Attachment_A_-_Draft_Contract.pdf

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PROFESSIONAL ENGINEERING CONTINUING CONSULTING SERVICES CONTRACT

THIS CONTRACT made and entered into on the date of the last signature below, by and between the Board of County Commissioners of Brevard County, Florida, a political subdivision of the State of Florida (hereinafter the “County”), and , a business having its primary business location at , (hereinafter the “CONSULTANT”).

RECITALS

WHEREAS, the County is desirous of obtaining services of a Stormwater Professional Engineering Consultant, and

WHEREAS, the County issued Request for Qualifications RFQ 8-25-07 for professional services under a continuing contract and has selected a Consultant to perform professional services on a continuing consultant basis, and

WHEREAS, the County selected the CONSULTANT consistent with Chapter 287.055 of the Florida Statutes, "Consultants' Competitive Negotiation Act," and Brevard County Policy BCC-26, "Acquisition of Consultant Professional Services," and

WHEREAS, various County Departments may be utilizing this Contract and each department will be responsible for administering any Task Orders it issues, and

WHEREAS, Task Orders may be issued under this Contract which include the requirement for the Consultant to comply with special contract clauses required by the Federal Emergency Management Agency (FEMA), and or the American Rescue Plan Act (ARPA), and associated federal/state regulations, depending on whether funding for services of a specific Task Order will come from/be reimbursed from the FEMA sources, and/or ARPA, and

NOW THEREFORE, in consideration of the covenants herein contained, it is mutually agreed between the parties as follows:

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

SECTION 1 – DEFINITIONS

The following words and expressions shall whenever they appear in the Contract be construed as follows:

ADDENDUM A written explanation, interpretation, change, correction, addition, or deletion affecting the Contract documents, including drawings and specifications approved by the County and issued by the County. All executed Task Orders are incorporated to this Contract by this reference and shall constitute a contract addendum to this Contract.

ARCHITECT A person or firm that is authorized to practice architecture pursuant to Statute 481.299, or a general contractor who provides architectural services under design-build-contract authorized by F.S. 481.219.

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CHANGE ORDER The required document issued by the County to process modifications to a Task Order for revisions to the scope of services, cost-associated time revisions, and/or changes in compensation. A no-cost time extension is not defined as a Change Order. All Change Orders are subject to the terms and conditions of this contract.

CONSULTANT The individual or firm retained to perform the specified services and duties as stated in this Contract.

CONSUMER

PRICE INDEX

(CPI)

The index in Brevard County Administrative Order AO-40, as it may be amended from time to time. This rate is currently the annual consumer price index for All Urban Consumers, U.S. City Average, All items 1967- 100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics.

CONTINUING

CONTRACT

As currently defined by Section 287.055, Florida Statutes (or as may be amended in the future), is a contract for professional services, entered into in compliance with Brevard County Policy BCC-26, whereby the firm provides professional services to the County for projects in which the estimated construction costs do not exceed $7,500,000 per project or for study activity when the fee for such professional services does not exceed $500,000 per study, or for work of a specified nature as outlined in the contract, with the contract being for a fixed term or with no time limitation except that the contract shall provide a termination clause.

The professional services for projects under this Contract will be contracted for through Task Orders, negotiated between the parties to this Contract, upon the issuance of associated Notices to Proceed. The work required by such Task Orders will be subject to the terms and conditions of this Contract.

The Contract Documents of this Contract include this Continuing Contract, all Task Orders issued under this Contract, all Notices to Proceed issued under this Contract, all Modifications to this Contract or to any Task Order or Notice to Proceed, all Change Orders, FEMA and/or ARPA contract clauses (as may be applicable to a specific Task Orders as referenced in the Task Order) and any Renewals of the Contract.

COUNTY

MANAGER

The County Manager of Brevard County, Florida.

COUNTY

DESIGNEE

The County employee designated by the director to oversee the project.

The Designee may be changed at any time during this Contract or during the length of the Task Order by written authorization by the Director.

DATE OF

EXECUTION

This Contract’s date of execution, and the effective date of the Contract, is the date upon which it is fully executed/signed by both Parties.

DELIVERABLE A work product or collection of work products as required by the specific Task Order that meet the defined design or construction specifications, warranties, and functional parameters articulated in the Scope of the Work

Page | 3 for this Contract which include but are not limited to: design drawings\specifications, structures, equipment, machinery, studies, reports, written documentation, training, systems, or processes.

DIRECTOR The Director of the Natural Resources Management Department.

ENGINEER The person, firm, or corporation named as such in the Contract and/or authorized by the County to act as the County representative or as the County engineer authorized to practice engineering services pursuant to Florida Statute 471.003 (2024).

