Attachment_A_-_Draft_Contract_.pdf

ATTACHMENT A

DRAFT CONTRACT

BREVARD COUNTY

UTILITY SERVICES

B-7-25-52 MIMS Well 12 & 13

Table of Contents

RECITALS

Section 1. Recitals

Section 2. Administration

Section 3. Contract Documents

Section 4. Scope of Work

Section 5. Effective Date and Contract Term

Section 6. Payment; Progress Payments

Section 7. Termination

Section 8. Liquidated Damages

Section 9. Indemnification

Section 10. Insurance

Section 11. Warranty

Section 12. Public Records

Section 13. Right to Audit Records

Section 14. Scrutinized Companies

Section 15. Employment Verification

Section 16. Governing Law; Venue; Attorney’s Fees; Waiver of Right to Jury Trial

Section 17. Ownership

Section 18. Independent Contractor

Section 19. Public Construction Bond/Security

Section 20. Compliance with Laws

Section 21. Taxes

Section 22. Captions and Paragraph Headings

Section 23. Attorney’s Fees

Section 24. Severability

Section 25. Successors and Assigns

APPENDIX A SCOPE OF SERVICES

APPENDIX B DIRECT PURCHASING PROCEDURE

CONTRACT FOR CONSTRUCTION

Utility Services Department

MIMS WELL 12 & 13

THIS CONTRACT is entered into the date of last signature below, by and between BREVARD COUNTY, FLORIDA, a political subdivision of the State of Florida (herein referred to as the “County” or “Owner”), whose mailing address is 2725 Judge Fran Jamieson Way, Building A, Second Floor, Viera, Florida 32940, and ________________________, an entity authorized to do business in the State of Florida (herein referred to as the “Contractor”), whose principal address is

RECITALS

WHEREAS, it is the intent of the County to obtain construction services in connection with the removal and replacement of the MIMS WELL 12 & 13 at the Brevard County Wickham Rd Fleet Facility as outlined in Bid# B-7-25-52 (hereinafter referred to as the “Project” or the “Work”); and

WHEREAS, the County has issued a solicitation for bids Bid# B-7-25-52, which is incorporated herein, to perform the Project; and

WHEREAS, the Contractor has been selected as the lowest, responsive, and responsible bidder for Bid# B-7-25-52 the Project; and

WHEREAS, the Contractor desires to perform such construction for the Project in accordance with the terms and conditions of this Contract; and

WHEREAS, the Contractor shall comply with any and all Federal, State, and/or local laws, rules, and regulations, including, but not limited to, permitting agencies and Authorities Having Jurisdiction (AHJ), which are governmental or non-governmental entities responsible for enforcing building codes, fire codes, and other regulations in a given jurisdiction; and

WHEREAS, the County finds entering into this Contract will serve the public interest and public benefit.

NOW, THEREFORE, in consideration of the promises hereinafter contained, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the following terms and conditions are hereby mutually agreed to by and between the County and the Contractor.

Section 1. Recitals.

The above recitals are true and correct and are incorporated herein by this reference.

Section 2. Administration.

This Contract is administered by the Utilities Services Department, a department of the Brevard County Board of County Commissioners.

Section 3. Contract Documents.

3.1. The Contract Documents consist of this County-Contractor Contract, and any amendments made thereto, the Conditions of the Contract (General, Supplementary, and other conditions), the Public Construction Bond/Security (for projects over $200,000), the Drawings and Specifications, sample forms, the County’s Bid, the Contractor’s Bid, all addenda issued during the bidding process, and all modifications, including change orders, issued after execution of this Contract.

3.2. Unless stated otherwise by the County, in the case of any conflict between the Contract Documents, the order of precedence for the Contract Documents shall be (as applicable): (1) Change Orders or Amendments; (2) this County-Contractor Contract, and any amendments made thereto; (3) the Conditions of the Contract (General, Supplementary, and other conditions; (4) Drawings and Specifications; (5) Bidding Addenda (with those of later date having precedence over those of earlier date); (6) the County’s Bid #B-7-25-52; (7) Contractor’s Bid Response; (8) Permits; and (9) any other associated documents.

Section 4. Scope of Work.

4.1. The Contractor shall provide and pay for all materials, tools, equipment, labor, any applicable taxes, professional and non-professional services, and all other associated costs, and shall perform all other acts and supply all other things necessary to fully and properly perform and complete the Project, as required in this Contract, including, but not limited to, the activities identified in the Bid Documents issued by the County, which are incorporated herein by this reference. The Scope of Work is attached hereto as Appendix A.

4.2. The Contractor agrees to perform and complete the activities provided for in this Contract, the County’s bid documents (including any addenda), and the Contractor’s responsive bid.

4.3 The Engineering Firm (as defined in the General Conditions) shall be Tetra Tech provided, however, that the County may, without liability to the Contactor, unilaterally amend this Paragraph from time to time by designating a different person or organization to act as its Design Consultant and so advising the Contractor in writing, at which time the person or organization so designated shall be the Design Consultant for purposes of this Contract.

