CN-370000-PL356.pdf

DEP Contract No. PL356, Page 1 of 30

DEP Contract No. PL356

CONTRACT

THIS CONTRACT is entered into between the FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (hereinafter referred to as the "Department") and Bryant Miller Olive P.A. whose address is 101 North Monroe Street, Suite 900; Tallahassee, Florida 32301 (hereinafter referred to as the "Contractor"), a Florida corporation, to provide real estate title insurance services, including but not limited to, ownership and encumbrance (O&E) reports, title search reports, title commitments, title searches, search updates, title policies, closings and other related acquisition services for land acquisition and land management projects for the State of Florida on a task assignment basis.

In consideration of the mutual benefits to be derived herefrom, Department and Contractor do hereby agree as follows:

1. Services. The Department does hereby retain the Contractor to provide Title and Closing Services, as defined herein and the Contractor does hereby agree to perform such services as outlined in DEP Solicitation No. 2016015C and Contractor’s response thereto, incorporated herein by reference, and in accordance with Attachment A, Scope of Services, attached hereto and made a part hereof. Any terms and conditions of this Contract which vary from those contained in the Solicitation or the Contractor’s response thereto shall have supersede, control and have precedence there over. The Contractor does hereby agree to conduct these services for the Department upon the terms and conditions set forth in this Contract and all attachments named herein which are attached hereto and incorporated by reference. The Contractor has been determined to be a vendor to the Department under this Contract.

2. Standard of Care for Performance.

A. The Contractor shall perform as an independent contractor and not as an agent, representative, or employee of the Department.

B. The Contractor shall perform the services in a proper and satisfactory manner as determined by the Department. Any and all such equipment, products or materials necessary to perform these services, or requirements as further stated herein, shall be supplied by the Contactor.

3. Term of Contract.

A. Initial Term. This Contract shall begin upon execution by both parties and remain in until April 30, 2019. In accordance with Section 287.058(2), Florida Statutes (F.S.), Contractor shall not be eligible for reimbursement for services rendered prior to the execution date of the Contract.

B. Renewal Term. This Contract may be renewed, in writing, on the same terms and conditions for a period no greater than three (3) one (1) year renewals or the original term of the Contract. All renewals are contingent upon satisfactory performance by the Contractor.

4. Compensation. The Department shall pay the Contractor in accordance with the pricing schedule attached as Attachment B hereto. The Department will authorize payments to the Contractor on task assignment basis. All bills for amounts due under this Contract shall be submitted in detail sufficient for approval pre-audit and post audit thereof. NO MINIMUM AMOUNT OF WORK IS PROMISED OR

GUARANTEED HEREUNDER.

Travel: The Contractor shall be compensated for Travel requested by the Department at the rate and in accordance with requirements of Section 112.061, F.S., and shall be authorized only by a properly executed Task Assignment Notification Form. The DEP shall not compensate Contractor for travel undertaken which was not authorized by an executed Task Assignment. In the event the Contractor’s employee or employees are traveling to property pursuant to an executed Task Assignment in a vehicle owned by the Contractor, the Department’s employees shall be allowed to accompany them as passengers (assuming the vehicle has sufficient capacity). The Contractor shall not be reimbursed for travel to meetings with the Department.

5. Annual Appropriation. The State of Florida's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Legislature

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6. Payment Method. As consideration for the Services rendered under this Contract, the Department shall pay the Contractor at the rates specified for the applicable Task Assignment. Payments shall be made in accordance with Section 215.422 and 287.0585, F.S., which govern time limits for payment of invoices. Invoices that must be returned to the Vendor due to preparation errors will result in a delay in payment. All bills for amounts due under this Solicitation shall be submitted in sufficient detail as may be required by the Department for a proper pre-audit and post-audit.

