CN-370000-CN226.pdf

DEP Agreement Number CN226

PROFESSIONAL SERVICES AGREEMENT

The parties, State of Florida Department of Environmental Protection, with headquarters at 3900 Commonwealth Blvd., Tallahassee, Florida 32399-3000 (“Department”), and VBA DESIGN, INC., a Florida corporation, with headquarters at 465 Harrison Avenue, Panama City, Florida 32401 (“Consultant”), enter into this Professional Services Agreement (“Agreement”), and in consideration of these mutual covenants, agree as follows:

1. General.

The Consultant shall provide the Department with Professional Architectural and Engineering services (“professional services”) within the State of Florida in accordance with the provisions of §287.055, Florida Statutes, on a task assignment basis. The Department’s form Consultant’s Task Assignment Notification (“Task Assignment,” as more particularly defined in paragraph 1.14 below) and form Task Assignment Change Order (“Change Order”) are attached hereto as Attachments C and D, respectively. The Consultant does hereby agree to perform such professional services as outlined in DEP Solicitation No. RFSOQBDC01-13/14 (“RFSOQ”), the Consultant’s response thereto, this Agreement, and the Attachments hereto. When called upon by Task Assignment, the Consultant shall perform the professional services as expeditiously as is consistent with professional skill and care and the orderly progress of the work. As consideration of the professional services rendered by the Consultant under the terms of this Agreement, the Department shall pay the Consultant on a combination fixed fee/cost reimbursement basis as specified in each executed Consultant’s Task Assignment as amended by any agreed Change Order(s).

1.1 The Consultant’s professional services may include, but may not be limited to, initial design schematics, preparation of budgets, site and infrastructure design, surveys, elevations, soil reports, inspections, take-offs, estimating, design development documents, construction documents, bidding assistance, negotiated proposal evaluation, responses to submittals and requests for information, construction supervision, construction pay request evaluations and payment certifications. The Consultant shall perform the professional services to the satisfaction of the Department upon the terms and conditions set out, referenced, or included in [i] this Agreement, [ii] the RFSOQ, [iii] the Consultant’s response to the RFSOQ, [iv] the executed Task Assignment(s) and any Change Order(s) relating thereto authorizing work; and [v] all Attachments annexed hereto.

1.2 The term “Agreement” includes all items in [i] through [v] in paragraph 1.1 and the same shall collectively constitute the entire agreement between the parties. The Agreement supersedes all prior negotiations, representations, proposals, understandings, and purported agreements of any kind.

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1.3 In the event of a conflict in terms between any of the components of the Agreement, the order of precedence for resolving such conflict shall be as follows ([i] being the highest precedence):

[i] the body of this Agreement;

[ii] Attachment A, Scope of Work;

[iii] Attachments B through I of this Agreement;

[iv] other documents, agreements and exhibits incorporated in the body of this Agreement by reference, if any;

[v] the RFSOQ, inclusive of all attachments, addenda and questions and answers to the RFSOQ;

[vi] the Consultant’s response to the RFSOQ.

1.4 This Agreement contains all the terms and conditions agreed upon by the parties, which terms and conditions shall govern all transactions between Department and Consultant. Any alterations, variations, changes, modifications or waivers of provisions of this Agreement shall only be valid if reduced to writing, duly signed by each of the parties hereto, and attached to the original of this Agreement. No oral agreements or representations shall be valid or binding upon Department or Consultant. No alteration or modification of the Agreement terms, including substitution of product, shall be valid or binding against Department, unless the Department elects to agree to any such alteration or modification in writing. Consultant may not unilaterally modify the terms of this Agreement by affixing additional terms to a product upon delivery. For example, the inclusion or attachment of standard preprinted forms, product literature, or “shrink wrap” terms to a product, whether written or electronic, or the incorporation of such terms onto Consultant’s order or fiscal forms or other documents forwarded by Consultant for payment shall not modify the Agreement or its requirements. Further, neither the Department's receipt nor incorporation of a product, or the processing of documentation on forms furnished by Consultant for approval or payment, shall constitute an acceptance of any proposed modification to the Agreement’s terms and conditions.

1.5 Consultant saves, holds harmless, and indemnifies the State of Florida, the Department, and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (the “Board of Trustees”), and their respective officers and employees, of, from, and against all liabilities, damages, losses and costs, including but not limited to reasonable attorneys’ fees, to the extent the same is caused by the Consultant, and/or persons employed or utilized by the Consultant in the performance of this Agreement.