Section 5. Effective Date and Contract Term.

5.1. The date of the last party’s signature below is the Contract’s effective date (hereinafter referred to as the “Effective Date”).

5.2. The term of this Contract shall remain in full force and effect until the Project contemplated herein has been completed and accepted by the County.

5.3. This Contract may be extended in writing upon mutual agreement by the parties.

5.4. The Contractor shall have 420 calendar days to achieve Substantial Completion of the Project from the Notice to Proceed. The Contractor shall have an additional 30 calendar days from Substantial Completion to achieve Final Completion of the Project or 30 calendar days after the County’s receipt of the Substantial Completion Punchlist, whichever is greater. Any extension of time shall only be approved at the County’s discretion and granted in writing. The Contractor acknowledges that time is of the essence for all work performed under this Contract. The Contractor acknowledges that failure to complete the work contemplated herein within the time(s) set forth herein will result in substantial damages to the County.

5.5. The warranties required or provided for under this Contract shall survive Final Completion and will extend for the commercially-reasonable time associated with the goods and/or services provided for the applicable period of time after acceptance of the Project by the County.

Section 6. Payment; Progress Payments.

6.1. The County agrees to pay the Contractor $XXXX for the complete performance of the Project outlined herein. This amount may be modified for additions or reductions to the Project. The Contractor acknowledges that this amount may be reduced based on its failure to adhere to the time periods agreed to herein.

6.2. The County shall remit payment for all undisputed invoices in accordance with the provisions of the Local Government Prompt Payment Act, Section 218.70, Florida Statutes, et seq. Upon receipt of satisfactory performance of work, the Contractor shall pay its subcontractor(s) no later than thirty (30) days after the Contractor’s receipt of payment for that work.

6.3. Progress Payments. On the first business day of each month during the performance of the Work, the Contractor must submit an Application for Payment to the Design Consultant, as defined in the General Conditions, for the work completed during the preceding month. The Design Consultant shall review the Application and identify any questions/concerns within ten (10) business days of receiving the Application.

6.4. The Contractor acknowledges that it may not lien the County’s property interests. The Contractor agrees to advise all subcontractors and material suppliers of the non-lienable nature of the Project and to further furnish each such person or entity with a copy of the Public Construction Bond for the Project.

Section 7. Termination.

7.1. The contract may be canceled by the Contractor, for good cause, upon ninety (90) days prior written notice. The County retains the right to terminate the contract, in part or in its entirety, with or without good cause, upon thirty (30) days prior written notice or as stated herein. In the event of termination by either party as provided herein, the awarded Contractor shall be paid for services performed through the date of termination.

7.2. Upon termination for any reason, the parties agree that any work completed or services provided by Contractor prior to the date of termination shall become property of the County. Upon request by the County, the Contractor shall deliver any and all work product as may have been accumulated by the Contractor in performing this Contract, whether completed or in process.

7.3. Payment upon Termination. In the event of termination by the County, the County’s sole obligation to the Contractor shall be payment for those portions of satisfactorily completed Work completed in accordance with this Contract. The County shall not be obligated to pay for any services performed after the Contractor has received the Notice of Termination. Payment shall be made to the Contractor based on the percentage of work completed at the time the Notice of Termination has been received. In the event of deficient professional services, the County shall not pay for the deficient services, except for that portion, if any, of the performed work which is used or useful by another contractor retained by the County to complete the work to the extent the County does not incur additional costs.

7.4. Unless otherwise stated in this Contract, the termination provisions outlined in Article 14 of the General Conditions, including provisions pertaining to termination for cause, are incorporated herein by this reference.

Section 8. Liquidated Damages.

8.1. It is mutually agreed that time is of the essence of this Contract and should the Contractor fail to complete the Work, or portions thereof, within the specified time to achieve Substantial Completion, or any authorized extension thereof, there shall be deducted from the compensation otherwise to be paid to the Contractor, and the Owner will retain the following amount as liquidated damages: Three Thousand Eight Hundred and thirteen dollars and no cents ($1,685.00) per calendar day elapsing beyond the specified time(s) outlined herein, or any authorized extension thereof, which sum shall represent the actual damages which the Owner will have sustained by failure of the Contractor to complete the work, or portions thereof, within the specified time. It is further agreed that said sum is not a penalty but is the stipulated amount of damages sustained by the Owner in the event of such default by the Contractor. Based on the amount of damages not being readily ascertainable, the above sum is agreed upon as a reasonable and proper measure of damages which the County will sustain per day by failure of the Contractor to complete within time as stipulated; it being recognized by the County and the Contractor that the injury to the County which could result from a failure of the Contractor to complete on schedule is uncertain and cannot be computed exactly, and is not grossly disproportionate and is reasonably expected to follow from a breach of this Contract.