7. Prompt Payment.

A. Pursuant to Section 215.422, F.S., the Department's Contract Manager shall have five (5) working days, unless otherwise specified herein, to inspect and approve the services for payment;

Department must submit a request for payment to the Florida Department of Financial Services within twenty (20) days; and Department of Financial Services is given ten (10) days to issue a warrant. Days are calculated from the latter date the invoice is received or services received, inspected, and approved. Invoice payment requirements do not start until a proper and correct invoice has been received. Invoices which have to be returned to a contractor for correction(s) will result in a delay in the payment. A Vendor Ombudsman has been established within the Florida Department of Financial Services who may be contacted if a contractor is experiencing problems in obtaining timely payment(s) from a State of Florida agency. The Vendor Ombudsman may be contacted at (850) 413-5516.

B. In accordance with Section 215.422, F.S., Department shall pay the Contractor interest at a rate as established by Section 55.03(1), F.S., on the unpaid balance, if a warrant in payment of an invoice is not issued within forty (40) days after receipt of a correct invoice and receipt, inspection, and approval of the goods and services. Interest payments of less than $1 will not be enforced unless a contractor requests payment. The interest rate for each calendar year for which the term of this Contract is in effect can be obtained by calling the Department of Financial Services, Vendor Ombudsman at the telephone number provided above, or the Department's Procurements Section at (850) 245-2361.

8. Notice. Any notices or other written communication, except invoices, between the parties shall be considered delivered when posted by Certified Mail, return receipt requested, electronic mail, read receipt requested or delivered in person to the Contract Managers at the following addresses:

Contractor Department Bryant Miller Olive P.A. Department of Environmental Protection Division of State Lands Attn: Charles L. Cooper, Jr. Attn: Sandra D. Ray 101 North Monroe Street, Suite 900 3900 Commonwealth Blvd., MS 115 Tallahassee, FL, 32301 Tallahassee, FL, 32399-3000 ccooper@bmolaw.com Sandra.d.ray@dep.state.fl.us

9. Identification of Contract Managers. The Department's Contract Manager is, Sandra D. Ray, Phone

(850) 245-2566. Contractor's Contract Manager is Charles L. Cooper, Jr., Phone (850) 222-8611. All matters shall be conveyed to and conducted by the Contract Managers for appropriate action or disposition.

10. Financial Consequences for Unsatisfactory Performance. No payment will be made for deliverables deemed unsatisfactory by the Department. In the event that a deliverable is deemed unsatisfactory by the Department, the Contractor shall re-perform the services needed for submittal of a satisfactory deliverable, at no additional cost to the Department, within thirty (30) days of being notified of the unsatisfactory deliverable. If a satisfactory deliverable is not submitted within the specified timeframe, Department may, in its sole discretion, either: 1) terminate the Contract for failure to perform, or 2) Department’s Contract Manager may, by letter specifying the failure of performance under the Contract, request that a proposed Corrective Action Plan (CAP) be submitted by Contractor to the Department. All CAPs must be able to be implemented and performed in no more than sixty (60) days.

A. A CAP shall be submitted within ten (10) calendar days of the date of the letter request from the Department. The CAP shall be sent to Department’s Contract Manager for review and approval.

Within ten (10) calendar days of receipt of a CAP, Department shall notify Contractor in writing mailto:ccooper@bmolaw.com mailto:Sandra.d.ray@dep.state.fl.us

DEP Contract No. PL356, Page 3 of 30 whether the CAP proposed has been accepted. If the CAP is not accepted, Contractor shall have ten (10) calendar days from receipt of Department’s letter rejecting the proposal to submit a revised proposed CAP. Failure to obtain Department approval of a CAP as specified above shall result in the Department’s termination of the Contract for cause as authorized in the Contract.

B. Upon Department’s notice of acceptance of a proposed CAP, Contractor shall have ten (10) calendar days to commence implementation of the accepted plan. Acceptance of the proposed CAP by Department does not relieve Contractor of any of its obligations under the Contract. In the event the CAP fails to correct or eliminate performance deficiencies by Contractor, Department shall retain the right to require additional or further remedial steps, or to terminate the Contract for failure to perform. No actions approved by Department or steps taken by Contractor shall estop Department from subsequently asserting any deficiencies in performance. Contractor shall continue to implement the CAP until all deficiencies are corrected. Reports on the progress of the CAP will be made to Department as requested by Department’s Contract Manager.

Failure to respond to a Department request for a CAP or failure to correct a deficiency in the performance of the Contract as specified by Department may result in suspension or termination of the Contract.