TASK ORDER A written Authorization by the County for the Consultant to proceed with the Work described therein, including services to be performed, a statement of fees, a schedule for completion and any sub-consultant of work to be performed. All professional services or work provided to Consultant shall be identified in a written Task Order and subject to the provisions in this Contract relating to Task Orders.

WORK The services provided by the Consultant in accordance with the Task Orders, attachments, or Addendums.

SECTION 2 - GENERAL IDENTIFICATION OF SERVICES AND USE OF TASK

ORDERS.

The Consultant acknowledges and agrees that any professional services assigned to the Consultant, shall be identified in a specific Task Order and performed to the current professional standards. agreed to by the parties and executed by both parties.

The Consultant acknowledges that Task Orders may be issued under this Contract which will involve funding for the work provided for under the Task Order, to be compensated or reimbursed (to the COUNTY) by funds authorized through FEMA and/or under the American Rescue Plan Act (ARPA). In such case, the Task Order will specifically note the source of any such funds and set forth the additional contract clauses with which the Consultant/Contractor is required to comply with in performing the work. The additional clauses required for FEMA and/or ARPA funding/reimbursement are attached as Exhibit A. The special clauses of either FEMA and ARPA set forth in Exhibit A, control over any conflicting clauses otherwise set forth in the Contract.

Task Orders shall entail a description of services to be performed, a statement of fees, a projected schedule for completion, and any subconsultant proposals of the work to be performed. Upon request by the COUNTY, the CONSULTANT shall also provide a work effort and cost schedule.

Upon request by the COUNTY, a Task Order may include a project completion date.

Within fifteen (15) working days of request by the County, the Consultant shall provide a Draft Task Order , . Task orders must follow the template provided herewith in Exhibit C.

Task orders shall receive a number assigned by the County which shall be used by the Consultant on all documents, including invoices submitted to the County, related to that Task Order.

This Contract does not authorize the performance of any work or services to be provided by Consultant or require County to place any Task Orders for work or services. The County makes no

Page | 4 covenant or promises as to the number of projects available or that the Consultant will perform any project for the County during the life of this Contract.

The Consultant will provide the COUNTY with a written list of the names, company/corporate titles, business addresses and business telephone number(s) of those officers, agents or employees of the Consultant authorized to execute Task Orders, issued under this Contract, on its behalf. This list shall be signed by the officer or agent executing this Contract on behalf of the CONSULTANT and shall be submitted with this executed Contract. Any changes, deletions or additions to this list of authorized signatories to Task Orders shall be submitted in writing to the County by the officer or agent executing the Contract upon the CONSULTANT becoming aware of the need for such change, etc.

All executed Task Orders are incorporated to this Contract by this reference and shall constitute a contract addendum to this Contract, and therefore the Consultant shall abide by all the requirements stipulated in this Contract.

Task Orders may be issued for specific work within the original scope of services as outlined in RFQ 08-25-07 and the Consultant’s submission, both of which are incorporated herein by this reference.

A Change Order shall be required to process modifications to the Task Order for revisions to the scope of services, cost-associated time revisions, and/ or changes in compensation. The Parties agree COUNTY may modify the scope of a project in a Task Order as the COUNTY deems appropriate, including a commensurate increase or decrease in the fee.

A no-cost time extension is not defined as a Change Order.

All Change Orders must be in writing and approved by both Parties. A Change Order shall not give rise to any contractual rights until both Parties have caused the Change Order to be executed by their duly authorized representatives and a written Notice to Proceed for the respective Change Order is issued by the COUNTY.

SECTION 3 – TERM

This Contract is a “continuing contract” as defined under Section 287.055, Florida Statutes, and Brevard County Policy BCC-26. The Term of this contract is for five (5) years. No new Task Order(s) shall be issued after the five (5) year Contract time period; however, completion of the services in any ongoing Task Order(s) may extend beyond such term, unless this Contract is terminated by mutual written consent of the parties as otherwise provided herein.

During the term of this Contract, the Parties agree that the COUNTY may issue a Task Order for the CONSULTANT to appear or to provide services as an expert or fact witness for any legal or court proceeding related to work performed under this Contract at the hourly rate delineated in this Contract. Additionally, for a period of five years after the expiration of this Contract or any Task Order, upon COUNTY request, the CONSULTANT expressly agrees that it will provide services as an expert or fact witness for any legal or court proceeding related to work performed under this Contract the hourly rate delineated in this Contract plus the annual increase in the consumer price index.

SECTION 4 – CONSULTANT RESPONSIBILITIES

Upon receipt of an executed Task Order the Notice to Proceed, Consultant agrees to perform

Page | 5 professional services associated with the requested work in accordance with (1) the negotiated terms of the applicable Task Order, and (2) current accepted professional standards and practices, and (3) this Contract. The Consultant warrants the adequacy of the final design and construction plans, reports, modeling, assessments and/or other deliverables provided under this Contract and resulting Task Order(s), and agrees to correct any errors and omissions, at no additional cost to the County, which may be required because such plans, reports, modeling, assessments and or other deliverables, were found defective. This remedy shall be cumulative to all other remedies available under law.

