broward AE Consultant Services BCF202-CS Mod 2026.05.14 revised for Solicitiation ADA.pdf

AGREEMENT BETWEEN BROWARD COUNTY AND _________________________________

FOR ARCHITECTURAL AND ENGINEERING CONSULTANT SERVICES

(RFP # PNC2132144P1)

This agreement (“Agreement”) is between Broward County, a political subdivision of the State of Florida (“County”), and ____________________________, a [state and type of business] (“Consultant”) (each a “Party” and collectively referred to as the “Parties”).

RECITALS

A. Negotiations pertaining to the Services to be performed by Consultant were undertaken with Consultant, and this Agreement incorporates the results of such negotiations.

This Agreement is subject to the requirements of Section 287.055, Florida Statutes, the Consultants’ Competitive Negotiation Act, as amended (“CCNA”), and County has met the requirements of the CCNA and has selected Consultant to perform the services stated herein.

B. County wishes to retain Consultant for continuing services as may be requested by County, and Consultant agrees to perform work for County pursuant to such Work Authorizations and the terms of this Agreement.

Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1. DEFINITIONS

1.1. Applicable Law means all applicable laws, codes, advisory circulars, rules, regulations, and ordinances of any federal, state, county, municipal, or other governmental entity, as amended.

1.2. Board means the Board of County Commissioners of Broward County, Florida.

1.3. Code means the Broward County Code of Ordinances.

1.4. Contract Administrator means the Director of Construction Management Division, the Assistant Director of Construction Management Division, or such other person designated by the Director of Construction Management Division in writing. The Contract Administrator is the representative of County concerning this Agreement.

1.5. Contractor shall mean the person, firm, corporation, or other entity (if any) that enters into an agreement with County to perform construction work related to the work to be performed by Consultant under a Work Authorization. If no Contractor will be retained by County for a particular Project, the obligations of Consultant regarding Contractor in this Agreement shall not apply for that Project.

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1.6. County Administrator means the administrative head of County pursuant to Sections 3.02 and 3.03 of the Broward County Charter.

1.7. County Business Enterprise or CBE means an entity certified as meeting the applicable requirements of the Broward County Business Opportunity Act, Section 1-81 et seq., of the Code.

1.8. County Attorney means the chief legal counsel for County who directs and supervises the Office of the County Attorney pursuant to Section 2.10 of the Broward County Charter.

1.9. Notice to Proceed means a written authorization issued by the Contract Administrator for Consultant to proceed with an activity, phase, or task, as specified in a Work Authorization.

1.10. Project means any professional services and resulting construction-related activities (if any) identified in the applicable Work Authorization.

1.11. Purchasing Director means County’s Director of Purchasing.

1.12. Services means the work described in the applicable Work Authorization, and all applicable professional services associated therewith.

1.13. Small Business Enterprise or SBE means an entity certified as meeting the applicable requirements of the Broward County Business Opportunity Act, Section 1-81, et seq., of the Code.

1.14. Subconsultant means any entity or individual, including any subcontractor and any third party issued a Form 1099 by Consultant, that provides Services to County through Consultant, regardless of tier.

1.15. Work Authorization means the document(s) issued pursuant to this Agreement setting forth the Services to be performed by Consultant, payment terms, schedule, deliverables, and/or other requirements established by the Contract Administrator, issued on a County form appropriate to the award authority for joint execution as more fully described in Article 5.

ARTICLE 2. EXHIBITS

Exhibit A General Scope of Services Exhibit B Maximum Billing Rates Exhibit C Schedule of Subconsultants Exhibit C-1 CBE Subconsultants and Letters of Intent Exhibit D Minimum Insurance Requirements Exhibit E BIM and Electronic Media Submittal Requirements

ARTICLE 3. SCOPE OF SERVICES; WORK AUTHORIZATIONS

3.1. Consultant shall provide all Services stated in each fully executed Work Authorization, including all necessary, incidental, and related activities required for full and complete performance of this Agreement. Award of this Agreement to Consultant does not guarantee work

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3.2. The Services described in a Work Authorization do not delineate every detail and minor work task required to be performed by Consultant. If Consultant determines that additional work should be performed to complete the Services and, in Consultant’s opinion, that work is outside the level of effort originally anticipated, whether or not the Work Authorization identifies such activities, Consultant will promptly notify the Contract Administrator in writing and seek written approval of the Contract Administrator before proceeding with the additional work. If Consultant proceeds with such work without notifying the Contract Administrator and obtaining the Contract Administrator’s written approval, the work shall be deemed to be within the original level of effort, whether or not specifically addressed in the Work Authorization, with no additional compensation or time for such work. Notice to the Contract Administrator does not constitute authorization or approval by County to Consultant to perform the work. In addition, any such work that would entail additional compensation to Consultant by County requires an amendment to the Work Authorization pursuant to the terms of this Agreement. Unless there is an executed amendment to the Work Authorization (or a dispute as set forth in Section 6.2), any work performed by Consultant outside the originally anticipated level of effort without prior written County approval shall be at no additional cost to County.

