional Services Agreement shall prevail. 4.1 Definitions Uses of the following terms are interchangeable as referenced: "vendor, contractor, consultant, supplier, proposer, company, persons", "purchase order, PO, contract, agreement", "City, Clearwater", "bid, proposal, response, quote". 4.2 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. 4.3 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. 4.4 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. 4.5 Successor 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. 4.6 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. 4.7 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. 4.8 Amendments v. 7.2024 Procurement Division PO Box 4748 33758-4748 Clearwater FL 727-562-4630 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. 4.9 Time of the Essence Time is of the essence to the performance of the parties' obligations under this Agreement. 4.10 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, executive orders, and regulations that in any manner affect the fulfillment of this Agreement and must comply with the same at its own expense. Contractor bears full responsibility for training, safety, and providing necessary equipment for all Contractor personnel to achieve throughout the term of the Agreement. Upon request, Contractor will demonstrate to the City's satisfaction any programs, procedures, and other activities used to ensure compliance. B. Drug -Free Workplace. Contractor is hereby advised that the City has adopted a policy establishing a drug-free workplace for itself and those doing business with the City to ensure the safety and health of all persons working on City contracts and projects. •Contractor will require a drug-free workplace for all Contractor personnel working under this Agreement. Specifically, all Contractor personnel who are working under this Agreement must be notified in writing by Contractor that they are prohibited from the manufacture, distribution, dispensation, possession, or unlawful use of a controlled substance in the workplace. Contractor agrees to prohibit the use of intoxicating substances by all Contractor personnel and will ensure that Contractor personnel do not use or possess illegal drugs while in the course of performing their duties. C. Federal and State Immigration Laws. Contractor agrees to comply with the Immigration Reform and Control Act of 1986 (IRCA) in performance under this Agreement and to permit the City and its agents to inspect applicable personnel records to verify such compliance as permitted by law. Contractor will ensure and keep appropriate records to demonstrate that all Contractor personnel have a legal right to live and work in the United States. 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"). 2. 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. 3. 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. 4. 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. 7.2024 2 5. 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. 4.11 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. 4.12 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. 4.13 Public Records 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: 727-444-7151 or Email: Rosemarie.Call a@myclearwater.com, 600 Cleveland Street, Suite 600, Clearwater, FL 33755. The Contractor agrees to comply with the following: A. Keep and maintain public records required by the City of Clearwater (hereinafter "public agency" in this section) 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. v. 7.2024 3 C. Ensure that the public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the public agency: D. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the contractor or keep and maintain public records required by the public agency to perform the service. If the contractor transfers all public records to the public agency upon completion of the contract, the contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency's custodian of public records, in a format that is compatible with the information technology systems of the public agency. E. A request to inspect or copy public records relating to a public agency's contract for services must be made directly to the public agency. If the public agency does not possess the requested records, the public agency shall immediately notify the contractor of the request and the contractor must provide the records to the public agency or allow the records to be inspected or copied within a reasonable time. F. The contractor hereby acknowledges and agrees that if the contractor does not comply with the public agency's request for records, the public agency shall enforce the contract provisions in accordance with the contract. G. A contractor who fails to provide the public records to the public agency within a reasonable time may be subject to penalties under Section 119.10, Florida Statutes. H. If a civil action is filed against a contractor to compel production of public records relating to a public agency's contract for services, the court shall assess and award against the contractor the reasonable costs of enforcement, including reasonable attorney fees, if: 1. The court determines that the contractor unlawfully refused to comply with the public records request within a reasonable time; and 2. At least eight (8) business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the contractor has not complied with the request, to the public agency and to the contractor. I. A notice complies with subparagraph (h)2. if it is sent to the public agency's custodian of public records and to the contractor at the contractor's address listed on its contract with the public agency or to the contractor's registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. A Contractor who complies with a public records request within eight (8) business days after the notice is sent is not liable for the reasonable costs of enforcement. 4.14 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 v. 7.2024 4 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. 4.15 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. 4.16 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. 4.17 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 or suspended in accordance with the Clearwater Code of Ordinances Section 2.565 or if Contractor is debarred or suspended by another governmental entity. 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. 4.18 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: v. 7.2024 5 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. The City will not be liable for incidental, special, or consequential damages. 