11. Insurance.

A. To the extent required by law, the Contractor will be self-insured against, or will secure and maintain during the life of this Contract, Workers' Compensation Insurance for all of his employees connected with the work of this project and, in case any work is subcontracted, the Contractor shall require the subcontractor similarly to provide Workers' Compensation Insurance for all of its employees unless such employees are covered by the protection afforded by the Contractor. Such 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 Contract is not protected under the Workers' Compensation statute, the Contractor shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to the Department, for the protection of his employees not otherwise protected.

B. The Contractor shall secure and maintain during the life of the Contract comprehensive general liability coverage with limits of not less than $100,000 per occurrence and $300,000 annual aggregate, comprehensive automobile liability coverage with limits of not less than $300,000 combined single limit. The Contractor's current certificate of insurance shall contain a provision that the insurance will not be canceled for any reason except after thirty (30) days written notice (with the exception of non-payment of premium which requires a ten (10) day notice) to the Department's Contract Manager and shall reference the DEP Contract Number. In the event that the insurance requirements in statute are changed, the coverage limits specified herein will also be increased.

C. Consultant shall secure and maintain during the term of this Agreement Errors and Omissions coverage of not less than $1,000,000 per occurrence, which coverage shall apply to any and all claims that may arise from performance of Services under this Contract, whether by the Contractor or by persons employed or retained directly or indirectly by the Contractor.

12. Indemnification. The Contractor shall save, hold harmless and indemnify the State of Florida and the Department against any and all loss, liability, claims, judgments or costs of whatsoever kind and nature, and for injury to, or death of, any person or persons, and for the loss or damage to any property, arising or resulting from the use, service, operation or performance by the Contractor under the terms of this Contract, or resulting from any negligent act, or failure to act, by the Contractor, its subcontractor(s), or any of the employees, agents or representatives of the Contractor or subcontractor(s) to the full extent allowed by law.

13. Nonassignability and Subcontracting.

A. The Contractor shall not sell, assign or transfer any of its rights, duties or obligations under the

Contract without the prior written consent of the Department; provided however, the Contractor hereby assigns to the State any and all claims it has with respect to the Contract under the antitrust laws of the United States and the State. In the event of any assignment, the Contractor remains

DEP Contract No. PL356, Page 4 of 30 liable for performance of the Contract, unless the Department expressly waives such liability. The Department may assign the Contract but shall give prior written notice of its intent to do so to the Contractor.

B. The Department shall not be liable to any subcontractor for any expenses or liabilities incurred under any subcontract, regardless of whether the Department has approved such subcontract or subcontractor. Contractor shall be solely liable to its subcontractor(s) for all expenses and liabilities incurred under any subcontract. Any subcontracts made under or in performance of this Contract must include the same conditions specified in this Contract, with the exception of insurance requirements (paragraph 11), and shall include a release of any rights, claims or liabilities against Department. The level of insurance to be carried by subcontractors performing work under this Contract shall be at the discretion of Contractor.

14. Access and Inspection. The Contractor shall allow authorized the Department personnel to observe and inspect the work being performed under this Contract, including:

A. Providing the Department with copies of any public records created or in its possession relating to this Contract; and, B. Allowing the Department access to any location or facility where the Contractor is performing work, or storing or staging equipment, materials or documents.

15. Third Party Beneficiaries. This Contract is neither 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.

16. Suspension.

A. Department may order the Contractor in writing to suspend, delay or interrupt all or any part of the

Services hereunder for such period as the Department may determine to be appropriate for any of the following reasons:

1. The Contractor fails to timely and properly correct deficiencies or faulty work;

2. The Contractor’s insurer or surety notifies the Department that any of its required insurance or bonds have lapsed or will lapse, and Contractor fails to provide replacement insurance or bonds acceptable to the Department before the cancellation date;

3. The Contractor or subcontractor materially violates safety laws;

4. The Department determines that there is a threat to the public health, safety or welfare that necessitates such suspension; or

5. for the convenience of the Department.

