The School District of Lee County

BUILDING OFFICIAL SERVICES

AGREEMENT

(Construction Management Edition)

«Vendor_Name»

«RFQ_Title»

School Board Approved Ranking: «Board_Approval_Date» ii

STANDARD BUILDING OFFICIAL SERVICES AGREEMENT

(Construction Management Edition)

Table of Contents

ARTICLE 1 . - BUILDING OFFICIAL’S RESPONSIBILITY

ARTICLE 2 . - ADDITIONAL SERVICES OF BUILDING OFFICIAL

ARTICLE 3 . - OWNER’S RESPONSIBILITIES

ARTICLE 4 . - TIME

ARTICLE 5 . - COMPENSATION

ARTICLE 6 . - OWNERSHIP OF DOCUMENTS

ARTICLE 7 . - MAINTENANCE OF RECORDS

ARTICLE 8 . - INDEMNIFICATION

ARTICLE 9 . – DUTY TO DEFEND

ARTICLE 10 . - INSURANCE

ARTICLE 11 . - SERVICES BY BUILDING OFFICIAL’S OWN STAFF

ARTICLE 12 . - WAIVER OF CLAIMS

ARTICLE 13 . - TERMINATION OR SUSPENSION

ARTICLE 14 . - SECURING AGREEMENT/PUBLIC ENTITY CRIMES

ARTICLE 15 . - CONFLICT OF INTEREST

ARTICLE 16 . - MODIFICATION

ARTICLE 17 . - NOTICES AND ADDRESS OF RECORD

ARTICLE 18 . - MISCELLANEOUS

ARTICLE 19 . - APPLICABLE LAW

ARTICLE 20 . - EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION

ARTICLE 21 . - DISPUTE RESOLUTION

ARTICLE 22 . – SCRUTINIZED COMPANIES

ARTICLE 23 . - PUBLIC RECORDS

ARTICLE 24 . – E-VERIFY

ARTICLE 25 . – SUPPLIER DEVELOPMENT

ARTICLE 26 – FORCE MAJEURE

iii

TABLE OF SCHEDULES

Schedule A: Scope of Services

Schedule B: Staffing Schedule

Schedule C: Time Schedule

Schedule D: Insurance Requirements Form

Schedule E: Truth in Negotiation Certificate

Schedule F: Certificate of Occupancy/Certificate of Final Inspection

Schedule G: Federal Grants Terms and Conditions

Schedule H: GMP Amendment Example

Schedule I: Owner’s RFQ Document («RFQ_No»)

Schedule J: Building Official’s RFQ Submittal («RFQ_No»)

Page 1 of 40 Initials __________ Building Official Services – «RFQ_Title» Revised by Legal 03.11.2024

BUILDING OFFICIAL SERVICES AGREEMENT

(Construction Management Edition)

THIS AGREEMENT (hereinafter “Agreement”) is made and entered into this day of

, 20___, by and between The School Board of Lee County, Florida (hereinafter referred to as the “OWNER”), and «Vendor_Name», a Florida limited liability company OR corporation, whose business address is «Vendor_Address», «Vendor_City_State_and_Zip_Code», (hereinafter referred to as the

“BUILDING OFFICIAL”).

W I T N E S S E T H:

WHEREAS OWNER desires to obtain the professional building official services of BUILDING OFFICIAL concerning certain services for the plan review permitting, inspection and materials testing for «RFQ_Title» (hereinafter referred to as the “PROJECT”) located at «Project_Address», said services being more fully described in Schedule A, “Scope of Services”, which is attached hereto and incorporated herein;

and

WHEREAS, on «RFQ_Due_Date», the OWNER issued Request for Qualifications No. «RFQ_No» (“RFQ”) for the PROJECT; and

WHEREAS, in response to the RFQ, on «RFQ_Due_Date», the BUILDING OFFICAL submitted a response, which is incorporated and attached hereto as Schedule J for said services and was awarded a contract; and

WHEREAS, BUILDING OFFICIAL represents that it has expertise in the type of professional building official services that will be required for the PROJECT; and

NOW, THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows:

ARTICLE 1. - BUILDING OFFICIAL’S RESPONSIBILITY

1.1 BUILDING OFFICIAL shall provide to OWNER professional building official services in all phases of the Project to which this Agreement applies. All services to be provided by BUILDING OFFICIAL pursuant to this Agreement shall be in conformance with the Scope of Services described in Schedule A. Any deviation from the Scope of Services must be brought to OWNER’S attention in writing by BUILDING OFFICIAL and all such deviations must be expressly approved by OWNER in writing.

1.2 The standard of care applicable to the services to be provided by BUILDING OFFICIAL pursuant to this Agreement shall be that BUILDING OFFICIAL will use the degree of care and skill ordinarily exercised under similar conditions by reputable and licensed building officials in Southwest Florida. Subject to the foregoing standard, BUILDING OFFICIAL shall be held to the highest standards of its profession and shall be held accountable for the inclusion of all requirements of this Agreement. An evaluation of BUILDING OFFICIAL’S performance will be made during and at the conclusion of the Project. The results of such evaluations will determine the recommendations for future work by BUILDING OFFICIAL with OWNER.

1.3 BUILDING OFFICIAL shall review the program furnished by OWNER to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with OWNER.