3.3. County will place at Consultant’s disposal all information County reasonably has available that is pertinent to the Services to be performed. County shall arrange for access to, and make all provisions for, Consultant to enter upon public and private property if required for Consultant to perform the Services. Deliverables and documents required to be submitted by Consultant to County under a Work Authorization will be reviewed by County and responded to in writing with any comments within the time for such comments, if any, set forth in the applicable Work Authorization.

3.4. If the Services relate to a construction project, Consultant acknowledges that it is aware of all the duties and responsibilities and agrees to perform such duties and responsibilities as set forth in County’s standard form documents or those County documents governing forms of construction delivery. Consultant agrees to meet with County at reasonable times after reasonable notice.

3.5. Work Authorizations. All Services must be authorized in writing by a Work Authorization in accordance with the requirements of this section.

3.5.1. Before Services are commenced pursuant to a Work Authorization, Consultant must supply the Contract Administrator with an estimate for all charges expected to be incurred for those Services.

3.5.2. Work Authorizations shall be prepared on forms provided by the Contract Administrator, dated, serially numbered, and executed by both County and Consultant.

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3.5.3. Work Authorizations, including amended Work Authorizations, are subject to approval by County as set forth herein based upon the total aggregate cost to County of the Work Authorization (or amended Work Authorization, if applicable), inclusive of all amendments to that Work Authorization to date: the Contract Administrator may approve if $50,000 or less; the Purchasing Director may approve if within the Purchasing Director’s delegated authority applied to each individual Work Authorization; Board approval is required if more than the Purchasing Director’s delegated authority.

3.5.4. In no instance may a Work Authorization or any amendment thereto be issued that exceeds any applicable limitation on estimated construction costs or other monetary limitations established in CCNA.

3.5.5. Any change of scope in a Work Authorization requiring charges in excess of the amount approved in the Work Authorization requires an amended Work Authorization.

Consultant’s compensation shall not exceed the amount approved in the Work Authorization or amended Work Authorization, as applicable.

3.5.6. All Work Authorizations must contain, as a minimum, all of the following information and requirements:

3.5.6.1. The required scope of Services and any required deliverables.

3.5.6.2. A statement of the method of compensation (maximum amount not to exceed or lump sum), and a budget establishing the amount of compensation and reimbursables to be paid that shall constitute a guaranteed maximum amount. The information contained in the Work Authorization shall be in sufficient detail so as to identify the various elements of costs.

3.5.6.3. A time established for completion of the Services and/or for the submission to County of documents, reports, and other information pursuant to the Work Authorization.

3.5.6.4. Any other additional instructions or provisions relating to the Work Authorization.

3.5.7. Work Authorizations may not be split in order to meet lower authorization thresholds as described in the Procurement Code or avoid the requirements of the CCNA.

3.6. Consultant will complete each Work Authorization and component tasks assigned without regard to whether such completion would cause work to be performed after any expiration date provided for in this Agreement. Any Work Authorization with a duration or specified term that extends beyond the expiration date of this Agreement may be amended after that expiration date to allow additional work, additional time, and/or additional fees to the extent allowed in this Agreement, provided the Services are necessary to complete the Project

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3.7. If County does not approve an increase in the guaranteed maximum amount of a Work Authorization and the need for such action is not the fault of Consultant, the Work Authorization shall be terminated and Consultant shall be paid in full for all work completed to that point, but shall in no case exceed the guaranteed maximum amount. If County does not approve an increase in the guaranteed maximum amount and the need for such action arises out of or relates to the acts or omissions of Consultant, a Subconsultant, or anyone acting by, through, or under Consultant and/or one or more Subconsultants, Consultant is required to perform all such additional work without any increase in compensation.

3.8. Notwithstanding any other remedy otherwise available to County, where the work product of Consultant is found to be deficient for the purpose for which it was produced, Consultant shall correct the deficiency at no cost to County. Pursuant to Section 558.005(1), Florida Statutes, the Parties agree to opt out of the requirements of Section 558.005, Florida Statutes.

ARTICLE 4. TIME FOR PERFORMANCE; DAMAGES

4.1. This Agreement begins on the execution of this Agreement by County and ends five (5) years after that date, unless otherwise terminated or renewed. County may renew this Agreement on the same terms and conditions for up to one (1) additional one-year term;

provided, however, that during the renewal term, the aggregate maximum amount of all Work Authorizations shall be prorated and shall not exceed the proportional annual share of the aggregate maximum amount set forth in Section 5.1. To exercise any renewal authorized by this section, the Purchasing Director must notify Consultant in writing at least fifteen (15) days prior to the end of the then-current term. Notice to Consultant of such renewal by electronic mail alone shall be effective and sufficient. Consultant shall perform the Services within the time periods specified in the applicable Work Authorization. Time periods shall commence from the date of the applicable Notice to Proceed. The Contract Administrator may place a Project and/or Consultant’s Services on hold as deemed necessary by the Contract Administrator.