8.2. The timelines agreed to in this Contract are stipulated as fair and reasonable. Contractor waives any and all challenges and legal defenses to the validity of any Liquidated Damages established in the Contract Documents, including that the Liquidated Damages are void as penalties or are not reasonably related to the actual damages sustained by the Owner as a result of Contractor’s untimely performance. The County may deduct any Liquidated Damages incurred under this paragraph from the amount owed to the Contractor. The County does not waive its right to liquidated damages under this Contract by allowing the Contractor to continue and to finish the Work, or any part thereof, after the expiration of the Contract, including granted time extensions.

Section 9. Indemnification.

9.1. The Contractor shall hold the County harmless against any and all claims for and related in any way to bodily injury, sickness, disease, death, personal injury, damages to property of any kind (including but not limited to loss of use of any property or assets resulting therefrom), fines, penalties, schedule delay claims of any kind, including but not limited to loss of efficiency or productivity, arising out of or resulting from the performance of the products or services for which the County is contracting hereunder, to the extent caused by the negligent, reckless, or intentional wrongful conduct, acts, or omissions of the Contractor, or any of its agents or employees, including subcontractors. Such acts or omissions by the Contractor include, but are not limited to, any errors or omissions in the Contractor’s services, including, but not limited to, design services.

9.2. The Contractor agrees to fully indemnify the County and pay the cost of the County’s legal defenses, including reasonable fees of attorneys as may be selected by the County, for all claims described in the hold harmless clause above and shall defend, satisfy, and pay any judgments which may be rendered against the County in connection with the above hold harmless agreement. Such payment on behalf of the County shall be in addition to any and all other legal remedies available to the County and shall not be considered to be the County’s exclusive remedy. It is agreed by the Parties hereto that specific consideration has been received by the Contractor under this Contract for this hold harmless/indemnification provision.

9.3. Notwithstanding any other provisions of this Contract, this indemnification section applies to both County and third-party claims and shall survive the termination, completion, or expiration of this Contract. Nothing in this section is intended to nor shall it constitute a waiver of the sovereign immunity of Brevard County. Further, the County’s liability hereunder shall be subject to the County’s common law right of sovereign immunity and limited to the extent of the protections of and limitations on damages as set forth in Section 768.28, Florida Statutes.

9.4. Loss deductible – The County shall be exempt from, and in no way liable for, any sums of money which may represent a deductible in any insurance policy, except for Builder’s Risk if provided for elsewhere herein. The payment of the deductible shall be the sole responsibility of the Contractor and/or subcontractor providing such insurance.

9.5. The parties agree that the Federal government is not a party to this Contract and shall not be subject to any financial obligations or liabilities to the County or Contractor, or any other party, pertaining to any matter under this Contract. Contractor shall include this provision in any subcontract(s).

Section 10. Insurance.

10.1. The Contractor shall procure and maintain, at their own expense and without cost to County, the following types of insurance described below.

General Liability Insurance policy with a $1,000,000 combined single limit for each occurrence to include the following coverage: Operations, Products and Completed Operations, Personal Injury, Contractual Liability covering this Contract, “X-C-U” hazards, and Errors & Omissions.

Auto Liability Insurance policy with includes coverage for all owned, non-owned and hired vehicles with a $1,000,000 combined single limit for each occurrence.

Workers’ Compensation and Employer’s Liability Insurance providing statutory benefits as required in the State of Florida. The Contractor shall require any subcontractor to provide evidence of this coverage. Additionally, if the contract requires working on or around a navigable waterway, the Contractor and all subcontractors shall provide evidence of United States Longshoremen’s and Harbor Workers (USL&H) coverage and contingent coverage of Jones Act (Marine Employers Liability) in compliance with Federal statutes, or proof of exemption.

Builders Risk Insurance Policy or Installation Floater with loss limits equal to the value of the construction project.

Professional Liability Insurance policy in the amount of $1,000,000 per claim and $2,000,000 in the annual aggregate covering the risk of errors and omissions in the professional services provided under this Contract. If such policy is written on a “claims made” (rather than “occurrence”) basis, continuous coverage shall be maintained in effect from the date of commencement of services for a period of at least four (4) years beyond the termination or completion of services or until expiration of any applicable statute of limitations, whichever is longer.

PURSUANT TO SECTION 558.002 AND 558.0035, FLORIDA STATUTES, A

DESIGN PROFESSIONAL WHO IS AN EMPLOYEE OR AN AGENT OF

CONTRACTOR MAY NOT BE HELD INDIVIDUALLY LIABLE FOR

NEGLIGENCE IF CONTRACTOR MAINTAINS THE PROFESSIONAL

LIABILITY INSURANCE REQUIRED ABOVE AND THE DAMAGES ARE

SOLELY ECONOMIC IN NATURE AND DO NOT EXTEND TO PERSONAL

INJURIES OR PROPERTY NOT SUBJECT TO THIS CONTRACT.