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OWNER shall contract with a DEISGN PROFESSIONAL to design the Project and a CONTRACTOR to construct the Project.

1.4 BUILDING OFFICIAL shall provide OWNER with Plan Review, Permitting, Inspections and Materials Testing Services, as more fully set forth in the Scope of Services in Schedule A.

1.5 BUILDING OFFICIAL shall be a representative of and shall advise and consult with OWNER during the administration of the Contract for Construction. BUILDING OFFICIAL shall have authority to act on behalf of OWNER only to the extent provided in this Agreement unless otherwise modified by written amendment.

1.6 BUILDING OFFICIAL shall use industry standard project administration software and programs that can interface and integrate with OWNER’s project tracking system and information technology (IT) systems. The BUILDING OFFICIAL shall submit any reports and/or information for the Project to the OWNER through the project tracking system. Any documentation where the original document/certificate is required, shall be submitted to the OWNER’s representative for the Project.

1.7 BUILDING OFFICIAL shall at all times have access to the Work wherever it is in preparation or progress.

1.8 If BUILDING OFFICIAL causes any delay, BUILDING OFFICIAL shall be responsible and liable to OWNER for all damages, costs, losses and expenses incurred or suffered by OWNER as a result thereof, including, but not limited to, reasonable attorneys’ fees, provided BUILDING OFFICIALS delay was the proximate cause of such damages, costs, losses and /or expenses.

1.9 BUILDING OFFICIAL agrees to obtain and maintain throughout the period of this Agreement all such licenses as are required to do business in the State of Florida and in Lee County, Florida, including, but not limited to, all licenses required by the respective state boards and other governmental agencies responsible for regulating and licensing the professional services to be provided and performed by BUILDING OFFICIAL pursuant to this Agreement.

1.10 BUILDING OFFICIAL agrees that, when the services to be provided hereunder relate to a professional service which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to practice such services, it shall employ and/or retain only qualified personnel to provide such services.

1.11 BUILDING OFFICIAL has employed and hereby designates «Designated_Representative» to serve as BUILDING OFFICIAL'S representative (hereinafter referred to as the "Representative"). The Representative is authorized and responsible to act on behalf of BUILDING OFFICIAL with respect to directing, coordinating and administering all aspects of the services to be provided and performed under this Agreement. By execution of this Agreement, BUILDING OFFICIAL acknowledges that the Representative has full authority to bind and obligate BUILDING OFFICIAL on all matters arising out of or relating to this Agreement. BUILDING OFFICIAL agrees that the Representative shall devote whatever time is required to satisfactorily manage the services to be provided and performed by BUILDING OFFICIAL hereunder. Further, BUILDING OFFICIAL agrees that the Representative identified above shall not be removed by BUILDING OFFICIAL from the Project without OWNER'S prior approval, and if so, removed must be immediately replaced with a person acceptable to OWNER.

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1.12 BUILDING OFFICIAL agrees that its senior staff, subconsultants and subcontractors who will perform any services for the Project are subject to OWNER’S reasonable approval. Attached hereto as Schedule B is a listing of BUILDING OFFICIAL’S senior staff who have been assigned to the Project, as well as the subconsultants and subcontractors who will be used by BUILDING OFFICIAL on the Project. None of the senior staff, subconsultants and subcontractors identified in Schedule B shall be removed by BUILDING OFFICIAL from the Project without OWNER’S prior written approval (such approval not to be unreasonably withheld), and if so, removed shall be immediately replaced with a person or firm reasonably acceptable to OWNER. BUILDING OFFICIAL further agrees, within fourteen (14) calendar days of receipt of a written request from OWNER, to promptly remove and replace the Representative, or any other personnel employed or retained by BUILDING OFFICIAL, or any subconsultants or subcontractors or any personnel of any such subconsultants or subcontractors engaged by BUILDING OFFICIAL to provide and perform services or work pursuant to the requirements of this Agreement, whom OWNER shall request in writing to be removed, which request may be made by OWNER with or without cause.

1.13 BUILDING OFFICIAL agrees that all Services to be provided by BUILDING OFFICIAL pursuant to this Agreement shall be subject to OWNER’S reasonable review and approval and shall be in accordance with all applicable published laws, statutes, ordinances, codes, rules, regulations (including utility regulations), state fire marshal requirements and the Florida Building Code, as well as the requirements of any governmental agencies which regulate or have jurisdiction over the Project or the services to be provided and performed by BUILDING OFFICIAL hereunder. In the event of any conflicts in these requirements, BUILDING OFFICIAL shall promptly notify OWNER of such conflict in writing and utilize its best professional judgment to resolve the conflict.

1.14 BUILDING OFFICIAL agrees not to divulge, furnish or make available to any third person, firm or organization, without OWNER’S prior written consent, or unless incident to the proper performance of BUILDING OFFICIAL’S obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the services to be rendered by BUILDING OFFICIAL hereunder, and BUILDING OFFICIAL shall require all of its employees, agents, sub-consultants and subcontractors to comply with the provisions of this paragraph.

1.15 In addition to any other presentation or meeting requirements placed upon BUILDING OFFICIAL elsewhere in this Agreement, BUILDING OFFICIAL shall participate in regular Project Conferences with OWNER’S staff. These meetings shall be scheduled by OWNER at a location in Lee County, Florida, to be designated by OWNER.

