DRAFT

COCOA BEACH GOLF MUCK CAPPING CONSULTING SERVICES CONTRACT

RFQ-8-26-05

THIS CONTRACT is made by and executed on the date of the last signature below, 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 “Contractor”).

WITNESSETH:

WHEREAS, the COUNTY desires to contract with qualified professionals to provide services for Contract Administration of an in-water muck capping project; and

WHEREAS, the COUNTY advertised a Request for Qualifications RFQ-8-26-05 on (INSERT DATE OF ADVERTISEMENT), for professional services and has selected the CONTRACTOR to perform professional services pursuant to the provisions of Section 287.055, Florida Statutes, and Brevard County Policy BCC-26 (Acquisition of Consultant Professional Services), as may be amended; and

WHEREAS, Task Orders may be issued under this Contract that include the requirement for the CONTRACTOR to comply with special contract clauses required by the Federal Emergency Management Agency (FEMA) and associated federal regulations, depending on whether funding for services of a specific Task Order will come from or be reimbursed from one of the two sources; and

WHEREAS, compliance by the CONTRACTOR with the special contract clauses related to FEMA and associated federal regulations, when applicable, is important in order for the COUNTY to remain eligible to be reimbursed for the cost of the work and/or be required to reimburse the federal government for the cost of the work.

WHEREAS, the CONSULTANT hereby certifies that the CONSULTANT has been granted and possesses valid, current licenses to do business in the State of Florida and Brevard County, Florida, issued by the respective State Boards and Government agencies responsible for regulating and licensing the professional services to be provided and performed by the CONSULTANT pursuant to this Contract and for RFQ-8-26-05; and

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

The Recitals above are true and correct and incorporated into this Contract by this reference.

The Contractor shall be prepared to furnish all labor, materials, equipment, machinery, tools, apparatus, and transportation to perform all work or services specified below.

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.

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

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

CONTRACT The written Contract between the County and the Contractor and any modifications and change orders thereto.

CONSUMER PRICE INDEX (CPI) Where this term is used, it refers to the index in

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 in the 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.

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.

COUNTY MANAGER The County Manager of Brevard County, Florida.

COUNTY DESIGNEE The County employee designated to oversee the project by the

Director. 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.

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 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 construction engineer authorized to practice engineering services pursuant to Florida Statute 471.03(2)

(i) (2006).

PROJECT MANAGER The COUNTY employee designated to oversee the project by the Director. The Designee may be changed at any time during the CONTRACT or during the length of the Task Order by written notification provided to the CONTRACTOR.

PROJECT TEAM The CONTRACTOR’s staff is approved to accomplish and complete the work assigned by the COUNTY through a Task Order.

PURCHASE ORDER The COUNTY’s document used to authorize a purchase transaction with a contractor, generally used for one-time purchases or open framework purchase orders, which contains provisions for goods and/or services ordered, applicable terms as to payment, discounts, date or performance, transportation, and other factors or conditions relating to the transaction. Acceptance of a purchase order by a vendor shall constitute a contract, except in instances in which a purchase order is used only as an internal encumbrance document in the County’s financial system (SAP). For purposes of this Contract, except for the purchase order issued in SAP for this Contract, or any internal encumbrance documents issued in SAP, all other purchase orders issued under this Contract shall be governed by the terms for Task Orders in this Contract.

TASK A major component of work which is described in the Task Order or the work to be accomplished and/or completed by the Contractor.

TASK ORDER A document issued, pursuant to this Contract, by the COUNTY to the CONTRACTOR that describes a finite amount of work for a finite payment. For this Contract, whether described as a Task Order, Purchase Order, or Work Order, all such Orders shall be treated as Task Orders and subject to the provisions in this Contract relating to Task Orders.

WORK The services provided by the Contractor in accordance with the

Task Orders, attachments, or Addenda.

WRITTEN This term shall comprise communications between the Contractor and the County, including e-mails, FAX, and letters either scanned or sent via regular or express mail.