B. If the performance of all or any part of the Services under this Contract is suspended, delayed or interrupted for an unreasonable period of time by the Department’s failure to act, the Contractor may request an increase in compensation reflecting the additional cost of performance of those services (excluding profit) caused by such unreasonable suspension, delay or interruption.

However, no adjustment shall be made under this clause for any suspension, delay or interruption to the extent:

1. That performance would have been suspended, delayed or interrupted by any other cause, including the fault or negligence of the Contractor; or

2. For which an equitable adjustment is provided or excluded under any other provision of this Contract.

C. The Contractor shall not be compensated for work performed subsequent to a notice of suspension by the Department.

17. Termination.

A. Department may terminate this Contract at any time in the event of the failure of the Contractor to fulfill any of its obligations under this Contract. Prior to termination, the Department shall provide ten (10) calendar days written notice of its intent to terminate and shall provide the Contractor an opportunity to consult with the Department regarding the reason(s) for termination.

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B. The Department may terminate this Contract without cause and for its convenience by giving thirty

(30) calendar days written notice to Contractor. In the event of termination for convenience under this paragraph, the Contractor shall be compensated for task assignments satisfactorily performed prior to the revised end date of the Contract.

C. The Department may terminate this Contract in the event of a merger or acquisition by or of the Contractor and any other entity awarded a contract under DEP Solicitation No. 2016015C.

18. Dispute Resolution. Any dispute concerning performance of the Contract shall be decided as follows:

A. All claims or disputes (Claims) must be presented to the Department in writing within thirty (30) days of the date such Claim arises (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 Contractor. Claims not presented by Notice of Dispute to Contract Manager shall be deemed waived by the Contractor.

B. The parties shall make a good faith attempt to resolve Claims which may arise from time to time by informal conference within ten (10) days of the Notice of Dispute.

C. Within ten (10) days of the informal conference, the Department shall provide Contractor a detailed written response to the Claim. A formal conference of the parties shall be convened no later than thirty (30) days following the Department’s response to the Notice of Dispute, unless the parties mutually agree in writing to a longer period of time within which to schedule a formal conference.

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

2) Minutes of the formal conference shall be taken, recorded, transcribed, and signed by the Department and the Contractor. Any terms of settlement and/or resolution reached shall be signed by all persons authorized to resolve the Claim.

D. Either party may request mediation of unresolved Claims, with the party seeking mediation to bear the expense of mediation.

E. Any Claim not resolved at formal conference or mediation, may be the subject of a complaint filed in a court of competent jurisdiction in Leon County, Florida.

19. Public Records.

A. Public Records Access Requirements.

1) If the Contract exceeds $35,000.00, and if the Contractor is acting on behalf of the Department in its performance of services under the Contract, the Contractor must allow public access to all documents, papers, letters, or other material, regardless of the physical form, characteristics, or means of transmission, made or received by the Contractor in conjunction with the Contract (Public Records), unless the Public Records are exempt from section 24(a) of Article I of the Florida Constitution or section 119.07(1), F.S.

2) The Department may unilaterally terminate the Contract if the Contractor refuses to allow public access to Public Records as required by law.

B. Additional Public Records Duties of Section 119.0701, F.S., If Applicable.

If the Contractor is a “contractor” as defined in section 119.0701(1)(a), F.S., the Contractor shall:

1) Keep and maintain Public Records required by the Department to perform the service.

2) Upon request, provide the Department with a copy of requested Public Records or allow the Public Records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, F.S., or as otherwise provided by law.

3) A Contractor who fails to provide the Public Records to the Department within a reasonable time may be subject to penalties under section 119.10, F.S.

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4) Ensure that Public Records that are exempt or confidential and exempt from Public Records disclosure requirements are not disclosed except as authorized by law for the duration of the Contract term and following completion of the Contract if the Contractor does not transfer the Public Records to the Department.