10.2. Within 5 days of the notice of award and before commencing work, the Contractor shall provide Certificate(s) of Insurance and applicable endorsement pages to the County demonstrating that the aforementioned insurance requirements have been met and acceptable to the County.

10.3. Insurance carriers providing coverage required herein must be licensed or authorized to conduct business in the State of Florida and must possess A.M. Best’s Financial Strength Rating of A- Class VIII or better.

10.4. The Certificate(s) of Insurance shall indicate that the policies (except professional liability) have been endorsed to cover Brevard County as an additional insured (a waiver of subrogation in lieu of additional insured status on the Workers’

Compensation policy is acceptable) and that these policies may not be canceled or modified without the insurer providing thirty (30) days prior written notice to the County.

10.5. The insurance coverages enumerated above constitute the minimum requirements and shall in no way lessen or limit the liability of the Contractor under the terms of the Contract. Subcontractor’s insurance shall be the responsibility of the Contractor.

10.6. The Contractor shall maintain the insurance coverage in compliance with this Section throughout the term of this Contract.

10.7. The Contractor shall be responsible for requiring each subcontractor, vendor or supplier to comply with these insurance requirements when applicable.

Section 11. Warranty.

11.1. The Contractor warrants that all services and goods performed and/or supplied pursuant to this Contract will be performed in accordance with the general acceptable standards and practices in existence at the time the services and/or products are being performed.

11.2. The Contractor agrees that, unless otherwise specified, the supplies and/or services furnished under this Contract shall be new (unless specifically identified otherwise by the County) and of the most suitable grade for the purposes intended.

11.3. If any product delivered does not meet performance representations or other quality assurance representations as published by manufacturers, producers, or distributors of the products or the specifications listed in this Contract, the Contractor must pick up the product from the County at no expense to the County. The County reserves the right to reject any or all materials if, in its judgment, the item reflects unsatisfactory workmanship or manufacturing or shipping damage. In such case, the Contractor must refund to the County any money which has been paid for such item(s).

11.4. Contractor shall secure from the applicable third-party manufacturers, and assign and pass through to the County, at no additional cost to the County, such warranties as may be available with respect to the equipment, parts, and systems provided through the purchase of such item(s). The Contractor shall warrant the performance outlined herein for a period of one (1) year after acceptance by the County.

Section 12. Public Records.

The County is subject to the Florida Public Records Law, Chapter 119, Florida Statutes, and all other applicable statutes. If the materials provided by the Contractor do not fall under a specific exemption under Florida or federal law, materials provided by the Contractor to the County will have to be provided to anyone making a public records request. It will be the Contractor’s duty to identify the information it deems is exempt/confidential under Florida or federal law, and identify the statute, by number, that exempts such information.

Should any person or entity make a public records request to the County requiring the County to allow inspection or provide copies of records for which the Contractor maintains are exempt/confidential, it shall be the Contractor’s obligation to provide the County, within twenty-four (24) hours (not including weekends and legal holidays), of notification by the County to the Contractor of the request, of the specific exemption or confidentiality provision so the County will be able to comply with the requirements in Chapter 119, Florida Statutes.

Should the County face any kind of legal action to require or enforce inspection or production of any records provided by the Contractor to the County which the Contractor maintains are exempt or confidential from such inspection/production as a public record, then the Contractor shall hire and compensate attorney(s) who shall represent the interests of the County in defending such action. The Contractor shall also pay any costs to defend such action and shall pay any costs and attorney fees which may be awarded pursuant to Section 119.12, Florida Statutes.

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 AT (321) 617-7202; WHITNEY BLUCHER;

WHITNEY.BLUCHER@BREVARDFL.GOV; 2725 Judge Fran Jamieson Way, Suite A213, Viera, Florida 32940.

Section 13. Right to Audit Records.

In performance of this Contract, the Contractor shall keep books, records, and accounts of all activities related to this Contract in compliance with generally accepted accounting procedures. All documents, papers, books, records and accounts made or received by the Contractor in conjunction with this Contract, and the performance of this Contract shall be open to inspection during regular business hours by an authorized representative of the County. The Contractor shall retain all documents, books and records for a period of five years after completion or termination of this Contract, unless such records are exempt from Section 24(a) of Article I of the State Constitution and Chapter 119, Florida Statutes.

No reports, data, programs, or other materials produced, in whole or in part, for the benefit and use of the County under this Contract shall be subject to copyright or trademark by the Contractor in the United States or any other jurisdiction.

Section 14. Scrutinized Companies.

The Contractor shall certify that it and its subcontractors are not on the Scrutinized Companies that Boycott Israel List. Pursuant to Section 287.135, Florida Statutes. if the Contract is for more than one million dollars, the Contractor further certifies that it and its sub-Contractors are also not on the Scrutinized Companies with Activities in Sudan, Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List or engaged with business operations in Cuba or Syria as identified in Section 287.135, Florida Statutes.