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1.6 Further, Consultant shall fully indemnify, defend, and hold harmless the

State of Florida, Department, and Board of Trustees of and from any suits, actions, damages, and costs of every name, kind, and description, including attorneys’ fees, arising from or relating to the professional services’ violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right. However, the foregoing obligation shall not apply to the extent such violation or infringement arises from the Department’s misuse or modification of Consultant’s products, or the Department’s operation or use of Consultant’s products in a manner not contemplated by this Agreement.

If any product is the subject of an infringement suit or in Consultant’s opinion is likely to become the subject of such a suit, the Consultant may procure for the Department, at its sole expense, the right to continued use of the product; or the Consultant may modify the product to become non-infringing. If the Consultant is not reasonably able to secure the Department’s right to continued use of the product, or otherwise suitably modify the product, the Consultant shall remove the product and refund Department the amounts paid in excess of a reasonable rental for past use. The Department shall not be liable for any royalties.

1.7 The Consultant covenants that it presently has no interest and shall not acquire any interest, which would conflict in any manner or degree with the performance of the professional services required under this Agreement.

1.8 No party’s delay or failure to exercise any right, power or remedy upon a breach or default by either party under this Agreement shall impair any right, power or remedy of either party; nor shall any delay or failure be construed as a waiver of any such breach or default, or any similar breach or default thereafter.

1.9 This Agreement is not intended nor shall it be construed to grant any rights, privileges or interest in any third party without the mutual written agreement of the parties hereto.

1.10 The Consultant acknowledges that Section 216.347, Florida Statutes, prohibits the Consultant from using funds provided by this Agreement for the purposes of lobbying the Legislature, the judicial branch or a state agency.

1.11 The Consultant’s financial records shall be prepared in accordance with generally accepted accounting principles, consistently applied. The Consultant shall preserve, protect, and maintain all such financial records, Task Assignment work notes, books, records, and all other documents of any kind (written or electronic) directly pertinent to this Agreement and the performance of this Agreement, for the “Records Retention Period.” The Records Retention Period commences with the execution of this Agreement (and includes all documents which constitute any part of this Agreement) and terminates at the expiration of five years following [i] the completion or termination of this

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Agreement, [ii] the last invoice submitted pursuant to this Agreement, or [iii] the resolution of any claim or litigation brought as a result of this Agreement, whichever date is the latest.

The Consultant shall maintain all records and supporting invoices pertinent to this Agreement and the overall performance under this Agreement, for the Records Retention Period. The Consultant shall provide the Department, other appropriate state agencies or officers, and their respective authorized representatives, access to the documents and records for audit purposes during the Records Retention Period. In the event any work is subcontracted, the Consultant shall similarly require each subcontractor to maintain and allow access to such records for audit or other lawful purposes for the Records Retention Period.

1.12 The Consultant recognizes that the State of Florida, by virtue of its sovereignty, is not required to pay any taxes on the services or goods purchased under the terms of this Agreement.

1.13 The State of Florida, through the Department of Management Services, has instituted MyFloridaMarketPlace, a statewide e-procurement system. Pursuant to rule 60A-1.032(1), Florida Administrative Code, this Agreement is exempt from the one percent (1%) transaction fee.

1.14 “Task Assignment” means a request from the Department and acceptance by the Consultant for specific professional services as evidenced by a freely executed Consultant’s Task Assignment Notification (Attachment C), as modified by any fully executed Change Order(s) (Attachment D).

2. Schedule.

Upon request, the Consultant shall submit for the Department’s approval a schedule for the performance of services that includes allowances for periods of time appropriate for the completion of reviews and for approval of submissions by authorities having jurisdiction over the project. The Consultant shall not exceed time limits established by the approved schedule unless pre-approved, in writing, by the Department for reasonable causes due to circumstances beyond the Consultant’s control. The Consultant shall complete Construction Documents within the period established in the executed Task Assignment, unless expressly modified by the Department-approved schedule and/or Change Order.

3. Term.

3.1 Initial Term. This Agreement shall be effective upon execution by both parties for an initial five (5) year term, and the same shall authorize the issuance of Task Assignments by the Department to Consultant. No Task Assignment shall be issued after the expiration of the initial five (5) year term. However, the completion date of the

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Agreement shall be determined by the latest completion date of any Task Assignment authorized during the initial five-year term.

3.2 Renewal term. Pursuant to Rule 60A-1.048(1), the Department may renew this Agreement for the initial term or for a period that may not exceed three (3) years, whichever period is longer. All renewals are contingent upon satisfactory performance by Consultant and must be authorized by mutual agreement in writing. The renewal may be divided into successive increments, or for an entire five-year period. A renewal, if any, is subject to the same terms and conditions set forth in this Agreement, and the Consultant has included the cost of any contemplated renewal(s) in its response. If renewed, the completion date of the Agreement shall be determined by the latest completion date of any Task Assignment authorized during the renewal term.

