B I & Q C Services Agreement.pdf

Revised 02/2022

REAL ESTATE DEVELOPMENT AND MANAGEMENT

AGREEMENT BETWEEN OWNER AND PROVIDER

STATE CONTRACT NO.:

RFQ NO:

STATE FLAIR CODE: Funds Under the Control of the ________________

NAME AND LOCATION: Continuing Contract for Quality Control Services Statewide and Building Inspection Services specifically in Tallahassee, Florida, pursuant to

255.31, Florida Statutes

PROVIDER:

Ron DeSantis Governor

Pedro Allende Secretary

Revised 02/2023

TABLE OF CONTENTS

ARTICLE DESCRIPTION PAGE

1.0 THE CONSTRUCTION TEAM AND EXTENT OF AGREEMENT

1.1 Extent of Agreement

1.2 Definitions

2.0 BUILIDNG CODE INSPECTION PERSONNEL

3.0 APPLICABLE CODES

4.0 BUILDING CODE INSPECTION SERVICES

5.0 PROVIDER WARRANTIES

6.0 TIME

7.0 THE OWNER’S RESPONSIBILITIES

8.0 REIMBURSEABLE EXPENSES

9.0 PAYMENTS TO THE PROVIDER

9.5 Invoicing

9.6 Payments Withheld

9.7 Project Suspension or Abandonment

9.8 Florida Statutes Regarding Prompt Payment Requirements

10.0 PROVIDER’S ACCOUNTING RECORDS

11.0 TERMINATION OF THE AGREEMENT

11.1 Termination by the Provider

11.2 Owner's Right to Perform Architect-Engineer's Obligations and Termination by Owner for Cause

11.3 Termination for Convenience

12.0 OWNERSHIP OF DOCUMENTS

13.0 SUCCESSORS AND ASSIGNS

14.0 CLAIMS AND DISPUTES

15.0 PROHIBITION AGAINST CONTINGENT FEES

16.0 SPECIAL PROVISIONS

16.1 Professional Services Guide

16.2 Meeting Minutes

16.3 Bills for Travel Expenses

16.4 Truth-In-Negotiation

16.5 Provider’s Payment Rights

16.6 Public Entity Crime Information Statement

16.7 Criminal History Background Checks

16.8.0 Unauthorized Aliens

16.8.1 Unauthorized Aliens Checks Through E-Verify

16.8.2 E-Verify Notice

16.9 Contingency Statement

16.10 Indemnification and Waiver of Liability

16.11 Insurance Requirements

16.12 Electronic Mail Capabilities

16.13 Confidentially of Building Plans

16.14 Public Inquiries

16.15 Electronic Execution

16.16 Section 558.035, Florida Statutes

16.17 Sovereign Immunity

16.18 Non-Discrimination

16.19 Discriminatory Vendor List

16.20 Proposal Terms Not Incorporated

16.21 Covid19

16.22 Scrutinized Companies List

16.23 Certified Vendor Directory

16.24 Public Records

16.25 Document Inspection

16.26 RESPECT

16.27 PRIDE

16.28 Contractor Compliance

16.29 Antitrust Violator Vendor List

17.0 CONTINUING CONTRACTUAL SERVICES

17.3 Scope of Contract

17.4 Fees and Activation

17.5 Activation Letter

17.6 Term of Agreement

17.7 Supporting Documentation for Invoices

18.0 FEDERAL FUNDS APPLICABILITY

18.1 Federal Funds Applicability

18.2 Federal Laws, Rules, Regulations, and Policies

18.3 Federal Funding Terms

Signature Page

EXHIBIT DESCRIPTION PAGE

A Construction Team Assigned Representatives B Planned Visits C Hourly Rate Form (Example) D Provider’s Invoice Routing Transmittal Form (Example) E Provider’s Invoice Form (Example) E Status Report of Certified Business Enterprise (CBE) (Example) F Activation Letter for Continuing Contracts (Example) G State Building Permit (Example) H Building Permit Application (Example) I Supplemental Instructions (with Applicable Codes)

For a complete list of forms, please visit:

https://www.dms.myflorida.com/business_operations/real_estate_development_and_management/building_ construction/forms_and_documents https://www.dms.myflorida.com/business_operations/real_estate_development_and_management/building_construction/forms_and_documents https://www.dms.myflorida.com/business_operations/real_estate_development_and_management/building_construction/forms_and_documents

AGREEMENT BETWEEN OWNER AND ARCHITECT-ENGINEER

This Agreement, effective on the last date signed by the Parties, is by and between the State of Florida, Department of Management Services, Division of Real Estate Development and Management, (“Owner”), and

XXX, A FLORIDA CORPORATION

XXX

XXX, FLORIDA 32XXX

XXX-XXX-XXXX (TELEPHONE NUMBER)

FEDERAL I.D. TAX NO.: XX-XXXXXXX

hereinafter referred to as the Provider. Owner and Provider may be referred to herein individually as a “Party” or collectively as the “Parties.”