SECTION 2 – GENERAL IDENTIFICATION OF SERVICES

The Contractor acknowledges and agrees that if the work is assigned to the Contractor, each individual project shall have a specific Task Order agreed to by the parties and executed by both parties.

All professional services provided by the Contractor for the County shall be identified in Task Orders and performed to current professional standards. Draft Task Orders shall be provided by the Contractor within fifteen (15) working days of request by the County, and shall include the following elements, except for modifications issued after execution of the Task Order:

(1) Scope: a succinct task description and signature page,

(2) Section I: a thorough description of services to be performed,

(3) Section II: a detailed schedule for the projected completion of the work to be performed,

(4) Section III: a detailed description and list of all the deliverables, and

(5) Section IV: a proposed schedule for compensation, including a list of key personnel.

Task orders shall receive a number assigned by the Natural Resources Management Department, which shall be used by the Contractor on all documents submitted to the County related to that Task Order.

A Task Order shall not give rise to any contractual rights until approved by the County.

Once the County and Contractor agree on the compensation to be paid for such services as stated in the Task Order, the County Designee shall approve the Task Order in the form of a written Notice to Proceed signed by the authorized designee of the County. The written Notice to Proceed with and specific Task Order, as approved by the County, shall constitute an Addendum to this Contract, and therefore the Contractor shall abide by all the requirements stipulated in this Contract. This Contract does not authorize the performance of any work or services to be provided by Contractor or require County to place any Task Orders for work or services. The County makes no covenant or promises as to the number of projects available or that the Contractor will perform any project for the County during the life of this Contract.

Task Orders may be issued for specific projects within the original scope of services as outlined below. Generally, the County may request the Contractor to provide the County services for the following scope of services, including but not limited to:

1. Construction oversight for in water sediment capping work, including daily documentation, coordination with the contractor, review of submittals and requests for additional information, tracking and resolution of non-conformances, coordination and presentations for community outreach, ongoing coordination/communication with the City of Cocoa Beach as needed, and pay application support including quantity verification using sediment cores, survey data, and other methods of confirmation, as applicable.

2. Construction oversight for a sediment capping project per technical specifications, permits, and all contracts, including review of contractor schedules, support with contract modifications and amendments, and coordination of construction activities to maintain compliance with the project budget and schedule.

3. Construction oversight providing daily onsite engineering or quality assurance and quality control presence for a minimum of 12 months during active in-water construction, including preparation of daily field reports, participation in regular construction progress meetings, and verification of installed quantities for payment.

4. Design or design modification of thin-layer lifts of sand capping of muck in a tidal, estuarine, or lagoon environment, including cap material selection, determination of thickness requirements, and development of placement methodologies.

5. Evaluation of cap stability and performance, including assessment of wave and current influences, propwash effects, and erosion potential.

6. Design development of field-verifiable acceptance criteria for thin-layer sand capping of muck, including methods for verifying cap coverage and thickness across multiple lifts of a cap.

7. Use of hydrodynamic, wave, sediment transport, cap stability, or equivalent modeling to support thin-layer capping design decisions.

8. Development of design surfaces using survey data, bathymetry, and sediment characterization to support cap quantities and construction tolerances.

9. Oversight of environmental permits/modification(s) of sand capping of in-water muck, including coordination with the Florida Department of Environmental Protection (FDEP) and the United States Army Corps of Engineers (USACE) agencies.

10. Preparation of FDEP & USACE permit modification application packages for sand capping of muck and supporting technical documentation, such as construction methods, monitoring plans, and related technical details.

11. Responding to agency requests for additional information, including technical rebuttals and revisions to the design or monitoring approach for in-water muck capping.

12. Reviewing hydrographic surveying performed by others, geotechnical data collection, and field data processing if/as needed.

13. Implementation of permit monitoring, including requirements during active in-water construction projects.

14. Assist the County with data compilation to implement the FDEP Basin Management Action Plan (BMAP) credit process for nutrient reduction if/as needed.

15. Provide a post-construction summary report of the project

SECTION 3 – COUNTY OBLIGATIONS

The County shall make available to the Contractor any existing data available in the County's files pertaining to the work to be performed under this Contract, including reports, studies, financial information, and other required existing data that are available in the files of the County and that may reasonably be required by the Contractor for the completion of the required services.

