Attachment_A_-_DRAFT_Contract.pdf

BREVARD COUNTY

UTILITY SERVICES DEPARTMENT

PROFESSIONAL SERVICES CONTRACT

[Insert Name of Company]

SOUTH CENTRAL REGIONAL WATER RECLAMATION FACILITY AWT

CONVERSION AND IMPROVEMENTS, AND RECLAIMED SYSTEM

IMPROVEMENTS

Brevard County Utility Services Department

Brevard County Government Center

2725 Judge Fran Jamieson Way

Building A, Suite 213

Viera, Florida 32940

PROFESSIONAL SERVICES CONTRACT

1. RECITALS

2. ADMINISTRATION

4. SCOPE OF PROFESSIONAL SERVICES

5. STANDARD OF CARE REQUIRED FOR PROFESSIONAL SERVICES

6. USE OF TASK ORDERS

7. MODIFICATIONS

8. TERM

9. TIME OF COMPLETION

10. COMPENSATION AND REIMBURSABLE COSTS

11. BILLING, PAYMENT, AND PARTIAL PAYMENTS

12. DISPUTE RESOLUTION

13. OWNERSHIP AND REUSE OF WORK PRODUCT

14. NOTICES AND AUTHORIZED REPRESENTATIVES

15. AUDIT RIGHTS AND PUBLIC RECORDS

16. UNAUTHORIZED ALIEN WORKERS AND EMPLOYMENT ELIGIBILITY

VERIFICATION (E-VERIFY)

17. SUBCONTRACTING

18. COVENANT AGAINST CONTINGENT FEES

19. TERMINATION OF CONTRACT

20. ASSIGNMENT

21. ATTORNEY’S FEES, GOVERNING LAW AND VENUE

22. INDEMNIFICATION AND INSURANCE

23. QUALITY CONTROL

24. PUBLIC ENTITY CRIMES

25. SCRUTINIZED COMPANIES LIST

26. EQUAL OPPORTUNITY EMPLOYMENT

27. NON-EXCLUSIVE CONTRACT

28. INDEPENDENT CONSULTANT

29. TRUTH-IN-NEGOTIATIONS

30. CONFLICTS OF INTEREST

31. ENTIRETY OF CONTRACT

32. INTERPRETATION

33. SEVERABILITY

34. FURTHER ASSURANCES

35. COUNTERPARTS AND AUTHORITY

Attachment A

Attachment B

Attachment C

Attachments D & E

PROFESSIONAL SERVICES CONTRACT

THIS CONTRACT is made by and between the following Parties: BOARD OF

COUNTY COMMISSIONERS, BREVARD COUNTY, FLORIDA, a political subdivision of the State of Florida, hereinafter referred to as COUNTY, and [INSERT LEGAL

NAME OF COMPANY], a business having its principal address at [INSERT ADDRESS

OF COMPANY], hereinafter referred to as CONSULTANT.

RECITALS

WHEREAS, the COUNTY desires professional engineering services, as described in RFQ-7-26-10, related to the South-Central Regional Water

Reclamation Facility AWT Conversion And Improvements, And Reclaimed

System Improvements; and

WHEREAS, the COUNTY advertised the Request for Qualifications RFQ-7-26-

10 on (INSERT DATE OF ADVERTISEMENT) for professional services and was found to have the most experience and qualifications of the proposers that submitted a proposal to the County’s RFQ-7-26-10 by the Selection and Negotiation Committee;

and

WHEREAS, the Contractor hereby certifies that the Contractor has been granted and possesses valid, current licenses to do business in the State of Florida and in 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 Contractor pursuant to this Contract and RFQ-7-26-10;

and

WHEREAS, the selection and engagement of the Contractor have been made by the County in accordance with the provisions of Section 287.055, Florida Statutes, (Consultants’ Competitive Negotiation Act) and in accordance with the applicable

Brevard County Board of County Commissioners’ Policies; and

NOW THEREFORE, in consideration of the mutual promises hereinafter contained, the Parties agree as follows:

1. RECITALS.

The above recitals are incorporated into this Contract by this reference.

2. ADMINISTRATION.

This Contract is administered by the Utility Services Department, a department of the Brevard County Board of County Commissioners, hereinafter referred to as the

Department.

3. DEFINITIONS.

3.1. Consumer Price Index (CPI). 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.

3.2. Date of Execution. This contract’s execution date is the date last signed by the Parties.

3.3. Master Services Contract. A contract that authorizes Task Orders to be issued under the terms and conditions of the Master Service Contract.

3.4. Professional Services. Those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as defined in Florida law including Section 287.055, Florida Statutes, or those services performed by any architect, professional engineer, landscape architect, or registered surveyor and mapper in connection with his/her professional employment or practice.