In connection with professional services to be rendered pursuant to this Contract, the Consultant further agrees to

(1) make no claims for damages or loss of profits due to the amount of work assigned under this Contract,

(2) Utilize the approved project team per Section 14.

(3) maintain an adequate staff of qualified personnel to complete any assigned Task Order(s),

(4) notify the County of any proposed project team personnel changes during the course of the Contract, and provide qualifications of the new personnel assigned to the project team to the County for written approval,

(5) ensure that designs/assessments/reports/deliverables meet all current federal, state and local regulations, requirements, permits, laws or ordinances, and current industry standards in effect and applicable to the project at the time a Task Order is assigned,

(6) acknowledge the critical nature of proper planning and coordination of utility impacts, right-of-way and easement impacts, field data collection, risk assessment and remediation, and permitting requirements, and to address these issues in each Task Order that the Consultant prepares,

(7) cooperate fully with the County in the scheduling and coordination of all phases of the work,

(8) cooperate and coordinate with other County consultants, as directed by the County,

(9) provide the County with progress reports of the status of the work in an approved format and at the specified frequency stated in the Task Order. (See Exhibit C for approved formats.)

(10) hold pertinent data, calculations, field notes, records, sketches and other projects open to the inspection of the County or its authorized agent at any time,

(11) submit for County review design or assessment computations, sketches and other data representative of the work’s progress at the percentage stages of completion or milestones which may be specified in the applicable Task Order,

(12) submit for County approval the final work product upon incorporation of any modifications requested by the County during any previous review, and acknowledge that County approval, or the lack thereof, regarding the Consultant’s plans, design or assessments shall not be deemed to diminish the Consultant’s warranty set forth in this Contract,

(13) confer with the County during the further development and implementation of assessments or remediation improvements for which the Consultant has provided design or other services,

(14) interpret plans and other documents at no additional cost during the term of this Contract or the applicant’s task order, whichever is longer, and correct errors and omissions, and prepare any necessary revisions not involving a change in the scope of the work required, at no additional cost,

(15) conduct and complete, prior to final approval of the work by the County, a preliminary check of any documents through any review committee, third party consultant, or any county, city, state or federal agency from which a permit or other approval is required, and acknowledge that any approval or lack thereof obtained from the County or any other

Page | 6 agency shall not be deemed to diminish or discharge the Consultant from the warranties imposed by this Contract,

(16) sign and seal all final plans, documents, surveys, maps, and legal descriptions prepared by Consultant per requirements of the laws, rules, and regulations of any governmental entity having authority over the work, and deliver them to the County after completion of the Task Order, and

(17) provide digital files in the approved County format (see Exhibit D) of any plans, specifications, models, studies, maps, reports or other deliverable documents.

SECTION 5 – AUTHORIZED REPRESENTATIVE AND NOTICES

The Parties agree that in order to facilitate the orderly and efficient implementation of any Task Order, each Party shall appoint an authorized representative(s) for such Party. The COUNTY’s representative shall have the authority to transmit instructions, receive information, and interpret and define the COUNTY’s policies and decisions pertinent to the work covered by this Contract as long as such transmissions do not result in an increase in the cost of or time to perform work. The Parties understand and agree that only the Board of County Commissioners, County Manager, Assistant County Managers, Department Director or Support Services Manager have the authority to issue Task Orders, or approve changes or modifications to this Contract or a Task Order. The CONSULTANT’s representative shall be authorized to act on behalf of CONSULTANT regarding all matters involving the conduct of its performance under this Contract.

(1) The Parties' designated representatives and their respective addresses for purposes of this Contract are as follows:

COUNTY CONSULTANT

Project Manager Title 2725 Judge Fran Jamieson Way, Address 1 Room A-217 Address 2 Viera, FL 32940 City, state, Zip @brevardfl.gov email (321)633-2016 Telephone #

(2) Either Party will have the right to change its authorized representative(s), or to add representatives, from time to time, throughout the Contract, by giving written notice to the other Party in accordance with the Notice Provisions below.

(3) Notices. All notices required or permitted under this Contract and any written consents or approvals required shall be in writing and are in effect upon receipt. All notices for legal claims, or termination must be transmitted either by personal hand delivery; United States Postal Service (USPS), certified mail return receipt requested; or, overnight express mail delivery. Other notices, such as signed notices to proceed, may be transmitted by E-mail to the authorized representative and shall be effective on the date directed in the notice.