The County shall review the deliverables and other materials submitted by the Contractor and provide direction to the Contractor as specified in the Task Order. The County shall designate one County staff member to act as Project Manager.

The County shall reimburse the Contractor for required services timely submitted, approved, and accepted by the County in accordance with the provisions of this Contract and amendments hereto.

SECTION 4 – CONTRACTOR RESPONSIBILITIES

Upon receipt of the Notice to Proceed, Contractor agrees to perform professional services associated with the requested work in accordance with (1) the negotiated terms of the applicable Task Order, (2) current accepted professional standards and practices, and (3) this Contract. The Contractor warrants the adequacy of the final plans, reports, and/or assessments 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, and/or assessments 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 Contractor further agrees to:

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

(b) utilize the approved project team per Section 15

(c) maintain an adequate staff of qualified personnel to complete any assigned Task

Order(s),

(d) 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,

(e) ensure that designs/assessments/reports 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,

(f) 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, permitting requirements, and addressing these issues in each Task Order that the Contractor prepares,

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

(h) cooperate and coordinate with other County consultants or contractors, as directed by the County,

(i) 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 E for approved formats.)

(j) 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,

(k) 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,

(l) 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 Contractor’s plans, design, or assessments shall not be deemed to diminish the Contractor’s warranty set forth in this Contract,

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

(n) 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,

(o) 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 contractor, 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 agency shall not be deemed to diminish or discharge the Contractor from the warranties imposed by this Contract,

(p) sign and seal all final plans, documents, surveys, maps, and legal descriptions prepared by Contractor 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

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

SECTION 5- DURATION OF CONTRACT

This Contract shall remain in full force and effect for a period of three (3) years after its date of execution. In addition, this Contract may be extended by the County designee in one [1] year increments for up to two [2] years beyond the initial three [3] year period of the Contract under the same terms and conditions of this Contract. County shall submit "Written Notification of Contract Renewal " Exhibit G", for execution by the Director or designee and Contractor. No work shall be issued after the time period stated above.

However, actual completion of the services in the Task Order may extend beyond such term, unless this Contract is terminated by mutual written consent of the parties as otherwise provided herein. The performance of properly authorized Task Orders may extend beyond the Contract's effective term and the Contractor shall be compensated after such time period in accordance with Section 8 and 9 hereof. A task order may be revised as to scope of services, time required for completion, and/ or compensation to be paid, if approved by the County or designee and Contractor in writing.

SECTION 6 –TIME OF COMPLETION

The services to be rendered by the Contractor for each section of the work shall commence upon receipt of a written Notice to Proceed from the County, subsequent to the execution of the Contract, and shall be completed within the time stated in the Task Order. The Contractor 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 the Contractor be obstructed or delayed in the prosecution or completion of its services as a 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 Contractor 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 Contractor shall waive any right the Contractor 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 Contractor for such delays, and the Contractor will not be entitled to any damages or any claim for extra compensation.

SECTION 7 – SCHEDULE OF WORK

The County shall have the sole right to determine the order and commencement of units or sections of the work. If the Contractor 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, and commencement of any such schedule revision is contingent on the County’s approval. Contractor waives any right to make a claim based upon a revision if such notice is not provided.

SECTION 8 – COMPENSATION

The County agrees to pay, and the Contractor 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 example EXHIBIT D) plus an allowance for reimbursable expenses if approved by the County.

(2) Hourly Rate – The Contractor shall be compensated at the attached Billing Rate

Schedule (see example EXHIBIT D) for each hour engaged directly in the work, not to exceed a fixed maximum established for each milestone.

(3) Reimbursable Expenses – The Contractor shall be compensated for certain work-related expenditures not covered by fees for engineering services, direct reimbursable costs such as permit fees, specialized pre-approved sub-contracted services, document reproduction, use of specialized equipment, and other incidental expenses, if approved by the County The Contractor shall be paid after the Contractor provides an invoice for such services directly from the provider, such as a sub-contractor (see Section 15). Only specialized contracted services such as a sub-contractor for additional engineering/assessment or remediation/field work shall include a multiplier rate to be negotiated with the County . 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 Contractor will be compensated for such reimbursable expenses.

