Attachment_D5__RFP_Draft_Contract.pdf

CONTRACT

THIS CONTRACT made and entered into by and between BREVARD COUNTY, FLORIDA, a political subdivision of the State of Florida, hereinafter referred to as "COUNTY," and (INSERT THE NAME OF THE PROPERTY OWNER), a landowner having its principal address at (INSERT THE ADDRESS OF THE LANDOWNER), hereinafter referred to as "LANDOWNER."

RECITALS

WHEREAS, the COUNTY issued a Request for Proposal RFP 8-26-01 on (INSERT THE DATE OF THE RFP WAS ADVERTISED), to competitively select property that meets the requirements of RFP 8-26-01; and

WHEREAS, the LANDOWNER submitted a competitive proposal and was found to have the desired qualifications, in response to the COUNTY’s RFP 8-26-01, by the Selection and Negotiation Committee; and

WHEREAS, the selection and engagement of the LANDOWNER has been made by the COUNTY in accordance with the provisions of Section 287.057, Florida Statutes, “Procurement of commodities or contractual services,” and in accordance with the applicable Brevard County Board of County Commissioners’ Policies.

NOW, THEREFORE, in consideration of the promises made herein and other good and valuable consideration, the following terms and conditions are hereby mutually agreed to by and between the COUNTY and the LANDOWNER:

1. RECITALS.

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

2. DEFINITIONS.

A. County: means Brevard County, Florida, a political subdivision of the State of Florida.

B. County’s Contractor: means the entity selected by the County through a separate

Request for Proposal (RFP) process that will enter into a contract with the County to perform dredging, hauling, and muck placement services.

C. Landowner: means the private property owner who enters into this contract with the County to provide property access and who enters into a separate contract with the County’s Contractor for placement and long-term containment of dredged material or muck generated from county projects within the Indian River Lagoon.

3. TERM.

The Term of this Contract is five (5) years, beginning on the date of the last signature below.

4. SCOPE OF SERVICES.

The services are identified in the COUNTY’s Request for Proposal RFP 8-26-01 and the LANDOWNER’s submission, which are incorporated herein by this reference.

5. COMPENSATION.

A. As consideration for providing the use of the LANDOWNER’s property for the disposal of muck, the COUNTY and LANDOWNER agree that, per a separate agreement between them, COUNTY’S CONTRACTOR will agree to pay, and the LANDOWNER will agree to accept, a fee for the use of the LANDOWNER’s property.

B. The LANDOWNER will bill the COUNTY’S CONTRACTOR for services performed under this Contract, each bill indicating the cubic yards of muck disposed on the LANDOWNER’s property. The COUNTY’S CONTRACTOR shall remit payment to the LANDOWNER within thirty (30) days after the muck was disposed on the LANDOWNER’s property.

6. EXPENSES.

The LANDOWNER shall furnish all necessary expenses to maintain the site for the final placement and long-term containment of dredged material or muck generated from projects within the Indian River Lagoon at its own expense.

7. TERMINATION

A. Termination for Convenience. The COUNTY may terminate this Contract for convenience by giving the LANDOWNER fourteen (14) calendar days' written notice of such termination. If written notice is given by mail, receipt shall be presumed, and the fourteen (14) days shall begin to run seven (7) calendar days after the date of mailing as dated on the notice. If written notice is provided in person, the fourteen (14) days shall begin on the calendar day after the delivery of the notice. The LANDOWNER shall stop work immediately unless the COUNTY provides the LANDOWNER with written direction otherwise in the notice.

Termination for Convenience by the LANDOWNER. The LANDOWNER may terminate this Contract for convenience by giving the COUNTY sixty (60) calendar days' written notice of such termination. If written notice is given by mail, receipt shall be presumed, and the sixty (60) days shall begin to run seven (7) calendar days after the date of mailing as dated on the notice. If written notice is provided in person, the sixty (60) days shall begin on the calendar day after the delivery of the notice. The LANDOWNER must provide the COUNTY with all records and documentation of all work performed as of the date of the notice within 14 calendar days of the notice. The LANDOWNER will complete the work that is incomplete as of the date of the notice, if so directed by the County in writing, and provide such records and documentation of such work upon completion.

B.

C. Upon Termination for any Reason, the Parties agree that any work satisfactorily completed, or services provided by LANDOWNER before the date of termination shall become the property of COUNTY. Upon COUNTY's request, LANDOWNER shall deliver to COUNTY Work Product as may have been accumulated by LANDOWNER in performing this Contract, whether completed or in process.

8. INDEMNIFICATION

The COUNTY shall not be deemed to have assumed any liability for the acts, omissions, or negligence of the LANDOWNER, its agents, its servants, or employees, and the LANDOWNER specifically accepts responsibility for its acts, omissions, or negligence and for the acts, omissions, or negligence of its agents, servants, or employees, and shall defend and hold the COUNTY harmless from and against the claims of any party arising out of or claimed to arise out of any such acts, omissions, or negligence. The COUNTY and its members, officers, agents, and employees shall be indemnified and held harmless by the LANDOWNER from any and all claims, debts, costs, liabilities and/or causes of action of every kind or character (whether in law or in equity) by reason of any death, injury or damage to any person or persons, or with respect to damage to or destruction of property of the property of the LANDOWNER (its agents or employees or of any third person) and from any cause whatsoever arising out of the LANDOWNER's negligent acts or omissions or intentional misconduct. The LANDOWNER covenants and agrees to defend, indemnify, and save harmless the COUNTY, its members, officers, agents, and employees, from any and all such claims, demands, debts, liabilities, and causes of action, including attorney's fees and costs through any and all appeals.