NOW THEREFORE, the Owner and the Provider, for the considerations hereinafter set forth, agree as follows:

ARTICLE 1

THE CONSTRUCTION TEAM AND EXTENT OF AGREEMENT

1.1 The Provider agrees to provide building inspection and/or quality control services for each specific designated project as set forth when activated in writing by the Owner's Contracts Administrator.

1.2 Definitions:

• Project – The Project is the total work to be performed under this Agreement. The Project consists of all planning, design, permitting, construction services, code inspections, and associated site work necessary to fully complete "Project «ProjNum», «ProjName», «ProjLocation», «ProjCityState»," as contemplated in the Owner’s Construction Budget.

• Owner – The State of Florida, Department of Management Services, Division of Real Estate

Development and Management, acting through its Secretary or those persons designated to act on behalf of the Secretary, as Agent for the «Ownerentity» pursuant to the Client Agency Agreement between the «Ownerentity» and the Department of Management Services. The entity that will occupy, use, and own the project upon substantial completion is the «Ownerentity». The funds with which the compensation for work performed in connection with the Project will be paid are under the control of the «Ownerentity», based on approval of each payment by Real Estate Development and Management. All duties of Owner hereinafter shall be performed by the Division of Real Estate Development and Management.

• Architect-Engineer – Any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice architecture, engineering, or surveying and mapping in the state as qualified under section 471.023, Florida Statutes (F.S.), to practice or to offer to practice engineering or qualified under section 481.219, F.S. to practice or to offer to practice architecture.

Architect-Engineer: «AEName»

Address: «AEStreet» «AECityStateZip»

Telephone: «AEPhone»

• Construction Manager – The Contractor responsible for construction of the Project. The

Construction Manager shall be the single point of interface for all trade bidders and contractors for the duration of the Project. The Construction Manager may also be referred to as the “Contractor.”

Construction Manager: «ContrName», «StateCorp»

Address: «ContrStreet» «CityStateZip»

Telephone: «ContrPhone»

• Project Manager – The person designated by the Owner to provide direct interface with the Provider http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=287.055&URL=0400-0499/0471/Sections/0471.023.html http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=287.055&URL=0400-0499/0481/Sections/0481.219.html with respect to the Owner's responsibilities.

• Owner's Representatives – The Contracts Administrator or Project Manager, and their superiors or designees.

• Client Agency – The State Agency who will occupy and utilize the completed project.

• Change Order – The Owner, without invalidating this Agreement, may order changes in the Project within the general scope of this Agreement consisting of additions, deletions, or other revisions, the Guaranteed Maximum Price, and the Final Completion Date, being adjusted accordingly. All changes in the Project not covered by an authorized contingency shall be authorized by Change Order signed by the Owner before the change is implemented.

• Construction Authorization – The term Authorization shall mean a written work order based on a defined scope of work prepared and issued by the Project Manager. Authorizations shall be used prior to the date of the Guaranteed Maximum Price Amendment and all work performed pursuant to Authorizations shall be included in the Guaranteed Maximum Price.

• Construction Documents – The Construction Documents are prepared by the Architect-Engineer utilizing the approved Design Development Documents. The Construction Documents consist of the working drawings and specifications and set forth in detail the work required for the architectural, civil, structural, mechanical, electrical service-connected equipment, and civil/sitework, and the necessary bidding information. The Architect-Engineer shall submit the Construction Documents to the Owner who will supply the Construction Documents to the Construction Manager. Any changes to the Construction Documents by the Construction Manager, the Architect-Engineer, or the Owner will be shared with the other parties. May also be referred to as Contract Documents.

• Contract Sum – For Projects utilizing a Construction Manager, the total sum of items in Article 8 and Article 9 of the Agreement between the Owner and the Construction Manager. For lump sum bid Projects, the amount stated in the Agreement, which is the total amount payable by the Owner to the Construction Manager for completing the Project. Change Order(s) may modify the Contract Sum.

• Estimate of Probable Project Construction Cost – The Architect-Engineer’s estimate of the probable construction cost of the Project based on area, volume unit pricing, or similar conceptual estimating techniques.

• Permitting Authority – The local authority with jurisdiction over the area in which the Project is located.

• Contract Time – The time established in Article 6 of the Agreement between the Owner and the

Construction Manager, from the date of the Notice to Mobilize on Site and Proceed with Construction until Substantial Completion of the Project.