3.5. Purchase Order. The COUNTY’s document to encumber County funds associated with Task Order issued by the Utilities Services Department for services by the CONSULTANT under this Contract shall be governed by the terms for Task Orders in this Contract.

3.6. Task Order. A defined term for all work pursuant to this contract ordered on a separate document by COUNTY from CONSULTANT that describes a finite amount of work for a finite payment. With this reference, all Task Orders written pursuant to this contract are incorporated into this contract and are subject to the terms and conditions of this Contract.

3.7. Work. A general term for the goods and/or services provided by the

CONSULTANT under this Contract.

3.8. Work Order. A work order under this Contract is another term for a Task

Order and shall be governed by the terms for Task Orders in this contract.

3.9. Work Product. A defined term for all material, which may be copyrighted or trademarked, which CONSULTANT creates for COUNTY under a task order as a task order deliverable and including, but not limited to, reports, tracing, plans, specifications, data, maps, contract documents, drawings, writings, surveys, photographs, video, and other products created in the process of creating the task order deliverables. As a task order deliverable, work product is to be provided to the County for its use.

4. SCOPE OF PROFESSIONAL SERVICES.

4.1. Professional engineering services are required as stated in the Request for Qualifications RFQ-7-26-10. The Request for Qualifications and the

CONSULTANT’s submission are incorporated into this Contract by this reference.

5. STANDARD OF CARE REQUIRED FOR PROFESSIONAL SERVICES.

5.1. Upon receipt of Notice to Proceed, the CONSULTANT agrees to perform professional services associated with the requested work in accordance with this contract and the negotiated terms of the applicable Task Order, in a manner consistent with the professional skill and degree of care and diligence ordinarily provided by other similar professionals in the same or similar locality under the same or similar circumstances and as further set forth herein.

5.2. CONSULTANT further agrees that the standard of care required of

CONSULTANT to provide the professional services under this Contract includes, and that the CONSULTANT shall:

5.2.1. Ensure the adequacy of work provided under this Contract with appropriate due diligence and a reasonable standard of care in a manner that adequately captures scope, complexity, and design constraints. This includes, but is not limited to, environmental, geotechnical, architectural, landscape architecture, surveying, and appropriate site visits.

5.2.2. Correct any errors and omissions and prepare any necessary plan revisions not involving a change in the scope of the work required, that may be required because work was found unsatisfactory, substandard, defective and/or not otherwise in compliance with the standard of care as set forth in this Contract at no additional cost. This remedy shall be cumulative to all other remedies available under law.

5.2.3. Be responsible for the professional quality, technical accuracy, timely completion, and coordination of all designs, drawings, specifications, reports, and other services furnished by CONSULTANT under this CONTRACT.

CONSULTANT shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its designs, drawings, specifications, reports, and other services.

5.2.4. Be responsible for recruiting, hiring, training, supervising, disciplining, and discharging personnel necessary to maintain an adequate staff of experienced and qualified personnel licensed in the State of Florida to perform all professional services contemplated by this contract.

5.2.5. Comply with federal, state, and local laws, codes, and ordinances applicable to the work. Failure or inability on the part of CONSULTANT to have complete knowledge and intent to comply with such law, rules, and regulations shall not relieve CONSULTANT from its obligation to completely perform any task assigned pursuant to this Contract.

5.2.6. Cooperate fully with COUNTY in the scheduling and coordination of all phases of the work.

5.2.7. Cooperate and coordinate with other COUNTY CONSULTANTS, as specified in the Work Order.

5.2.8. Exercise an appropriate Quality Control Program to provide adequate oversight and supervision over all of CONSULTANT’s sub-

CONSULTANTs.

5.2.9. Report the status of the work to the COUNTY upon request and 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.

5.2.10. Submit for COUNTY review design computations, sketches, and other data representative of the work’s progress as specified in the applicable

Task Order. Submit for COUNTY approval the final work upon incorporation of any modifications requested by the COUNTY during any previous review. Any

COUNTY approval of the CONSULTANT’S plans, design, or specifications shall not be deemed to diminish the standard of care or skill required of the

CONSULTANT.

5.2.11. Confer with COUNTY during the further development and implementation of improvements for which the CONSULTANT has provided design or other services.

5.2.12. Interpret plans and other documents.

5.2.13. Meet project deliverable dates established in each individual

Task Order.

5.2.14. Prior to final approval of the work by COUNTY, conduct and complete a preliminary check of any construction or other 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. Any approval obtained from COUNTY, or any other agency, shall not be deemed to diminish or discharge the standard of care of CONSULTANT as provided for in this Contract.

6. USE OF TASK ORDERS.

6.1. Generally. All professional services or work provided by CONSULTANT for COUNTY shall be identified in written Task Orders and performed to the current professional standards of the applicable discipline, and as further set forth in the standard of care section. Task Orders shall entail a description of services to be performed, a statement of fees, a proposed schedule for compensation, and a projected schedule for completion of the work to be performed by CONSULTANT.

