Attachment_A_-_Draft_Contract.pdf

BREVARD COUNTY

ENVIRONMENTALLY ENDANGERED LANDS PROGRAM

AGREEMENT FOR PROFESSIONAL SERVICES

THIS AGREEMENT by and between the Board of County Commissioners of Brevard County, Florida, a political subdivision of the State of Florida (hereinafter the “County”), and

WITNESSETH:

WHEREAS, the County created the Brevard County Environmentally Endangered Lands

Program (“EEL Program”) to fund, acquire and manage environmentally endangered lands and water areas;

WHEREAS, the County desires to acquire certain lands identified by the EEL Program (collectively, the "Project");

WHEREAS, the successful implementation of the EEL Program presents unique real estate acquisition management and negotiating opportunities which require specialized expertise and the has such expertise;

WHEREAS, the was recommended as the consultant by the County Selection Committee and the final ranking was approved by the Brevard County Board of County Commissioners on;

WHEREAS, the County desires to engage the services of and desires to accept the obligation to perform the services outlined herein upon the terms and conditions set forth below;

and

WHEREAS, the provision of such services shall mutually benefit the parties hereto and the residents of Brevard County, Florida.

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

1. SCOPE OF THE WORK: shall furnish all labor, materials, equipment, machinery, tools, apparatus and transportation to perform all work or services specified in Exhibit “A”, attached hereto and made a part hereof by this reference and hereinafter referred to as ( “Services”).

2. TERM: The term of the Agreement shall begin, and continue through,; however, nothing shall preclude the County and from extending the term of this Agreement, if agreed to by both parties, upon the same terms and conditions for additional periods as the County may deem necessary or appropriate for purposes of completing the implementation of the Project. The County shall notify of its desire to extend this Agreement in writing at least ninety (90) days prior to the end of any applicable term. shall respond to such request within thirty (30) days in writing to the County.

Each extension shall be agreed upon, in writing, not later than sixty (60) days prior to the end of the applicable term.

3. PAYMENTS: County shall pay for Services provided under this Agreement as provided in Exhibit “B” to this Agreement and made a part of this Agreement by this reference. 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. The County shall remit payment in accordance with the Florida Prompt Payment Act, Florida Statute section 218.70, et seq.

4. INDEMNIFICATION: 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 agreement, where such claim, damage, loss, or expense is caused, in whole or in part, by the negligent act or omission of, or anyone directly employed by the Conservancy, or anyone for whose acts any of them may be liable. In any and all claims against the County, or any of its agents or anyone directly employed by, 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 section is intended to nor shall it constitute a waiver of the sovereign immunity of Brevard County. Further, the liability of the COUNTY hereunder shall be subject to each of those respective parties’ common law right of sovereign immunity and limited to the extent of the protections of and limitations on damages as set forth in Section 768.28, Florida Statutes. The parties acknowledge specific consideration has been exchanged for this provision.

5. MODIFICATIONS TO CONTRACT: This contract, together with any exhibits, task assignments and schedules constitute the entire contract between the County 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.

6. INSURANCE: , at its own expense, shall keep in force and at all times maintain during the term of this Agreement:

a. General Liability Insurance: General Liability Insurance issued by responsible insurance companies and in a form acceptable to the County, with combined single limits of not less than One Million Dollars ($1,000,000) for Bodily Injury and Property Damage per occurrence.

b. Automobile Liability Insurance: Automobile Liability coverage shall be in the minimum amount of One Million Dollars ($1,000,000) combined single limits for Bodily Injury and Property Damage per accident.

c. Workers’ Compensation Coverage: Full and complete Workers’ Compensation Coverage, as required by State of Florida law, shall be provided.

d. Insurance Certificates: 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. Said Liability Policies shall provide that the County be 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.

7. 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.

8. GOVERNING LAW: This agreement shall be governed, interpreted and construed according to the laws of the State of Florida.

9. COMPLIANCE WITH STATUTES: It shall be responsibility to be aware of and comply with all federal, state and local laws.

10. VENUE: Venue for any legal action by any party to this agreement to interpret, construe or enforce this Agreement shall be in a court of competent jurisdiction in and for Brevard County, Florida and any trial shall be non-jury.