1.16 BUILDING OFFICIAL agrees, for both it and all of its subconsultants and subcontractors, to comply with all of OWNER’S rules and regulations with respect to safety and security at OWNER'S facilities, as said rules and regulations may be modified and amended by OWNER from time to time.

1.17 OWNER may have one or more representatives visit the site of the Project from time to time, or on a full-time basis, as the construction progresses, BUILDING OFFICIAL shall not interfere with the functions of said representatives and will cooperate and work with said representatives. No action or failure to act by a representative shall relieve BUILDING OFFICIAL from any of its duties or obligations hereunder.

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ARTICLE 2. - ADDITIONAL SERVICES OF BUILDING OFFICIAL

2.1 If authorized in writing by OWNER, BUILDING OFFICIAL shall furnish or obtain from others Additional Services of the types listed as Article 2 herein. All Additional Services shall be performed for an agreed upon (in advance) fixed fee. If OWNER and BUILDING OFFICIAL are unable to agree upon a fixed fee, then the services will be paid for by OWNER as indicated in Schedule H – Rate Schedule. The following services, if not otherwise specified in Schedule A as part of Basic Services, shall be Additional Services, however, if any Additional Services are required or made necessary by any negligent act or omission of BUILDING OFFICIAL or any of BUILDING OFFICIAL'S consultants, such services shall be performed by BUILDING OFFICIAL at no additional cost or expense to OWNER:

2.1.1 Services resulting from significant changes in the program, general scope, extent or character of the Project or its design including, but not limited to, changes in size, complexity, OWNER’S schedule or character of construction; and revising previously accepted studies, reports, design documents or Contract Documents when such revisions are required by changes in laws, rules, regulations, ordinances, codes or orders enacted subsequent to and not reasonably anticipated prior to the preparation of such studies, reports or documents, or are due to any other causes beyond BUILDING OFFICIAL’S control and fault.

2.1.2 Furnishing services of independent professional associates and consultants for other than the contract services to be provided by BUILDING OFFICIAL hereunder.

2.1.3 Preparing to serve or serving as a consultant or witness for OWNER in any litigation, or other legal or administrative proceeding, involving the Project (except for assistance in consultations which are included as part of the Basic Services to be provided herein).

2.1.4 Additional services rendered by BUILDING OFFICIAL in connection with the Project not otherwise provided for in this Agreement.

ARTICLE 3. - OWNER’S RESPONSIBILITIES

3.1 OWNER shall designate in writing a project coordinator to act as OWNER’S representative with respect to the services to be rendered under this Agreement (hereinafter referred to as the “Project Manager”). The Project Manager shall have authority to transmit instructions, receive information, interpret and define OWNER’S policies and decisions with respect to BUILDING OFFICIAL’S services for the Project. However, except as may be otherwise expressly authorized in writing by the School Board of Lee County , neither the Project Manager nor any other party is authorized to issue any verbal or written orders or instructions to BUILDING OFFICIAL that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatsoever the: (1) scope of services to be provided and performed by BUILDING OFFICIAL hereunder; (2) the time BUILDING OFFICIAL is obligated to complete all such services; or (3) the amount of compensation OWNER is obligated or committed to pay BUILDING OFFICIAL.

Additional Services must be approved in writing in the form of a written and executed amendment to this Agreement prior to starting such services. OWNER will not be responsible for the costs of Additional Services commenced without its express prior written approval. Failure to obtain prior written approval for Additional Services waives BUILDING OFFICIAL’S claim that it performed Additional Services and instead such services will be deemed to be part of the Basic Services required of BUILDING OFFICIAL hereunder.

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3.2 OWNER shall provide, if available, all criteria and information requested by BUILDING OFFICIAL as to OWNER’S requirements for the Project, including design objectives and constraints, space, Educational Specifications, capacity and performance requirements, flexibility and expendability, and any budgetary limitations, which are not addressed within the Scope of Services. OWNER shall provide BUILDING OFFICIAL with five (5) copies of all design documents prepared by DESIGN PROFESSIONAL that are required for BUILDING OFFICIAL to perform the Services required under this Contract (hereinafter referred to as “Construction Documents”).

3.3 Upon request from BUILDING OFFICIAL, OWNER will assist BUILDING OFFICIAL by making available to BUILDING OFFICIAL all reasonably available information in OWNER’S possession pertinent to the Project, including existing drawings, specifications, shop drawings, product literature, previous reports and any other data relative to design or construction of the Project. The OWNER shall provide BUILDING OFFICIAL access to interface and integrate with the OWNER’s project tracking system and information technology (IT) systems. This is limited to the purposes of this Agreement.

3.4 OWNER shall arrange for access to and make all provisions for BUILDING OFFICIAL to enter the Project site to perform the services to be provided by BUILDING OFFICIAL under this Agreement.

BUILDING OFFICIAL acknowledges that such access may be provided during times that are not the normal business hours of BUILDING OFFICIAL.

3.5 OWNER shall provide written notice to BUILDING OFFICIAL of any deficiencies or defects discovered by OWNER with respect to the services to be rendered by BUILDING OFFICIAL hereunder.