For Contracts of any amount, if the County determines the Contractor submitted a false certification under Section 287.135(5), Florida Statutes, or if the Contractor has been placed on the Scrutinized Companies that Boycott Israel List, or is engaged in a boycott of Israel, the County shall either terminate the Contract after it has given the Contractor notice and an opportunity to demonstrate the County’s determination of false certification was in error pursuant to Section 287.135(5)(a), Florida Statutes, or on a case-by-case basis the County may choose to maintain the Contract if the conditions of Section 287.135(4), Florida Statutes, are met.

For Contracts $1,000,000 and greater, if the County determines the Contractor submitted a false certification under Section 287.135(5), Florida Statutes, or if the Contractor has been placed on the Scrutinized Companies with Activities in the Sudan List, or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, the County shall either terminate the Contract after it has given the Contractor notice and an opportunity to demonstrate the County’s determination of false certification was in error pursuant to Section 287.135(5)(a), Florida Statutes, or on a case-by-case basis the County may choose to maintain the Contract if the conditions of Section 287.135(4), Florida Statutes, are met.

The Contractor agrees to observe the above requirements for applicable sub- contracts entered into for the performance of work under this Contract.

As provided in Section 287.135(8), Florida Statutes, if federal law ceases to authorize these Contracting prohibitions, this section shall become inoperative and unenforceable.

Section 15. Employment Verification.

The Contractor shall comply with Section 448.095, Florida Statutes, and:

shall utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the Contractor during the term of the Contract; and shall expressly require any subcontractors performing work or providing services pursuant to this Contract to likewise utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all employees hired by the subcontractor during the Contract term; and shall obtain an affidavit stating that any subcontractor(s) it enters into a contract with, does not employ, contract with, or subcontract with an unauthorized alien; and agrees to maintain records of its participation and compliance with the provisions of the E-Verify program, including participation by its subcontractors as provided above, and to make such records are made available to the County consistent with the terms of the Contractor’s enrollment in the program. This includes maintaining a copy of proof of the Contractor’s and subcontractors’ enrollment in the E-Verify Program.

Compliance with the terms of this section is made an express condition of this Contract and the County may treat a failure to comply as a material breach.

Nothing in this section may be construed to allow intentional discrimination of any class protected by law.

Section 16. Governing Law; Venue; Attorney’s Fees; Waiver of Right to Jury Trial.

This Contract shall be governed, interpreted and construed according to the laws of the State of Florida and shall not be construed more strictly against one party than against the other because it may have been drafted by one of the parties.

In the event of any legal proceedings arising from or related to this Contract: (1) venue for any legal action by any party to this Contract to interpret, construe or enforce the terms of this Contract shall be in a court of competent jurisdiction in and for Brevard County, Florida; (2) each party shall bear its own attorney’s fees and costs; and (3) ANY TRIAL

SHALL BE NON-JURY.

Section 17. Ownership.

It is understood and agreed that all Work provided under this Contract shall become the property of the County upon acceptance by the County.

The Contractor shall provide the County and any applicable Federal agencies intellectual property access and licenses deemed necessary for the work performed under this Contract and in accordance with the requirements of 37 C.F.R. part 401.

Section 18. Independent Contractor.

The Contractor, or any of its agents, employees, or subcontractors, are independent contractors and not employees or agents of the County. Nothing in this Contract shall be interpreted to establish any relationship other than that of independent contractors during and after the term of this Contract. The Contractor is solely responsible for compliance with all applicable Federal, State, and local laws, rules, regulations in implementing this Contract.

Section 19. Public Construction Bond/Security.

For projects over $200,000, the Contractor shall provide security acceptable to the County:

A Contractor may elect to execute a Public Construction Bond and must provide the County with a certified copy of the recorded bond as required by Section 255.05, Florida Statutes, as may be amended. Additionally, the Contractor must provide a copy of the bond to all subcontractors and notify them of deadlines to make claims under the bond.

In lieu of a Public Construction Bond, pursuant to Section 255.05(7), Florida Statutes, as may be amended, the County has the authority to accept an alternative form of security in the form of cash, a money order, a certified check, a cashier's check, an irrevocable letter of credit or a security of a type listed in Part II, Chapter 625, Florida Statutes. Alternative form of security shall be approved by the County Attorney's Office and the County's Risk Management. Any such alternative form of surety shall contain a provision to the effect that such surety shall reimburse the County for all costs, including attorney's fees, sustained by the County because of the Contractor's default, or incurred by the County in enforcing an alternative form of security to the County. Alternative forms of security must conform to the following standards:

o All alternative forms of security shall be issued by a federally or state-chartered bank or savings and loan association doing business in Brevard County, Florida.

o A date of expiration at least fourteen months beyond the completion of the Project.

o A business office in Brevard County, Florida at which drafts against the alternative form of security may be redeemed.