11. ASSIGNMENTS: shall not assign any portion of this agreement without the written permission of the County.

12. TERMINATION: If either party fails or refuses to perform any of the provisions of this contract or otherwise fails to timely satisfy the contract provisions, either may notify the other party in writing of the nonperformance and terminate the contract or such part of the contract as to which there has been delay or a failure to properly perform. Such termination is effective upon the party’s receipt of the Notice of Termination. Any work completed or services provided prior to the date of termination shall, at the option of the County, become the property of the County. The County is only responsible for payment for (work completed or services provided) prior to the effective date of termination.

13. TERMINATION FOR CONVENIENCE: In the event either party desires to terminate this Agreement for its convenience, then either party may terminate the Agreement at any time for convenience upon ninety (90) days written notice to the other. Any such termination shall be effected by delivery to the other party of a Notice of Termination specifying the extent to which performance of work under the Agreement is terminated, that the termination is for convenience, and the date upon which such termination becomes effective. If the termination is effected by the County, the Conservancy shall be compensated for work satisfactorily completed, and irrevocable commitments made. If termination is effected by the Conservancy, the Conservancy shall be compensated for work satisfactorily completed.

14. INDEPENDENT CONTRACTOR: shall perform the Services under this agreement as an independent contractor and nothing contained herein shall be construed to be inconsistent with this relationship or status. Nothing in this agreement shall be interpreted or construed to constitute or any of its agents or employees to be the agent, employee or representative of the County.

15. RIGHT TO AUDIT RECORDS: In performance of this Agreement, shall keep books, records, and accounts of all activities related to the Agreement, in compliance with generally accepted accounting procedures. All documents, papers, books, records and accounts made or received by in conjunction with the Agreement and the performance of this Agreement shall be open to inspection during regular business hours by an authorized representative of the office and shall be retained by for a period of three (3) years after termination of this Agreement, unless such records are exempt from section 24(a) of Article I of the State Constitution and section 119.07(1) Florida Statutes. All records or documents created by or provided to by the County in connection with the activities or services provided by under the terms of this agreement are public records (except all appraisal information, offers and counteroffers subject to 259.041, F.S., or other laws and confidential personnel records), and agrees to comply with any request for such public records or documents made in accordance with section 119.07 Florida Statutes.

16. UNAUTHORIZED ALIEN WORKERS: Brevard County will not intentionally award publicly-funded contracts to any contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e)(Section 274A(e) of the Immigration and Nationality Act “INA”). The County shall consider a contractors intentional employment of unauthorized aliens as grounds for immediate termination of this Agreement.

17. FEDERAL TAX ID NUMBER: shall provide to the County their Federal Tax ID Number.

18. EMPLOYMENT: shall not engage the services of any person or persons now employed by the County, including any department, agency, board or commission thereof, to provide services relating to this contract without written consent from the County.

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

20. CONSTRUCTION OF AGREEMENT: The parties hereby acknowledge that they fully reviewed this agreement, its attachments and had the opportunity to consult with legal counsel of their choice, and that this agreement shall not be construed against any party as if they were the drafter of this Agreement.

21. NOTICE: Notice under this agreement shall be given to County by certified mail or hand delivery as follows: Brevard County Environmentally Endangered Lands Program, 91 East Drive, Melbourne, FL 32904, Attention: Mike Knight, Program Manager, and Notice shall be given to

22. COUNTY RESPONSIBILITIES: The County has the following responsibilities under this Agreement for implementation of the EEL Program land acquisition program:

a) DESIGNATION OF SITES: Negotiations by under this Agreement shall be limited solely to those parcels of real property in the Project which are identified by the County. The County shall provide access to of all existing records of ownership, together with addresses and telephone numbers, for each site which is to be considered for engagement as well as the acquisition priority and desired timetable.

b) CONSULTANT SERVICES: The County shall provide lists of County and other agency approved consultants to and coordinate the acquisition of all consultants and sub-contractors required for the Project through the EEL Program staff. The County will contract directly with the provider of due diligence services (the “Consultants”). The County will pay all fees directly to the Consultants. will coordinate the due diligence with the Consultants and the County. Consultant and sub-contractor resources include, but are not limited to, appraisers, surveyors and mappers, title researchers, title insurance companies, real estate escrow and closing agents, and environmental auditors.