3.3 Extension. Under limited circumstances, the Department may permit a short-term extension of the Agreement per Rule 60A-1.048(2), as such rule is amended from time to time.

3.4 The Consultant shall not be compensated for any services rendered prior to the effective date established in paragraph 3.1 and the execution of a Consultant’s Task Assignment Notification form.

4. Work.

Work issued under authority of this Agreement shall [i] cite this Agreement, [ii] be responsive to proposals submitted by the Consultant, as may be modified during negotiation, [iii] describe the project for which professional services are required, and [iv] state the fixed fee/cost reimbursement price the Department will pay to the Consultant (which price shall be inclusive of and limited to all reimbursable costs, wages, and professional fees).

4.1 “Reimbursable costs” shall mean the Consultant’s actual, normal, and customary costs, including a fairly apportioned amount for allocable overhead, as proposed by the Consultant and agreed to by the Department during negotiation.

4.2 “Wages” shall mean the aggregate of time charges measured by hourly rates at a graded scale applicable to persons actually providing services, which shall include a reasonable estimate of the Consultant’s actual expenditures for items normally comprising a labor burden. Wage rates and related labor burden for this Agreement shall be agreed to by the Department in the negotiation stage and are hereby incorporated as Attachment G to this Agreement. Wages for persons assigned to an ongoing project after the Agreement has been issued shall not be included on an invoice until approved by the Department. All wage rates and related labor burden are subject to audit and adjustment.

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4.3 “Professional fees” shall be expressed as a fixed price, and shall include all the Consultant’s non-reimbursable costs and profit. Task Assignment costs will be negotiated based on the fee guideline instituted by the State of Florida, Department of Management Services titled “Design Professional Fee Guidelines for Basic Architectural and Engineering Services”. Fee guideline instructions and formulas can be found at the following website: https://fp.state.fl.us/docs/DMSAEFeeGuidedefinition.asp. .

4.4 Performance Measures: Prior to submission to the Department, the Consultant shall review all deliverables to ensure the same are accurate and complete at time of submittal and meet or exceed the specified deliverable.

4.5 The Department shall review all deliverables, and upon satisfactory review, will pay for each approved deliverable for the amount specified for that deliverable in the Task Assignment.

4.6 Financial Consequences for Unsatisfactory Performance: The Department will not pay for any unsatisfactory deliverables. In the event the Department deems a deliverable unsatisfactory, the Consultant shall re-perform the services needed for submittal of a satisfactory deliverable at no additional cost to the Department within 15 consecutive days. If the Consultant fails to resubmit a satisfactory deliverable within the specified timeframe, the Department, in its sole discretion, may terminate the Task Assignment and/or Agreement for failure to perform.

4.7 The Consultant shall include with each invoice a completed “Minority Participation Report”, in the form annexed hereto as Attachment F, regardless of participation.

4.8 The Consultant shall submit invoices no less than monthly for professional services performed within the previous 30-day period, unless otherwise specified in a Task Assignment. Invoices submitted by the Consultant shall be supported by [i] a certificate stating that wages and other factual unit costs supporting the payment requested are accurate, complete, and current, [ii] a certificate that travel expenses are invoiced in accordance with §112.061, Florida Statutes, and [iii] time and cost detail sufficient for preaudit and postaudit. Each invoice shall accurately and clearly summarize the professional services performed for that period, in logical order, identify the Task Assignment and the period to which the invoice applies, and include true and complete documents supportive of the payment requested.

4.9 The Department shall process and pay such invoices within the times set out in §215.422, Florida Statutes.

DEP Agreement No. CN226, Page 6 of 45 https://fp.state.fl.us/docs/DMSAEFeeGuidedefinition.asp

4.10 THE STATE OF FLORIDA'S PERFORMANCE AND OBLIGATION

TO PAY UNDER THIS AGREEMENT IS CONTINGENT UPON AN ANNUAL

APPROPRIATION BY THE LEGISLATURE.

4.11 Consultants acting on the behalf of the Department shall comply with the following:

4.11.1 Consultant shall keep and maintain public records that the Department ordinarily and necessarily requires related to the services provided under this Agreement.

4.11.2 Consultant shall provide the public with access to all records on the same terms and conditions that Department would provide public records thereto and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law.

4.11.3 Consultant shall ensure that all public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

4.11.4 Consultant shall meet all requirements for retaining public records and transfer, at no cost, to Department, all public records in possession of Consultant upon termination of the Agreement. Consultant shall destroy any duplicate public records that are exempt or confidential and exempt from public disclosure requirements. Consultant must provide electronic records to the Department in a format that is accessible by and compatible with the Department’s information technology systems.