The addresses set forth in Section 4-(1) for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given.

SECTION 6 – TIME OF COMPLETION AND FORCE MAJEURE

The services to be rendered by the Consultant for each section of the work subsequent to the execution of the Contract, shall be completed within the time stated in the Task Order. Consultant acknowledges that time is of the essence under this Contract.

A reasonable extension of time shall be granted in the event there is a delay on the part of the County in fulfilling its part of the Contract.

Should Consultant be obstructed or delayed in the prosecution or completion of its services as a

Page | 7 result of force majeure circumstances – including, but not limited to, the following: acts of God;

acts or omissions of any government; any rules, regulations or orders issued by any governmental authority or by any officer, department, agency or instrumentality thereof; fire; flood; storm;

earthquake; accident; war; rebellion; insurrection; riot; and invasion – the Consultant shall notify the County of such force majeure circumstances in writing within ten (10) calendar days after commencement of such delay stating the cause or causes thereof, or Consultant shall waive any right the Consultant may have had to request an extension to the Task Order. Such extensions of time as stated in the Task Order shall be the sole remedy of the Consultant for such delays, and the Consultant will not be entitled to any damages or any claim for extra compensation.

The County shall have the sole right to determine the order and commencement of units or sections of the work. If the Consultant maintains that a Task Order or subsequent revision requires a change in schedule, a proposed revised schedule shall be, within ten (10) days, submitted in writing for County review. The County will issue a Change Order to be executed by both parties, and commencement of any such schedule revision is contingent on the County’s approval of the Change Order. Consultant waives any right to make a claim based upon a revision if such notice is not provided.

SECTION 7 – COMPENSATION AND REIMBURSABLE COSTS

The County agrees to pay and the Consultant agrees to accept, for services rendered pursuant to this Contract, fees and other compensation computed in accordance with one or a combination of the methods outlined below, as specified in an approved Task Order:

(1) Fixed Fee – The normal method of compensation by the County, unless specifically designated otherwise in the Task Order, shall be a fixed fee for each milestone deliverable specified in the Task Order. No payment shall be made for partially completed milestones.

The fixed fee for each milestone deliverable shall be negotiated with the County and shall be computed on the basis of the attached Billing Rate Schedule (see EXHIBIT F) plus an allowance for reimbursable expenses, pre-approved by the County, and as listed in the Task Order.

(2) Hourly Rate – The Consultant shall be compensated at the attached Hourly Billing Rate Schedule (see EXHIBIT F) for each hour engaged directly in the work, not to exceed a fixed maximum established for each milestone.

(3) Reimbursable Expenses or Costs – The Consultant shall be compensated for certain work-related expenditures not covered by fees for engineering services, only if the expense is pre-approved by specification in the Task Order. The Consultant must provide a written justification for the expense accompanied by copies of invoices, receipts, requisitions, and/or estimates to document the need for the expense. Direct reimbursable costs such as permit fees, document reproductions, use of specialized equipment and used of their pre-approved specialized subs. Consultant shall be reimbursed on a direct cost basis and no markup or percentage increase will be paid by the County.

(4) Only specialized contracted services such as that of a sub-consultant or additional specialized engineering/assessment shall include a multiplier rate to be negotiated in accordance with County policies. No other direct reimbursable expenses shall include the multiplier rate. Expenditures shall be previously authorized by the County in an approved Task Order. Upon receipt of satisfactory supporting documentation, the Consultant will be compensated for such reimbursable expenses.

(5) travel costs for normal business travel necessary under the performance of this Contract is included in the Consultant’s hourly fee. County may approve expenses for specialized travel outside the County limits when required under the approved Task Order for products specifically related to the Task Order. If approved, such travel shall be

Page | 8 reimbursed at the same rate as County Employees and in accordance with the most current version of County Administrative Order AO-21. Consultant shall submit the request using the State of Florida approved Travel Voucher form

Consultant shall not exceed the amount of any task without the prior written approval of the County in the form of an executed Change Order following the template provided. A lack of planning or schedule control on the part of the Consultant will not be considered as basis for revising the fee proposal.

County and Consultant will negotiate each Task Order Scope of Work prior to the beginning of work. Consultant and County will agree to the hours necessary to complete the Task by position and phase of work, the actual billing rate of employees performing the work, other additional costs as agreed to by the County, and a design schedule. A list of deliverables shall also be provided.

The actual billing rates shall not exceed the billing rates contained in Exhibit F. Should the Consultant and County be unable to agree to a reasonable Task Order fee, the County will terminate negotiations with that Consultant and attempt to obtain another Consultant’s services.

If the Consultant changes personnel assigned to the Task Order during the course of the project, the County reserves the right to adjust the negotiated rate if the County determines that a lesser qualified professional is assigned to the Task Order. No increases due to changes in personnel will be allowed.