4.2. Consultant must receive a Notice to Proceed from the Contract Administrator prior to commencement of Services (and prior to commencing any phase or task of Services for which a separate Notice to Proceed is required per the applicable Work Authorization). The Contract Administrator may, at their discretion, require Consultant to submit the deliverables and documents from one phase identified in any Work Authorization for the Contract Administrator’s review and approval prior to Consultant commencing Services for another phase.

4.3. If the Contract Administrator determines that Consultant is unable to timely complete all or any portion of the Services because of delays resulting from untimely review by County or other governmental agencies having jurisdiction and such delays are not the result of an act or omission by Consultant, a Subconsultant, or anyone acting by, through, or under Consultant and/or one or more Subconsultants, or because of delays caused by factors outside the control

RLI/RFP/Contract #PNC2132144P1 [BCF #202-CS Mod.] Page 5 of 99 of Consultant, the Contract Administrator has authority, in their sole discretion, and subject to a written amendment to the applicable Work Authorization, to grant a reasonable extension of time for completion of the Services and additional reasonable compensation, if deemed appropriate. The Contract Administrator may grant a reasonable extension of time to Consultant in writing to complete all or any portion of the Services required by a Work Authorization without a formal amendment of the applicable Work Authorization so long as the extension is at no additional cost to County. It shall be the responsibility of Consultant to notify the Contract Administrator in writing whenever a delay in approval by a governmental agency is anticipated or experienced, and whenever a delay has been caused by factors outside of Consultant’s control, and to inform the Contract Administrator of all facts and details related to the delay, along with an estimate of expected additional time necessary to complete the applicable Services and any request for additional compensation. Consultant must provide such written notice to the Contract Administrator within three (3) business days after the occurrence of the event causing the delay.

4.4. This section is only applicable if (a) the Services relate to construction work, (b) County has retained a Contractor, and (c) the Services include construction engineering and inspection services related to Contractor’s work. If Contractor fails to substantially complete the Services on or before the substantial completion date specified in its agreement with County through no fault of Consultant, or if Contractor is granted an extension of time beyond said substantial completion date and the time for completion of Services is extended beyond the substantial completion date through no fault of Consultant, then Consultant shall be compensated in accordance with Article 5 for all Services rendered by Consultant beyond the substantial completion date. If Contractor’s failure to substantially complete the construction work on or before the substantial completion date specified in its agreement with County is caused in whole or in part by Consultant, a Subconsultant, or anyone acting by, through, or under Consultant, then Consultant shall pay to County its proportional share of any claim for damages to Contractor arising out of the delay. The provisions for the computation of delay costs, damages, or any other amounts, whether direct or indirect, in the agreement between the Contractor and County are incorporated herein. This section shall not affect the indemnification rights or obligations of either Party otherwise set forth in this Agreement.

ARTICLE 5. COMPENSATION AND METHOD OF PAYMENT

5.1. Amount and Method of Compensation. The aggregate maximum amount of all Work Authorizations issued pursuant to this Agreement during the initial term shall not exceed a cumulative total of $10,000,000. Subject to Board approval, or any other delegated authority, amendments to Work Authorizations may exceed the cumulative total compensation limit as necessary to complete a Project.

5.1.1. Maximum Amount Not-To-Exceed Compensation. For Work Authorizations in which the method of compensation is a maximum not-to-exceed amount, County shall pay Consultant for all Services performed based on the Salary Costs specified in the applicable Work Authorization and reimburse Consultant for reimbursables as defined in

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Section 5.3. The “maximum amount not-to-exceed” method of compensation means that Consultant shall perform all Services set forth in the applicable Work Authorization for total compensation in the amount of or less than that amount. The hourly rates payable by County for Consultant’s employees shall be the actual salary rates for each respective employee, provided such rates do not exceed the rates shown on Exhibit B, Maximum Billing Rates, for the applicable employee category.

5.1.2. Lump Sum Compensation. For Work Authorizations in which the method of compensation is lump sum compensation, County shall pay Consultant for completion of all Services the lump sum amount stated in the applicable Work Authorization.

5.1.3. Reimbursable Expenses. Subject to Section 5.3, County will reimburse Consultant for authorized Reimbursable Expenses as defined in that section. Any unused amounts shall be retained by County.

5.1.4. Subconsultant Fees. Consultant shall bill County for Subconsultant fees using the employee categories for Salary Costs on Exhibit B and Reimbursable Expenses defined in Section 5.3. Consultant shall bill Subconsultant fees with no mark-up and within any applicable maximum amount.