6.2. Effectiveness. A Task Order shall not give rise to any contractual rights until approved by COUNTY in the form of a written Notice to Proceed signed by the

Chair of the Board of County Commissioners or other authorized representatives of the

COUNTY, in accordance with applicable County policies. All written Notices to Proceed and specific Task Orders are incorporated into this Contract by this reference and shall constitute a contract addendum to this Contract.

6.3. Order of Work. COUNTY shall have the sole right to determine which units or sections of the work CONSULTANT shall proceed on and in what order.

Should a Task Order revise the scope, cost, or schedule, the CONSULTANT shall submit such revisions in scope, cost, or schedule in writing to COUNTY for review and approval as a modification by COUNTY prior to commencing the revision. The

CONSULTANT waives any right to make a claim based upon a revision if such notice was not provided.

6.4. COUNTY Assistance. Where appropriate, COUNTY shall make COUNTY personnel with knowledge of the operation of COUNTY as it relates to the Task Order available to assist CONSULTANT. COUNTY shall make its facilities accessible to

CONSULTANT, where feasible, and as required for CONSULTANT’s performance of services under this Contract. In those instances where CONSULTANT may deem it necessary to obtain access or entry upon privately owned property in its performance of the Contract, CONSULTANT may request assistance from COUNTY in facilitating such access. COUNTY shall assist as is feasible.

7. MODIFICATIONS.

7.1. CONTRACT Modifications. The terms of this Contract may be modified upon the mutual agreement of the Parties in writing executed by both Parties with the same formality as herewith.

7.2. Task Order Modifications.

7.2.1. All modifications to a Task Order must be in writing and approved by both Parties. The CONSULTANT shall not perform any additional work or services without first receiving signed written authority from the COUNTY specifying said services to be performed and a written “Notice to Proceed” from the COUNTY.

7.2.2. The Parties agree that COUNTY is not obligated to issue any Task

Order for any specific project or part thereof. The Parties agree that 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.

7.2.3. In the event CONSULTANT experiences any delay resulting from circumstances beyond its control, or a change in the scope of work which will result in an increase or decrease in a Task Order’s price or time, CONSULTANT shall provide immediate notice to the COUNTY for consideration of additional compensation or time. Additional compensation shall be limited to direct costs resulting from delays or changes in work.

8. TERM.

8.1. This Contract shall be effective upon execution by the last Party and shall remain in full force and effect for the duration of the Project, including completion of all services authorized by the County under this Contract, unless earlier terminated as provided herein.

8.2. The COUNTY may, at its sole discretion, extend this CONTRACT for additional periods or phases of work, provided such services are within the scope of services contemplated under the original solicitation and compensation is determined to be fair, competitive, and reasonable in accordance with Section

287.055, Florida Statutes.

8.3. Survival of Task Orders. COUNTY shall not issue new Task Order(s) after the expiration date of this CONTRACT. Existing task orders may extend beyond this

CONTRACT’s expiration. In such situations, the Parties agree that this CONTRACT’s terms and conditions survives as to that Order, and this CONTRACT and the applicable

Order shall remain in full force and effect until work on the outstanding Order(s) is completed.

8.4. Survival of Provision for Services related to Legal Purposes. During the term of this Contract, the Parties agree that COUNTY may issue a task order for

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, 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 at the rates as follows. For such services provided after this contract is expired, the Parties agree CONSULTANT may increase its hourly rate for said services over this CONTRACT’s rate by no more than the annual increase in the consumer price index for each year the contract has lapsed. This provision, and any provision necessary to enforce it, survives contract expiration or termination for a period of five years.

9. TIME OF COMPLETION.

9.1. CONSULTANT shall commence work upon receipt of a written notice to proceed, and an executed Task Order or Purchase Order issued by the COUNTY subsequent to the execution of this CONTRACT. CONSULTANT shall complete the work within the time stated in the Task Order. The CONSULTANT acknowledges that time is of the essence for all work performed under this Contract.

9.2. If the CONSULTANT’s performance is delayed due to the COUNTY’s failure to fulfill its obligations under this CONTRACT, the CONSULTANT may request a reasonable extension of time. Any such extension shall be subject to review and approval by the COUNTY and must be documented in writing through a Task Order modification or other written authorization issued by the COUNTY.

9.3. Force Majeure.

9.3.1. Neither Party shall be liable for its failure to perform hereunder if its performance is rendered impossible or delayed by any unforeseen act, event or condition beyond its reasonable control which by the exercise of due diligence it shall be unable to overcome. Such unforeseen acts, events or conditions shall include, but not be limited to the following: Acts of God, hurricanes, tornado, lightning, or earthquake; strikes or lockouts; acts of war, civil insurrection, riots or terrorism; fire or flood not caused by the Party unable to perform; change in law not due to improper conduct; pandemics or quarantines; or to any negligent or intentional act or omission on the part of the Party unable to perform.

