Attachment-B-DRAFT-Contract.pdf

CONTRACT FOR ASSET MANAGEMENT

SOFTWARE AND SERVICES

(Computerized Maintenance Management System and Enterprise Asset Management)

BREVARD COUNTY

PUBLIC WORKS DEPARTMENT

Attachment B - Draft Contract

Table of Contents

RECITALS

Section 1. Recitals

Section 2. Administration

Section 3. Contract Documents

Section 4. Scope of Work

Section 5. Non-Exclusive Contract

Section 6. Effective Date and Contract Term

Section 7. Payment; Progress Payments

Section 8. Task Orders

Section 9. Termination

9.1. Termination of Contract for Cause

9.2 Termination Without Cause

9.3. Payment upon Termination

Section 10. Performance

10.2. Force Majeure

Section 11. Indemnification

Section 12. Insurance

Section 13. Protection of Property

Section 14. Warranty

Section 15. Conflicts of Interest

Section 16. Public Records

Section 17. Right to Audit Records

Section 18. Scrutinized Companies

Section 19. Employment Verification

Section 20. Governing Law; Venue; Attorney’s Fees; Waiver of Right to Jury Trial

Section 21. Ownership

Section 22. Independent Contractor

Section 23. Subcontracting

Section 24. Compliance with Laws

Section 25. Taxes

Section 26. Captions and Paragraph Headings

Section 27. Modifications

Section 28. Severability

Section 29. Successors and Assigns

Section 30. Acceptance and Entire Agreement

Section 31. Counterparts

Section 32. Joint Use

Section 33. Notices

CONTRACT FOR ASSET MANAGEMENT SOFTWARE AND SERVICES

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

RECITALS

WHEREAS, the County issued Request for Proposal (RFP) #3-25-12, which is incorporated herein, seeking a qualified contractor to provide Asset Management Software and Services; and

WHEREAS, the Contractor submitted a response to the solicitation for such services; and

WHEREAS, the Contractor’s response, which is incorporated herein, has been reviewed by the County and is determined to be responsive and responsible, was deemed to be most qualified submission; and

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

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

Section 1. Recitals.

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

Section 2. Administration.

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

Section 3. Contract Documents.

3.1. The Contract Documents consist of County-Contractor Contract, Contract amendments, Task Orders, RFP Addenda, the County’s RFP, the Contractor’s RFP response, certificates of insurance, and any other associated documents.

3.2. Unless stated otherwise by the County, in the case of any conflict between the Contract Documents, the order of precedence for the Contract Documents shall be (as applicable): (1) Contract amendments (with those of later date having precedence over those of earlier date); (2) Task Orders; (3) this County-Contractor Contract; (4) RFP Addenda with those of later date having precedence over those of earlier date; (5) the County’s RFP #3-

25-12, including the Scope of Services; (6) the Contractor’s RFP response; (7) certificate(s) of insurance; and (8) any other associated documents.

Section 4. Scope of Work.

4.1. The Contractor shall provide and pay for all materials, tools, equipment, labor, any applicable taxes, professional and non-professional services, and all other associated costs, and shall perform all other acts and supply all other things necessary to fully and properly perform and complete the work, as required in the Contract Documents.

Section 5. Non-Exclusive Contract.

5.1 The Parties acknowledge that this Contract is not an exclusive agreement and the County may employ other similar contractors 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 6. Effective Date and Contract Term.

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

6.2. The term of this Contract is five (5) years after its Effective Date. Any change in price, terms, or conditions shall be accomplished by written amendment to this Contract executed by both Parties.

6.3. The Contractor acknowledges that time is of the essence for all work performed under this Contract. The Contractor acknowledges that failure to complete the work contemplated herein within the time(s) set forth in the Contract Documents will result in substantial damages to the County.

6.4. The warranties required or provided for under this Contract will extend for the commercially-reasonable time associated with the goods and/or services provided for the applicable period of time after acceptance of the work by the County.