5.2. Salary Costs. The term “Salary Costs” as used herein shall mean the hourly rate actually paid to the personnel engaged directly in performing the Services, adjusted by an overall multiplier that consists of the following: 1) a fringe benefits factor; 2) an overhead factor; and 3) a final operating margin as calculated in Exhibit B - Maximum Billing Rates. Said Salary Costs are to be used only for time directly attributable to the performance of Services. The fringe benefit and overhead rates shall be Consultant’s most recent and actual rates determined in accordance with Federal Acquisition Regulation (“FAR”) guidelines and audited by an independent Certified Public Accountant. For the purposes of this Agreement, the rates must be audited for fiscal periods of Consultant within eighteen (18) months preceding the execution date of this Agreement. The identified multiplier in Exhibit B shall remain in effect for the duration of this Agreement.

5.2.1. Consultant shall require all of its Subconsultants to comply with the requirements of Section 5.2.

5.2.2. Salary Costs shown in Exhibit B are the maximum billing rates for each Consultant and Subconsultant employee category, and are provisional subject to audit of actual costs; if the audit discloses that the actual costs are less than the costs set forth on Exhibit B for Consultant or any Subconsultant, Consultant will promptly reimburse County based upon the actual costs determined by the audit. County may withhold the amount Consultant is required to reimburse County from any payment due Consultant under this Agreement.

5.2.3. Unless otherwise noted, the Salary Costs stated above are based upon Consultant’s “home office” rates. Should it become appropriate during the course of this

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Agreement that a “field office” rate be applied, Consultant must submit a supplemental Exhibit B reflective of such rates to the Contract Administrator for review and, subject to Contract Administrator’s written approval, may invoice County accordingly.

5.2.4. The total hours payable by County to Consultant for any “nonexempt” personnel (i.e., personnel subject to overtime pay) shall not exceed forty (40) hours per employee in any week. If the Services require Consultant’s or Subconsultant’s nonexempt personnel to work in excess of forty (40) hours per week, any additional hours for nonexempt personnel must be authorized in advance, in writing, by the Contract Administrator. If approved, Consultant shall invoice Salary Costs for such additional hours provided by nonexempt employees at no more than one and one-half of the employee’s hourly rate and in a manner consistent with Consultant’s or Subconsultant’s applicable certified FAR audit and all other provisions of Section 5.2. If a “Safe Harbor” rate is elected for use by Consultant or Subconsultant, then the additional hours for both “exempt” (i.e., not subject to overtime pay) and nonexempt employees are payable at no more than the employee’s regular rate.

5.2.5. Consultant and any of its Subconsultants may alternatively use a “Safe Harbor” combined fringe benefit and overhead rate of 110% in lieu of providing fringe benefit and overhead cost factors certified by an independent Certified Public Accountant in accordance with the FAR guidelines. The Safe Harbor rate, once elected, shall remain in place for the duration of this Agreement, shall be applicable for use as “home” and “field” fringe benefit and overhead rates, if applicable, and shall not be subject to audit under this Agreement. All other provisions of Section 5.2 remain in place.

5.2.6. Indemnification Related to Paycheck Protection Program Forgiveness. If the State of Florida, federal government, or any other authority seeks recovery from County, whether through offset or any other means, of Paycheck Protection Program (“PPP”) funds received by Consultant or any Subconsultant under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act and/or any forgiveness of such funds pursuant to Section 1106 of the CARES Act, Consultant must indemnify and hold harmless County and its employees and agents from any and all claims, causes of action, losses, fines, penalties, damages, judgments, and liabilities of any kind, including attorneys’ fees, litigation expenses, and court costs, arising from or relating thereto.

5.3. Reimbursable Expenses. Reimbursement of any travel costs, travel-related expenses, or other direct non-salary expenses directly attributable to the Services (collectively, “Reimbursable Expenses”) shall be limited to those permitted under Section 112.061, Florida Statutes, except as otherwise stated herein or if otherwise identified as Reimbursable Expenses. Mileage for travel within Palm Beach, Broward, and Miami-Dade Counties is not reimbursable. County shall not be liable for any Reimbursable Expenses that have not been approved in writing in advance by the Contract Administrator. Reimbursable Expenses of Subconsultants must also comply with the requirements of this section. Reimbursable Expenses shall only be invoiced or reimbursed to the extent provided in the applicable Work Authorization.

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5.4. Method of Billing.