Notwithstanding anything in this CONTRACT to the contrary, the term “Force

Majeure” does not include and a Party shall not be excused from performance under this CONTRACT for events relating to increased costs, including, without limitation, increased costs of fuel, labor, insurance or other expenses of performing the services hereunder.

The failure to perform must occur directly, exclusively and contemporaneously with the Force Majeure event. Should the CONSULTANT be obstructed or delayed in the prosecution or completion of its services or work as a result of said unforeseeable causes beyond the control of the CONSULTANT and not due to its own fault and neglect, CONSULTANT shall, within 3 working days of the time the delay becomes apparent, notify the COUNTY of such delay in writing stating the cause or causes thereof, failing which the CONSULTANT shall waive any right the CONSULTANT may have to request a reasonable extension of time to complete the work required by the Task Order. Such reasonable extensions of time to complete 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.

10. COMPENSATION AND REIMBURSABLE COSTS.

10.1. GENERAL. As consideration for providing professional services, the

COUNTY agrees to pay, and CONSULTANT agrees to accept a fee for services. The fee for services identified in the applicable Task Order is the only compensation to which CONSULTANT is entitled unless pre-approved reimbursable costs are listed in the Task Order. CONSULTANT shall include in the fee for services all its office overhead, employee benefits, normal business travel, and other support for overhead services required for performance of any and all duties or obligations described in the applicable Task Order.

10.2. Fee for Services. The COUNTY may specify one or both fee options below in an approved Task Order, as is applicable to the situation. Compensation for services shall be based on the CONSULTANT’s approved hourly rates as set forth in

Attachment A, unless otherwise specified as a lump sum or other agreed compensation method in an approved Task Order. Each Task Order shall establish a not-to-exceed amount for the authorized services.

10.2.1. Hourly Rate / Time and Materials. Services may be

compensated based on hourly rates in accordance with Attachment A, with a not-to-exceed amount established in the applicable Task Order.

10.2.2. Lump Sum Fee. At the option of the COUNTY, the Parties may mutually agree upon a lump sum fee for any requested portion of work in a written Task Order.

10.3. Reimbursable Expenses or Costs. CONSULTANT shall be compensated for certain work-related expenditures not covered by the fee for service only if (1) the reimbursable expenses are pre-approved by specification in the Task Order; or (2)

CONSULTANT has obtained written pre-approval from COUNTY prior to incurring the expense. If an expense is not pre-approved by COUNTY, the CONSULTANT will not be entitled to be compensated by COUNTY for such expense. When requesting

COUNTY pre-approval for an expense, CONSULTANT must provide a written justification for the expenses accompanied by copies of invoices, receipts, requisitions, and/or estimates (if actual expense cannot be provided until actual cost is incurred) to document the need for the expense. COUNTY, upon receipt of satisfactory documentation, will provide CONSULTANT with its written decision on approval or rejection of said expenses. CONSULTANT must submit the final receipts, invoices, etc., for expenses incurred in order to be reimbursed by COUNTY. COUNTY will reimburse CONSULTANT for pre-approved expenses at actual cost (no markup or percentage increase will be paid by the COUNTY). Types of reimbursable expenses may include:

10.3.1. Documents and Incidentals. Expenses for document

reproduction or other incidental expenses. These expenses shall be reimbursed on a direct cost basis to cover labor and expenses.

10.3.2. Contractual costs. SUBCONSULTANT costs shall be reimbursed at actual cost. Requests for copies of invoices, receipts must accompany reimbursement of Contractual costs, purchase requisitions, etc. to document the charges.

10.3.3. Travel Costs. The Parties agree that travel costs for normal business travel necessary under the performance of this contract is included in the CONSULTANT’s hourly fee. COUNTY, in its sole discretion, may approve

CONSULTANT’s request for reimbursement for special travel required under extenuating circumstances as part of a Task Order. If approved, such travel shall be reimbursed at the same rate as for COUNTY employees in accordance with the most current version of County’s Administrative Order AO-21, "Travel", which administrative order is incorporated to this contract by this reference, and section

112.061 Florida Statutes. A copy of AO-21 is available upon request. All

CONSULTANT requests for special travel must be documented on a State of

Florida Travel Voucher with appropriate receipts. Without prior written approval, COUNTY is not responsible for reimbursing CONSULTANT for said travel.

10.3.4. Permits, Licenses, and Fees. Generally, unless specifically authorized, permits, fees, and licenses necessary for performance of work pursuant to this Contract will not be waived by COUNTY, and CONSULTANT shall be responsible for obtaining, and shall pay for their own professional permits, fees, and licenses, as required. If authorized, and not treated as a reimbursable cost, the COUNTY shall pay directly to the governing authority, the cost of permits, fees, and/or licenses required for completion of the scope of services for a particular Task Order.