Section 7. Payment; Progress Payments. (TO BE FINALIZED BASED ON AWARD)

7.1. As consideration for services, the County agrees to pay, and the Contractor agrees to accept, a fee for services. The fee for services for the applicable Task Order is the only compensation to which the Contractor is entitled, unless pre-approved reimbursable costs are listed in the Task Order. The Contractor shall include in the fee for services all 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.

7.2. Fee for Services. The County may specify one or both fee options below in an approved Task Order, as is applicable to the situation.

7.2.1. Price Schedule Rates. The Contractor shall be compensated in accordance with the attached Price Schedule (Attachment A) for each product and service involved in the work. Attachment A is attached hereto and incorporated herein by this reference.

7.2.2. Lump Sum Fee. At the option of County, instead of the Price Schedule Rates, the Parties may mutually agree upon a lump sum fee for any requested portion of work in a written Task Order.

7.3. Reimbursable Expenses or Costs. The Contractor shall be compensated for certain work-related expenditures not covered by the fee for services only if (1) the reimbursable expenses are pre-approved by specification in the Task Order; or (2) the Contractor has obtained written pre-approval from the County prior to incurring the expense. If an expense is not pre-approved by the County, the Contractor will not be entitled to be compensated by the County for such expense. When requesting pre-approval for an expense, the Contractor 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. The County, upon receipt of satisfactory documentation, will provide the Contractor with its written decision on approval or rejection of said expenses. The Contractor must submit the final receipts, invoices, etc., for expenses incurred in order to be reimbursed by the County. The County will reimburse the Contractor for pre-approved expenses at actual cost(s) (no markup or percentage increase will be paid by the County).

Types of reimbursable expenses may include:

7.3.1. 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.

7.3.2. Contractual Costs. Subcontractors shall be reimbursed at the expense of such cost. Requests for copies of invoices, receipts must accompany reimbursement of Contractual Costs, purchase requisitions, etc. to document the charges.

7.3.3. Equipment Costs. Equipment shall be reimbursed at the cost of rental or purchase cost. Equipment purchased is the property of the County and must be returned upon the completion of the related Task Order.

7.3.4. Travel Costs. The Parties agree that travel costs for normal business travel necessary under the performance of this contract is included in the Contractor’s fee for services. The County, in its sole discretion, may approve a Contractor’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 Administrative Order AO-21, entitled "Travel", (issued by the County Manager of Brevard County, copy available upon request) which administrative order is incorporated to this contract by this reference, and Section 112.061, Florida Statutes. All Contractor requests for special travel must be documented on a State of Florida Travel Voucher with appropriate receipts.

Without prior written approval, the County is not responsible for reimbursing the Contractor for said travel.

7.3.5. 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 the County, and the Contractor 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.

7.3.6. Other miscellaneous expenses previously authorized in writing by the

County.

7.4. The Contractor will bill the County at the amounts set forth in Attachment A for services rendered toward the completion of the Scope of Services. Where incremental billing for partially completed items is permitted, the total incremental billings shall not exceed the percentage of estimated completion as of the billing date.

7.5. The County shall remit payment for all undisputed invoices in accordance with the provisions of the Local Government Prompt Payment Act, Section 218.70, Florida Statutes, et seq.

Section 8. Task Orders.

8.1. Generally. All services or work provided by Contractor for the County shall be identified in written Task Orders. Task Orders shall entail a description of services to be performed, a statement of fees, a projected schedule for completion, and any subconsultant proposals of the work to be performed. Upon request by the County, the Contractor shall also provide a work effort and cost schedule. Upon request by the County, a Task Order may include a project completion date.