5.4.1. For Maximum Amount Not-To-Exceed Compensation. Consultant shall submit invoices to the Contract Administrator in a timely manner, no more frequently than on a monthly basis, for all Salary Costs and Reimbursable Expenses attributable to each Work Authorization. Invoices are due within fifteen (15) days after the end of the month covered by the invoice, except that the final invoice must be received no later than sixty

(60) days after the expiration or earlier termination of this Agreement. Consultant’s delayed submission of any invoice by more than sixty (60) days, absent good cause approved in writing by the Contract Administrator, may, at the Contract Administrator’s sole discretion, result in a waiver of any right to payment for the invoiced Services.

Invoices must identify the specific project number (if any), the nature of the Services performed, the total hours performed, and the employee category of the applicable individuals. Invoices must itemize and summarize all expenses by category and identify the personnel incurring the expense and the nature of the Services with which such expense was associated. Where prior written approval by the Contract Administrator is required for the expense, a copy of said approval must accompany the invoice for such reimbursable. The statement must show a summary of Salary Costs and Reimbursable Expenses with accrual of the total and credits for portions paid previously. Reimbursables for Direct Non-salary Expenses and Subconsultant fees must be documented by copies of paid invoices or receipts that describe the amount and nature of the expenses and contain a project number (if any) or other identifier that clearly indicates the expense is identifiable to the Work Authorization. Subsequent addition of the identifier to the invoice or receipt by Consultant is not acceptable except for meals and travel expenses.

Internal expenses must be documented by appropriate Consultant’s cost accounting forms with a summary of charges by category. When requested, Consultant must provide backup for past and current invoices that records hours and Salary Costs by employee category, expenses by category, and Subconsultant fees on a task basis, so that total hours and costs by task may be determined.

5.4.2. For Lump Sum Compensation. Consultant shall submit invoices to the Contract Administrator in a timely manner, no more frequently than on a monthly basis. Invoices are due within fifteen (15) days after the end of the month covered by the invoice, except that the final invoice must be received no later than sixty (60) days after the expiration or earlier termination of this Agreement. Consultant’s delayed submission of any invoice by more than sixty (60) days, absent good cause approved in writing by the Contract Administrator, may, at the Contract Administrator’s sole discretion, result in a waiver of any right to payment for the invoiced Services. These invoices must identify the specific project number (if any), the nature of the Services performed, the phase of work, and the estimated percent of Services accomplished on each phase. Invoices for each phase shall not exceed the amounts allocated to said phase. The statement must show a summary of fees with accrual of the total and credits for portions paid previously. When requested, Consultant must provide backup for past and current invoices that record hours, salary

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5.5. Method of Payment.

5.5.1. County shall pay Consultant within thirty (30) days after receipt of Consultant’s proper invoice, as defined by County’s Prompt Payment Ordinance, minus any applicable retainage or other deductions permitted by this Agreement. To be deemed proper, all invoices must: (a) comply with all applicable requirements, whether set forth in this Agreement or the Code; (b) be submitted pursuant to instructions prescribed by the Contract Administrator; and (c) be submitted to both the County’s Accounting Division (via email at AccountsPayable@Broward.org) and to the Contract Administrator.

5.5.2. Unless otherwise provided in this section, County shall have the right to retain an amount equal to ten percent (10%) of each invoice (“retainage”) until satisfactory completion of the applicable phase. No amount shall be withheld from payments for Reimbursable Expenses or for Services performed during the construction phase, if applicable. Any decision by County not to retain amounts as provided for in this section shall not be construed as a waiver of any right or claim that County may have associated with any failure of Consultant to complete the applicable phase. County may set off any amounts Consultant owes to County under this Agreement against any amounts County owes to Consultant under this Agreement.

5.5.3. Upon Consultant’s completion of each phase to the satisfaction of the Contract Administrator, County shall remit to Consultant any amounts withheld as retainage for that phase. Final payment for a Work Authorization must be approved by the Purchasing Director.

5.5.4. Payment will be made to Consultant at the address for notices in Section 11.11, unless otherwise requested by Consultant in writing and approved by the Contract Administrator in writing.

5.6. Fiscal Year. The continuation of this Agreement beyond the end of any County fiscal year (October 1 through September 30) is subject to both the appropriation and the availability of funds pursuant to Chapter 129 and, if applicable, Chapter 212, Florida Statutes. If amounts to be paid by County under this Agreement are budgeted to be funded with transportation surtax proceeds pursuant to Section 212.055(1), Florida Statutes, and such proceeds are not appropriated or available for any reason, County shall have no obligation to use ad valorem funds or any other funding source to make any payment(s) required under this Agreement and County may terminate this Agreement for convenience pursuant to Article 8.

5.7. Payments to Subconsultants. Consultant must pay Subconsultants and suppliers within fifteen (15) days after receipt of payment from County for such subcontracted work or supplies.