When a construction project does not exceed $500,000, and when the Contractor elects to execute a Public Construction Bond, such bond shall be issued from a surety company meeting all requirements of Section 287.0935, Florida Statutes. In cases where the amount of a surety bond exceeds $500,000, the surety company shall also have an A.M. Best’s rating of no less than B+ and, depending on the amount of the bond, shall have a minimum A.M. Best’s financial size category ranking as follows:

Bond Amount Up To Financial class $1,000,000 V

$2,500,000 VI

$5,000,000 VII

$10,000,000 VIII

$25,000,000 IX

$50,000,000 X

$75,000,000 XI

$100,000,000 XII

Section 20. Compliance with Laws.

The Contractor, its employees, agents, subcontractors, or assigns, shall comply with all applicable Federal, State, and local laws, rules and regulations relating to the performance of this Contract, including, but not limited to, traffic safety and O.S.H.A. requirements. The County undertakes no duty to ensure compliance, but will attempt to assist the Contractor, upon request, as to any such laws of which it has present knowledge.

Section 21. Taxes.

The Contractor shall pay all applicable taxes, including, but not limited to, sales tax, consumer, use and other similar taxes for the Work, or portions thereof, provided by the Contractor. The County reserves the right to direct-purchase materials to realize a tax savings and adjust the Contract amount accordingly. Contractor hereby agrees to permit the County to direct-purchase from the Contractor’s suppliers at prices quoted to the Contractor and for the County to retain any tax savings generated thereby, which will result in the overall reduction of the sum owed to the Contractor in a corresponding amount. The Direct Purchasing Procedure is attached hereto as Appendix B and incorporated herein by this reference.

Section 22. Captions and Paragraph Headings.

The captions and paragraph headings contained in this Contract are for convenience and reference only and in no way define, describe, extend or limit the scope and/or intent of this Contract, nor the intent of any provisions thereof.

Section 23. Attorney’s Fees.

Unless as otherwise provided for herein, in the event a dispute arises out of this Contract, each side shall be responsible for their own respective attorney’s fees and associated costs.

Section 24. Severability.

If any of the provisions contained in this Contract are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

Section 25. Successors and Assigns.

The County and the Contractor each bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to the partners, successors, assigns and legal representatives of such other party in respect to all covenants, agreements and obligations contained in the Contract Documents. The Contractor shall not assign the Contract or sublet it as a whole without the written consent of the County, nor shall the Contractor assign any moneys due or to become due hereunder, without the previous written consent of the County and the Contractor's Surety.

SIGNATURE PAGE TO FOLLOW

REMAINDER OF PAGE IS BLANK

IN WITNESS WHEREOF, the Parties hereto have executed through their fully authorized representative this Contract in counterparts, all of which when taken together shall constitute one and the same Contract, on the day and date last written below.

WITNESS BREVARD COUNTY, FLORIDA

__________________________ By: _____________________________ Frank Abbate, County Manager

Date: ______________________ Per Board Policy BCC-25

Reviewed for legal form and content only for Brevard County:

Deputy County Attorney

WITNESS CONTRACTOR

___________________________ By: ______________________________

(NAME/TITLE)

STATE OF ________________________________

COUNTY OF ______________________________

The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this ___ day of __________, 2024 by _____________________(name), ______________________(title) of __________________, a Florida corporation, on behalf of the corporation. He is personally known to me or has produced ________________________________ as identification.

[Notary Seal] Notary Public Signature

Name typed, printed or stamped

My Commission Expires: ____________

APPENDIX A

SCOPE OF SERVICES

The project consists of site development and improvements at both the Well 12 and 13 sites as described below:

1. Installation of new driveway, fencing and gate at both well site locations for site access.

2. Installation of new well pumps at both Well 12 and 13 site locations, including discharge piping and appurtenances.

3. New Pump Control Panel to be built to Brevard County standard specifications, except as specified herein.

4. Locate a new alarm light to be visible from the street. Alarm light is powered via the new control panel.

5. Installation of a new SCADA control panel, concrete base and antenna pole, and communications antenna.

6. Interface SCADA Control Panel with the new Pump Control Panel as per current County standards.

7. Installation of standby generator.

8. Installation of new energy-efficient LED light fixtures.

9. All other incidentals necessary to complete the work in accordance with the Contract

Documents.

APPENDIX B

DIRECT PURCHASING PROCEDURE

INTENT: The County intends for these procedures to guide the County's direct purchases of selected materials so that the County may take advantage of its tax-exempt status. All monies which would have been payable as taxes, if not for County direct purchase under these procedures, will inure solely to the benefit of the County. The County's direct purchase of materials will not minimize or conflict with the Contractor’s responsibility for the purchase, installation, coordination, storage, protection, warranty, etc. of the materials as described herein and in the plans and specifications of the Contract.