3.6 Wherever the terms of this Agreement refer to some action, consent, or approval (excluding approvals of Additional Services or changes to this Agreement) to be provided by OWNER or some notice, report or document is to be provided to OWNER, such reference to “OWNER” shall mean OWNER, OWNER’S staff, or OWNER’S designee, unless otherwise stated.

ARTICLE 4. - TIME

4.1 Services to be rendered by BUILDING OFFICIAL shall be commenced subsequent to the execution of this Agreement and upon written Notice of Authorization from OWNER for all or any designated portion of the Project and shall be performed and completed in accordance with the attached hereto and made a part hereof as Schedule C. Time is of the essence with respect to the performance of this Agreement.

4.2 Should BUILDING OFFICIAL be obstructed or delayed in the prosecution or completion of its services as a result of unforeseeable causes beyond the control of BUILDING OFFICIAL, and not due to its own fault or neglect, including but not restricted to acts of God or of public enemy, acts of government or of OWNER, fires, floods, epidemics, quarantine regulations, strikes or lock-outs, then BUILDING OFFICIAL shall notify OWNER in writing within three (3) business days (unless OWNER expressly agrees in writing to a longer period of time) after commencement of such delay, stating the cause or causes thereof, or be deemed to have waived any right which BUILDING OFFICIAL may have had to request a time extension.

4.3 No interruption, interference, inefficiency, suspension or delay in the commencement or progress of BUILDING OFFICIAL’S services from any cause whatsoever, including those for which OWNER may be responsible in whole or in part, shall relieve BUILDING OFFICIAL of its duty to perform or

Page 6 of 40 Initials __________ give rise to any right to damages or additional compensation from OWNER. BUILDING OFFICIAL expressly acknowledges and agrees that it shall receive no damages for delay. BUILDING OFFICIAL’S sole remedy, if any, against OWNER will be the right to seek an extension of time to its schedule; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned “No Damage for Delay” provision. This paragraph shall expressly apply to claims for early completion, as well as claims based on late completion.

4.4 Should BUILDING OFFICIAL fail to commence, provide, perform or complete any of the services to be provided hereunder in a timely and diligent manner, in addition to any other rights or remedies available to OWNER hereunder, OWNER at its sole discretion and option may withhold any and all payments due and owing to BUILDING OFFICIAL until such time as BUILDING OFFICIAL resumes performance of its obligations hereunder in such a manner so as to establish to OWNER’S satisfaction that BUILDING OFFICIAL’S performance is or will shortly be back on schedule.

ARTICLE 5. - COMPENSATION

5.1 For Basic Services, as described in Article 1 and on Schedule H, and any other services included as part of Basic Services, Basic Compensation shall be computed as follows:

The stipulated sum of ($ ) for Pre-Construction Phase Services, as detailed in Schedule H, Article 2.

The percentage of ______% of the Guaranteed Maximum Price (GMP) for Construction Phase Services, to be included as an amendment to this agreement, as detailed in Schedule H, Articles 3-6.

5.2 Payment for Pre-Construction Phase Services shall be made in progress payments of all plan review, permitting and other services detailed in Schedule H, Article 2.

5.3 The compensation provided for under Section 5.2, shall be the total and complete amount payable to BUILDING OFFICIAL for the services to be performed under the provisions of this Agreement, and shall include the cost of all materials, equipment, supplies and out-of-pocket expenses incurred in the performance of all services.

ARTICLE 6. - OWNERSHIP OF DOCUMENTS

6.1 Upon the completion or termination of this Agreement, as directed by OWNER, BUILDING OFFICIAL shall deliver to OWNER copies or originals of all records, documents, drawings, notes, tracings, plans, AutoCAD files, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for BUILDING OFFICIAL under this Agreement ("Project Documents"). OWNER shall specify whether the originals of such Project Documents are to be delivered by BUILDING OFFICIAL. Accordingly, BUILDING OFFICIAL shall be solely responsible for all costs associated with delivering to OWNER the Project Documents.

BUILDING OFFICIAL, at its own expense, may retain copies of the Project Documents for its files and internal use. However, in order to protect the security and safety of the facility, OWNER wishes to limit the number of copies of plans outside of OWNER'S possession. BUILDING OFFICIAL agrees that said copies are not to be shared with anyone other than members of BUILDING OFFICIAL'S staff and staff of subcontractors and consultants participating in the Project.

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6.2 All Project Documents in any form prepared, assembled or provided by BUILDING OFFICIAL under this Agreement are and shall be the property of OWNER, including, as further described below, all copyrights inherent in them or their preparation.

6.3 As described above, the Project Documents are and shall remain the property of OWNER and BUILDING OFFICIAL and BUILDING OFFICIAL’S consultants shall have no interest in any of the Project Documents whatsoever, nor any right to utilize them or any designs based on them, except as provided in this Agreement in connection with this Project.

ARTICLE 7. - MAINTENANCE OF RECORDS

7.1 BUILDING OFFICIAL shall keep adequate records and supporting documentation which concern or reflect its services hereunder. The records and documentation shall be retained by BUILDING OFFICIAL for a minimum of three (3) years from the date of termination of this Agreement or the date the Project is completed, or such longer period of time as may be required by law or this Agreement, whichever is later. OWNER, or any duly authorized agents or representatives of OWNER, shall have the right to audit, inspect and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the period noted above in which the records are to be retained; provided, however, such activity shall be conducted only during normal business hours.