• Substantial Completion – Substantial Completion is the stage in the progress of the Work when the

Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. Additionally, for the Work to be Substantially Complete the Work must also meet the following conditions:

The Work is complete in accordance with the Construction Documents to the extent required for Owner to obtain a Certificate of Occupancy and such certificate has actually been granted by the appropriate government authorities, provided that a failure to obtain the Certificate of Occupancy due to causes for which the Contractor is not responsible shall not be grounds to deny Substantial Completion status;

All HVAC systems included in the Work are properly functioning in accordance with the Construction Documents and verified by the Test and Balance Report which shall have been delivered to the Architect and Owner;

All life safety systems included in the Work are functioning in accordance with the Construction Documents;

A certificate of Substantial Completion has been issued by the Architect-Engineer;

All operating and maintenance manuals and training shall have been delivered to the

Architect-Engineer and Owner; and All commissioned systems included in the Work are properly functioning in accordance with the Construction Documents and verified by the commissioning report delivered to the Owner provided that a failure of the Owner’s commissioning agent for which the Construction Manager is not responsible shall not be grounds to deny substantial Completion status.

ARTICLE 2

BUILDING CODE INSPECTION PERSONNEL

2.1 The Provider's personnel shall be as shown in Exhibit A. The Provider shall not deviate from these personnel without first obtaining the written consent of the Owner.

2.2 The Provider’s personnel shown in Exhibit A must possess a current valid certificate issued by the State of

Florida Department of Business and Professional Regulation, to inspect in the discipline(s) in which they are to provide building code inspections. If at any time their licenses become invalid or suspended by the Department of Business and Professional Regulation, the Owner is to be notified immediately in writing and the Provider shall not be allowed to perform any further building code inspections with such person.

2.3 The Provider agrees that its officers, agents, and employees, in the performance of this Contract, shall act in the capacity of an independent contractor and not as an officer, employee, or agent of the State. All persons furnished, used, retained, or hired by or on behalf of the Provider shall be considered to be solely the employees or agents of the Provider and shall not be considered employees of the State for any purpose.

The Provider shall be responsible for payment of any and all workers' compensation insurance and unemployment, social security, and other payroll taxes for such persons, including any related assessments or contributions required by law.

2.4 The Provider is professionally qualified to act as a professional as anticipated under this Agreement.

2.5 The Provider shall maintain all necessary licenses, permits, or other authorizations necessary to act as a professional Provider as anticipated under this Agreement until the Provider's duties of Activation issued hereunder have been fully satisfied.

2.6 The Provider shall exercise that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances in preparing all documents required by this Agreement including, but not limited to, all specific inspections required, and shall exercise usual and customary professional care to conform and comply with all applicable law, codes, and regulations In effect at the time of preparation.

2.7 The Provider assumes responsibility to the Owner for the negligent acts, errors, and omissions of its employees for professional services provided under this Agreement.

2.8 The Provider is not responsible for an Owner's Directive, an Architect-Engineer of Record's Directive, or deviation for the Contract Documents made without the Provider's concurrence.

2.9 The Provider shall identify a representative or representatives, authorized to act on behalf of the Provider with respect to each assigned Project. These representatives shall be employees of the Provider.

2.10 The Provider shall not utilize the services of any person that is not an employee of the Provider, including contracted labor, sub-consultants, or persons from other firms to accomplish any portion of the work required to fulfill an Activation assignment under this Agreement. This provision does not prohibit the Provider from contracting with a laboratory or testing agency to provide specific testing analysis as may be necessary in the performance of the services for an assigned project.

2.11 Except with the Owner's knowledge and written consent, the Provider shall not engage in any activity, or accept any employment, interest, or contribution that would appear to compromise the inspector’s professional judgement with respect to any assigned Project.

2.12 It is agreed by and between the parties hereto that the Provider will observe the rules of the State of Florida and will not solicit or employ state employees in conjunction with their work under this Agreement without the approval of the Owner and the head of the department of which the employee is employed.

ARTICLE 3

APPLICABLE CODES

The applicable codes governing building code inspections in each area of the state are shown on Page 1 of the Supplemental Instructions - Exhibit I.

ARTICLE 4

BUILDING CODE INSPECTION SERVICES

4.1 The Construction Manager will request the Owner to conduct building code inspections as described in the

Supplemental Instructions enclosed as Exhibit I. The Construction Manager's request must be received by the Owner a minimum of forty-eight (48) hours prior to having the inspections performed. The Building Permit Application (Exhibit H) will be submitted to the Provider by the Construction Manager with a copy to the Project Manager and Architect-Engineer. Exhibit H is attached as an example.

4.2 The Provider must provide a proposal for services to the Project Manager and with a copy to the Architect- Engineer and Construction Manager. The Provider must provide a completed Hourly Rate Form (Exhibit C) with the proposal.

4.3 Upon receiving an Activation, the Provider shall visit the site and conduct the inspections requested in the Activation. Inspections shall be conducted in accordance with the guidelines of the appropriate Florida Building Code book published by the International Code Council to determine if the work conforms to the applicable codes. The Provider shall make accurate and comprehensive notations. Work not in accordance with the applicable code requirements shall be immediately brought to the attention of the Construction Manager and the Project Manager.

4.4 If the Provider determines while making an inspection that certain work requiring an inspection has been concealed, the Provider shall immediately telephone the Project Manager and inform them of the condition. If determined necessary by the Provider and the Project Manager, the Provider may order the Construction Manager to remove the obstruction concealing the work so it may be inspected, even if this entails removing something previously constructed.