10.3.5. Other miscellaneous expenses previously authorized in writing by the COUNTY.

11. BILLING, PAYMENT, AND PARTIAL PAYMENTS

11.1. General. COUNTY will make payment to CONSULTANT through County

Finance according to the County’s Administrative Order AO-33, “Prompt Payment of

Invoices” (copy available upon request) and Florida’s Local Government Prompt

Payment Act, Chapter 218, Part VII, Florida Statutes, including provision of an IRS

Form W-9. CONSULTANT payments are subject to the COUNTY'S right to withhold any amounts reasonably necessary to complete or correct substandard work or work not in compliance with the terms of this Contract. The County will not honor any claim for services rendered by CONSULTANT that is not specifically provided for in this

Contract or a Task Order under this Contract.

11.2. Process for Payment of Invoices.

11.2.1. CONSULTANT shall submit invoices for payment to COUNTY either (a) on a monthly basis or (b) contemporaneously with services rendered pursuant to the timeline specified in each Task Order. The CONSULTANT’s request for payment shall be in the form and in the manner required by the

COUNTY, and shall relate to work performed since the last invoiced work. The

COUNTY may require supplemental and accompanying data to support the

CONSULTANT’s request for payment.

11.2.2. The amount of each invoice submitted shall be the amount due for all services performed to date in connection with authorized work, as certified by the CONSULTANT. Each invoice shall include only authorized work and must reference the particular Task Order that authorized the services performed.

CONSULTANT shall include, with its invoice, copies of all invoices paid by the

CONSULTANT for expenses.

11.2.3. Method of Payment. All payments by the County to the

CONSULTANT shall be made via Automated Clearing House (ACH). The

CONSULTANT shall enroll in the County’s ACH payment program and provide all required banking information prior to issuance of the first payment, unless otherwise approved in writing by the COUNTY. The County shall not be responsible for delays in payment resulting from the CONSULTANT’s failure to timely enroll or maintain accurate ACH information. Exceptions, if any, must be approved in writing by the Brevard County Utility Services Department Contracts

Supervisor.

12. DISPUTE RESOLUTION.

12.1. If the COUNTY objects to all or any portion of an invoice, the COUNTY shall notify the CONSULTANT and indicate in writing what corrective action is required of the CONSULTANT. If a dispute over an invoice occurs, the Parties will work to resolve the dispute in accordance with the County’s Administrative Order AO-33 (copy available upon request) and Section 218.76, Florida Statutes.

12.2. To the extent the COUNTY requests CONSULTANT to perform services that it believes are not described in the Task Order, or with respect to which there is a disagreement between the Parties as to whether or not the services are already required by a particular Task Order, then CONSULTANT shall provide written notice to the COUNTY of said issue, and the CONSULTANT will follow COUNTY’s written directive provided it is without prejudice to CONSULTANT’s right to seek additional compensation from COUNTY. The CONSULTANT shall only provide such service upon receipt of a written COUNTY directive/Notice to Proceed to explicitly perform such service. The COUNTY’s delivery of such written directive/Notice to Proceed following CONSULTANT’s notification shall be without prejudice to COUNTY’s right to maintain that such services do not constitute the basis for additional compensation under the applicable Task Order.

12.3. Waiver. The waiver by either Party of the other Party's obligations or duties under this CONTRACT shall not constitute a waiver of any other obligation or duty of the other Party under this CONTRACT, nor shall a waiver of any such obligation or duty constitute a continuing waiver of that obligation or duty.

13. OWNERSHIP AND REUSE OF WORK PRODUCT.

13.1. COUNTY agrees to furnish to CONSULTANT, upon request, for inspection and copying, any known documents or data available in the COUNTY'S files pertaining to the work to be performed under this Contract which may be reasonably required by CONSULTANT to be performed under this Contract. To the extent

COUNTY provides such documents or data to CONSULTANT for CONSULTANT’s use in a project, COUNTY agrees to obtain, or cause to obtain, any releases, permits or authorization necessary for the use of the documents or data. The COUNTY agrees to hold CONSULTANT harmless for any claim arising with respect to COUNTY’s releases, permits or authorization for the use of the documents.

13.2. To the extent CONSULTANT provides Work Product that CONSULTANT did not create, to COUNTY for its use, CONSULTANT agrees to obtain, or cause to be obtained, any releases, permits or authorization necessary for the use of the Work

Product by COUNTY to the same extent that CONSULTANT is required to provide

COUNTY in sections 13.3 and 13.4. CONSULTANT agrees to be responsible for any claims arising with respect to such use of Work Product provided by CONSULTANT.