4.11.5 The Department may unilaterally cancel this Agreement if Consultant fails or refuses to comply with any of the foregoing provisions or to allow public access to all documents, papers, letters, or other material made or received by Consultant in connection with this Agreement, unless the records are claimed and determined to be exempt from Section 24(a) of Article I of the State Constitution and Section 119.07(1), Florida Statutes. Section 119.071(3), Florida Statutes, provides exemptions for security systems or plans, emergency evacuation plans, manuals or training for security personnel, building plans, blueprints, schematic drawings and diagrams, including draft, preliminary, and final drawings, which depict the internal layout and structural elements of a building or other structure owned by a state agency.

4.12 The Department may adjust the Agreement and Task Assignment price at any time up to three years following completion of Consultant’s work to exclude any sums which the Department determines exceed the Consultant’s actual costs plus fee, which contain errors in actual unit costs, or which include inaccurate, incomplete, or non-current wage rates.

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5. Suspension, Termination.

5.1 Suspension. The Department may in its sole discretion suspend any or all professional services under this Agreement or a Task Assignment, at any time, when in the best interests of the State to do so. The Department shall provide the Consultant written notice outlining the particulars of suspension. Examples of the reason for suspension include, but are not limited to, project re-evaluation, budgetary constraints, declaration of emergency, or other circumstances. After receiving a suspension notice, the Consultant shall comply with the notice. Within ninety days, or any longer period agreed to by the Consultant, the Department shall either [i] issue a notice authorizing the resumption of work, at which time, professional services shall resume, or [ii] terminate the Agreement or a Task Assignment. Suspension of work shall not entitle the Consultant to any additional compensation.

5.2 Termination for Convenience. Either party may terminate this Agreement or a Task Assignment at any time, without cause, by delivering written notice to the other party.

5.2.1 Effective upon the date of receipt of such notice, the Consultant shall cease performance, and within thirty (30) days thereafter shall invoice the Department for all outstanding/unpaid professional services provided under this Agreement. The Consultant shall not be entitled to recover any cancellation charges or lost profits.

5.2.2 Under no circumstances shall the Department be liable for payment of any invoice if [i] the amount, when combined with all other payments, exceeds the Agreement price, or [ii] the invoice is received after the 30-day period stated in section 5.2.1.

5.3 Termination for Cause, with Notice and Opportunity to Cure. The Department may terminate this Agreement and/or a Task Assignment if the Consultant fails to: [i] perform this Agreement or a Task Assignment as agreed, within the time specified; [ii] maintain adequate progress, thus endangering the timely performance due under this Agreement or a Task Assignment; [iii] honor any term of this Agreement or Task Assignment; or [iv] abide by any statutory, regulatory, or licensing requirement.

5.3.1 The Department shall notify the Consultant in writing of an intent to terminate, for cause, due to a default specified in section 5.3. The foregoing default notice shall state the nature of the default and provide a 10-day cure period for Consultant to correct the failure of performance, and, to invoice all completed work. Provided, however, the Department reserves the right to terminate without opportunity to cure if it is reasonably necessary to protect the interests of the State, in the Department’s sole discretion.

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5.3.2 During the 10-day cure period, the Consultant will have an opportunity to cure its failure to perform. Upon the Consultant’s timely curing of the specified default(s) and satisfactory response to the Department’s default notice, the Department will withdraw its intent to terminate. Should the Consultant fail to cure the default within the 10-day cure period, however, the Department may find the Consultant in default, terminate this Agreement and any or all Task Assignments, and render the Consultant ineligible to receive further work from the Department. The Consultant shall continue its work on any Task Assignment not terminated, if or as directed by the Department.

5.3.3 As stated in section 5.3.1, Consultant must deliver invoices for all completed and unbilled work within the 10-day cure period. The Department will not authorize payment of invoices received after the expiration of the 10-day cure period.

5.4 Termination for Cause, without Notice or Opportunity to Cure.

Notwithstanding anything to the contrary, no opportunity to cure shall be provided for violations discussed in this section 5.4:

5.4.1 The Department may terminate this Agreement and/or a Task Assignment, for cause and without notice or an opportunity to cure, if the Consultant is found to have submitted or is under investigation by any law enforcement or criminal justice agency for submitting to the Department any false or altered document in connection with a request for payment or approval, or if the Consultant is adverse to the Department in any litigation, administrative proceeding, or alternative dispute resolution, as more particularly set forth in section 28.