4.5 Upon the completion of an inspection, the Provider shall initial and date the appropriate place on the "State

Building Permit" form posted at the site.

4.6 Upon the completion of an inspection, the Provider shall prepare an inspection report in accordance with all applicable guidelines of the Owner and submit a copy of the report to the Construction Manager before leaving the site. The report must indicate the applicable code book (building, mechanical, plumbing, or electrical) and the code book paragraph reference for each code failure reported.

4.7 If disagreement exists between the Construction Manager and the Provider concerning the determinations of the Provider, the Owner will make the final ruling in the matter.

4.8 Upon returning to their place of business, the Provider shall e-mail a copy of each inspection report to the

Project Manager.

ARTICLE 5

PROVIDER WARRANTIES

The Provider's Warranties pertaining to an assigned project shall be as follows:

5.1 The Provider shall become familiar with each Project as assigned, including the project requirements, project site, and the local conditions under which each Project shall be designed, constructed, and operated.

5.2 The Provider shall become familiar with the project design of the Architect-Engineer, including the specific elements of the construction to be inspected by the Provider.

5.3 The Provider agrees to commence services, when directed by the Owner, and shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of each assigned Project and in compliance with the schedule provided by the Owner at the time of issuance of the Activation for each assigned Project.

5.4 The Provider will become familiar with the Construction Manager's construction schedule, will respond reasonably to the Construction Manager's notifications that the construction is ready for inspection by the Provider, and will document each inspection/re-inspection in such a manner as to avail the Owner the opportunity to determine if the cost of the inspection or re-inspection should be borne by the Construction Manager under the terms of the Construction Manager's Agreement.

ARTICLE 6

TIME

The Provider shall perform services as expeditiously as is consistent with professional skill and care and the orderly progress of the Project.

ARTICLE 7

OWNER'S RESPONSIBILITIES

6.1 The Owner shall provide full information as to its requirements for the Project.

6.2 The Owner shall pay for structural, chemical, mechanical, soil mechanics, or other tests and reports, if required by the Project.

6.3 The Owner shall arrange and pay for such legal, auditing, and insurance counseling services as may be required for the Project.

ARTICLE 8

REIMBURSABLE EXPENSES

Reimbursable Expenses – Such expenses shall include actual expenditures made by the Provider in the interest of the Project for the following expenses:

(1) Transportation and living of principals and employees when traveling in connection with services other than those defined in Article 4;

(2) Fees paid for securing approval of authorities having jurisdiction over the Project;

(3) Premium portions of overtime;

(4) Any additional insurance coverage or limits, including professional liability insurance, requested by the Owner in excess of that normally carried by the Provider and the Provider's consultants.

Reimbursable Expenses shall not be incidental to the services defined in Article 3 and shall not exceed the limits of Section 112.061, Florida Statutes. All Reimbursable Expenses require previous written Authorization from the

Owner’s Contracts Administrator or Project Manager. There shall be no markup on Reimbursable Expenses.

ARTICLE 9

PAYMENTS TO THE PROVIDER

The Owner agrees to pay the Provider as compensation for services for each specific designated project as set forth when activated in writing by the Owner's Contracts Administrator.

9.1 For Services of the Provider, payments shall be made as prescribed in the written Activation for each Specific

Designated Project. A separate detailed invoice shall be submitted at the end of each month for each permit covering the services performed by the Provider during that month under that permit.

9.2 Each invoice shall include time sheets for each person involved in performing inspections for that permit during that month; receipts for any additional services expenses made in connection with that permit for that month; calculations to show how the total amount being invoiced was arrived at; a copy of the written letter of activation covering that permit; and copies of each "Inspection Request Form" and "Inspection Report" completed for that permit for that month.

9.3 Upon approval of the invoice submitted for a specific permit, the Owner will send the invoice to the state agency for which the specific permit was issued and that state agency will pay the Provider directly for the services under that permit.

9.4 Twenty (20) calendar days shall be allowed for the Owner's inspection and approval of the goods and services for which any invoice has been submitted.

9.5 Invoices shall be supported by such data substantiating the Provider’s right to payment as the Owner may require, such as, but not limited to, copies of invoices from subconsultants, receipts for supplies and Reimbursable Expenses, and records of description of services performed, time and names of personnel performing the services, and any other reasonable back-up documents requested.

A completed Provider’s Invoice Routing Transmittal Form (Exhibit D), Provider’s Invoice Form (Exhibit E), and Status Report of Certified Business Enterprise (Exhibit F) are required. All Exhibits are attached as examples.

Any required forms may be accessed at:

https://www.dms.myflorida.com/business_operations/real_estate_development_and_management/building _construction/forms_and_documents

9.6 Payments Withheld

(1) No deductions shall be made from the Provider's compensation on account of penalty, liquidated damages, or other sums withheld from payments to contractors, or on account of changes in costs other than those for which the Provider is held legally liable.