CONSULTANT agrees that its proposal for this Work Product factored the costs of this section into its proposal and that no additional compensation is owed by COUNTY.

13.3. To the extent CONSULTANT creates Work Product under this Contract for

COUNTY, then to the extent permissible under the law, the Parties agree the Work

Product is specially ordered or commissioned as a “work for hire” under 17 United

States Code section 101. CONSULTANT agrees that COUNTY is the exclusive owner of all Work Product created under this paragraph, without restrictions or limitations upon its use. When each individual section of work requested pursuant to this sub-section is complete, all of the work products shall be delivered to the COUNTY for its use. There shall be no additional compensation for the rights and property granted under this paragraph.

13.4. To the extent CONSULTANT creates Work Product for COUNTY that falls outside the definition of a “work for hire” under 17 United States Code section 101, by this paragraph, CONSULTANT grants to COUNTY a royalty-free, world-wide, nonexclusive, irrevocable, unlimited license right in the Work Product created by

CONSULTANT for COUNTY pursuant to the CONTRACT, without restrictions or limitations upon its use. Such a license includes an express right for the COUNTY to further sub-license the Work Product and to create derivative works, without restriction.

13.5. To the extent CONSULTANT creates Work Product for COUNTY that depends upon original notes, working documents, design calculations, computations, and plans, COUNTY shall be entitled to a copy of such materials upon request, and further provided materials shall not be destroyed without the prior written approval of

COUNTY.

13.6. Reuse of Work Products.

13.6.1. CONSULTANT may not reuse plans, specifications, or reports specifically developed by CONSULTANT for COUNTY without express written permission from COUNTY.

13.6.2. In accordance with Section 287.055(10), Florida Statutes, and section 13.3 of this contract, the COUNTY may reuse any plans, specifications, or reports provided under this CONTRACT, subject to any conditions in the task order. CONSULTANT shall not be held liable for reuse of documents or modifications thereof by the COUNTY or its representatives for any purpose other than the original intent of this Agreement without written authorization of

CONSULTANT.

14. NOTICES AND AUTHORIZED REPRESENTATIVES.

14.1. Authorized Representatives. 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, provided such actions do not result in an increase in cost or time without proper written authorization in accordance with this Contract. The Parties understand and agree that only the Board of County Commissioners, County Manager, Assistant County

Managers, or Department Director, as authorized in accordance with applicable Brevard

County policies, including BCC-25 and BCC-26, has 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. The

Parties' representatives will be identified by a separate letter, which is attached and incorporated into this Contract as an Addendum. 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.

14.2. 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 renewal, 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. The addresses set forth below for the respective Parties shall be the places where notices shall be sent, unless prior written notice of change of address is given.

14.3. The Parties' designated representatives and their respective addresses for purposes of this Contract are as follows:

COUNTY CONSULTANT

Brevard County Utility Services Department [INSERT COMPANY NAME] Brevard County Government Center [INSERT ADDRESS] 2725 Judge Fran Jamieson Way Building A, [INSERT CITY, STATE, ZIPCODE] Suite 213 Viera, Florida 32940

15. AUDIT RIGHTS AND PUBLIC RECORDS.

15.1. In performance of this Contract, CONSULTANT shall keep books, records, and accounts of all activities related to this Contract in compliance with generally accepted accounting procedures. All documents, papers, books, records and accounts made or received by CONSULTANT in conjunction with this Contract, and the performance of this Contract, shall be open to inspection during regular business hours by an authorized representative of COUNTY. The COUNTY or any of its duly authorized representatives reserves the right to audit the CONSULTANT’s records related to this

Contract at any time during the performance of this Contract and for a period of five years after final payment is made or otherwise required by law.

15.2. 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, and shall retain all documents, books and records for a period of five (5) years after termination of this Contract, unless such records are exempt from section 24(a) of

Article 1 of the State Constitution and Chapter 119, Florida Statutes. 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.

15.3. All records or documents created by the COUNTY or CONSULTANT in connection with this Contract are public records subject to Florida Public Records Law, Chapter 119, Florida Statutes. It is CONSULTANT’S duty to identify any information in records created by CONSULTANT which it deems is exempt or confidential from public records laws under Florida or federal law and identify the statute number which requires the information be held exempt. All records stored electronically must be provided to

COUNTY in a format compatible with the information technology systems of COUNTY.

15.4. 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. In lieu of retaining all public records upon termination of this Contract, the CONSULTANT may transfer, at no cost to the COUNTY, all public records in possession of the

CONSULTANT. If the CONSULTANT transfers all public records to the COUNTY upon termination of the Contract, the CONSULTANT shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements.