If Consultant withholds an amount as retainage from a Subconsultant or supplier, Consultant shall release such retainage and pay the same within fifteen (15) days after receipt of payment

RLI/RFP/Contract #PNC2132144P1 [BCF #202-CS Mod.] Page 10 of 99 of retained amounts from County. The Contract Administrator may, at its option, increase allowable retainage or withhold progress payments unless and until Consultant demonstrates timely payments of sums due to all Subconsultants and suppliers. Consultant shall include requirements substantially similar to those set forth in this section in its contracts with Subconsultants and suppliers.

5.8. Withholding by County; Overcharges. Notwithstanding any provision of this Agreement to the contrary, County may withhold payment, in whole or in part, (a) in accordance with Applicable Law, or (b) to the extent necessary to protect itself from loss on account of

(i) inadequate or defective work that has not been remedied or resolved in a manner satisfactory to the Contract Administrator, or (ii) Consultant’s failure to comply with any provision of this Agreement. The amount withheld shall not be subject to payment of interest by County. In the event of an overcharge by Consultant in any amount, Consultant shall promptly refund to County such overcharged amount. If the overcharge exceeds five percent (5%) of the total amount charged in the invoice where the overcharge occurred, Consultant shall, in addition to refunding the overcharged amount, pay liquidated damages in the amount of fifteen percent (15%) of the overcharged amount within thirty (30) days after demand by County as just compensation for damages incurred by County due to the overcharge, including, but not limited to, County’s administrative costs and loss of potential investment returns (including interest).

5.9. Foreign Entity Tax Withholding. Amounts due to certain foreign persons or entities may be subject to backup withholding taxes under federal law. If Consultant is a foreign person or entity that is required to complete an Internal Revenue Service (“IRS”) form to evidence exemption from backup withholding (e.g., Form W-8ECI) (“Foreign Tax Form”), Consultant shall provide County a copy of Consultant’s current Foreign Tax Form prior to issuance of any invoice or payment under this Agreement. If Consultant fails to timely provide a completed, current Foreign Tax Form, County will withhold all backup withholding taxes from the amounts due Consultant, remit such sums to the IRS, and pay Consultant only the remainder. County makes no representation regarding the tax treatment of amounts due to Consultant, and Consultant releases and holds County harmless from any claims or damages in any way relating to or arising from any tax withholding by County pursuant to this section.

ARTICLE 6. CHANGES IN SERVICES

6.1. County or Consultant may request changes that would increase, decrease, or otherwise modify the Services to be provided. Unless otherwise expressly permitted herein, such changes must be made in accordance with the provisions of the Broward County Procurement Code and must be contained in a written amendment.

6.2. If a dispute between the Contract Administrator and Consultant arises over whether any work requested by County is within the scope of contracted Services and such dispute cannot be resolved by the Contract Administrator and Consultant, such dispute shall be promptly presented to the County Administrator or the County Administrator’s written designee for resolution, whose decision shall be in writing and shall be final and binding on the Parties. During the

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ARTICLE 7. REPRESENTATIONS AND WARRANTIES

7.1. Representation of Authority. Consultant represents and warrants that this Agreement constitutes the legal, valid, binding, and enforceable obligation of Consultant, and that neither the execution nor performance of this Agreement constitutes a breach of any agreement that Consultant has with any third party or violates Applicable Law. Consultant further represents and warrants that execution of this Agreement is within Consultant’s legal powers, and each individual executing this Agreement on behalf of Consultant is duly authorized by all necessary and appropriate action to do so on behalf of Consultant and does so with full legal authority.

7.2. Claims Against Consultant. Consultant represents and warrants that there is no action or proceeding, at law or in equity, before any court, mediator, arbitrator, governmental or other board or official, pending or, to the knowledge of Consultant, threatened against or affecting Consultant, the outcome of which may (a) affect the validity or enforceability of this Agreement,

(b) materially and adversely affect the authority or ability of Consultant to perform its obligations under this Agreement, or (c) have a material and adverse effect on the consolidated financial condition or results of operations of Consultant or on the ability of Consultant to conduct its business as presently conducted or as proposed or contemplated to be conducted.

7.3. Solicitation Representations. Consultant represents and warrants that all statements and representations made in Consultant’s proposal, bid, or other supporting documents submitted to County in connection with the solicitation, negotiation, or award of this Agreement, including during the procurement or evaluation process, were true and correct when made and are true and correct as of the date Consultant executes this Agreement, unless otherwise expressly disclosed in writing by Consultant.

7.4. Contingency Fee. Consultant represents and warrants that it has not employed or retained any person or entity, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person or entity, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. If this Agreement is subject to Section 287.055, Florida Statutes, the Parties agree and stipulate that the statutory language stated in Section 287.055(6)(a) is deemed included and fully incorporated herein.