Annually, ninety (90) days prior to the anniversary of the Contract, the Consultant shall submit their updated hourly billing rate schedule to the County for inclusion in the Contract. The new direct salaries will only apply to Task Orders executed after the anniversary date and not to existing Task Orders. Increases in the hourly billing rates are limited to the preceding June to June Consumer Price Index (CPI) for All Urban Consumers, U.S. City Average, all items 1967- 100, or successor reports for the preceding calendar year as initially issued by the Bureau of Labor Statistics of the United States Department of Labor.

SECTION 8 – PAYMENT, PARTIAL PAYMENTS, AND DISPUTE RESOLUTION

Brevard County shall remit payment to the Consultant in accordance with Administrative Order AO-33 (issued by the County Manager of Brevard County, copy available upon request) and Florida’s Prompt Payment Act, Florida Statutes section 218.70, et seq., including provisions of an IRS Form W-9.

The County shall make payments to the Consultant for all milestones completed and deliverables submitted under the authorized work, and to the satisfaction of the County, to the date of the statement.

(1) The Consultant shall submit signed invoices as instructed by the County’s Project Manager.

(2) The amount of each invoice submitted shall be the amount due for all eligible services performed to date in connection with authorized work, as certified by the Consultant. Each invoice shall include any authorized work performed during the invoice date of service, must reference the particular Task Order name and number, and must include the invoice date, invoice number, and a list of the itemized charges. The invoice shall be accompanied by copies of invoices for reimbursable expenses.

(3) Invoices for work other than lump sum shall include a breakdown for each part of the work billed for each item, and the personnel as identified in Exhibit F. Copies of all invoices paid by the Consultant for expenses shall be included with the Consultant’s invoice.

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(4) The Consultant’s invoice shall be submitted along with the progress report for that billing period.

(5) County’s Project Manager shall review the statement and notify the Consultant in writing within ten (10) days from receipt of the invoice if any amounts requested are disputed or lack adequate support or documentation. County shall indicate in writing what corrective action is needed and the time by which a corrected invoice should be received by the County.

(6) In the event a dispute occurs between the Consultant and the County concerning payment request or an invoice, such disagreement shall be resolved by a Dispute Committee consisting of representatives of the Natural Resources Management Department, Purchasing Services and the County Attorney.

(7) Proceedings to resolve any disputed invoice shall commence no later than thirty (30) days after the date on which a payment request or proper invoice was received by the County and shall follow requirements of Florida Statutes218.70 – 218.79. Final decision by the County shall be concluded no later than forty-five (45) days after the date on which the payment request or proper invoice was received by the County.

(8) If the dispute is resolved in favor of the County, then interest charges shall begin to accrue fifteen (15) days after the County’s final decision. If the dispute is resolved in favor of the Consultant, the interest shall begin to accrue as of the original date the payment became due.

(9) No later than thirty (30) days from acceptance by Project Manager of all the work or services covered by the submitted invoice, the County shall pay the Consultant the amount due for any undisputed work.

(10) The County is a tax exempt entity and shall not be charged or invoiced for the payment of taxes for work performed under this Contract.

(11) Payment of the Final Invoice shall not constitute evidence of County’s acceptance of work.

(12) Final invoice shall be clearly marked as such in bold letters. invoice.

(13) Where termination of a Task Order is a termination for convenience and not for cause any reasonable and unavoidable costs incurred due to such termination (such as cancelling orders for equipment, materials or services) such payment shall be borne by the County.

SECTION 9 – CONTINGENT FEES

As required by Section 287.055(6) Florida Statutes, the Consultant warrants that they have not employed or retained any company or person, other than a bona fide employee working solely for the Consultant to solicit or secure this Contract and that they have not paid or agreed to pay any person, company, individual or firm, other than a bona fide employee working solely for the Contract any fee, commission, percentage, brokerage or contingent fee, gift or any other consideration, contingent upon, or resulting from award or making of this Contract. For any breach or violation of this provision, the County shall have the right to terminate this Contract, without liability, and, at its discretion, to deduct from the Contract price or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration and any damages and shall be responsible for reporting the details of such breach or violation to the proper legal authorities where and when appropriate.

SECTION 10 – DEFAULT

In the event the Consultant fails to comply with the provisions of this Contract, the County may declare the Consultant in default by written notification. Upon receipt of notification, Consultant will be provided ten (10) days in which to cure. In the event that the Consultant is unable to cure and partial payment has been made for professional services not completed or defectively performed, the Consultant shall return any sums due to the County as a result of Consultant's

Page | 10 default within ten (10) days after notice and demand that said sums are due. The Consultant shall not be compensated on a percentage of any deficient professional services which have been performed at the time the County declares a default. The County shall pay for that portion, if any, of the performed work which is used or useful by any other Consultant retained by the County to finish the work to the extent that the County does not incur additional costs over those set forth in the Consultant's canceled Task Order.