15.5. Pursuant to Section 119.0701, Florida Statutes, a request to inspect or copy public records relating to this Contract must be made directly to COUNTY. If

COUNTY does not possess the requested records, COUNTY shall immediately notify the CONSULTANT of the request and if CONSULTANT possesses the records, CONSULTANT must provide the records to the 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 COUNTY can comply with the requirements of Sections

119.07, Florida Statutes. The 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 herein by this reference. A copy of AO-47 is available upon request from the COUNTY’S public records custodian designated below.

15.6. If CONSULTANT possesses the records but fails to provide the requested public records to COUNTY within a reasonable time, pursuant to section 119.0701 and

119.10, Florida Statutes, the CONSULTANT may face 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.

15.7. Should COUNTY face any legal action to enforce inspection or production of the records within CONSULTANT’S possession and control, CONSULTANT agrees to indemnify COUNTY for all damages and expenses, including attorney’s fees and costs. CONSULTANT shall hire and compensate attorney(s) to represent

CONSULTANT and COUNTY in defending such action. CONSULTANT shall pay all costs to defend such action and any costs and attorneys fess awarded pursuant to

Section 119.12, Florida Statutes.

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 CUSTODIAN OF PUBLIC

RECORDS: whitney.blucher@brevardfl.gov.

16. UNAUTHORIZED ALIEN WORKERS AND EMPLOYMENT ELIGIBILITY

VERIFICATION (E-VERIFY).

16.1. Unauthorized Alien Workers. The COUNTY will not intentionally award publicly funded contracts to any CONSULTANT who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8

United States Code Section 1324 (a) of the Federal Immigration and Nationality Act.

The COUNTY shall consider a CONSULTANT’s intentional employment of unauthorized aliens as grounds for immediate termination of this Agreement.

16.2. 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 and shall expressly require any

SUBCONSULTANTS performing work or providing services pursuant to the 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 SUBCONSULTANT during the Contract term. All CONSULTANTS shall meet this requirement unless they are a sole proprietor who does not hire employees and therefore is not required to file a

Department of Homeland Security Form I-9 or the contract is being executed with a company based outside of the United States of America and does not have a corporation or office within the United States of America and does not employ United

States of America citizens.

16.3. Upon request, the CONSULTANT agrees to provide a signed copy of the

E-Verify Memorandum of Understanding signed by CONSULTANT and the Department of Homeland Security.

16.4. CONSULTANT agrees to maintain records of its participation and compliance with the provisions of the E-Verify program, including participation by its

SUBCONSULTANTS 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

SUBCONSULTANTS' enrollment in the E-Verify Program.

16.5. 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.

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

17. SUBCONTRACTING.

The CONSULTANT shall not subcontract, assign, or transfer any work under this

Contract without the written approval of the COUNTY, including a change of sub-

CONSULTANT. When applicable, the CONSULTANT shall cause the names of any subcontracted firms responsible for major portions (or separate specialty) of the work to be inserted in the task order. CONSULTANT shall remain, at all times, liable for the proper performance and completion of all work and other services required hereby, including supervision and administration of all such sub-contracted personnel, firms and companies, and including any errors or omissions by said sub-CONSULTANTs. The

CONSULTANT shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its designs, drawings, specifications, reports, and other services performed by SUBCONSULTANT.

18. COVENANT AGAINST CONTINGENT FEES.

As required by Section 287.055(6), Florida Statutes, the CONSULTANT warrants that he or she has 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 the CONSULTANT has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the

CONSULTANT, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this agreement. For any breach or violation of this provision, the COUNTY shall have the right, but not the duty, 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.

19. TERMINATION OF CONTRACT.

19.1. Termination for Convenience. Either Party may terminate this Contract for convenience upon sixty (60) calendar days written notice to the other Party. Such termination is effective upon the Party’s receipt of the Notice of Termination. Upon receipt of such a notice, the Parties will discontinue all services affected, unless the notice directs otherwise, and payment will be made as directed below. If

CONSULTANT terminates Contract for convenience, CONSULTANT will complete any outstanding task orders.

19.2. Termination for Failure to Perform. If a Party is failing to perform, the other

Party will issue a notice of failure to perform to the failing Party. The notice shall provide the failing Party with thirty (30) calendar days from the date the notice is received in which to correct such deficiencies as noted in said notice. If the Party fails to correct such deficiencies to the satisfaction of the other Party within the stated time period, then the Party may terminate the Contract upon sixty (60) calendar days written notice to the other Party for failure to perform. In the case of a termination notice issued by

CONSULTANT, the CONSULTANT may discontinue providing service to COUNTY and shall be paid for prior satisfactory services performed as per the applicable Task Order.