7.5. Truth-In-Negotiation Representation. Consultant’s compensation under this Agreement is based upon its representations to County, and Consultant certifies that the wage rates, factual unit costs, and other information supplied to substantiate Consultant’s compensation, including, without limitation, in the negotiation of this Agreement, are accurate, complete, and current as of the date Consultant executes this Agreement. Consultant’s compensation may be reduced by County, in its sole discretion, to correct any inaccurate, incomplete, or noncurrent information provided to County as the basis for Consultant’s compensation in this Agreement.

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7.6. Public Entity Crime Act. Consultant represents that it is familiar with the requirements and prohibitions under the Public Entity Crime Act, Section 287.133, Florida Statutes, and represents that its entry into this Agreement will not violate that statute. Consultant further represents that there has been no determination that it committed a “public entity crime” as defined by Section 287.133, Florida Statutes, and that it has not been formally charged with committing an act defined as a “public entity crime” regardless of the amount of money involved or whether Consultant has been placed on the convicted vendor list.

7.7. Discriminatory Vendor and Scrutinized Companies Lists; Countries of Concern. Consultant represents that it has not been placed on the “discriminatory vendor list” as provided in Section 287.134, Florida Statutes, and that it has not been identified as a company or other entity subject to scrutiny under Sections 215.473 or 215.4725, Florida Statutes. Consultant represents and certifies that it is not, and for the duration of the Agreement will not be, ineligible to contract with County on any of the grounds stated in Section 287.135, Florida Statutes. Consultant represents that it is, and for the duration of this Agreement will remain, in compliance with Section 286.101, Florida Statutes.

7.8. Verification of Employment Eligibility. Consultant represents that Consultant and each Subconsultant have registered with and use the E-Verify system maintained by the United States Department of Homeland Security to verify the work authorization status of all newly hired employees in compliance with the requirements of Section 448.095, Florida Statutes, and that entry into this Agreement will not violate that statute. If Consultant violates this section, County may immediately terminate this Agreement for cause and Consultant shall be liable for all costs incurred by County due to the termination.

7.9. Warranty of Performance. Consultant represents and warrants that it possesses the knowledge, skill, experience, and financial capability required to perform and provide all required Services under this Agreement, and that each person and entity that will provide Services is duly qualified and, to the extent required, licensed and certified by all appropriate governmental authorities to perform such Services, and is sufficiently experienced and skilled in the area(s) for which such person or entity will render Services. Consultant represents and warrants that the Services shall be performed in a skillful and respectful manner, that it has or will obtain all necessary approvals by applicable regulatory entities to perform the Services unless otherwise expressly stated herein, and that the quality of all Services shall equal or exceed prevailing industry standards for the provision of such services.

7.10. Prohibited Telecommunications. Consultant represents and certifies that Consultant and all Subconsultants do not use, and for the duration of this Agreement will not provide or use, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, as such terms are used in 48 C.F.R. §§ 52.204-24 through 52.204-26.

7.11. Criminal History Screening Practices. If this Agreement is subject to the requirements of Section 26-125(d) of the Code, Consultant represents and certifies that Consultant will comply with Section 26-125(d) of the Code for the duration of the Agreement.

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7.12. Entities of Foreign Concern. The provisions of this section apply only if this Agreement provides access to an individual’s personal identifying information. By execution of this Agreement, the undersigned authorized representative of Consultant hereby attests under penalty of perjury as follows: Consultant is not owned by the government of a foreign country of concern, is not organized under the laws of nor has its principal place of business in a foreign country of concern, and the government of a foreign country of concern does not have a controlling interest in Consultant; the undersigned authorized representative of Consultant declares that they have read the foregoing statement and that the facts stated in it are true.

Terms used in this section that are not otherwise defined in this Agreement shall have the meanings ascribed to such terms in Section 287.138, Florida Statutes.

7.13. Breach of Representations. Consultant acknowledges that County is materially relying on the representations, warranties, and certifications of Consultant stated in this article, and County shall be entitled to exercise any or all of the following remedies if any such representation, warranty, or certification is untrue: (a) recovery of damages incurred; (b) termination of this Agreement by County without any further liability to Consultant; (c) set off from any amounts due Consultant the full amount of any damage incurred; and (d) debarment of Consultant.

ARTICLE 8. TERMINATION

8.1. Termination for Cause. This Agreement or any Work Authorization issued under this Agreement may be terminated for cause by the aggrieved Party if the Party in breach has not corrected the breach within ten (10) days after receipt of written notice from the aggrieved Party identifying the breach. This Agreement may be terminated for cause by County for reasons including, but not limited to, any of the following:

8.1.1. Consultant’s (a) failure to suitably or continuously perform the Services in a manner calculated to meet or accomplish the objectives in this Agreement or Work Authorization, (b) suspension or debarment by a state or federal governmental entity or by a local governmental entity with a population in excess of one million people, or

(c) repeated submission (whether negligent or intentional) for payment of false or incorrect bills or invoices;

8.1.2. By the County Administrator or the Director of Office of Economic and Small Business Development (“OESBD”) for fraud, misrepresentation, or material misstatement by Consultant in the award or performance of this Agreement or that violates any applicable requirement of Section 1-81, et seq., of the Code; or

8.1.3. By the Director of OESBD upon the disqualification of Consultant as a CBE or SBE if Consultant’s status as a CBE or SBE was a factor in the award of this Agreement, or upon the disqualification of one or more of Consultant’s CBE or SBE participants by the Director of OESBD if any such participant’s status as a CBE or SBE firm was a factor in the award of this Agreement.