(2) The Provider shall not withhold payments to consultants if such payments have been made to the

Provider by the Owner. Should this occur for any reason, the Provider shall immediately return such monies to the Owner, adjusting pay requests and project bookkeeping as required.

9.7 Project Suspension or Abandonment – If the Project is suspended or abandoned in whole or in part for more than ninety (90) days, the Provider shall be compensated for all services performed prior to receipt of written notice from the Owner of such abandonment, together with Reimbursable Expenses then due.

9.8 Florida Statutes Regarding Prompt Payment Requirements – The Provider must be familiar with and follow Chapter 489, Chapter 713, Section 255.071, and Section 255.073, Florida Statutes, regarding payment for construction services, materials, and supplies, and payments to subcontractors, sub-subcontractors, materialmen, and suppliers. Failure to do so may result in termination of this Agreement.

https://www.dms.myflorida.com/business_operations/real_estate_development_and_management/building_construction/forms_and_documents https://www.dms.myflorida.com/business_operations/real_estate_development_and_management/building_construction/forms_and_documents

ARTICLE 10

PROVIDER'S ACCOUNTING RECORDS

Records of the Provider's direct personnel, consultants, and Reimbursable Expenses pertaining to this Project shall be kept on a generally recognized accounting basis and shall be available to the Owner or its authorized representative at mutually convenient times. The Provider shall preserve all contract records and documents for the entire term of this Agreement and for five (5) years after the later of: (i) the date of submission of the Provider's final services, or

(ii) until all claims (if any) regarding the Agreement are resolved. During such period of time, the Provider shall retain and maintain all records and make such records available for an audit as may be requested by Owner.

The records shall be subject at all times to inspection, review, or audit by the Owner. The Owner may, at any time and for any reason whatsoever, review, audit, copy, examine, and investigate in any manner, any records of Provider which include, but are not limited to, papers, books, documents, vouchers, bills, invoices, requests for payment, accounting records, and other supporting documentation, which according to generally accepted accounting principles, procedures, and practices, sufficiently and properly reflect all costs expended in the performance of this Agreement.

The Provider agrees to reimburse the Owner and the State for the reasonable costs of investigation incurred by the Owner, the Inspector General, State Auditor General, or other authorized State official or agent for investigations of Provider’s compliance with the terms of this Agreement which results in disallowed costs. Such reasonable costs shall include but shall not be limited to salaries of investigators, including overtime; travel and lodging expenses;

and expert witness and documentary fees.

The Provider understands and will comply with the requirements of Section 20.055(5), Florida Statutes, including but not necessarily limited to, the duty of Provider and any of Provider’s subcontractors or subconsultants to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing pursuant to Section 20.055, Florida Statutes.

ARTICLE 11

TERMINATION OF AGREEMENT

11.1 Termination by the Provider – If the Project is stopped for a period of thirty (30) days under an order of any court or other public authority having jurisdiction or as a result of an act of government, such as a declaration of a national emergency making materials or services unavailable, through no act or fault of the Provider, or if the Project should be stopped for a period of sixty (60) days by the Provider for the Owner's failure to make payments thereon, then the Provider may, upon seven (7) days written notice to the Owner, request payment for all work executed, the Provider 's fees earned to date, and for any proven loss, injury, or damage sustained or incurred by the Provider that is recoverable under Florida law.

11.2 Owner's Right to Perform Provider's Obligations and Termination by Owner for Cause

(1) If the Provider fails to perform any of their obligations under this Agreement, including any obligation they assume to perform work with their own forces or those of a subcontractor, the Owner may, after seven (7) days written notice during which period the Provider fails to commence and sufficiently pursue correction of such obligation, make good such deficiencies. The Provider's Fee shall be reduced by an amount required by the Owner to manage the making good of such deficiencies.

(2) Agreement Termination – Termination of this Agreement may occur if the Provider:

• is adjudged bankrupt,

• makes a general assignment for the benefit of their creditors,

• has a receiver appointed on account of their insolvency,

• persistently or repeatedly refuses or fails, except in case for which extension of time is provided, to maintain the established schedule. Failure to maintain schedule shall be defined as any activity that falls forty-five (45) days or more behind schedule,

• fails to make prompt payment to subcontractors,

• persistently disregards laws, rules, ordinances, regulations, or orders of any public authority having jurisdiction, or

• is guilty of a substantial violation of a provision of the Agreement.

In such case, the Provider shall not be entitled to receive any further payment until the Project is finished nor shall they be relieved from obligations assumed under Articles 3 and Article 4.

Reasonable termination expenses incurred by the Owner may be deducted from any payments left owing the Provider, excluding monies owed the Provider for subcontract work.