8.2. Effectiveness. A Task Order shall not give rise to any contractual rights until both Parties have caused the Task Order to be executed by their duly authorized representatives and a written Notice to Proceed for the respective Task Order is issued by the County. The Contractor shall commence work as indicated in the written Notice to Proceed issued by the County subsequent to the execution of a Task Order. The Contractor shall complete the work in accordance with the executed Task Order. The Contractor acknowledges that TIME IS OF THE ESSENCE FOR ALL WORK PERFORMED UNDER THIS CONTRACT. All written Notices to Proceed and executed Task Orders are incorporated to this Contract by this reference and shall constitute a contract addendum to this Contract.

The Contractor will provide the County with a written list of the names, company/corporate titles, business addresses and business telephone number(s) of those officers, agents or employees of the Contractor authorized to execute Task Orders, issued under this Contract, on its behalf. This list shall be signed by the officer or agent executing this Contract on behalf of the Contractor and shall be submitted with this executed Contract.

Any changes, deletions or additions to this list of authorized signatories to Task Orders shall be submitted in writing to the County by the officer or agent executing the Contract upon the Contractor becoming aware of the need for such change, etc.

8.3. Order of Work. County shall have the right to determine which units or sections of the work on which Contractor shall proceed and in what order. If the Contractor maintains that a Task Order requires a change in schedule that does not impact the scheduled completion date, a revised schedule shall be submitted in writing for County consideration, and commencement of any such schedule revision is contingent on approval by the County.

In the event Contractor experiences any delay in completing the Task Order resulting from circumstances beyond its control, the Contractor shall provide immediate notice in writing to the County for consideration if additional compensation and/or time is requested by the Contractor. Contractor waives any right to make a claim based upon a delay if such written notice was not provided.

If the Contractor cannot complete the work prior to an established completion date of a Task Order, the Contractor must submit a request for time extension at least sixty (60) calendar days prior to said established completion date. A request for time extension shall include a detailed justification for the delay along with an updated project completion schedule. Upon receipt of the request for a time extension, the County shall review the justification and may request additional information as needed to consider the time extension request. Furthermore, some projects, such as Federal-aid eligible projects, may require additional approvals which will be coordinated by the County.

No-cost time extensions may be processed by the Public Works Director and do not require signature by the Contractor’s authorized representative.

Cost-associated time extensions require a modification by Change Order to the Task Order, as described further below in this Contract.

Time extensions are granted at the discretion of the County and will not be unreasonably withheld or denied.

8.4. County Assistance. Where appropriate, the County shall make County personnel with knowledge of the operation of the County as it relates to the Task Order available to assist the Contractor. County shall make its facilities accessible to Contractor, where feasible, and as required for Contractor’s performance of services under this Contract. In those instances where Contractor may deem it necessary to obtain access or entry upon privately owned property in its performance of Contract, Contractor may request assistance from County in facilitating such access. County shall assist as is feasible.

8.5. Change Orders

A Change Order shall be required to process modifications to the Task Order for revisions to the scope of services, cost-associated time revisions, and/or changes in compensation.

The Parties agree the County may modify the scope of a project in a Task Order as the

County deems appropriate, including, but not limited to, a commensurate increase or decrease in the fee.

A no-cost time extension does not require a Change Order.

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

Section 9. Termination.

9.1. Termination of Contract for Cause.

In the case of any breaches of this Contract, the non-breaching party shall provide written notice to the breaching party outlining the alleged breach and a reasonable time to correct such violation(s). Failure of the breaching party to correct the violation(s) within the reasonable timeframe identified in the notice shall be grounds for termination of this Contract. It is agreed that the violation of any covenant or provision contained in the Contract, or the failure or refusal of a Party to abide by or carry out any covenants or provision of this Contract, shall be and constitute sufficient cause for which this Contract may be terminated. In the event the non-breaching party shall elect to terminate this Contract for cause, the non-breaching party shall notify the breaching party thereof in writing and shall therein specify the date that such termination shall be effective, whereupon the Contractor shall (1) vacate the facility on or before said date, and (2) remove the Contractor's employees and property from the facility, return all keys, badges, access cards, and all other items issued to the Contractor by Brevard County on or before said date.