In the case of termination notice issued by COUNTY, COUNTY may take over the work and cause it to be performed to completion by CONTRACT or otherwise. In such case, the COUNTY preserves all rights and remedies available, including, but not limited to, the right to recover COUNTY’s additional cost incurred in securing complete performance. The rights and remedies of COUNTY provided in this clause are in addition to any other rights and remedies provided by law or under this CONTRACT. If, after COUNTY notice of termination for failure to fulfill contractual obligations, it is determined that CONSULTANT had not failed the contractual obligations, the termination shall be deemed to be affected for the convenience of COUNTY.

19.3. Upon termination for any reason, the Parties agree that any work completed, or services provided by CONSULTANT prior to the date of termination shall become property of COUNTY. Upon COUNTY request, CONSULTANT shall deliver to

COUNTY Work Product as may have been accumulated by CONSULTANT in performing this CONTRACT, whether completed or in process.

19.4. Payment on Termination. In the event of termination by COUNTY, the

COUNTY’S sole obligation to CONSULTANT shall be payment for those portions of previously authorized and satisfactorily performed work under an approved Task Order.

The COUNTY shall not be obligated to pay for any services performed after

CONSULTANT has received the final notice of termination. Such payment shall be determined on the basis of the hours of work performed by CONSULTANT, or the percentage or work complete as estimated by CONSULTANT and agreed upon by

COUNTY up to the time of termination. In the event of such termination, COUNTY may, without penalty or other obligation to CONSULTANT, elect to employ other persons to perform the same or similar services. In the event of deficient professional services, COUNTY shall not pay for the deficient services, except for that portion, if any, of the performed work which is used or useful by any other CONSULTANT retained by

COUNTY to finish the work to the extent that COUNTY does not incur additional costs over those set forth in the CONSULTANT'S canceled Work Order.

20. ASSIGNMENT.

The COUNTY and CONSULTANT each bind its respective entity and its successors, legal representatives, and assigns to the other Party to this CONTRACT, and to the partners, successors, legal representatives, and assigns of such other Party, and in respect to all covenants of this CONTRACT. Neither Party shall assign or transfer its interest in this CONTRACT without the prior written consent of the other

Party. In the event that the CONSULTANT changes its name, merges with another company, becomes a subsidiary, or makes other substantial changes in structure or in principals, the COUNTY reserves the right to terminate this Contract subject to the terms prescribed above.

21. ATTORNEY’S FEES, GOVERNING LAW AND VENUE.

In the event of any legal action between the Parties arising out of this Contract, each Party shall bear its own attorney’s fees and costs. This Contract, regardless of where executed, shall be governed by and construed according to the laws of the State of Florida. Venue for any legal action brought 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 the Parties agree any trial shall be non-jury.

The CONSULTANT consents and waives any objection or defenses relating to Florida state court having jurisdiction over any dispute or claim arising out of this agreement and consents to process being served upon its Florida registered agent.

CONSULTANT expressly waives removal of any claim or action arising under this agreement to federal court.

22. INDEMNIFICATION AND INSURANCE.

22.1. To the extent permitted by Chapter 725.08, Florida Statutes indemnification for professional services, CONSULTANT shall hold COUNTY harmless against any and all claims for and related in any way to bodily injury, sickness, disease, death, personal injury, damages to property of any kind (including but not limited to loss of use of any property or assets resulting therefrom), schedule delay claims of any kind, including but not limited to loss of efficiency or productivity, arising out of or resulting from the performance of the products or services by Consultant for which COUNTY is contracting hereunder, to the extent caused by the negligent acts, recklessness, or intentional wrongful conduct of CONSULTANT, or any of their agents or employees, including SUBCONSULTANTS. Such negligent acts by CONSULTANT include, but are not limited to, any errors or omissions in the CONSULTANT’S services, including but not limited to design services.

22.2. The CONSULTANT agrees to fully indemnify COUNTY and pay the cost of COUNTY’s legal defenses, including reasonable fees of attorneys as may be selected by COUNTY, for all claims and to the extent described in the hold harmless clause above. Such payment on behalf of the COUNTY shall be in addition to any and all other legal remedies available to the COUNTY and shall not be considered to be the

COUNTY’S exclusive remedy. It is agreed by the Parties hereto that specific consideration has been received under this Contract for this hold harmless/indemnification provision.

22.3. Notwithstanding any other provisions of this Contract, this indemnification section applies to both COUNTY and third-party claims and shall survive the termination of this Contract. Nothing in this section is intended to nor shall it constitute a waiver of the sovereign immunity of Brevard County.

22.4. PURSUANT TO SECTION 558.002 AND

558.0035, FLORIDA STATUTES, A DESIGN PROFESSIONAL WHO IS AN

EMPLOYEE OR AN AGENT OF CONSULTANT MAY NOT BE HELD

INDIVIDUALLY LIABLE FOR NEGLIGENCE IF CONSULTANT MAINTAINS THE

PROFESSIONAL LIABILITY INSURANCE REQUIRED BELOW AND THE

DAMAGES ARE SOLELY ECONOMIC…