(4) Travel costs for business travel are included in the Contractor’s hourly rate or fixed fee as specified in the Task Order. Reimbursement for special travel required under extenuating circumstances may be approved by the COUNTY as part of a Task Order. The determination of “extenuating circumstances” is in the sole discretion of the County. If approved, such travel shall be reimbursed at the same rate as for County employees in accordance with Brevard County Policy BCC-29 and Administrative Order AO-21. Documents can be provided upon request All requests for special travel must be documented using a State of Florida Travel Voucher with appropriate receipts. Reimbursement for special travel costs must receive prior written approval by the County prior to such travel, or the County shall not be responsible for reimbursing t h e Contractor for said travel.

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

The County and Contractor will negotiate each Task Order's Scope of Work prior to the beginning of work. The Contractor and County will agree on the hours necessary to complete the Task, by position and phase of work, the actual billing rate of employees performing the work, any additional costs agreed upon 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 D. Should the Contractor and County be unable to agree on a reasonable Task Order fee, the County will terminate negotiations with that Contractor and attempt to obtain another consultant’s services.

If the Contractor 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.

SECTION 9 – PAYMENT, PARTIAL PAYMENTS, AND RESOLUTION OF DISPUTES

For prompt payment, the County shall remit payment in accordance with the Florida Prompt Payment Act, Florida Statutes, Section 218.70, et seq.

The County shall make payments to the Contractor 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 Contractor 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 Contractor. 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 D.

Copies of all invoices paid by the Contractor for expenses shall be included with the Contractor’s invoice.

(4) The Contractor’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 Contractor in writing within ten (10) days from receipt of the invoice if any amounts requested are disputed or lack adequate support or documentation. The County shall indicate in writing what corrective action is needed and the time by which the corrected invoice should be received by the County.

(6) The County reserves the right to deduct from any Contractor invoice an amount for defective or nonconforming work, or for work not provided but invoiced.

(7) The County shall remit payment in accordance with Sections 218.70 through

218.79 – Florida Statutes ‘Local Government Prompt Payment Act’, and Brevard County Administrative Order AO-33 “Prompt Payment of Invoices.”

(8) In the event a dispute occurs between the Contractor and the County concerning a payment request or an invoice, such disagreement shall be resolved by a Vendor Dispute Committee consisting of representatives of the County Manager’s Office, Purchasing Services, and a representative designated by the County Manager, but not from the Natural Resources Management Department.

(9) Proceedings to resolve any disputed invoice shall commence no later than forty-five (45) days after the date on which a payment request or proper invoice was received by the County and shall follow requirements of Florida Statutes 218.70

– 218.79. Final decision by the County shall be concluded no later than sixty

(60) days after the date on which the payment request or proper invoice was received by the County.

(10) 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 Contractor, the interest shall begin to accrue as of the original date the payment became due.

(11) 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.

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

(13) Final invoice shall be clearly marked as such in bold letters. The Final invoice shall include a report of all the payments made to the Contractor and each sub-contractor under the Task Order up to date and the amount for the final invoice.

(14) 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 10 – CONTINGENT FEES

The Contractor warrants that they have not employed or retained any company or person, other than a bona fide employee working solely for the Contractor 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 11 – DEFAULT

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

SECTION 12 – RIGHT OF APPEAL

All services shall be performed by the Contractor 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 Contractor does not concur with the decisions of the County, within ten (10) days after determination by the County, the Contractor 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 Contractor goes through the appeal process established in this Contract and provided further that the Contractor strictly abides by the ten-day time deadline set forth in this paragraph.

SECTION 13 – SUCCESSORS AND ASSIGNS

The County and Contractor 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 Contractor 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 Contractor, and all duties and responsibilities undertaken pursuant to this Contract will be the sole and exclusive benefit of the County and the Contractor, and not for the benefit of any other party.