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Unless otherwise stated in this Agreement, if this Agreement was approved by Board action, termination for cause by County must be by action of the Board or the County Administrator; in any other instance, termination for cause may be by the County Administrator, the County representative expressly authorized under this Agreement, or the County representative (including any successor) who executed this Agreement on behalf of County. If County erroneously, improperly, or unjustifiably terminates this Agreement or any Work Authorization for cause, such termination shall be deemed a termination for convenience pursuant to Section 8.2 effective thirty (30) days after such notice was provided and Consultant shall be eligible for the compensation provided in Section 8.2 as its sole remedy.

8.2. Termination for Convenience; Other Termination. This Agreement may also be terminated for convenience by the Board, and a Work Authorization may be terminated for convenience by the Contract Administrator, with at least thirty (30) days advance written notice to Consultant. Consultant acknowledges that it has received good, valuable, and sufficient consideration for County’s right to terminate this Agreement or any Work Authorization for convenience, including in the form of County’s obligation to provide advance written notice to Consultant of such termination in accordance with this section. This Agreement or any Work Authorization may also be terminated by the County Administrator upon such notice as the County Administrator deems appropriate under the circumstances if the County Administrator determines that termination is necessary to protect the public health, safety, or welfare. If this Agreement or any Work Authorization issued under this Agreement is terminated by County pursuant to this section, Consultant shall be paid for any Services properly performed through the termination date specified in the written notice of termination, subject to any right of County to retain any sums otherwise due and payable, and County shall have no further obligation to pay Consultant for Services under this Agreement.

8.3. Notice of termination shall be provided in accordance with the “Notices” section of this Agreement, except that notice of termination by the County Administrator to protect the public health, safety, or welfare may be oral notice that shall be promptly confirmed in writing.

8.4. In addition to any termination rights stated in this Agreement, County shall be entitled to seek any and all available contractual or other remedies available at law or in equity, including recovery of costs associated with Consultant’s failure to comply with any term(s) of this Agreement.

ARTICLE 9. INSURANCE

9.1. For the duration of the Agreement, Consultant shall, at its sole expense, maintain the minimum insurance coverages stated in Exhibit D in accordance with the terms and conditions of this article. Consultant shall maintain insurance coverage against claims relating to any act or omission by Consultant, its agents, representatives, employees, or Subconsultants in connection with this Agreement. County reserves the right at any time to review and adjust the limits and types of coverage required under this article.

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9.2. Consultant shall ensure that “Broward County” is listed and endorsed as an additional insured as stated in Exhibit D on all policies required under this article.

9.3. On or before the date this Agreement is fully executed or at least fifteen (15) days prior to commencement of Services, as may be requested by County, Consultant shall provide County with a copy of all Certificates of Insurance or other documentation sufficient to demonstrate the insurance coverage required in this article. If and to the extent requested by County, Consultant shall provide complete, certified copies of all required insurance policies and all required endorsements within thirty (30) days after County’s request.

9.4. Consultant shall ensure that all insurance coverages required by this article remain in full force and effect without any lapse in coverage for the duration of this Agreement and until all performance required of Consultant has been completed, as determined by Contract Administrator. Consultant or its insurer shall provide notice to County of any cancellation or modification of any required policy at least thirty (30) days prior to the effective date of cancellation or modification, and at least ten (10) days prior to the effective date of any cancellation due to nonpayment, and shall concurrently provide County with a copy of its updated Certificates of Insurance evidencing continuation of the required coverage(s).

9.5. All required insurance policies must be placed with insurers or surplus line carriers authorized to conduct business in the State of Florida with an A.M. Best rating of A- or better and a financial size category class VII or greater, unless otherwise approved by County’s Risk Management Division in writing.

9.6. If Consultant maintains broader coverage or higher limits than the insurance requirements stated in Exhibit D, County shall be entitled to all such broader coverages and higher limits. All required insurance coverages shall provide primary coverage and not require contribution from any County insurance, self-insurance, or otherwise, which shall be in excess of and shall not contribute to the required insurance provided by Consultant.

9.7. Consultant shall declare in writing any self-insured retentions or deductibles over the limit(s) prescribed in Exhibit D and submit to County for approval at least fifteen (15) days prior to the date this…