5) Upon completion of the Contract, transfer, at no cost, to the Department all Public Records in possession of the Contractor or keep and maintain Public Records required by the Department to perform the service. If the Contractor transfers all Public Records to the Department upon completion of the Contract, the Contractor shall destroy any duplicate Public Records that are exempt or confidential and exempt from Public Records disclosure requirements. If the Contractor keeps and maintains Public Records upon completion of the Contract, the Contractor shall meet all applicable requirements for retaining Public Records. All Public Records stored electronically must be provided to the Department, upon request from the Department’s custodian of Public Records, in a format specified by the Department as compatible with the information technology systems of the Department. These formatting requirements are satisfied by using the data formats as authorized in the Contract or Microsoft Word, Outlook, Adobe, or Excel, and any software formats the Contractor is authorized to access.

6) IF THE CONTRACTOR HAS QUESTIONS REGARDING

THE APPLICATION OF CHAPTER 119, F.S., TO THE

CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THE CONTRACT, CONTACT THE

DEPARTMENT’S CUSTODIAN OF PUBLIC RECORDS AT:

Telephone: (850) 245-2118 Email: public.services@dep.state.fl.us Mailing Address: Department of Environmental

Protection ATTN: Office of Ombudsman and Public Services

Public Records Request 3900 Commonwealth Boulevard, MS 49 Tallahassee, Florida 32399

20. Change Orders. The Department may at any time, by written order designated as a ‘change order,’ make any change in the Services within the Scope of this Contract (e.g., specifications, time, method or manner of performance, requirements, etc.) (Change Order). All Change Orders are subject to the mutual agreement of both parties as evidenced in writing. Any Change Order authorizing services the rates for which are not established hereby, shall require a formal amendment to this Contract.

21. P.R.I.D.E. It is expressly understood and agreed that any articles which are the subject of, or required to carry out, this Contract shall be purchased from the corporation identified under Chapter 946, F.S., if available, in the same manner and under the same procedures set forth in Section 946.515(2), (4), F.S.; and for purposes of this Contract the person, firm or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for this agency insofar as dealings with such corporation are concerned.

The "Corporation identified" is PRISON REHABILITATIVE INDUSTRIES AND DIVERSIFIED ENTERPRISES, INC. (P.R.I.D.E.) which may be contacted at:

P.R.I.D.E.

12425 28th Street, North St. Petersburg, Florida 33716-1826 Toll Free: 1-800-643-8459 mailto:public.services@dep.state.fl.us

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Website: http://www.pride-enterprises.org

22. RESPECT of Florida. It is expressly understood and agreed that any articles that are the subject of, or required to carry out, this Contract shall be purchased from a nonprofit agency for the blind or for the severely handicapped that is qualified pursuant to Chapter 413, F.S., in the same manner and under the same procedures set forth in Section 413.036(1) and (2), F.S.; and for purposes of this Contract the person, firm, or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for the State agency insofar as dealing with such qualified nonprofit agency are concerned.

The "nonprofit agency” identified is RESPECT of Florida which may be contacted at:

RESPECT of Florida 2475 Apalachee Parkway, Suite 205 Tallahassee, Florida 32301-4946

(850) 487-1471 Website: www.respectofflorida.org

23. Non-solicitation. The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor to solicit or secure this Contract and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the Contractor any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this Contract.

24. Conflict of Interest. The Contractor 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 services required.

25. Force Majeure. The Contractor shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of the Contractor or its employees or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond the Contractor’s control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to Contractor. In case of any delay the Contractor believes is excusable, the Contractor shall notify the Department in writing of the delay or potential delay and describe the cause of the delay either 1) within ten (10) days after the cause that creates or will create the delay first arose, if the Contractor 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 the Contractor first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE CONTRACTOR’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 against the Department. The Contractor shall not be entitled to an increase in the Contract price or payment of any kind from the 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 Contractor shall complete its performance at no increased cost to Department.

26. Forum Selection and Choice of Law. This Contract 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 Contract shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Contract 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 Contract. Any action hereon or in connection herewith shall be brought in Leon County, Florida.

27. Record Keeping and Audit.

A. The Contractor shall maintain books, records and documents directly pertinent to performance under this Contract in accordance with United States generally accepted accounting principles (US GAAP) consistently applied. The Department, the State, or their authorized representatives shall have access to such records for audit purposes during the term of this Contract and for five (5) http://www.pride-enterprises.org/ http://www.respectofflorida.org/

DEP Contract No. PL356, Page 8 of 30 years following Contract completion or termination. In the event any work is subcontracted, the Contractor shall similarly require each subcontractor to maintain and allow access to such records for audit purposes.