5.4.2 The Department may terminate this Agreement without notice or opportunity to cure, upon the Consultant’s [i] breach of the warranties in sections 8 and 9 below; [ii] refusal to allow public access to all records regardless of form made or received by the Consultant in connection with its performance under this Agreement, unless such records are exempt from application of Art. I §24(a), Florida Constitution and §119.07, Florida Statutes; [iii] knowing employment of unauthorized aliens; [iv] placement on the list of Scrutinized Companies (as more particularly described in section 20 below); or [v] failure to inform the Department of any known noncompliance between the project work and the requirements of the Construction Documents.

5.5 The rights and remedies of the Department set out in this section 5 are in addition to any other rights and remedies provided by law, in equity, or elsewhere in this Agreement.

5.6 If, after any termination, it is determined that the Consultant was not in default, or that the default was excusable pursuant to applicable law or any provision

DEP Agreement No. CN226, Page 9 of 45 specifically provided in this Agreement, then the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Consultant.

6. Notice.

6.1 All notices and written communication between the parties shall be sent by email, U.S. Mail, or a courier delivery service at the following address:

Department: Jessica Brockmeier, Agreement Manager, or successor Florida Department of Environmental Protection 3900 Commonwealth Blvd. MS 520 Tallahassee, Florida 32399 Phone: (850) 245-2632 Email: Jessica.Brockmeier@dep.state.fl.us

Consultant: Victoria Eilliams, Agreement Manager, or Successor 465 Harrison Avenue Panama City, Florida 32401 Phone: (850) 769-3357 Email: vwilliams@vbadesign.us

6.2 Notices shall be considered delivered when reflected by an electronic mail read receipt, a courier service delivery receipt, other mail service delivery receipt or when acknowledged by recipient.

6.3 Any change in address or substitution of designated representative shall be noticed to the other party within ten (10) days of its effective date.

6.4 No other Department staff other than the Department’s Agreement Manager named in this paragraph has authority to administer this Agreement in any way, including approval of changes in any term or condition of this Agreement. Any changes performed pursuant to direction of anyone other than the Department’s Agreement Manager shall be at the Consultant’s own risk and expense.

7. Independent Contractor(s).

The Consultant is neither an agent nor an employee of the Department, but is an independent contractor/vendor to the Department, and shall supply on its own account all personnel, equipment, software and materials necessary for the full performance of its duties hereunder.

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7.1 The Consultant is responsible for the professional quality, technical accuracy, timely completion and coordination of all design, drawings, specifications, reports, and other services furnished by it and by its subconsultants under this Agreement.

7.2 The Consultant shall, without additional compensation and without limiting any other remedies of the Department, correct or revise errors, omissions, or other deficiencies in designs, drawings, specifications, quantities, reports, and other submissions prepared by it or its subconsultants in the performance of this Agreement.

7.3 All final plans, documents, reports, studies and other data prepared by the Consultant shall bear the professional’s seal and signature in accordance with the applicable Florida Statues and the Florida Administrative Code rules promulgated by the State of Florida Department of Business and Professional Regulation, in effect at the time of execution of this Agreement.

8. Procurement of Agreement.

The Consultant warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for the Consultant, to solicit or procure this Agreement. In addition, the Consultant warrants that it has not paid nor agreed to pay any person or firm, other than a bona fide employee working solely for the Consultant, any fee, commission, percentage, gift, or other compensation contingent upon or resulting from the execution of this Agreement.

9. Discrimination.

The Consultant further warrants [i] that no person or firm shall be excluded on grounds of race, creed, religion, national origin, age, sex, or disability from participation, or otherwise be subjected to discrimination, in performance of this Agreement or any Task Assignment, and [ii] that neither Consultant nor any affiliate, supplier, subconsultant, or other subcontractor of Consultant, is or has been placed on the discriminatory vendor list maintained by the Florida Department of Management Services pursuant to Chapter 287, Florida Statutes.

10. Insurance.

10.1 The Consultant shall secure and maintain during the term of this Agreement all of the following coverages:

[i] Errors and omissions coverage of not less than $1,000,000 per occurrence; and

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[ii] Commercial general liability coverage, including bodily injury, property damage, products liability, completed operations, personal injury, and advertising injury, in the minimum limits of $1,000,000 per occurrence, and $2,000,000 general aggregate; and

[iii] Commercial automobile liability insurance for all claims that may arise from the services and operations performed under this Agreement, whether by Consultant or by persons employed or retained directly or indirectly by it, with minimum limits of $1,000,000 for automobile liability combined single limit for Consultant-owned vehicles, and $1,000,000 for hired and non-owned automobile liability coverage. Coverage shall apply on an occurrence basis.

This coverage shall meet all claims that may arise from performance of professional services and operations under this Agreement, whether by the Consultant or by persons employed or retained directly or indirectly by the Consultant.