7.2 BUILDING OFFICIAL shall sign and date CONTRACTOR'S "as-built" drawings on a weekly basis to ensure "as-builts" are documented correctly.

ARTICLE 8. - INDEMNIFICATION

8.1 To the maximum extent permitted by law, BUILDING OFFICIAL shall defend, indemnify and hold harmless OWNER, its officers and employees, from any and all liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys’ and paralegals’ fees to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of BUILDING OFFICIAL or anyone employed or utilized by BUILDING OFFICIAL in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph 8.1.

ARTICLE 9. – DUTY TO DEFEND

9.1 The BUILDING OFFICIAL agrees, at its own expense, and upon written request by the OWNER to defend any suit, action or demand brought against the OWNER on any claim or demand that is alleged to arise out of or result from the negligence, recklessness or intentional wrongful conduct of the BUILDING OFFICIAL or other persons employed or utilized by the BUILDING OFFICIAL in the performance of this Agreement.

ARTICLE 10. - INSURANCE

10.1 During the term of this Agreement, BUILDING OFFICIAL shall, at its own cost and expense, provide and maintain the types of insurance described herein, with companies satisfactory to OWNER. All insurance shall be from responsible companies duly authorized to do business in the State of Florida. Simultaneously with the execution and delivery of this Agreement by BUILDING OFFICIAL, BUILDING OFFICIAL has delivered to OWNER properly executed Certificates of Insurance, Page 8 of 40 Initials __________ evidencing the fact that BUILDING OFFICIAL has acquired and put in place the insurance coverages and limits required hereunder. In addition, certified, true and exact copies of all insurance policies required shall be provided to OWNER, on a timely basis, if requested by OWNER. These Certificates and policies shall contain provisions that thirty (30) days’ written notice by registered or certified mail shall be given OWNER of any cancellation, intent not to renew, or reduction in the policies’ coverages, except in the application of the Aggregate Limits Provisions. BUILDING OFFICIAL shall also notify OWNER in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, non-renewal or material change in coverages or limits received by BUILDING OFFICIAL from its insurer, and nothing contained herein shall relieve BUILDING OFFICIAL of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by it hereunder, BUILDING OFFICIAL shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy.

All insurance coverages of BUILDING OFFICIAL shall be primary to any insurance or self-insurance program carried by OWNER applicable to this Project.

10.2 All insurance policies required by this Agreement shall include the following provisions and conditions by endorsement to the policies:

10.2.1 The term “The School Board of Lee County, Florida” shall include the Lee County School Board, a body corporate, the Lee County School Board, all Authorities, Boards, Bureaus, Commissions, Divisions, Departments and offices thereof, and individual members and employees thereof in their official capacity and/or while acting on behalf of the Lee County School Board.

10.2.2 All insurance policies, other than the Workers Compensation policy, provided by BUILDING OFFICIAL to meet the requirements of this Agreement shall name The School Board of Lee County, Florida, as that name is defined in subparagraph 9.2.1, above, as an additional insured as to the operations of BUILDING OFFICIAL under the Contract Documents and shall contain a severability of interest provisions.

10.2.3 Companies issuing the insurance policy or policies shall have no recourse against OWNER for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of BUILDING OFFICIAL.

10.2.4 All insurance coverages of BUILDING OFFICIAL shall be primary to any insurance or self-insurance program carried by OWNER applicable to this Project, and the “Other Insurance” provisions of any policies obtained by BUILDING OFFICIAL shall not apply to any insurance or self-insurance program carried by OWNER applicable to this Project.

10.2.5 The Certificates of Insurance, which are to be provided pursuant to paragraph 9.1 above, must identify the specific project name, as well as the site location and address.

10.2.6 All insurance policies shall be fully performable in Lee County, Florida, and shall be construed in accordance with the laws of the State of Florida.

10.2.7 All insurance policies to be provided by BUILDING OFFICIAL pursuant to the terms hereof must expressly state that the insurance company will accept service of process in Lee County, Florida and that the exclusive venue for any action concerning any matter under those policies shall be in the appropriate state court situated in Lee County, Florida.

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10.3 The acceptance by OWNER of any Certificate of Insurance for this Project evidencing the insurance coverages and limits required in this Agreement does not constitute approval or agreement by OWNER that the insurance requirements have been met or that the insurance policies shown on the Certificates of Insurance are in compliance with the requirements of this Agreement.

10.4 Before starting and until completion of all services required hereunder, BUILDING OFFICIAL shall procure and maintain insurance of the types and to the limits specified in Schedule D, “Insurance Coverage”, which is attached hereto and made a part hereof. BUILDING OFFICIAL shall require each of its subconsultants and subcontractors to procure and maintain, until the completion of that subconsultant’s or subcontractor’s services, insurance of the types and to the limits specified in Schedule D, unless such insurance requirement for the subconsultant or subcontractor is expressly waived in writing by OWNER.