SECTION 14 – TERMINATION/MODIFICATION OF CONTRACT

In the event the Contractor 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 Contractor and if Contractor 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 Contractor. Upon termination, Contractor 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, 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.

Either party may terminate this Contract for any reason upon thirty (30) days written notice. The Contractor may terminate for any reason provided that any outstanding approved Task Order is completed by the Contractor.

In the event of termination by the County, the County’s sole obligation to the Contractor 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 Contractor, or the percentage of work complete as estimated by the Contractor 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 Contractor, 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 Contractor and the County as confirmed in writing.

In the event that the Contractor 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 Contractor, the County reserves the right to terminate this Contract subject to the terms prescribed above.

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

SECTION 15 – PROFESSIONAL STAFF, LICENSING AND SUBCONTRACTING

Contractor was selected in part on the basis of staff employed by the Contractor as identified in the Request for Qualifications (RFQ) submittal provided by the Contractor.

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

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

Contractor 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.

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

The Contractor shall not sub-contract, assign, or transfer any work under this Contract without the prior written approval of the County. When applicable, the Contractor 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 Contractor of any responsibility for, or liability in connection with, fulfillment of its obligations under this Contract.

SECTION 16 – OWNERSHIP OF DOCUMENTS

All documents, including but not limited to detailed reports, tracing, disks, plans, models, programs, specifications, maps, contract documents, record documents, original field survey, data notes, and other tangible work products developed by the Contractor 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 Contractor 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 Contractor 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 Contractor.

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

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

SECTION 17 – QUALITY CONTROL

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

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

Contractor shall provide the County one copy of the Contractor’s QA/QC program for any and all specific Task Orders prior to commencement of any work or issuance of any work. The QA/QC program shall be effective until termination of this Contract and shall address any work by a sub-contractor. The Contractor shall be responsible to submit to the County any updates or revisions to the QA/QC program.

With each major milestone submittal, the Contractor shall submit a written statement signed by the Contractor Project Manager and Principal or the QA/QC officer specified on the Contractor’s RFQ submittal, that the work being submitted was prepared in accordance with the Contractor’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 Contractor shall be compensated for the additional work in accordance with Section 8 or Section 9 of this Contract.

The Contractor acknowledges that the County will periodically and upon completion of each Task Order, evaluate the Contractor's QA/QC program and the Contractor’s performance, and that Contractor Evaluation Forms (see Exhibit C) 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 Contractor'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 Contractor as it may approve in the sole discretion of the County.

SECTION 19 – TRUTH-IN-NEGOTIATIONS

In accordance with the provisions of Chapter 287.055, Florida Statutes, the Contractor agrees to execute a Truth-In-Negotiation Certificate (see EXHIBIT A) 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 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 Contractor shall endeavor to meet the minority business enterprise procurement goal set forth in Section 287.042, Florida Statutes.

During the performance of this Contract, the Contractor 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 Contractor 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 – INTEREST OF COMMISSIONERS AND OTHERS

No officers, members, or employees of the County, and no members of its governing body, and no other public official of the governing body of the locality or localities in which services for the facilities are situated or carried out, who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this project, shall participate in any decision relating to this Contract which affects their personal interest, or have any personal or pecuniary interest, direct or indirect, in this Contract or the proceeds thereof.

SECTION 22 – INTEREST OF CONTRACTOR

The Contractor covenants that it presently has no conflict of interest and shall not acquire any interest, direct or indirect, which shall conflict in any manner or degree with the performance of services required to be performed under this Contract. The Contractor further covenants that, in the performance of this Contract, no person having any such interest shall be employed by the Contractor (or sub-Contractor under this Contract).

SECTION 23 – ENTIRETY OF CONTRACT

This writing, together with Task Orders and signed Notices to Proceed that may follow, embody the entire Contract and understanding between the parties hereto, and there are no other Contracts and understandings, oral or written, with reference to the subject matter hereof that are not merged herein.