Specifically, the Contractor acknowledges that it retains all rights, obligations, and responsibilities outlined herein for any items the County purchases directly, and the Contractor shall be responsible for ensuring the provisions outlined in the Contract are followed and enforced against any suppliers and/or subcontractors.

Definitions: For the purpose of these Procedures, the following words have the following definitions.

a) Contract: County-Contractor Contract for the Project

b) County Purchased Materials: Materials purchased directly by the County through execution and delivery of a Purchase Order.

c) Materials: Tangible Personal Property necessary for completion of the Project.

d) Materials Deduction Summary: Written document signed by the County and the

Contractor setting forth the amounts of County Purchased Materials, plus applicable taxes were the purchase not exempt from such taxes, as reflected in the parties' previously executed deductive change order(s) to the Contract showing deduction of such Materials.

e) County: Brevard County, Florida.

f) Project: Brevard County Utility Services Department

g) Purchase Order: The County's request for Materials from a particular vendor or supplier when fully executed and delivered to the Contractor, and the County's promise to pay for the Material specified upon delivery and acceptance at the Project Site, and presentation of an invoice by the Contractor to the County certifying payment of same.

h) Material Requisition: A request by the Contractor to the County that the County directly purchase specific items described in sufficient detail, including quantity, grade, brand, etc., along with the vendor or material supplier and that vendor or material supplier's quoted price for the Materials.

Overview: The County requires the Contractor to notify the County of Materials needed for the Project exceeding $5,000.00 in value, through a Material Requisition form. For the purpose of these Procedures, the Contractor will assign to the County any rights the Contractor may have under quotes, contracts or commitments received from the particular vendor or supplier for the Materials described in the Material Requisition. Any Materials purchased by County pursuant to these Procedures shall be referred to as "County Purchased Materials", and the responsibilities of the County and Contractor relating to such County Purchased Materials shall be governed by the terms and conditions of these Procedures, which shall take precedence over other conditions and terms of the Contract Documents where inconsistencies or conflicts exist. The invoiced amount of County Purchased Materials and applicable sales tax had the purchases not been tax exempt, once finalized through the County's Purchase Order and after confirmation of completed delivery and acceptance pursuant to this Procedure, will be deducted from the contracted amount, by deductive change order agreed to by both parties.

County Direct Purchasing Requirements and Procedures: When Materials purchased for the Project are estimated to be $5,000.00 or greater and time will allow for an County Direct Purchase, Contractor will prepare a Material Requisition form, (to be provided by the County), acceptable to County, and which specifically identifies the Materials which County may, in the County’s sole discretion, elect to purchase directly. The Material Requisition form shall be complete when submitted, subject to modifications by the County that seek to ensure this Contract is adhered to and the work completed within the timeframes established in the Contract, and all information requested provided. Along with the Material Requisition the Contractor should provide:

a) The name, address, telephone and fax number and contact person for the material supplier;

b) Manufacturer or brand, model or specification number of the item;

c) Quantity needed as estimated by Manager;

d) The price quoted by the supplier for the Materials identified therein;

e) Any sales tax associated with such quote if it were not purchased by a tax-exempt entity;

f) Shipping and handling cost, including associated insurance;

g) Delivery dates as established by the Manager; and

h) Subcontractor's written acknowledgment of these Procedures for County Direct

Purchase of Materials.

After receipt of the Material Requisition, the County will determine whether the County will directly purchase the Materials described in the Material Requisition, and communicate consent or decline to purchase the materials to the Contractor as soon as practicable, or within twenty-four (24) hours, whichever is sooner. Brevard County's Purchasing Division shall be the County's approving authority on Purchase Orders of County Purchased Materials, but the Purchasing Division must coordinate with the Utility Services Department and the County Attorney’s Office to ensure proper implementation of this Procedure. Any necessary documents, including, but not limited to, tri-party agreements for the item(s) purchased under this Procedure will be executed, as needed, by all parties. If the County consents to purchase the Materials, the County shall issue a Purchase Order or other contractual writing for same. The County shall issue the original Purchase Order/contract, and the Contractor shall deliver the Purchase Order/contract to the subcontractor. The Purchase Order shall require (1) that the supplier provide the required shipping, (2) that the supplier provide the required shipping and handling insurance, and (3) delivery of the County Purchased Materials on the delivery dates provided by the Contractor in the Material Requisition.

The Contractor shall be fully responsible for all matters relating to the receipt of County Purchased Materials under these Procedures, including, but not limited to, preparation of shop drawings and submittals, verifying correct quantities, verifying documents of orders in a timely manner, coordinating purchases, providing and obtaining all warranties and guarantees required by the Contract Documents, inspection and acceptance of the goods at the time of delivery, verification that the Materials are in good working order, and loss or damage to equipment and materials due to the negligence of the Contractor. The Contractor shall coordinate delivery schedules, sequence of delivery, loading orientation, and other arrangements normally required by the Contractor for the materials furnished. The Contractor shall provide all services required for the unloading, handling and storage of materials through installation. The Contractor agrees to indemnify and hold the County harmless from any and all claims of whatever nature resulting from non-payment of goods to suppliers arising from the actions of Contractor. TIME IS OF THE ESSENCE WITH THIS CONTRACT.