10.5 If any insurance provided pursuant to this Agreement expires prior to the completion of the services required hereunder, renewal Certificates of Insurance and, if requested by OWNER, certified, true copies of the renewal policies, shall be furnished to OWNER thirty (30) days prior to the date of expiration.

10.6 At any time, should BUILDING OFFICIAL not maintain the insurance coverages required in this Agreement, OWNER may cancel the Agreement or at its sole discretion shall be authorized to purchase such coverages and charge BUILDING OFFICIAL for such coverages purchased. If BUILDING OFFICIAL fails to reimburse OWNER for such costs within thirty (30) days after demand, OWNER has the right to offset these costs from any amount due BUILDING OFFICIAL under this Agreement. OWNER shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverages purchased or the insurance company/companies used. The decision of OWNER to purchase such insurance coverages shall in no way be construed to be a waiver of its rights under this Agreement.

10.7 BUILDING OFFICIAL, its subconsultants and OWNER shall waive all rights against each other for damages covered by insurance to the extent insurance proceeds are paid and received by OWNER, except such rights as they may have to the proceeds of such insurance held by any of them.

10.8 All insurance companies from whom BUILDING OFFICIAL obtains the insurance policies required hereunder must meet the following minimum requirements:

10.8.1 The insurance company must be duly licensed and authorized by the Department of Insurance of the State of Florida to transact the appropriate insurance business in the State of Florida.

10.8.2 The insurance company must have been in such insurance business continuously for not less than five (5) years immediately prior to the date of execution of this Agreement.

10.8.3 The insurance company must have an A. M. Best policyholder rating of either “A+”, “A”, or “A-”.

10.8.4 The insurance company must have a current A. M. Best financial rating of “Class VI” or higher.

ARTICLE 11. - SERVICES BY BUILDING OFFICIAL’S OWN STAFF

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11.1 The services to be performed hereunder shall be performed by the staff, subconsultants and subcontractors identified in Schedule B, unless otherwise authorized in writing by OWNER. The employment of, contract with, or use of the services of any other person or firm by BUILDING OFFICIAL, as independent consultant or otherwise, shall be subject to the prior written approval of OWNER. No provision of this Agreement shall, however, be construed as constituting an agreement between OWNER and any such other person or firm. Nor shall anything contained herein be deemed to give any such party or any third party any claim or right of action against OWNER beyond such as may otherwise exist without regard to this Agreement.

ARTICLE 12. - WAIVER OF CLAIMS

12.1 BUILDING OFFICIAL’S acceptance of final payment shall constitute a full waiver of any and all claims, by it against OWNER arising out of this Agreement or otherwise related to the Project, except those previously made in writing and identified by BUILDING OFFICIAL as unsettled at the time of the final payment. Neither the acceptance of BUILDING OFFICIAL’S services nor payment by OWNER shall be deemed to be a waiver of any of OWNER’S rights against BUILDING OFFICIAL.

ARTICLE 13. - TERMINATION OR SUSPENSION

13.1 BUILDING OFFICIAL shall be considered in material default of this Agreement and such default will be considered cause for OWNER to terminate this Agreement, in whole or in part, as further set forth herein, for any of the following reasons: (a) failure to begin work under the Agreement within the times specified under the Notice(s) of Authorization, or (b) failure to properly and timely perform the services to be provided hereunder or as directed by OWNER, or (c) the bankruptcy or insolvency or a general assignment for the benefit of creditors by BUILDING OFFICIAL or by any of BUILDING OFFICIAL’S principals, partners, officers or directors, or (d) failure to obey laws, ordinances, regulations or other codes of conduct, or (e) otherwise materially breaching this Agreement. OWNER may so terminate this Agreement, in whole or in part, by giving BUILDING OFFICIAL five (5) calendar days’ written notice. In such an event, BUILDING OFFICIAL shall not be due any further compensation hereunder, until, if at all, the Project is complete and appropriate accountings and offsets are made to account for costs and expenses related to any replacement building official(s) who completed any work required to be performed under this Agreement.

13.2 If, after notice of termination of this Agreement as provided for in paragraph 12.1 above, it is determined for any reason that BUILDING OFFICIAL was not in default, or that its default was excusable, or that OWNER otherwise was not entitled to the remedy against BUILDING OFFICIAL provided for in paragraph 12.1, then the notice of termination given pursuant to paragraph 12.1 shall be deemed to be the notice of termination provided for in paragraph 12.3 below and BUILDING OFFICIAL’S remedies against OWNER shall be the same as and limited to those afforded BUILDING OFFICIAL under paragraph 12.3 below.

13.3 OWNER shall have the right to terminate this Agreement, in whole or in part, without cause upon five (5) calendar days’ written notice to BUILDING OFFICIAL. In the event of such termination for convenience, BUILDING OFFICIAL’S recovery against OWNER shall be limited to that portion of BUILDING OFFICIAL’S compensation earned through the date of termination, and not otherwise.

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BUILDING OFFICIAL shall not be entitled to any other or further recovery against OWNER, including, but not limited to, anticipated fees or profit on work not already performed.

13.4 Upon termination, BUILDING OFFICIAL shall deliver to OWNER, as set forth in paragraph 6.1 herein, all papers, records, documents, Auto CAD Files, drawings, calculations, models, and other materials in BUILDING OFFICIAL’S possession or control arising out of or relating to this Agreement. If BUILDING OFFICIAL has any original documents listed above, the originals shall be provided to OWNER rather than copies.