4.19 Breach of contract during emergency recovery periods for natural emergencies Pursuant to F. S. § 252.505, any vendor who breaches a contract for commodities or services related to an emergency response for a natural emergency during an emergency recovery period shall pay a $5,000 penalty and damages, which may be either actual and consequential damages or liquidated damages. As used in this section, the term "emergency recovery period" means a 1 -year period that begins on the date that the Governor initially declared a state of emergency for a natural emergency. 4.20 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. 4.21 Termination for Convenience The City reserves the right to terminate this Agreement at its convenience, in part or in whole, upon thirty (30) calendar days' written notice. 4.22 Termination for Conflict of Interest 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. 4.23 Termination for Non -Appropriation and Modification for Budgetary Constraints 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, in its sole discretion, 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. 4.24 Payment to Contractor Upon Termination v. 7.2024 6 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. 4.25 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. 4.26 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. If applicable, this paragraph shall be construed in harmony with F. S. § 725.06. B. Contractor will update the City during the course of the litigation to timely notify the City of any issues that may involve the independent negligence of the City that is not covered by this indemnification. C. The City assumes no liability for actions of Contractor and will not indemnify or hold Contractor or any third party harmless for claims based on this Agreement or use of Contractor -provided supplies or services. D. Nothing contained herein in intended to serve as a waiver by the City of its sovereign immunity, to extend the liability of the City beyond the limits set forth in Section 768.28, Florida Statutes, or be construed as consent by the City to be sued by third parties. 4.27 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. If applicable, this paragraph shall be construed in harmony with F. S. § 725.06. 4.28 City's Right to Recover Against Third Parties v. 7.2024 7 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. 4.29 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. 4.30 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. 4.31 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. 4.32 FOB Destination Freight Prepaid and Allowed All deliveries will be FOB destination freight prepaid and allowed unless otherwise agreed. 4.33 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. 4.34 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. 4.35 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. 4.36 Proprietary Rights Indemnification Without limiting the foregoing, Contractor will without limitation, at its expense defend the City against all claims asserted by any person that anything provided by Contractor infringes a patent, copyright, trade secret, or other intellectual property right and must, without limitation, pay the costs, damages and attorneys' fees awarded against the City in any such action, or pay any settlement of such action or claim. Each party agrees to notify the other promptly of any matters to which this provision may apply and to cooperate with each other in connection with such defense or settlement. If a preliminary or final judgment is obtained against the City's use or operation of the items provided by Contractor hereunder or any part thereof by reason of any alleged infringement, Contractor will, at its expense and without limitation, either: (a) modify the item so that it becomes non -infringing; (b) procure for the City the right to continue to v. 7.2024 8 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. Nothing contained herein in intended to serve as a waiver by the City of its sovereign immunity, to extend the liability of the City beyond the limits set forth in Section 768.28, Florida Statutes, or be construed as consent by the City to be sued by third parties. 4.37 Contract Administration This Agreement will be administered by the Purchasing Administrator and/or an authorized representative from the using department. All questions regarding this Agreement will be referred to the administrator for resolution. Supplements may be written to this Agreement for the addition or deletion of services. Payment will be negotiated and determined by the contract administrator(s). 4.38 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. 4.39 Cooperative Use of Contract This Agreement may be extended for use by other municipalities, counties, school districts, and government agencies with the approval of Contractor. Any such usage by other entities must be in accordance with the statutes, codes, ordinances, charter and/or procurement rules and regulations of the respective government agency. Ordersplaced 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. 4.40 Fuel Charges and Price Increases No fuel surcharges will be accepted. No price increases will be accepted without proper request by Contractor and response by the City's Procurement Division. 4.41 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 electronic mail; (iv) sent via overnight courier; or (v) 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 electronic mail, overnight courier, or facsimile, receipt will be deemed effective two (2) calendar days after the sending thereof. 4.42 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. v. 7.2024 9 4.43 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. 4.44 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. 4.45 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. 4.46 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. v. 7.2024 10 (CITY SIGNATURE PAGE) Countersigned: Bruce Rec Mayor Date: Approved as to form: elissa Isabel Senior Assistant City Attorney Date: CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation. By: Jenni er Poirrier City Manager Date: Attest: Rosemarie Call City Clerk Date: l!' iP • (CONSULTANT SIGNATURE PAGE) Cost Management Inc. Attest: By: A Print Name:\jOijSk . ?er9A Print Name: /z1.n7 ,f Hf doiJ7 Secretary Title: ee5ifi Ertl Date:D "t e�.7c.ek.. ,6e -y 2� STATE OF rl oriGIG ) COUNTY OF Qea,Ai- ) The foregoing instrument was acknowledged before me by means Q physical presence or ❑ online notarization, this 04. day of ce,o{timbe✓ , 2026 by 6maN.e4t- YiaaoN , as ?recittemit of C il✓taiAaaP14k 3c_ Ikt who is/are personally known to me or ['who has/have produced a driver's license as identification. (NOTAR4+k ;`�QP�+'ptPRYPUip. s ? MY COMMISSION i l EXPIRES 1-15.2027 I a OVi9�OF FLO%**:,3 "''Nwale of ger" r Notary Public, State of (lorio( . Name of Notary: PatakjEtlie l til( hula .vf My Commission Expires: Of- . zo 1.1 My Commission No.: l l{ 333-7o0 Page 2 of 2