This Contract supersedes all prior agreements, contracts, proposals, representations, negotiations, letters or other communications between the County and the Contractor pertaining to services whether written or oral.

No alteration, change, or modification of the terms of this Contract shall be valid unless made in writing, signed by both parties hereto as an addendum to this Contract, or as specifically prescribed in a Task Order.

SECTION 24 - INDEMNIFICATION

The Contractor shall indemnify and hold harmless the County and its agents and employees from and against all claims, damages, losses, and expenses, including attorney’s fees arising out of or resulting from the performance of its work under this Contract, where such claim, damage, loss, or expense is caused, in whole or in part, by the act or omission of the Contractor, or anyone directly or indirectly employed by the Contractor, or anyone for whose acts any of them may be liable, regardless of whether or not it is caused by in part by a party indemnified thereunder. In any and all claims against the County, or any of its agents or anyone directly or indirectly employed by the Contractor, or anyone for whose acts any of them may be liable, indemnification obligation under this paragraph shall not be limited in any way by a limitation on the amount or type of damages, compensation or benefits payable by or for the custodial contractor, under workers’ compensation acts, or other related policies of insurance.

Nothing in this Contract is intended to inure to the benefit of any third party for the purpose of allowing any claim which would otherwise be barred under the doctrine of sovereign immunity or by operation of law. Nothing herein shall constitute a waiver of the County’s sovereign immunity or rights afforded to it under 768.28, Fla. Stat. The parties acknowledge specific consideration has been exchanged for this provision.

SECTION 25 - MODIFICATIONS TO CONTRACT

This contract, together with any exhibits, task assignments and schedules constitute the entire contract between the County and the Contractor 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 26 - INSURANCE

The Contractor, at its own expense, shall keep in force and at all times maintain during the term of this Contract:

(a) Workers' Compensation and Employer’s Liability: Workers’ Compensation 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 Worker’s (USL&H) coverage and contingent coverage of Jones Act (marine Employers Liability) in compliance with federal statutes or proof of exemption. The Contractor shall be responsible for compliance with these requirements by each subcontractor, vendor or supplier.

(b) Comprehensive General Liability: Including but not limited to bodily injury, property damage, and personal injury with limits of not less than $1,000,000 combined single limit per occurrence to include coverage for Products and Completed Operations, Personal Injury, Contractual Liability, “X-C-U” hazards, and Errors and Omissions incurred under this Contract.

(c) Automobile Liability: including coverage for bodily injury and property damage for all owned, hired and non-owned automobiles with limits of not less than $1,000,000 combined single limit per accident.

(d) Professional Liability Insurance: For errors and omissions in the amounts of $2,000,000 per claim.

(e) Insurance Certificates: Prior to the commencement of any work, the Contractor shall provide the County with Certificate(s) of Insurance on all the policies of insurance and renewals thereof in a form(s) acceptable to the County. The Automobile Liability and General Liability policies shall provide that the County be endorsed as an Additional Insured. The County shall be notified in writing of any reduction, cancellation or substantial change of policy or policies at least thirty (30) days prior to the effective date of said action. All insurance policies shall be issued by responsible companies who are acceptable to the County and licensed and authorized under the laws of the State of Florida.

SECTION 27 - ATTORNEY’S FEES

In the event of any legal action to enforce the terms of this contract each party shall bear its own attorney’s fees and costs.

SECTION 28 - GOVERNING LAW

This Contract shall be governed, interpreted and construed according to the laws of the State of Florida.

SECTION 29 - COMPLIANCE WITH STATUTES

It shall be the Contractor’s responsibility to be aware of and comply with all federal, state and local laws.

SECTION 30 – VENUE AND WAIVER OF JURY TRIAL

Venue for any legal action by any party to this Contract to interpret, construe or enforce this Contract shall be in a court of competent jurisdiction in and for Brevard County, Florida and ANY TRIAL SHALL BE NON-JURY.

SECTION 31 - INDEPENDENT CONTRACTOR

The Contractor shall perform the services under this Contract as an independent Contractor and nothing contained herein shall be construed to be inconsistent with this relationship or status.