c) MULTI-PARTY ACQUISITION AGREEMENTS: The County shall provide with copies of all Multi-Party Acquisition Agreements entered into by the County with the State of Florida or other participating agency, if any, which relate to the Program.

will, to the extent necessary, and to the extent agreed upon by such participating agency, proceed to amend said agreements for purposes of participating in said transaction.

d) PROPERTY INFORMATION: The County shall provide with all of the

County's policies and procedures covering land acquisition, as well as such other documents, papers, maps, photographs and information related to the properties to be acquired pursuant to this Agreement as may be necessary or required.

e) ACQUISITION PROCESS: The County shall assign appropriate staff to assist and coordinate with throughout the acquisition process, including legal staff, for purposes of consultation and review of contract issues, title and survey questions, review of environmental assessments and such other documents as are applicable to the acquisition of the properties. County staff will prepare the necessary agenda items to present to the Board of County Commissioners with respect to each acquisition for County approval. The County is responsible for reviewing all due diligence, including but not limited to environmental audits, surveying and mapping information, and title evidence, and in instances where the option or purchase agreement has been assigned to the County, shall be responsible for the preparation of closing documents and closing the transactions.

f) ALTERNATE FUNDING SOURCES: Consistent with stated mission, in the event the County makes applications for matching local, state and/or federal funding for the purchase or management of environmentally endangered lands, will provide technical assistance to assist the County in securing matching local, state and/or federal funding for the purchase of the Project. The County acknowledges and agrees that it shall retain sole responsibility as primary applicant and visible proponent of County projects in furtherance of the Program, and the County shall be solely responsible for making and presenting applications for matching local, state and/or federal funding for environmental lands before the Acquisition and Restoration Council or such other committees and agencies as may be applicable, it being understood and agreed that Conservancy’s role in said instances will be to render technical assistance.

g) CONFIDENTIALITY; NO CONFLICT: The County will maintain the confidentiality of all appraisals, offers, and other negotiation matters to the extent allowed by applicable law. This confidentiality provision shall apply to each member of the County's staff who works on Program acquisitions. No representative of the County, member of the County's staff or member of the Commission will negotiate, approve, or otherwise participate on behalf of the County in the purchase, sale or exchange of real property owned or to be acquired by the County, if the County staff member, Commission member or representative of the County has any financial interest in the land to be acquired.

h) LAND ACQUISITION TEAM: The County will appoint a Land Acquisition

Team (“Team”) to oversee EEL Program land acquisition projects. The Team will be composed of at least one staff from the EEL Program and the County Attorney’s office available to meet on a regular basis with staff, or upon request by the EEL Program Manager. The Team will meet with Conservancy staff to:

Receive assignments and review progress on all elements of the land acquisition workplan on a tract by tract, project by project basis.

Discuss the monthly project report.

Develop tasks and assignments to complete land acquisition projects.

Gather ownership information, arrange for pre-acquisition and transaction due diligence.

Provide support required for approvals from the Board of County

Commissioners.

23. AUTHORIZED REPRESENTATIVES: The parties agree that in order to facilitate the orderly and efficient implementation of the Program and the Services contemplated by this Agreement, each party shall appoint an authorized representative (or representatives) 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 Services covered by this Agreement. The parties understand and agree that only the Board of County Commissioners or its designee has the authority to approve changes or modifications to this Agreement on behalf of the County. representative shall be authorized to act on behalf of regarding all matters involving the conduct of its performance under this Agreement. The initial representatives shall be the EEL Program Manager and Parks and Recreation Director for the County; and the Director of Protection for. Either party shall have the right to change its authorized representatives from time to time, throughout the term hereof, by giving written notice to the other party hereto in accordance with the notice provisions of this Agreement.

IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year first above written.

ATTEST: BOARD OF COUNTY COMMISSIONERS OF

BREVARD COUNTY, FLORIDA

____________________ By:__________________________________

Date:________________________________

As approved by Board on:________________

CONTRACTOR

By: _________________________________ Signature Date:________________________________

SEAL

ATTEST:

Signature

Name & Title, Typed or Printed