SUBSTANTIAL HARM WILL BE DONE TO THE COUNTY FOR CONTRACTOR’S FAILURE TO

ENSURE THE TIMELINES OUTLINED IN THE CONTRACT ARE MET.

The Contractor shall ensure that County Purchased Materials conform to the Project needs prior to incorporation into the Work, whether such materials are defective, and whether such Materials are identical to the Materials ordered and match the description on the bill. As County Purchased Materials are delivered to the job site, the Contractor shall inspect all shipments from the suppliers, and, if in conformance with the Purchase Order, approve the vendor's invoice for materials delivered.

The Contractor shall assure that each delivery of County Purchased Material is accompanied by documentation adequate to identify the Purchase Order against which the purchase is made. This documentation may consist of an itemized delivery ticket, packing slip or invoice from the supplier conforming to the Purchase Order against which the purchase is made, together with such additional information as the County may require. The Contractor will then forward the documentation to the County.

If the Contractor discovers defective or non-conformities in County Purchased Material upon inspection, the Contractor shall not use such non-conforming or defective Materials in the Work and instead shall promptly notify the County of the defective or non-conforming conditions and coordinate the repair or replacement of those Materials without any undue delay or interruption to the Project. All repair, maintenance or damage-repair calls shall be forwarded to the Contractor for resolution with the appropriate supplier, vendor, or subcontractor. If the Contractor fails to perform such inspection, the condition of which the Contractor either knew or should have known by performance of an inspection, Contractor shall be responsible for all damages to the County resulting from Contractor 's incorporation of such Materials into the Project, including, but not limited to, liquidated damages and time delays.

On a bi-weekly basis, Contractor shall be required to review invoices submitted by all suppliers of County Purchased Materials delivered to the Project Site during that month and either concur or object to the County's issuance of payment to the suppliers, based on Contractor 's records of materials delivered to the site. In order to arrange for the prompt payment to the supplier, the Contractor shall provide to the County a list indicating the acceptance of the goods or materials within fifteen (15) days of receipt of said invoice for goods or materials. The list shall reference the applicable purchase order and include a copy of the invoices, delivery tickets, written acceptance of the delivered items, and such other documentation as may be reasonably required by the County. Upon receipt of the appropriate documentation in duplicate, the County shall prepare a check drawn to the supplier based upon the receipt of data provided. This check will be delivered directly to the supplier. If any discounts are available from the supplier or vendor, they shall accrue to the benefit of the County, and the amount quoted by the vendor, plus applicable tax, shall be deducted from the Contract price. The Contractor agrees to assist the County to immediately obtain partial or final releases or waivers as appropriate.

Following performance of the Purchase Orders by the suppliers, and submittal of documentation confirming same to County with an invoice for payment by County, the Contractor shall execute and deliver to the County at the end of each month along with the Contractor 's regular pay requests, a Materials Deduction Summary setting forth the full value of all County Purchased Materials, plus all taxes which would have been payable on the purchase of the Materials had they not been County purchased. The Materials Deduction Summary shall show all sums to be deducted by an appropriate deductive change order, and ultimately the Contract, to date. The County’s authorized representative shall approve the Materials Deduction Summary for County Purchased Materials.

The Contractor shall maintain records of all County Purchased Materials incorporated into the Work.

These records shall be available for inspection by the County upon request.

Notwithstanding the delivery of County Purchased Materials to the Project Site for the Contractor's inspection, custody and incorporation into the Work, the County shall retain legal and equitable title to any and all County Purchased Materials. The transfer of possession of County Purchased Materials from the County to the Contractor shall constitute a bailment for the mutual benefit of the County and the Contractor solely for the purposes set forth herein. The County shall be considered the bailer and the Contractor the bailee of the County Purchased Materials. County Purchased Materials shall be considered returned to the County for purposes of their bailment at such time as they are incorporated into the Project or are returned to the vendor or supplier at the discretion of the Contractor prior to payment for the Purchase Order by County.

The County shall purchase and maintain Builder's Risk Insurance sufficient to protect against any loss or damage to County Purchased Materials. Such insurance shall cover the full value of any County Purchased Materials not yet incorporated into the Project from the time the County first takes title to any of such County Purchased Materials and the time when the last of such County Purchased Materials is incorporated into the Project, or are returned to the vendor at the Contractor's discretion prior to County's payment for same.

The County shall in no way be liable for any interruption or delay in the Project, for any defects or other problems with the Project, or any extra costs or time resulting from any delay in the delivery of, or defects in, County Purchased Materials. The Contractor shall be responsible in any and every way for ensuring the materials and timelines required herein are met.