The Contractor shall have no further rights and the County shall have no further obligation to the Contractor, pursuant to this Contract, subsequent to the date that the County terminates this Contract for cause.

9.2 Termination Without Cause.

The County shall have the right at any time and at all times to terminate this Contract without cause, upon written notice of such termination not less than thirty (30) days prior to the date that such termination shall be effective. In the event the County shall elect to terminate this Contract without cause, the County shall notify the Contractor thereof in writing and shall therein specify the date (not earlier than thirty (30) days after the date of delivery of said written notice by the County to the Contractor) on which this Contract shall terminate.

The County’s ability to terminate without cause applies to both individual work orders/purchase orders, in part or in its entirety, or to this Contract, in part or in its entirety.

Upon receipt of such written notice, the Contractor agrees (1) to vacate the facility on the contract termination date specified in said written notice, return any keys, security access cards, badges, and all other items used to access facilities, and (2) to remove Contractor's employees and property from the facility on the contract termination date specified in said written notice. The Contractor agrees to abide by and carry out all covenants and provisions of this Contract until the date of termination specified in the aforesaid written notice of termination of this Contract without cause. The Contractor shall have no further rights, and the County shall have no further obligation to the Contractor, pursuant to this Contract subsequent to the date of termination of this Contract as specified in said written notice.

9.3. Payment upon Termination.

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

Section 10. Performance.

10.1. Services not performed in accordance with this Contract shall be considered unsatisfactory and unacceptable. In the event of non-performance or unsatisfactory performance by the Contractor or any representative of the Contractor, the County shall have the right to exercise the following options:

10.1.1. Notify the Contractor of non-performance/unsatisfactory performance in writing and allow the Contractor to correct such item within a specified timeframe, at no expense to the County. Although the timeframe for making corrections may occur outside of the Contractor’s normal working hours, the Contractor shall not receive any further compensation.

10.1.2. Should the Contractor fail to deliver goods, equipment, or services within the time(s) specified in the contract, or within such additional time(s) as may be granted by the County, the County shall suffer damage, the amount of which is difficult, if not impossible to ascertain. Therefore, the Contractor shall pay to the County, as liquidated damages, the sum of $100.00 for each calendar day of delay that actual completion extends beyond the time limit specified until such reasonable time as may be required for final completion of the work. Such sum is mutually agreed upon as a reasonable and proper number of damages the County shall sustain per diem by failure of the Contractor to complete the services or make delivery within the specified time. The costs for liquidated damages shall not be construed as a penalty on the Contractor.

The County reserves the right to withhold any disputed amounts and deduct such amounts from the Contractor’s invoice as it relates to liquidated damages. The

County shall be the judge as to the adequacy of supporting documentation and application of liquidated damages.

The liquidated damages provision does not preclude the County from the pursuit of actual damages at cost, in lieu thereof, when the sum of these can be readily documented and attributed to the Contractor’s failure.

10.1.3. The County reserves the right to correct any item of non-performance/unsatisfactory performance by any means it deems necessary to ensure the effective operation of the County's facilities. This includes using another vendor to correct the deficiency or non-performance. The Contractor shall be responsible for the difference in cost between the Contractor’s fee proposal and the prices charged by the alternate vendor.

10.1.4. A formal Vendor Complaint may be submitted to Purchasing

Services. This document will become a permanent part of the Contractor’s file.

10.2. Force Majeure

10.2.1. The Contractor shall not be held responsible for any delay and/or failure in performance of any part of this contract to the extent such delay or failure is caused by explosion, war, embargo, government requirement, civil or military authority, act of God, or other similar causes beyond the Contractor’s control so long as the Contractor’s delay is not caused by the Contractor’s own fault or negligence. That notwithstanding, the Contractor shall notify the County in writing within twenty-four (24) hours after the beginning of any such cause that would affect its performance hereunder and the County reserves the right the request additional information that supports the validity of the Contractor’s Force Majeure claim. Failure to notify the County in a timely manner of any claim of Force Majeure made pursuant to this section is cause for termination of this contract.