(3) If the Provider refuses to allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the Provider in conjunction with this Agreement, then the Owner may, without prejudice to any right or remedy and after giving the Provider and its surety, if any, seven (7) days written notice, during which period Provider still fails to allow access, terminate the employment of the Provider and may finish the Project by whatever method may be deemed expedient. In such case, the Provider shall not be entitled to receive any further payment until the Project is finished nor shall they be relieved from their obligations assumed under Article 3 and Article 4. Reasonable terminal expenses incurred by the Owner may be deducted from any payments left owing the Provider, excluding monies owed the Provider for subcontract work.

11.3 Termination for Convenience – The performance of work under this contract may be terminated by the Owner in accordance with this clause in whole, or from time to time in part, for convenience. Upon termination, as its sole and exclusive remedy, the Provider shall be entitled to payment for services completed to the date of termination, including reimbursements due. The percentage of completion shall be determined by the Owner.

ARTICLE 12

OWNERSHIP OF DOCUMENTS

Drawings, specifications, reports, and all other documents, including those in electronic form, prepared by the Architect-Engineer and the Architect-Engineer's consultants (“Design Documents”) are the sole and exclusive property of the Owner, shall be considered as being specially ordered by Owner as “works made for hire” under 17 U.S.C. §101, and may be used in any manner at the sole discretion of Owner. Owner shall have full and sole ownership rights to the Design Documents. Any reproductions shall be the sole and exclusive property of the Owner for any purpose determined to be proper by the Owner. Owner shall own all rights, copyrights, or other intellectual property there may be with respect to the Design Documents.

Provider agrees that all Design Documents, whether in final form or draft, which result from any Services performed by Provider under this Agreement, are hereby assigned exclusively to Owner, including any copyright, patent, trademark, and all other intellectual property rights. The Provider shall be entitled to retain copies of the Design Documents for the Provider's use and records. Provider shall require language in each of its subconsultants' contracts providing for Owner's ownership of all Project documents and the Design Documents. These plans are subject to reuse in accordance with Article 287.055(10), Florida Statutes. This Section shall survive any termination or expiration of this Agreement.

ARTICLE 13

SUCCESSORS AND ASSIGNS

The Owner and the Provider each binds itself, its partners, successors, assigns, and legal representatives to the other party to this Agreement and to the partners, successors, assigns, and legal representatives of such other party in respect of all covenants of this Agreement. Neither the Owner nor the Provider shall assign, sublet, or transfer interest in this Agreement without the written consent of the other.

ARTICLE 14

CLAIMS AND DISPUTES

The provisions of Title 28, Florida Administrative Code, are referred to and adopted by reference as though set forth herein.

Under the terms of this Agreement the Provider shall not have any right to compensation other than, or in addition to, that provided by this Agreement to satisfy any claim of any kind whatsoever unless the claim therefore is delivered to the Owner within ninety (90) days from the date on which the act or event constituting the basis of such claim occurs.

Failure to present any claim arising under this Agreement within the ninety (90) days’ time period specified above shall constitute waiver and abandonment of Providers' right to seek administrative consideration of said claim.

All such claims shall set forth in a petition addressed to the Owner shall include the following:

(1) The Provider's name and business address;

(2) A concise statement of the ultimate facts, including a statement of all disputed issues of material fact, upon which the claim is based;

(3) A concise statement of the provisions of the contract, together with any federal, state, and local laws, ordinances or code requirements or customary practices and usages in the trade or profession asserted to be applicable to the questions presented by the claim; and

(4) A demand for that specific relief to which the Provider deems itself entitled.

Within thirty (30) days from the receipt of any petition setting forth the claim, the Owner shall provide the Provider with a written response stating Owner's position with respect to each claim asserted. Thereafter, upon not less than fifteen

(15) days’ notice to the Provider, the Owner shall convene proceedings pursuant to the rules of procedure of the Owner and shall thereafter enter a final order upon the petition.

The venue for all civil and administrative actions against the Owner shall be exclusively in Leon County, Florida, unless otherwise agreed by the parties.

ARTICLE 15

PROHIBITION AGAINST CONTINGENT FEES

The Provider warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the architect, or registered land surveyor, or professional engineer, as applicable, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm other than a bona fide employee working solely for the Provider, or registered land surveyor, or professional engineer, as applicable, any fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Owner shall have the right to terminate this Agreement without liability and, at its discretion, to deduct from the Basic Services Compensation, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration.

ARTICLE 16

SPECIAL PROVISIONS

16.1 The Provider must use the latest edition of the Professional Services Guide (PSG) provided by the State of

Florida, Department of Management Services, Division of Real Estate Development and Management, furnished to assist the Provider in the performance of services under this Agreement. Since this document is merely a guide, the Provider must discuss the specific requirements of this project with the Owner's Project Manager and utilize only those portions of the document which apply. The Provider may request the latest edition of the PSG from the Project Manager or print a copy from the website below, in the Forms and Documents section:

http://dms.myflorida.com/business_operations/real_estate_development_management/building_construction/f orms_and_documents

16.2 The Provider shall take minutes of all meetings held with the Owner and/or Client Agency and shall provide copies of the same to the Owner and Client Agency within ten (10) days following such meetings.