13.5 OWNER shall have the authority to suspend all or any portions of the services to be provided by BUILDING OFFICIAL hereunder upon giving BUILDING OFFICIAL three (3) calendar days’ prior written notice of such suspension. If all or any portion of the services to be rendered hereunder are so suspended, BUILDING OFFICIAL’S sole and exclusive remedy shall be to seek an extension of time to its schedule subject to the procedures set forth in Article 4.

ARTICLE 14. - SECURING AGREEMENT/PUBLIC ENTITY CRIMES

14.1 BUILDING OFFICIAL warrants that BUILDING OFFICIAL has not employed or retained any company or person, other than a bona fide employee working solely for BUILDING OFFICIAL, to solicit or secure this Agreement and that BUILDING OFFICIAL has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for BUILDING OFFICIAL, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. At the time this Agreement is executed, BUILDING OFFICIAL shall sign and deliver to OWNER the Truth-In-Negotiation Certificate attached hereto and made a part hereof as Schedule E. BUILDING OFFICIAL’S compensation shall be adjusted to exclude any sums by which OWNER determines the compensation was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs.

14.2 By its execution of this Agreement, BUILDING OFFICIAL acknowledges that it has been informed by OWNER of the terms of Section 287.133(2)(a), Florida Statutes, which read as follows:

A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months following the date of being placed on the convicted vendor list.

ARTICLE 15. - CONFLICT OF INTEREST

15.1 BUILDING OFFICIAL represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder. BUILDING OFFICIAL further represents that no persons having any such interest shall be employed to perform those services.

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ARTICLE 16. - MODIFICATION

16.1 No modification or change in this Agreement shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to be bound by it.

ARTICLE 17. - NOTICES AND ADDRESS OF RECORD

17.1 All notices required or made pursuant to this Agreement to be given by BUILDING OFFICIAL to OWNER shall be in writing and shall be delivered either (i) by mailing same by United States mail with proper postage affixed thereto, certified, return receipt requested, or (ii) by sending same by Federal Express, Express Mail or other expedited mail or package delivery, (iii) by hand delivery to the appropriate address as herein provided (a receipt for hand delivered items is required to be obtained by BUILDING OFFICIAL from the Board), or (iv) by email or Owner-approved project management software, with confirmation copy to be mailed. Notices required hereunder shall be directed to the following address:

School Board of Lee County Director, Construction Projects Management 3308 Canal Street Fort Myers, Florida 33916 Attention: Scott Reichenbacher Email: ScottCR@LeeSchools.Net

17.2 All notices required or made pursuant to this Agreement to be given by OWNER to BUILDING OFFICIAL shall be made in writing and shall be delivered either by mailing same by United States mail with proper postage affixed thereto, certified, return receipt requested, or (ii) by sending same by Federal Express, Express Mail or other expedited mail or package delivery, (iii) by hand delivery to the appropriate address as herein provided (a receipt for hand delivered items is required to be obtained by BUILDING OFFICIAL from the Board), or (iv) by email with confirmation copy to be mailed. Notices required hereunder shall be directed to the following address:

«Vendor_Name» «Vendor_Address» «Vendor_City_State_and_Zip_Code»

Attention: «Contact_Name» Email: «Email_Address»

17.3 Either party may change its address of record by written notice to the other party given in accordance with requirements of this Article.

ARTICLE 18. - MISCELLANEOUS

18.1 BUILDING OFFICIAL, in representing OWNER, shall promote the best interest of OWNER and assume towards OWNER a fiduciary relationship of the highest trust, confidence, and fair dealing.

18.2 No modification, waiver, suspension or termination of the Agreement or of any terms thereof shall impair the rights or liabilities of either party.

18.3 This Agreement is not assignable by BUILDING OFFICIAL, in whole or in part, without the prior written consent of OWNER.

mailto:ScottCR@LeeSchools.Net

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18.4 Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement.

18.5 The headings of the Articles, Paragraphs, Schedules and Attachments as contained in this Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions in such Articles, Paragraphs, Schedules and Attachments.

18.6 This Agreement, including any Addenda and referenced Schedules and Attachments hereto, constitutes the entire agreement between the parties hereto relating to the matter set forth herein and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matter set forth herein, and any such prior agreements or understanding shall have no force or effect whatever on this Agreement.

18.7 Unless the content of the Agreement otherwise clearly requires, references to the plural include the singular, the term “including” is not limiting and the terms “hereof,” “herein,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Additionally, the parties hereto acknowledge that they have carefully reviewed this Agreement and have been advised by counsel of their choosing with respect thereto, and that they understand its contents and agree that this Agreement should not be construed more strongly against any party hereto, regardless of who is responsible for its preparation.

18.8 All representations and covenants of the parties shall survive the expiration of this Agreement.

18.9 This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

18.10 Any and all other provisions of this Agreement to the contrary notwithstanding, this Agreement is contingent upon Department of Education (DOE) approval of this Project in the Educational Facilities Plan or Supplemental Survey. In the event such approval is not received, BUILDING OFFICIAL shall be entitled to pro rata compensation for all services provided prior to OWNER’s delivery of notice that such approval has been denied, and this Agreement shall otherwise be null and void, and OWNER shall have no further liability to BUILDING OFFICIAL whatsoever as a result hereof.