10.2.2. If the Contractor’s performance is delayed pursuant to this section for a period exceeding two (2) calendar days from the date the County receives the required Force Majeure notice, the County shall have the right to terminate this contract thereafter and shall only be liable to the Contractor for any work performed and validated (if required for payment hereunder) prior to the date of the County’s contract termination.

10.2.3. If the Contractor’s performance is delayed pursuant to this section, the County may, upon written request of the Contractor, agree to equitably adjust the provisions of this contract, including price, performance, and delivery, as may be affected by such delay. However, this provision shall not be interpreted to limit the County’s right to terminate without cause.

10.3. The Contractor’s failure to perform may be cause for default and may result in actions leading up to and including termination of this Contract.

10.4. Suspension and Termination of Work

10.4.1. Should the County be otherwise prevented or enjoined from proceeding with work, either before or after the start of services, by reason of any litigation or other reasons beyond the control of the County, the Contractor shall not be entitled to make or assert claim(s) for damage(s) by reason of said delay; but time for completion of the work will be extended to such reasonable time as the County may determine to compensate for time lost by such delay, with such determination to be set forth in writing by the County.

Section 11. Indemnification.

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

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

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

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

Section 12. Insurance.

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

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

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

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

• Network Security and Privacy Liability Insurance. During the term of this Contract, the Contractor shall maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of the Contractor’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data

– including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.

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

• Umbrella Insurance. During the term of this Contract, the Contractor shall maintain umbrella coverage over Employer’s Liability, Commercial General Liability, and Commercial Automobile. Minimum Limits: $2,000,000.

12.2. Within five (5) calendar days of Contract award, the Contractor shall submit the certificates of such insurance and applicable endorsement pages to the County.

Before commencing work, the certificates of such insurance and applicable endorsement pages shall be in acceptable form to the County demonstrating that the aforementioned insurance requirements have been met.

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

12.4. The Certificate(s) of Insurance shall indicate that the policies (except professional liability) have been endorsed to cover Brevard County as an additional insured (a waiver of subrogation in lieu of additional insured status on the Workers’ Compensation policy is acceptable) and that these policies may not be canceled or modified without the insurer providing thirty (30) days prior written notice to the County.

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

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

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

Section 13. Protection of Property.

The Contractor shall at all times guard from damage or loss to property of the County or other vendors or contractors and shall replace or repair any loss or damage at no cost to the County, unless such damage is caused by the County, other vendors or contractors.

The County may withhold payment or make such deductions, as it might deem necessary, to ensure reimbursement for loss or damage to property through acts or omissions of the Contractor.

Section 14. Warranty.

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

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

14.3. Parts, components, assemblies, or equipment replaced by the Contractor shall be fully warranted by the Contractor against defects in materials and/or workmanship for a period of one year from date of acceptance by County or the duration of the manufacturer’s warranty, whichever is longer. Shall any defect in materials or workmanship, except ordinary wear and tear, appear during the above stated warranty period, the Contractor shall repair or replace at no cost to the County.

14.4. Contractor shall secure from the applicable third-party manufacturers, and assign and pass through to the County, at no additional cost to the County, such warranties as may be available with respect to the equipment, parts, and systems provided through the purchase of such item(s).

Section 15. Conflicts of Interest.

15.1. 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 Contract, 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.

15.2. A conflict of interest is any situation in which the Contractor, its employees or subcontractors, are in a position to exploit their professional relationship with County in any way for their personal or corporate benefit. The Contractor is specifically aware of, and concurs with, the public need for the County to prohibit any potential conflicts of interest that may arise as a result of execution of this Contract. The Contractor covenants that it has extensively reviewed all of its contracts, letters of agreement, and any other indication of commitment on its behalf to perform professional services which could in any way present the reasonable possibility of an actual conflict of interest with the County. 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, the Contractor shall employ no person having any such interest. The Contractor shall disclose in writing to the County any conflict of interest affecting the Contractor’s services to the County as soon as it becomes aware of the conflict.