10.2 Insurance required by paragraphs 10.1[ii] and 10.1[iii] shall include a hold-harmless provision in favor of the Department and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, and the certificate(s) of insurance shall list the Department and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida as additional insured.

10.3 In addition, to the extent required by law, the Consultant will be self-insured against, or will secure and maintain during the life of this Agreement, Workers' Compensation insurance for all of its employees connected with the work under the Agreement. If any work is subcontracted, the Consultant shall require the subconsultant similarly to provide Workers' Compensation insurance for all of the subconsultant’s employees unless such employees are covered by the protection afforded by the Consultant.

Any self-insurance program or insurance coverage shall comply fully with the Florida Workers' Compensation law. In case any class of employees engaged in hazardous work under this Agreement is not protected under Workers' Compensation statutes, the Consultant shall provide, and cause each subconsultant to provide, adequate insurance satisfactory to the Department for the protection of such employees.

10.4 The Consultant shall also maintain any federal insurance required by federal law, such as Jones Act as Harbormasters and Longshoremen’s coverage, if applicable.

10.5 All policies shall be issued by insurers licensed by or eligible to do business in the State of Florida.

10.6 The Consultant’s certificates of insurance shall be in form and content satisfactory to the Department and shall provide that coverage under the policy(ies) shall

DEP Agreement No. CN226, Page 12 of 45 not be cancelled for any reason during the term of this Agreement except upon 30-days advance written notice to the Department at the address stated in section 6.

10.7 The Consultant shall not amend nor cancel the required insurance coverages without the Department’s prior written approval. Should any cancellation occur, and new coverage is not immediately obtained, the Department shall have the right to suspend Consultant’s work until such coverage is obtained; the Department shall not be deemed to cause any delay or incur any cost for such suspension.

11. Amendments and Change Orders

By written order designated to be a change order, the Department, at any time, may make a change in the work within the general scope of this Agreement. All change orders are subject to the mutual agreement of both parties as evidenced in writing. Any change order that causes an increase or decrease in the Consultant's cost or time -- excluding Change Orders that modify the cost or time of work described in an executed Task Assignment -- shall require formal amendment to this Agreement.

12. Time is of the essence.

Time is of the essence in the performance of all duties and the giving of all notices required under this Agreement. Unless otherwise specified herein, the term “days” means calendar days.

13. Non-Waiver of Rights.

No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by the other party under this Agreement, shall impair any such right, power or remedy of either party; nor shall such delay or failure be construed as a waiver of any such breach or default, or any similar breach or default thereafter.

14. Claims and Disputes.

Disputes shall be resolved as follows:

14.1 All claims must be presented to the Department within 30 days of the date the claim arises. Claims not presented within such 30 days shall not be paid by the Department.

14.2 The parties shall make a good faith attempt to resolve claims and disputes which may arise from time to time by informal conference within 10 days of the date the claim or matter requiring resolution arises.

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14.3 In the event that the claim or matter is not resolved at such initial informal conference, the complaining party shall give written notice of dispute to the responding party within five (5) days after the conclusion of the informal conference (the “notice of dispute”). The notice of dispute shall set out in detail all aspects of the disputed matters to be resolved, including the specific relief sought by the complaining party.

14.4 Within 10 days of receipt of the notice of dispute, the responding party shall deliver its detailed written response to the complaining party. Thereafter, a formal conference shall be convened no later than 30-days following the responding party’s receipt of the notice of default (unless the parties mutually agree to a longer period of time within which to schedule such formal conference, provided neither party shall be obligated to agree to such longer period of time).

14.4.1 All persons necessary to resolution of the claim or disputed matter shall attend the formal conference.

14.4.2 Minutes of the formal conference shall be taken, recorded, transcribed, and signed by the Department, and shall be copied to Consultant.

14.5 In the event that the claim or matter is not resolved at formal conference, the complaining party shall file and serve an appropriate claim as prescribed by Chapter 120, Florida Statutes, within twenty-one (21) days of the date the formal conference was concluded.

14.6 In no event shall a dispute arising under this Agreement be part of any claim or count in a complaint filed in any court, federal or State, until all remedies afforded in Chapter 120, Florida Statutes, have been exhausted.

14.7 Venue for any formal claim and hearing or trial in any forum shall be Leon County.

14.8 THE PARTIES WAIVE THE RIGHT TO A JURY TRIAL ON ALL

ISSUES THAT ARISE UNDER THIS AGREEMENT.

15. Assignment.

This Agreement is an exclusive contract for services, and may not be assigned or transferred in whole or in part without written approval of the Department.

