Fort Walton Beach Council agenda — 02-09-2010 Regular — reading text

or from award or making of this other consideration contingent upon resulting Agreement. For the breach or violation of this provision, CITY shall have the right to terminate the Agreement at its discretion, without liability, and to deduct from the Agreement price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. EQUAL OPPORTUNITY EMPLOYMENT. SECTION 10. ATTORNEY agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, disability, or national origin and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, disability, or national origin. This provision shall include, but not be limited to, the following: employment; upgrading; demotion or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. SECTION 11. CONFLICT OF INTEREST. a) ATTORNEY agrees that it will not engage in any action -that would.create a conflict of interest in the performance of its obligations pursuant to this Agreement with CITY or which would violate or cause others to violate the provisions of Part III, Chapter 112, Florida Statutes, relating to ethics in government without the prior written approval of CITY, which approval may be withheld by CITY in its sole discretion. b) ATTORNEY hereby certifies that no officer, agent, or employee of CITY Florida Statutes, as over 5 has any material interest ( as defined in Section 112. 312( 15), percent) either directly or indirectly, in the business of ATTORNEY to be conducted here, and that no such person shall have any such interest at any time during the term of this Agreement. c) Pursuant to Section 216. 347, Florida Statutes, ATTORNEY hereby agrees that monies received from CITY pursuant to this Agreement will not be used for the purpose of lobbying the legislature or any other state or federal Agency. SECTION 12. ASSIGNMENT. or any interest herein, This Agreement, shall not be assigned, transferred, or otherwise encumbered under any circumstances by the parties hereto without prior written consent of the other party and in such cases only by a document of equal dignity herewith. 107-  SECTION 13. SUBCONTRACTORS. During the course of the work under this Agreement, in the event ATTORNEY requires the service of any subcontractors or other professional associates in connection with service covered by this Agreement, ATTORNEY must secure the prior approval of an authorized representative of CITY. SECTION 14. INDEPENDENT CONTRACTOR. It is agreed that nothing herein contained is intended or should be construed in any manner as creating or establishing a relationship of co- partners between the parties, or as constituting ATTORNEY ( including its officers, employees, and agents) the agent, representative, or employee of CITY for any purpose, or in any manner, whatsoever. ATTORNEY is to be and shall remain an independent contractor with respect to all services performed under this Agreement. SECTION 15. INDEMNIFICATION OF CITY. a) ATTORNEY shall indemnify and save harmless CITY and its officers, agents, and employees from and against any claim, demand, or cause of action of whatsoever kind or nature proximately arising out of error, omission, or any tortious act, whether intentional or negligent, of ATTORNEY or its officers, agents, subcontractors, employees, or any like person or entity in the performance of services under this Agreement. b) ATTORNEY shall require all subcontractors to enter _ an agreement containing the provisions set forth in the preceding subsection in which agreement the subcontractors fully indemnify CITY in accordance with this Agreement. SECTION 16. INSURANCE. a) ATTORNEY shall provide, pay for and maintain in force at all times during the term of this Agreement such insurance, including Worker's Compensation Insurance and Professional Liability Insurance, as will provide to CITY the protection contained in the foregoing Indemnification Section. b) Such policy or policies shall be issued by a company or companies authorized to do business in the State of Florida. All policies required to be carried pursuant to this Section shall provide coverage for any and all claims based on the actions of ATTORNEY in performing its services under this Agreement. Any liability policy or policies shall, as a minimum, carry limits of at least FIVE HUNDRED THOUSAND AND NO /100 DOLLARS ($500,000. 00). c)Prior to the commencement of work hereunder, ATTORNEY shall furnish to CITY a certificate or written statement of the above required insurance. The policy or policies evidencing required insurance shall contain an endorsement to the effect that 108- cancellation or any material change in the policies adversely affecting the interests of CITY in such insurance shall not be effective until thirty ( 30) days after written notice thereof to CITY. CITY reserves the right to require a copy of such policy or policies upon request. d) The maintenance of the insurance coverage set forth herein shall not be construed to limit nor have the effect of limiting ATTORNEY' S liability under the provisions of the indemnification clause. SECTION 17. DISPUTE RESOLUTION. In the event of a dispute related to any performance or payment obligation arising under this Agreement, the parties shall exercise best efforts to resolve disputes through voluntary mediation. Mediator selection and the procedures to be employed in voluntary mediation shall be mutually acceptable to the parties. Costs of voluntary mediation shall be shared equally among the parties participating in the mediation. SECTION 18. SERVICES NOT PROVIDED FOR. No claim for services furnished by ATTORNEY not specifically provided for herein shall be honored by CITY. SECTION 19. ENTIRE AGREEMENT. a) It is understood and agreed that the entire Agreement of the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. b) Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties. SECTION 20. AGREEMENT AND SERVICE AUTHORIZATION IN CONFLICT. Except as otherwise set forth, whenever the terms of this Agreement conflict with any service authorization this Agreement shall prevail. SECTION 21. RIGHTS AT LAW RETAINED. The rights and remedies of CITY, provided for under this Agreement, are in addition and supplemental to any other rights and remedies provided by law. SECTION 22. NOTICES. Whenever either party desires to give notice unto the other, it must be given by written notice, sent by registered or certified United States mail, return receipt requested, addressed to the party to whom it is intended, at the place last specified. The place for giving of notice shall remain such until it shall have For been changed by written notice in compliance with the provisions of this paragraph. the present, the parties designate the following as their respective places for giving of notice, to wit: 109-  For CITY: City Manager City of Fort Walton Beach 107 Miracle Strip Parkway SW Fort Walton Beach, Florida 32548 -6614 For ATTORNEY: Nabors, Giblin & Nickerson, P. A. 2502 Rocky Point Dr., Suite 1060 Tampa, Florida 33607 Attention: President SECTION 23. TERMINATION. a) CITY may, by written notice to ATTORNEY, terminate this Agreement, in whole or in part, at any time, either for CITY'S convenience or because of the failure of ATTORNEY to fulfill its Agreement obligations. Upon receipt of such notice, ATTORNEY shall: 1) immediately discontinue all services affected ( unless the notice directs otherwise); and 2) deliver to CITY all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by ATTORNEY in performing this Agreement, whether completed or in process. b) If the termination is for the convenience of CITY, ATTORNEY shall be paid its compensation for services performed to the date of termination based on the percentage of work completed. CITY shall not be obligated to pay for any services performed by ATTORNEY after notice of termination has been given. c) If the termination is due to the failure of ATTORNEY to fulfill Agreement obligations, CITY may take over the work and prosecute the same to completion by Agreement or otherwise. In such case, ATTORNEY shall be liable to CITY for reasonable additional costs occasioned to CITY thereby. ATTORNEY shall not be liable for such additional costs if the failure to perform the Agreement arises out of causes beyond the control and without the fault or negligence of ATTORNEY. d) If, after notice of termination for failure to fulfill the Agreement obligations, it is determined that ATTORNEY had not so failed, the termination shall be 110- deemed to have been effected for the convenience of CITY. In such event, adjustment in the Agreement price shall be made as provided in paragraph (b) of this section. e) The rights and remedies of CITY provided in this section are in addition to any other rights and remedies provided by law or under this Agreement. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the date below written for execution by CITY. NABORS, GIBLIN & NICKERSON, P. A. By: John R. Stokes, Shareholder Date: CITY OF FORT WALTON BEACH, FLORIDA