16.3 Bills for Travel Expenses – Bills for fees or other compensation for services or expenses shall be submitted in detail sufficient for a proper pre-audit and post-audit thereof. Bills for any travel expenses shall be submitted in accordance with procedures specified in Section 112.061, Florida Statutes, governing payments by the State for travel expenses. Travel expenses, when authorized, may be reimbursed in an amount not to exceed the maximum amount established in Section 112.061, Florida Statutes.

16.4 Truth-In-Negotiation – By execution of this Agreement, the Provider certifies that the wage rates and other factual unit costs supporting the Basic Services compensation specified in Article 2, Section 2.1 are accurate, complete, and current at the time of negotiations for this Agreement and that any wage rates or other factual unit costs furnished the Owner in the future to support additional service proposals will also be accurate, complete, and current at the time of submitting such proposals. The Provider agrees that Basic Services Compensation and any authorized Additional Services compensation shall be adjusted to exclude any significant sums by which the Owner determines such compensations were increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs. The Owner and the Provider agree that all such adjustments in compensation shall be made within one (1) year following completion of the services covered by this Agreement.

16.5 Provider's Payment Rights – Providers providing goods and services to the Owner should be aware of the following time frames. Upon receipt of invoice, the Owner has twenty (20) calendar days to inspect and approve the goods and services, see Article 9.1(4) hereinabove, and to deliver a request for payment to the Department of Financial Services. The twenty (20) calendar days are measured from the latter of the date the invoice is received or the goods or services are received, inspected, and approved.

If the payment is not available to the Owner for transmittal to the Provider within forty (40) days, a separate interest penalty set by the Department of Financial Services pursuant to Section 55.03, Florida Statutes, will be due and payable in addition to the invoice amount. To obtain the applicable interest rate, please contact the Bureau of Accounting section found on the Department of Financial Service’s website. The forty (40) days are also measured from the latter of the date the invoice is received or the goods or services are received, inspected, and approved. Interest penalties of less than one (l) dollar will not be enforced unless the Provider requests payment. Invoices which must be returned to an Provider because of Provider preparation errors will result in a delay in the payment. The invoice payment requirements do not start until a properly completed invoice is provided to the Owner.

A Vendor Ombudsman has been established within the Department of Financial Services. The duties of the

Vendor Ombudsman are specified in Section 215.422, Florida Statutes, and include acting as an advocate for vendors who may be experiencing problems in obtaining timely payment(s) from a state agency. The Vendor Ombudsman’s may be contacted at 850-413-5516.

16.6 Public Entity Crime Information Statement – Provider represents that it is not on the State’s convicted vendor list and that for services related to this Agreement, Provider shall not transact business with any entity that has been placed on the State’s convicted vendor list. The Provider is hereby informed of the provisions of Section 287.133(2)(a), Florida Statutes, that identify the impacts to its ability or its affiliates’ ability to respond to the competitive solicitations of a public entity; to be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity; or to transact business with a public entity if it, or its affiliates, are placed on the convicted vendor list of the Department of Management Services.

Additionally, a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statute, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list.

16.7 Criminal History Background Checks – The Department or Customer may require the Contractor to conduct background checks of its employees, agents, representatives, and subcontractors as directed by the Department or Customer. The Contractor will bear the cost of the background checks. The Department or Customer may require the Contractor to exclude the Contractor’s employees, agents, representatives, or subcontractors based on the background check results. In addition, the Contractor must ensure that all persons have a responsibility to self-report to the Contractor within three (3) calendar days any arrest for any disqualifying offense. The Contractor must notify the Contract Manager within twenty-four (24) hours of all details concerning any reported arrest. Upon the request of the Department or Customer, the Contractor will re-screen any of its employees, agents, representatives, and subcontractors during the term of the Contract.

16.8 Unauthorized Aliens – The Owner shall consider the employment by the Provider of an unauthorized or undocumented alien to be a prima facie violation of Section 274A(e) of the Immigration and Nationalization Act. Such violation shall be grounds for immediate, unilateral termination of this Agreement.

16.8.1 Unauthorized Alien Checks Through E-Verify – Pursuant to the State of Florida, Office of the

Governor, Executive Order Number 11-116, the Provider will utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of: all persons employed during the term of this Agreement by the Provider to perform employment duties within Florida within three (3) business days after the date of hire; and all persons (including subcontractors) assigned by the Provider to perform work pursuant to this Agreement with the Department within ninety (90) calendar days after the date this Agreement is executed or within thirty (30) days after such persons are assigned to perform work pursuant to the Agreement, whichever is later.

16.8.2 E-Verify Notice - The Contractor and its subcontractors have an obligation to utilize the U.S.

Department of Homeland Security’s (DHS) E-Verify system for all newly hired employees in accordance with Section 448.095, Florida Statutes. By executing this Contract, the Contractor certifies that it is registered with, and uses, the E-Verify system for all newly hired employees in accordance with Section 448.095, Florida Statutes. The Contractor must obtain an affidavit from its subcontractors in accordance with paragraph (2)(b) of Section 448.095, Florida Statutes, and maintain a copy of such affidavit for the duration of the Contract. The Contractor shall provide a copy of its DHS Memorandum of Understanding (MOU) to the Department’s Contract Manager within five

(5) days of Contract execution.