16. Subcontracting.

16.1 The Consultant shall not subcontract, assign, or transfer any work under this Agreement, or a Task Assignment, without prior written consent of the Department, except

DEP Agreement No. CN226, Page 14 of 45 with Alan D. Holt, ASLA; Anderson Engineers, P.A.; Humber-Garick Consulting Engineers; Johnson Peaden Engineering, Inc.; McNeil-Carroll Engineering, Inc.; and Southern Earth Sciences (Authorized subconsultants).

16.2 The Department’s consent to any subcontract shall not [i] relieve the Consultant of responsibility to the Department for satisfactory completion of the work so assigned, [ii] make the Department liable to the subconsultant for the work performed, or [iii] create a contractual relationship between the subconsultant and the Department.

16.3 The employment of unauthorized aliens by any Consultant is considered a violation of Section 274(e) of the Immigration and Nationality Act. If the Consultant knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Agreement. The Consultant shall be responsible for including this provision in all subcontracts issued as a result of this Agreement.

17. Department Property.

It is specifically agreed that work performed under this Agreement is work for hire, and that all right, title, and interest in and to such work, including without limitation all schematics, designs, plans, specifications, or other professional products produced and developed by the Consultant or its subconsultants in performance hereunder, whether subject to patent, copyright, or other such protection, shall be the property of the Department during the term of this Agreement, and shall remain property of the Department thereafter; provided that any materials used by the Consultant and any subconsultants for which patent or copyright protection has previously been secured by them shall remain the property of the Consultant or subconsultant.

18. Governing Law.

This Agreement has been delivered in the State of Florida and shall be construed in accordance with the laws of Florida. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Any action arising under or in connection with this Agreement shall be brought in a court of competent jurisdiction located in Leon County, Florida, after exhaustion of all remedies afforded under Fla.Stat. ch. 120.

19. E-Verify.

The Immigration Reform and Control Act of 1986 prohibits employers from knowingly hiring illegal workers. The Consultant shall only employ individuals who may

DEP Agreement No. CN226, Page 15 of 45 legally work in the United States – either U.S. citizens or foreign citizens who are authorized to work in the U.S. The Consultant shall use the U.S. Department of Homeland Security’s E-Verify Employment Eligibility Verification system to verify the employment eligibility of:

[i] All persons employed by the Consultant, during the term of this Agreement, to perform employment duties within Florida; and

[ii] All persons (including subcontractors) assigned by the Consultant to perform work pursuant to this Agreement; and

[iii] The Consultant shall include this provision in all subcontracts it enters into for the performance of work under this Agreement.

20. Scrutinized Companies.

Consultant certifies that it is not listed on either the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to Section 215.473, F.S. Consultant agrees that Department may immediately terminate this Agreement for cause if Consultant is found to have submitted a false certification or if Consultant is placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List during the term of this Agreement, pursuant to Section 287.135(5), F.S.

21. Public Entity Crimes.

Section 287.113, Florida Statutes provides that a person or affiliate (as that term is defined therein) who has been placed on the convicted vendor list following a conviction for a public entity crime may not perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, F.S., for Category Two, for a period of 36 months from the date of being placed on the convicted vendor list. Consultant certifies that neither it nor any affiliate has been placed on such convicted vendor list, and shall notify Department within five (5) days of its or any of its affiliate’s placement thereon.

22. Force Majeure.

Consultant shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of Consultant or its employees, subcontractors, or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, hurricanes, or other similar cause wholly beyond Consultant’s

DEP Agreement No. CN226, Page 16 of 45 control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to Consultant. In case of any delay Consultant believes is excusable, Consultant shall notify Department in writing of the delay or potential delay and describe the cause of the delay either (1) within ten (10) days before the cause that creates or will create the delay first arose, if Consultant could reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five (5) days after the date Consultant first had reason to believe that a delay could result. THE FOREGOING

SHALL CONSTITUTE CONSULTANT’S SOLE REMEDY OR EXCUSE WITH

RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. No claim for damages, other than for an extension of time, shall be asserted by Consultant against Department. Consultant shall not be entitled to an increase in the price or payment of any kind from Department for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist Consultant shall perform at no increased cost, unless Department determines, in its sole discretion, that the delay will significantly impair the value of the Agreement to the State or to Department, in which case Department may (1) accept allocated performance or deliveries from Consultant, provided that Consultant grants preferential treatment to Department with respect to products subjected to allocation, or (2) purchase from other sources (without recourse to and by Consultant for the related costs and expenses) to replace all or part of the products that are the subject of the delay, which purchases may be deducted from the Agreement quantity, or (3) terminate the Agreement in whole or in part.