SECTION 11 – RIGHT OF APPEAL

All services shall be performed by the Consultant to current reasonable professional standards and practices and to the reasonable requirements of the County. The County shall decide and dispose of all claims, questions and disputes arising under this Contract. Such determination shall be final, conclusive and binding upon the parties hereto unless such determination is clearly arbitrary or unreasonable. In the event the Consultant does not concur with the decisions of the County, within ten (10) days after determination by the County, the Consultant shall present any such objections in writing to the County and, upon request, any adverse determination shall be referred to an appeal board comprised of a representative of the Purchasing Department, County Manager’s Office and another County representative designated by the County Manager for review and disposition at a hearing to be held within ten (10) days after receipt of the appeal. This paragraph does not constitute a waiver of either party's right to proceed in a court of competent jurisdiction, provided that prior to filing any suit the Consultant goes through the appeal process established in this Contract and provided further that the Consultant strictly abides by the ten-day time deadline set forth in this paragraph.

SECTION 12 – SUCCESSORS AND ASSIGNS

The County and Consultant each binds itself and its partners, successors, executors, administrators and assigns to the other party of this Contract and to the partners, successors, executors, administrators and assigns of such other party, in respect to all covenants of this Contract.

Neither the County nor the Consultant shall assign, sublet or transfer any rights under or interest in (including, but without limitation, monies that may become due or monies that are due) this Contract without the prior written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law.

Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Contract. Nothing contained in this Contract shall be construed as giving any rights or benefits to any person, party, or entity other than the County and the Consultant, and all duties and responsibilities undertaken pursuant to this Contract will be the sole and exclusive benefit of the County and the Consultant, and not for the benefit of any other party.

SECTION 13 – TERMINATION/MODIFICATION OF CONTRACT

In the event the Consultant disregards the authority of the County or violates the provisions of this Contract, or otherwise fails to comply with any provisions of this Contract or if the progress or quality of the work is unsatisfactory, Director or designee may serve written notice to Consultant and if Consultant fails within a period of ten (10) calendar days to correct such failure, County may terminate this Contract upon thirty (30) days written notice to Consultant. Upon termination, Consultant shall immediately cease performance of this Contract and shall deliver to County all completed or partially completed work including but not limited to all original papers, records, Page | 11 drawings, models, and other materials set forth and described in this Contract, within thirty (30) calendar days of the termination date established in the written Notice.

The Consultant or County may terminate this Contract for any reason upon thirty (30) days written notice to the other party, provided that any outstanding approved Task Order is completed by the Consultant.

In the event of termination by the County, the County’s sole obligation to the Consultant shall be payment for those portions of satisfactorily and completely performed work previously authorized by approved Task Order shall be determined on the basis of the work performed by the Consultant, or the percentage of work complete as estimated by the Consultant and agreed upon by the County up to the time of termination. In the event of such termination, the County may, without penalty or other obligation to the Consultant, elect to employ other persons to perform the same or similar services.

In the event of any form of claim, dispute, or controversy by or between the parties to this Contract, the parties expressly and unequivocally agree to engage in good faith efforts to meet in person to resolve any and all such differences. Absent such informal resolution of any/all such dispute(s), the parties expressly agree to engage in pre-suit mediation in accordance with the applicable rules of procedure for such mediation as may be in force in the Judicial Circuit Courts in Brevard County.

The terms of this Contract may be modified upon the mutual Agreement of the Consultant and the County as confirmed in writing.

In the event that the Consultant changes its name, merges with another company, becomes a subsidiary or makes other substantial change in structure or in the principals or project managers of the Consultant, the County reserves the right to terminate this Contract subject to the terms prescribed above.

In the event of termination of this Contract the Consultant agrees to surrender any and all documents prepared by the Consultant for the County in connection with this Contract, of which, the County shall have full ownership thereof, Consultant may retain copies of such documents for record purposes.

This contract, together with any exhibits, task assignments and schedules constitute the entire contract between the County and the CONSULTANT and supersedes all prior written or oral understandings. This contract and any exhibits, task assignments and schedules may only be amended, supplemented or canceled by a written instrument duly executed by the parties hereto.

SECTION 14 – PROFESSIONAL STAFF, LICENSING AND SUBCONTRACTING

Consultant was selected in part because on the basis of staff employed by the Consultant as identified in the Request for Qualifications (RFQ 08-25-07) submittal provided by the Consultant.

The Consultant agrees that the persons identified in said document shall not be removed for the project without prior written approval by the County.