18.11 BUILDING OFFICIAL will comply with all requirements of Sections 1012.32, 1012.465, 1012.467 and 1012.468, Florida Statutes. If compliance with these requirements requires background screening of any of BUILDING OFFICIAL's employees, subcontractors and their employees, BUILDING OFFICIAL will bear the cost of acquiring the background screening, and any fee imposed by the Florida Department of Law Enforcement to maintain the fingerprints provided with respect to BUILDING OFFICIAL and its employees. The parties agree that in the event that BUILDING OFFICIAL fails to perform any of the duties described in this paragraph, this will constitute a material breach of the contract entitling Owner to terminate immediately with no further responsibility to make payment or perform any other duties under this contract. BUILDING OFFICIAL agrees to indemnify and hold harmless Owner, its officers and employees from any liability in the form of physical injury, death, or property damage resulting from BUILDING OFFICIAL’s failure to comply with the requirements of this paragraph or Sections 1012.32, 1012.465, 1012.467, and 1012.468 Florida Statutes.

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18.12 BUILDING OFFICAL will comply with requirement of Florida Department of Education, Office of Educational Facilities, OEF 110B - Certificate of Occupancy and OEF 209 - Certificate of Final Inspection as referenced on Schedule F.

18.13 The following Schedules are incorporated herein by reference:

Schedule A - Scope of Services Schedule B - Staffing Schedule Schedule C - Time Schedule Schedule D - Insurance Requirements Form Schedule E - Truth in Negotiation Certificate Schedule F - Certificate of Occupancy / Certificate of Final Inspection Schedule G – Federal Grants Terms and Conditions Schedule H – GMP Amendment Example Schedule I - Owners RFQ Document («RFQ_No») Schedule J – Building Officials RFQ Submittal («RFQ_No»)

ARTICLE 19. – COMPLIANCE WITH LAW

19.1 BUILDING OFFICIAL agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, rules, administrative orders, regulations and requirements applicable to the Project, including, without limitation, those dealing with safety (including the Trench Safety Act, Chapter 553, Florida Statutes) and Florida’s State Requirements for Educational Facilities 2014 (or later version in effect at the time of the GMP Amendment). If BUILDING OFFICIAL observes that the Contract Documents are at variance therewith, it shall promptly notify OWNER and BUILDING OFFICIAL in writing.

19.2 According to the Florida Building Code, Chapter 4, Section 423, the School District of Lee County, Building Code Compliance Office is responsible to ensure that all plans and facilities comply with the Florida Building Code. The Building Code Compliance Office’s plans reviewers and inspectors shall perform all plan reviews and inspections to ensure compliance with the Florida Building Code. A copy of the Florida Building Code is located at the Building Code Compliance Office and is available for review upon request.

19.3 For federally funded projects, BUILDING OFFICIAL must comply with all federal rules and regulations including those defined in Schedule G, including Davis Bacon Wage Rate Act, the federal Education Department General Administrative Regulations (EDGAR), and those acts referred to by EDGAR, such as the Copeland Anti-Kickback Act (29 C.F.R. Part 3) and the Contract Work Hours and Safety Standards Act (28 C.F.R. Part 5).

19.4 BUILDING OFFICIAL further agrees to pay any expenses, including attorneys’ fees, incurred by OWNER as a result such failure to comply with applicable federal, state and local laws, codes, statutes, ordinances, rules, administrative orders, regulations and requirements applicable to the Project.

19.5 Without limitation, BUILDING OFFICIAL shall comply with and remain in compliance with the Immigration and Control Act of 1986 as applicable to BUILDING OFFICIAL, including required employment and identity verification procedures and record keeping requirements. In the event BUILDING OFFICIAL fails to comply in any respect with the applicable requirements of the Immigration Reform and Control Act of 1986, BUILDING OFFICIAL agrees to indemnify and hold

Page 15 of 40 Initials __________ harmless OWNER and its officers and employees for all penalties, fines, charges, assessments, claims, demands, actions, or causes of action by the United States Government or by any other entity or person.

19.6 Unless otherwise specified, this Agreement shall be governed by the laws, rules, and regulations of the State of Florida, and by the laws, rules, and regulations of the United States when providing services funded by the United States government.

19.7 Any litigation between the parties hereto, whether or not arising out of or relating to any claim or arising out of this Agreement or any breach thereof, shall be brought, maintained and pursued only in the appropriate State courts of the State of Florida; and OWNER and BUILDING OFFICIAL each hereby waive and renounce any and all rights and options which they, or either of them, have or might have to bring or maintain any such litigation or action in the Federal Court system of the United States. Venue of any such litigation between the parties hereto shall lie and be only in the appropriate State courts of the State of Florida’s Twentieth Judicial Circuit in and for Lee County, Florida, and the parties’ consent and submit to the jurisdiction of any such court. This Agreement is entered into by the parties hereby in Lee County, Florida. IN ADDITION, THE PARTIES EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION INVOLVING THE

PROJECT OR THIS AGREEMENT.

ARTICLE 20. - EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION

20.1 In performing all services to…