23. Interpretation of Agreement.

23.1 Where appropriate: the singular includes the plural and vice versa; references to statutes or regulations include all statutory or regulatory provisions consolidating, amending or replacing the statute or regulation referred to; unless otherwise indicated references to Rules are to the adopted rules in the Florida Administrative Code; the words "including," "includes" and "include" shall be deemed to be followed by the words "without limitation"; unless otherwise indicated references to sections, appendices or schedules are to this Agreement; words such as "herein," "hereof" and "hereunder" shall refer to the entire document in which they are contained and not to any particular provision or section; words not otherwise defined which have well-known technical or construction industry meanings, are used in accordance with such recognized meanings; references to Persons include their respective permitted successors and assigns and, in the case of Governmental Persons, Persons succeeding to their respective functions and capacities; and words of any gender used herein shall include each other gender where appropriate.

23.2 Unless otherwise specified, lists contained in this Agreement shall not be deemed all-inclusive. Consultant acknowledges and agrees that it had the opportunity and

DEP Agreement No. CN226, Page 17 of 45 obligation, prior to submission of its Response, to review the terms and conditions of this Agreement and to bring to the attention of Department any conflicts or ambiguities contained therein. Consultant further acknowledges and agrees that it has independently reviewed this Agreement with legal counsel, and that it has the requisite experience and sophistication to understand, interpret and agree to the particular language of the terms.

Accordingly, if an ambiguity in (or dispute regarding the interpretation of) this Agreement shall arise, the Agreement shall not be interpreted or construed against the Department, and, instead, other rules of interpretation and construction shall be used.

24. Warranty of Ability to Perform.

Consultant warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish Consultant’s ability to satisfy its Agreement obligations. Consultant warrants that neither it nor any affiliate is currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida Statutes, or on any similar list maintained by any other state or the federal government. The Consultant shall immediately notify Department in writing if its ability to perform is compromised in any manner during the term of this Agreement.

25. Warranty of Authority.

Each person signing this Agreement warrants that he or she is duly authorized to do so and to bind the respective party to this Agreement.

26. Execution of the Agreement.

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 original thereof, and the transmitting party shall deliver the inked original to the Department, upon the Department’s request.

27. Execution of Amendments, Task Assignments and Task Assignment Change Orders.

Following execution of this Agreement, future amendments, Task Assignments or Change Orders may be executed by the Department representative delegated authority to take action on contracts for the value of the amendment, Task Assignment or Change Order.

DEP Agreement No. CN226, Page 18 of 45

28. Consultant as Adverse Party.

Department shall not authorize any work assignment, and may suspend or terminate for cause any work assigned to Consultant, if the Consultant is found to have submitted or is under investigation by any law enforcement or criminal justice agency for submitting to the Department any false or altered document in connection with a request for payment or approval, or if the Department and Consultant (or any of its affiliates or authorized subconsultants) are adverse in any litigation, administrative proceeding or alternative dispute resolution, until such adverse relationship is resolved either by agreement or by final non-appealable order of a court.

29. Successors and Assigns.

This Agreement is a binding agreement, enforceable against the Consultant and its officers, directors, members/managers, their legal representatives, and any permitted successor and/or assignee of the Consultant.

30. Attachments.

The following Attachments are annexed hereto and are incorporated in this Agreement by reference:

Attachment A Scope of Work

Attachment B Bureau of Design and Construction Office of Operations Auto CAD Drafting Standards

Attachment C Consultant’s Task Assignment Notification Attachment D Consultant’s Task Assignment Change Order Attachment E Truth-In-Negotiation Certificate Attachment F Minority Participation Report Attachment G Approved Wage Rates Attachment H Certificate of Payment and Schedule of Services Attachment I Schedule of Services

THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.

DEP Agreement No. CN226, Page 19 of 45

Attachment A

Scope of Work

ARTICLE 1. SCOPE OF SERVICES

1.1 “Construction Documents” means the fully complete drawings and the technical specifications required for each Task Assignment.

ARTICLE 2. KEY PERSONNEL

2.1 The Consultant shall not deviate from the key personnel stated in the Consultant's response to the RFSOQ without first obtaining the written consent of the Department.

2.2 The Consultant shall not deviate from the wage rates and other factual unit costs for key personnel and supporting staff stated in the Consultant’s response to the RFSOQ, and as provided in Attachments E and G to this Agreement.

2.3 The Consultant shall perform this Agreement and each Task Assignment at the lowest labor rate mutually agreed to be appropriate for staff qualified to perform the work (the “lowest agreed labor rate”). If the Consultant uses higher labor rate personnel to perform the work, the Consultant shall nonetheless invoice such work at the lowest agreed labor rate.

ARTICLE 3. CONSTRUCTION BUDGET

3.1 The Department's construction budget is dependent upon Legislative appropriation. For this Agreement, the Department's budget will be determined when the Task Assignment is negotiated.