Consultant shall notify County in the event of key personnel changes which might affect this Contract. Notification shall be made within ten (10) days prior to the changes. Any such request shall be supported by comprehensive documents outlining the reason(s) for the proposed substitution and include the specific qualifications of the proposed substitute. County has the right

Page | 12 to reject proposed changes in key personnel. Further, County, in lieu of approving a substitution, may initiate other actions under the Contract, including termination.

Consultant shall at all times during the term of this Contract at its own cost and expense, maintain such licenses as are required for the performance of work referenced herein by this Contract.

Consultant shall maintain an adequate and competent staff of professional engineers and/or architects licensed within the State of Florida.

CONSULTANT shall be responsible to be aware of and comply with all federal, state and local laws.

The Consultant shall not sub-contract, assign, or transfer any work under this Contract without the prior written approval of the County. When applicable, the Consultant shall cause the names of any sub-contracted firms responsible for major portions (or separate specialty) of the work to be inserted in the pertinent documents or data. Such written consent includes the approval of a Task Order issued by the County provided the fee proposal for that Task Order indicates the use of such Sub-contractor.

Approval by County of any Sub-contractor for any work shall not relieve Consultant of any responsibility for, or liability in connection with, fulfillment of its obligations under this Contract.

SECTION 15 - PUBLIC RECORDS

(1) Both Parties understand that Brevard County is subject to the Florida Public Records Law, Chapter 119, Florida Statutes. “Public Records” are defined as “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” (see section 119.011(12), Florida Statutes).

(2) CONSULTANT shall ensure that public records which are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the Contract and following termination of the Contract if the CONSULTANT does not transfer the records to COUNTY.

(3) Pursuant to Section 119.0701, Florida Statutes, a request to inspect or copy public records relating to this Contract must be made directly to the COUNTY. The CONSULTANT shall direct individuals requesting public records to the public records custodian listed below. If the COUNTY does not possess the requested records, the COUNTY shall immediately notify the CONSULTANT of the request and if CONSULTANT possesses the records, CONSULTANT must provide the records to COUNTY or allow the records to be inspected or copied within twenty-four (24) hours (not including weekends and legal holidays) of the request so the COUNTY can comply with the requirements of section 119.07, Florida Statutes. CONSULTANT may also provide a cost estimate to produce the requested documents consistent with the policy set forth in Brevard County Administrative Order AO- 47, incorporated by this reference. A copy of AO-47 is available upon request from the COUNTY’s public records custodian designated below.

(4) Should COUNTY face any kind of legal action to require or enforce inspection or production of any records provided by CONSULTANT to the COUNTY which CONSULTANT maintains are exempt or confidential from such inspection/production as a public record, CONSULTANT agrees to indemnify the COUNTY for all damages and

Page | 13 expenses, including attorney’s fees and costs. The CONSULTANT shall hire and compensate attorney(s) who shall represent the interests of the COUNTY as well as the CONSULTANT in defending such action. The CONSULTANT shall also pay any costs to defend such action and shall pay any costs and attorney’s fees which may be awarded pursuant to section 119.12, Florida Statutes.

(5) Should CONSULTANT fail to provide the public records, within CONSULTANT’s possession and control, to COUNTY within a reasonable time, CONSULTANT may be subject to penalties under section 119.10, Florida Statutes, including civil liability for the reasonable cost of enforcement incurred by the party requesting the records and may be subject to criminal penalties. The CONSULTANT’s failure to comply with public records requests is considered a material breach of this Contract and grounds for termination.

(6) Upon completion of the Contract, the CONSULTANT shall transfer, at no cost to the COUNTY, all public records in possession of the CONSULTANT or keep and maintain public records required by the COUNTY to perform the service. If the CONSULTANT transfers all public records to the COUNTY upon completion of the Contract, the CONSULTANT shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONSULTANT keeps and maintains public records upon completion of the Contract, the CONSULTANT shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the COUNTY, upon request from the COUNTY’s custodian of public records, in a format that is compatible with the information technology systems of the

COUNTY.

IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,

FLORIDA STATUTES, TO THE CONSULTANT’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS CONTRACT, CONTACT THE COUNTY’S CUSTODIAN OF PUBLIC

RECORDS C/O MARY BLAKELY, 2725 JUDGE FRAN JAMIESON WAY, STE A217, VIERA,

FLORIDA 32940, (321)-622-2016, MARY.BLAKELY@BREVARDFL.GOV.

SECTION 16 – OWNERSHIP AND REUSE OF WORK PRODUCTS

All documents, including but not limited to detailed reports, tracing, disks, plans, design calculations, computations, models, programs, specifications, maps, contract documents, record documents, original field survey, data notes, and other tangible work products developed by the Consultant pursuant to this Contract and any assigned Task Orders, shall be delivered to and shall become the property of the County without restrictions or limitations upon their use or distribution and shall be made available by the Consultant at any time upon request by the County. When each individual section of work requested pursuant to this Contract is complete, all of the above work products shall be delivered to the County for its use.