This section serves as notice to the Contractor regarding the requirements of Section 448.095, Florida Statutes, specifically sub-paragraph (2)(c)1, and the Department’s obligation to terminate the Contract if it has a good faith belief that the Contractor has knowingly violated Section 448.09(1), Florida Statutes. If terminated for such reason, the Contractor will not be eligible for award of a public contract for at least one (1) year after the date of such termination. The Department will promptly notify the Contractor and order the immediate termination of the contract between the Contractor and a subcontractor performing work on its behalf for this Contract should the Department have a good faith belief that the subcontractor has knowingly violated Section 448.09(1), Florida Statutes.

16.9 Contingency Statement – The State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Florida Legislature.

16.10 Indemnification and Waiver of Liability – The Provider agrees, to the fullest extent permitted by law, to indemnify and hold the Owner and its officers and employees harmless from liabilities, damages, losses, and costs, including but not limited to reasonable attorneys’ fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Provider and other persons employed or utilized by the Provider in the performance of this Agreement.

16.11 Insurance Requirements – The Provider shall maintain during the terms of this Agreement, except as noted, the following insurance policies:

(1) Professional Liability Insurance in the amount of $1,000,000.00, with deductible per claim not to exceed $50,000.00, which shall be the limit of liability providing for all sums which the Provider shall become legally obligated to pay as damages for claims arising out of the services performed by the Provider or any person employed by them in connection with this Agreement. This insurance shall be maintained for three (3) years after completion of the Project and acceptance of any work covered by this Agreement.

(2) Comprehensive General Liability Insurance with broad form endorsement, including automobile liability, completed operations and products liability, contractual liability, severability of interests with cross liability provision, and personal injury and property damage liability with limits of $1,000,000.00 combined single limit per occurrence for bodily injury and property damage. Said policy or policies shall name the Owner as additional insured and shall reflect the hold harmless provision contained herein.

(3) Worker’s Compensation Insurance for the employees of Provider as required by Chapter 440, Florida

Statutes, and Employers’ Liability Insurance with limits not less than $1,000,000.00.

(4) Other, or increased amounts of, insurance which the Owner shall from time to time deem advisable or appropriate, at the Owner’s expense. Such new or additional insurance is to be effective as of the sooner of ninety (90) days after notice thereof or the next annual renewal of any policy being increased, as applicable.

(5) All policies referenced in Section 16.11, except Professional Liability Insurance, shall contain waiver of subrogation against the Owner where applicable and shall expressly provide that such policy or policies are primary over any other collective insurance that the Owner may have.

(6) All the above insurance is to be placed with Best-rated A-8 or better insurance companies qualified to do business under the laws of the State of Florida.

(7) The Owner shall be named as and additional insured under such policies except Professional Liability

Insurance. Said policies shall contain a “severability of interest” or “cross liability” clause without obligation for premium payment of the Owner. The Owner reserves the right to request a copy of required policies for review.

(8) All policies shall provide for 30 days’ notice to the Owner prior to cancellation or material change.

16.12 Electronic Mail Capabilities – The Provider must have electronic mail capabilities through the World Wide Web. It is the intention of the Department of Management Services to use electronic communication whenever possible for all projects. When possible, plans and specifications for review purposes will also be transmitted electronically to the Department of Management Services. The Provider shall provide its electronic mail address and a name of a point of contact for electronic communications.

16.13 Confidentiality of Building Plans – Pursuant to Section 119.071(3)(b), Florida Statutes, all building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency are exempt from inspection or disclosure under Florida’s Sunshine laws.

The Provider agrees to protect and ensure the confidentiality of such documents under its custody or control in conformance with the requirements of Section 119.071(3), Florida Statutes, and all applicable laws and shall include on the cover page of all plans the following statement:

“All plans contained herein are confidential.”

Any violation of Chapter 119, Florida Statutes, will be sufficient grounds for immediate termination of this

Agreement by the Department of Management Services.

16.14 Public Inquiries – All inquiries, in person, writing, or electronic correspondence received from elected officials, staff of elected officials, registered lobbyists, or members of community organizations shall be directed to the DMS Office of Legislative Affairs at 850-921-5266 or may be forwarded to:

Communications@dms.myflorida.com.

16.15 Electronic Execution – This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing, or on whose behalf such signature is executed, with the same force and effect as if such facsimile or “.pdf” signature page were an mailto:Communications@dms.myflorida.com original thereof, and the transmitting party shall deliver the inked original to the Owner, upon the Owner’s request.

16.16 Pursuant to Section 558.0035, Florida Statutes, an individual employee or agent of Provider may not be held…