9. MODIFICATIONS

This writing contains the entire Contract of the parties. No representations were made or relied upon by either party other than those that are expressly set forth.

Any modification must be in written form and signed by both parties.

10. WAIVER

The failure of either party to this Contract to object to or to take affirmative action with respect to any conduct of the other that violates the terms of this Contract shall not be construed as a waiver of the violation or breach, or of any future violation, breach or wrongful conduct.

11. NOTICES/AUTHORIZED REPRESENTATIVES

A. All notices and written communication between the parties shall be sent by electronic mail, U.S. Mail, a courier delivery service, or delivered in person.

Notices shall be considered delivered when reflected by an electronic mail read receipt, a courier service delivery receipt, another mail service delivery receipt, or when the recipient acknowledges receipt. Any notices required by this Contract shall be delivered to the parties at the addresses provided in this section:

FOR COUNTY:

FOR LANDOWNER:

12. INDEPENDENT CONTRACTOR

The LANDOWNER shall perform the services under this Contract as an independent contractor, and nothing contained herein shall be construed to be inconsistent with this relationship or status. Nothing in this Contract shall be interpreted or construed to constitute the LANDOWNER or any of its agents or employees to be the agent, employee, or representative of the COUNTY.

13. EMPLOYMENT

The LANDOWNER shall not engage the services of any person or persons now employed by the COUNTY, including any department, office, agency, board, or commission thereof, to provide services relating to this contract without written consent from the COUNTY.

14. RIGHT TO AUDIT RECORDS

In the performance of this Contract, the LANDOWNER shall keep books, records, and accounts of all activities related to this Contract in compliance with generally accepted accounting procedures. Books, records, and accounts related to the performance of this Contract shall be retained by the LANDOWNER for a period of five (5) years after termination of the Contract.

All records, books, and accounts related to the performance of this Contract shall be subject to the applicable provisions of the Florida Public Records Act, Chapter 119, Florida Statutes.

15. PUBLIC RECORDS ACCESS

A. LANDOWNER shall comply with Florida Public Records law under Chapter 119, Florida Statutes. Records made or received in conjunction with this Contract are public records under Florida law, as defined in Section 119.011(12), Florida Statutes; the LANDOWNER shall keep and maintain public records required by the County to perform the services under this Contract.

B. This Contract may be unilaterally canceled by the COUNTY for refusal by the LANDOWNER to either provide to the COUNTY upon request or to allow inspection and copying of all public records made or received by the LANDOWNER in conjunction with this Contract and subject to disclosure under Chapter 119, Florida Statutes, and Section 24(a), Article I, Florida Constitution.

IF THE LANDOWNER HAS QUESTIONS REGARDING THE APPLICATION OF

CHAPTER 119, FLORIDA STATUTES, TO THE LANDOWNER'S DUTY TO

PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE

COUNTY'S CUSTODIAN OF PUBLIC RECORDS ______________ at (321- ________, or by email at ___________________ or mail to 2725 Judge Fran Jamieson Way, Suite ___, Viera, FL 32940

16. 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 Section 287.017, Florida Statutes for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on the convicted vendor list.

17. Employment Eligibility Verification (E-Verify)

A. This section applies only if the LANDOWNER is also a business owner with employees. If applicable, the LANDOWNER:

1. 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 LANDOWNER during the term of the contract; and

2. shall expressly require any subcontractors performing work or providing services pursuant to this Contract to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the term of this Contract; and

3. agrees to maintain records of its participation and compliance with the provisions of the E-Verify program, including participation by its subcontractors as provided above, and to make such records available to the COUNTY consistent with the terms of the LANDOWNER'S enrollment in the program. This includes maintaining a copy of proof of the LANDOWNER'S and subcontractors' enrollment in the E-Verify Program.

B. 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.

C. A LANDOWNER who registers with and participates in the E-Verify The 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 LANDOWNER hires or employs a person who is not eligible for employment.

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

18. 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.

19. GOVERNING LAW

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

20. COMPLIANCE WITH STATUTES

The LANDOWNER shall be responsible for being aware of and complying with all federal, state, and local laws.

21. VENUE AND WAIVER OF JURY TRIAL

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

22. ASSIGNMENTS

LANDOWNER shall not assign any portion of this Contract without the written permission of the COUNTY.

23. SEVERABILITY

If any section, subsection, sentence, clause, phrase, or portion of this Contract is for any reason held invalid, unconstitutional, or unenforceable by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof.

24. CONSTRUCTION OF CONTRACT

The parties hereby acknowledge that they fully reviewed this Contract and its attachments and had the opportunity to consult with legal counsel of their choice and that this Contract shall not be construed against any party as if they were the drafter of this Contract.

(Signature Page Follows)

IN WITNESS WHEREOF, the COUNTY and LANDOWNER have executed this Contract through its duly authorized representatives as of the date of the last signature below.

ATTEST: BOARD OF COUNTY COMMISSIONERS

OF BREVARD COUNTY, FLORIDA

Thad Altman, Chair Date

As approved by the Board on: February 12, Reviewed for legal form and content:

Assistant County Attorney LANDOWNER Date

STATE OF _________________________________

COUNTY OF ________________________________

Sworn to (or affirmed) and subscribed before me by means of ☐ physical presence or ☐ online notarization, this _(day)_ day of ___(month)___, _ (year)__ , by (name of person making statement) .

[Notary Seal] Notary Public Signature

Name typed, printed or stamped

My Commission Expires: ____________

_______ Personally Known OR ________ Produced Identification

Type of Identification Produced