The Consultant shall not be liable for any damages, injury or costs associated with the County use or distribution of these documents for purposes other than those originally intended by the Consultant.

The Consultant may not reuse data or work products developed by the Consultant for the County without express written permission of the County.

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Any plans which the Consultant provides under this Contract shall contain a statement that they are subject to reuse restrictions in accordance with the provisions of Florida Statutes 287.055.

SECTION 17 – QUALITY CONTROL

The Consultant warrants a high level of quality control and accuracy.

The Consultant shall perform all services with the standard of care and skill ordinarily performed by like professionals performing similar work.

The Consultant QA/QC program shall be effective until termination of this Contract and shall address any work by a sub-contractor. The Consultant shall be responsible to submit to the County any updates or revisions to the QA/QC program during the terms of this Contract.

With each major milestone submittal, the Consultant shall submit a written statement signed by the Consultant Project Manager and Principal or the QA/QC officer specified on the Consultant’s RFQ 08-25-07 submittal, that the work being submitted was prepared in accordance with the Consultant’s QA/QC program.

When necessary, the County may request additional data collection or re-analysis of data at no expense to the County. If the original data collected or data analysis is found to be accurate and reasonable, the Consultant shall be compensated for the additional work in accordance with Section 6 or Section 78 of this Agreement.

The Consultant acknowledges that the County will periodically and upon completion of each Task Order, evaluate the Consultant's QA/QC program and the Consultant’s performance, and that Consultant Evaluation Forms (see Exhibit E) will be used by the County as appropriate, per Brevard County Administrative Orders AO-35 and AO-45, incorporated herein by this reference, in determining the Consultant's qualifications for future assignments of Task Orders or future Contracts with the County. Copies of AO-35 and AO-45 are available on request.

SECTION 18 – NON-EXCLUSIVE CONTRACT

The parties acknowledge that this Contract is not an exclusive Contract, and the County may employ other engineers, professional or technical personnel to furnish services for the County, as the County, in its sole discretion, finds is in the public interest.

The County reserves the right to assign such work to the Consultant as it may approve in the sole discretion of the County.

The Parties agree that the COUNTY is not obligated to execute any Task Order for any specific project or part thereof.

SECTION 19 – TRUTH-IN-NEGOTIATIONS

In accordance with the provisions of Chapter 287.055, Florida Statutes, the Consultant agrees to execute a Truth-In-Negotiation Certificate and Affidavit (see EXHIBIT B) stating that wage rates and other factual unit costs supporting the compensation of this Contract are accurate, complete, and current at the time of contracting; and agrees the original Contract price and any additions may be adjusted to exclude any significant sums by which the County determines that price was increased due to inaccurate, incomplete or non-current wage rates and other factual unit

Page | 15 costs. All such Contract adjustments shall be made within one (1) year following the end of the Contract.

SECTION 20 – DISADVANTAGE BUSINESS ENTERPRISES/EQUAL OPPORTUNITY

EMPLOYMENT

The Consultant shall endeavor to meet the minority business enterprise procurement goal set forth in F.S. 287.042.

During the performance of this Contract, the Consultant will not discriminate against any employee or applicant for employment because of race, color, sex, age religion, ancestry, handicap, marital status or national origin. The Consultant will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard of race, color, sex, age religion, ancestry, handicap, marital status or national origin.

SECTION 21 - EMPLOYMENT ELIGIBILITY VERIFICATION (E-Verify) AND UNAUTHORIZED

ALIEN WORKERS:

(1) The CONSULTANT 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 CONSULTANT during the term of the contract. Upon request, CONSULTANT shall provide acceptable evidence of their enrollment at the time of the submission of the CONSULTANT’s bid. Acceptable evidence shall include, but not be limited to, a copy of the fully executed E-Verify Memorandum of Understanding for the business.

(2) CONSULTANT 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 new employees hired by the subcontractor during the term of this Contract.

(3) CONSULTANT 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 available to the COUNTY consistent with the terms of CONSULTANT’s enrollment in the program. This includes maintaining a copy of proof of CONSULTANT’s and any subcontractors' enrollment in the E-Verify Program.

(4) 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 of this Contract.

(5) A CONSULTANT who registers with and participates in the E-Verify program may not be barred or penalized under this section if, as a result of receiving inaccurate verification information from the E-Verify program, the CONSULTANT hires or employs a person who is not eligible for employment.

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

(7) COUNTY will not intentionally award a publicly-funded contract to any CONSULTANT who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 United States Code (USC) section…