Section 16. Public Records.

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

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

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

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO

THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS CONTRACT, CONTACT THE

CUSTODIAN OF PUBLIC RECORDS AT (321) 617-7202;

KARENE WILLETT; KARENE.WILLETT@BREVARDFL.GOV;

2725 Judge Fran Jamieson Way, Suite A201, Viera, Florida 32940.

Section 17. Right to Audit Records.

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

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

Section 18. Scrutinized Companies.

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

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

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

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

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

Section 19. Employment Verification.

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

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

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

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

Section 20. Governing Law; Venue; Attorney’s Fees; Waiver of Right to Jury Trial.

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

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

SHALL BE NON-JURY.

Section 21. Ownership.

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

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

Section 22. Independent Contractor.

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

Section 23. Subcontracting.

The Contractor shall not subcontract, assign, or transfer any work under this Contract without the written approval of the County, including a change of sub-contractor. When applicable, the Contractor 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.

The Contractor shall remain, at all times, liable for the proper performance and completion of all work and other services required under this Contract, including supervision and administration of all such sub-contracted personnel, firms and companies, and including any errors or omissions by said sub-contractors. The Contractor shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its designs, drawings, specifications, reports, and other services performed by subcontractor.

Section 24. Compliance with Laws.

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

Section 25. Taxes.

The Contractor shall pay all applicable taxes, including, but not limited to, sales tax, consumer, use and other similar taxes for the Work, or portions thereof, provided by the Contractor. The County reserves the right to direct-purchase materials to realize a tax savings and adjust the Contract amount accordingly. Contractor hereby agrees to permit the County to direct-purchase from the Contractor’s suppliers at prices quoted to the

Contractor and for the County to retain any tax savings generated thereby, which will result in the overall reduction of the sum owed to the Contractor in a corresponding amount.

Section 26. Captions and Paragraph Headings.

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

Section 27. Modifications.

This Contract shall not be modified or altered unless done so in writing by both Parties and signed by each party's respective authorized representative.

Section 28. Severability.

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

Section 29. Successors and Assigns.

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

Section 30. Acceptance and Entire Agreement.

This instrument embodies the entire agreement between the County and Contractor.

The undersigned have caused this Contract to be duly executed by their respective authorized representative. Both Parties have had the opportunity to consult with legal counsel prior to entering into this Contract. Therefore, this Contract shall not be more strictly or more harshly construed against either Party as the drafter.

Section 31. Counterparts.

This Contract may be executed in counterparts, each of which so executed shall be deemed to be an original and such counterparts, together, shall constitute one in the same.

Section 32. Joint Use.

This Contract is available for joint use by other governmental agencies, including the State of Florida, its agencies, other counties, cities, municipalities, and school districts, at their own discretion. Each agency selecting to use this Contract shall do so independently of any other governmental entity. Each agency shall be responsible for its own purchases.

Section 33. Notices.

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

COUNTY CONTRACTOR

Contracts Supervisor 2725 Judge Fran Jamieson Way, Room A-201 Viera, FL 32940 Jeanette.scott@brevardfl.gov

(321) 617-7202 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.

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

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

REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES TO FOLLOW.

IN WITNESS WHEREOF, the Parties hereto have caused this Contract to be executed by their duly authorized representatives in counterparts, all of which when taken together shall constitute one and the same contract.

BREVARD COUNTY, FLORIDA

By: _____________________________ Frank Abbate, County Manager

Date: ______________________

BCC-25

Reviewed for legal form and content only for Brevard County:

Deputy County Attorney

WITNESS CONTRACTOR

______________________________ By: ______________________________ (Name and Title)

STATE OF ________________________________

COUNTY OF ______________________________

The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this ___ day of __________, 202_ by (name of officer or agent, title of officer or agent) of (name of corporation acknowledging), a (state or place of…