B. The Contractor understands its duty, pursuant to Section 20.055(5), F.S. to cooperate with the Department’s Inspector General in any investigation, audit, inspection, review, or hearing. The Contractor will comply with this duty and ensure that its subcontracts issued under this Contract, if any, impose this requirement, in writing, on its subcontractors.

28. Ownership of Documents. All documents - including, but not limited to, policies, plats, plans, specifications, maps, computer files, databases and/or reports prepared or obtained under this Contract, as well as data collected together with summaries and charts derived therefrom, shall be and become the property of Department upon completion or termination of this Contract, without restriction or limitation on their use, and shall be made available upon request to Department at any time during the performance of such services and/or upon completion or termination of this Contract. Upon delivery to Department of said document(s), Department shall become the custodian thereof in accordance with Chapter 119, F.S. Contractor shall not copyright any materials produced or patent any inventions developed under this Contract.

29. Non-Waiver of Rights. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by either party under this Contract, 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.

30. Tax Exemption. The Contractor 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 Contract. The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property.

The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees’ wages.

31. Disqualification.

A. The employment of unauthorized aliens by any contractor/vendor is considered a violation of

Section 274A(e) of the Immigration and Nationality Act. If the Contractor/vendor knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Contract. The Contractor shall be responsible for including this provision in all subcontracts with private organizations issued as a result of this Contract.

B. Pursuant to State of Florida Executive Order No. 11-116, Contractor is required to use the U.S.

Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by Contractor during the contract term. Also, the Contractor shall include in related subcontracts a requirement that subcontractors performing work or providing services pursuant to the State contract use the E-Verify system to verify employment of all new employees hired by the subcontractor during the contract term.

32. Public Entity Crimes. A person or affiliate 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 thirty-six

(36) months from the date of being placed on the convicted vendor list. Contractor certifies that neither it nor any subcontractor under this Contract is disqualified hereby.

33. Nondiscrimination.

A. No person, on the grounds of race, creed, color, national origin, age, sex, or disability, shall be excluded from participation in; be denied the proceeds or benefits of; or be otherwise subjected to discrimination in performance of this Contract.

B. An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a contract to provide goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not award or perform work as a contractor, supplier, DEP Contract No. PL356, Page 9 of 30 subcontractor or consultant under contract with any public entity, and may not transact business with any public entity. The Florida Department of Management Services is responsible for maintaining the discriminatory vendor list and posts the list on its website. Questions regarding the discriminatory vendor list may be directed to the Florida Department of Management Services, Office of Supplier Diversity at (850) 487-0915. The Contractor certifies that it is not on such discriminatory vendor list.

C. The Contractor must comply with the Americans with Disabilities Act (“ADA”).

34. Compliance with Applicable Law. The Contractor shall comply with all applicable federal, state and local rules and regulations in providing Services to Department under this Contract. The Contractor acknowledges that this requirement includes, but is not limited to, compliance with all applicable federal, state and local health and safety rules and regulations. The Contractor further agrees to include this provision in all subcontracts issued as a result of this Contract.

35. Governmental Restrictions. If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or performance of the products offered under the Contract, the Contractor shall immediately notify the Department in writing, indicating the specific restriction. The Department reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Department.

36. MyFloridaMarketPlace Transaction Fee.

A. The State of Florida, through Department of Management Services, has instituted

MyFloridaMarketPlace, a statewide e-procurement system. Pursuant to Section 287.057(22)(c), F.S. (2002), all payments shall be assessed a Transaction Fee established in the DMS Rule 60A- 1.031, F.A.C., and any future amendments thereto, which the Contractor shall pay the State.

B. For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall, when possible, be automatically deducted from payments to Contractor. If automatic deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A- 1.031(2), F.A.C. By submission of these reports and corresponding payments, Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee.

C. The Contractor shall receive a credit for any Transaction Fee paid by the vendor for the purchase of any item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of Contractor. Notwithstanding the foregoing, a Transaction Fee is non-refundable when an item is rejected, returned, or declined, due to the Contractor’s failure to perform or comply with specifications or requirements of the Contract.

D. Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees.

VENDORS DELINQUENT IN PAYING TRANSACTION FEES MAY BE EXCLUDED FROM

CONDUCTING FUTURE BUSINESS WITH THE STATE.

37. Modifications Required by Law. The parties hereto shall modify, amend or revise this Contract when and if necessary to comply with any changes to or adoptions of State or Federal law or rule applicable hereto.

38. Attorneys Fees. In the event of any legal action to enforce the terms of this Contract, each party shall bear its own attorneys fees and costs.

39. Order of Precedence. In the event of a conflict in terms between any of the components of this Contract, the order of precedence for resolving such conflict shall be as follows (1 being the highest):

1. Body of the Contract;

2. Scope of Services;

3. Specifications;

4. Price Sheet;

5. All other attachments to the Contract;

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6. DEP Solicitation No. 2016015C, inclusive of all attachments, addenda and questions and answers to the Solicitation; and,

7. Contractor’s Response to the Solicitation.

40. Interpretation of Contract.

A. 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.

B. Unless otherwise specified, lists contained in the Contract shall not be deemed all-inclusive. The Contractor acknowledges and agrees that it had the opportunity and obligation, prior to submission of its Response, to review the terms and conditions of the Contract and to bring to the attention of Department any conflicts or ambiguities contained therein. The Contractor further acknowledges and agrees that it has independently reviewed the Contract 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) the Contract shall arise, the Contract shall not be interpreted or construed against the Department, and, instead, other rules of interpretation and construction shall be used.

41. Headings. The headings contained herein are for convenience only, do not constitute a part of this Contract and shall not be deemed to limit or affect any of the provisions hereof.

42. Execution in Counterparts. This Contract, and any Change Orders or Amendments thereto, may be executed in two (2) 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.

43. Remedies. All rights and remedies provided in this Contract are cumulative and not exclusive of any other rights or remedies that may be available to the Department, whether provided by law, equity, statute, in any other agreement between the parties or otherwise. Department shall be entitled to injunctive and other equitable relief, including, but not limited to, specific performance, to prevent a breach, continued breach or threatened breach of this Agreement. No remedy or election hereunder shall be deemed exclusive. A failure to exercise or a delay in exercising, on the part of the Department, any right, remedy, power or privilege hereunder shall not operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

44. Integration. This Contract represents the entire agreement of the parties. Any alterations, variations, changes, modifications or waivers of provisions of this Contract shall only be valid when they have been reduced to writing, duly signed by each of the parties hereto, and attached to the original of this Contract, unless otherwise provided herein.

DEP Contract No. PL356, Attachment A, Page 12 of 30

ATTACHMENT A

TECHNICAL SPECIFICATIONS

(SCOPE OF SERVICES)

1. Scope of Service

All services performed by, or under the direction of the Contractor shall meet or exceed the minimum requirement outlined in the Solicitation. Under no circumstances shall Services meeting less than the minimum services requirements be permitted without the prior written approval of the Department;

otherwise, Services will be performed in strict compliance herewith, including the requirements and rules, regulations and governance contained in the Solicitation and the Contractor shall be held responsible therefore.

The Contractor shall provide real estate title insurance services including but, not limited to, i) General Title Research, ii) Title Searches/Commitments for a Closing and Policies, iii) Updates, iv) Closing Services, v) Post Closing Title Insurance Endorsements, vi) Expert Witness Services, and vii) Opportunity Purchase Services, all as more fully described below. Among the deliverables required under this contract are ownership and encumbrance (O&E) reports, title search reports, title commitments, title searches, search updates, title policies, closings and other related acquisition services for land acquisition and land management projects for the State of Florida on a task assignment basis.

The services hereunder include, but are not limited to, preparation of title insurance commitments, title search reports, and O&E reports for parcels of land which are either 1) under consideration for purchase by the Department or 2) under contract for purchase by the Department; and closing activities and other related services. Title insurance services include compilation of project specifications and recommendations for research; office work necessary for preparation of title search reports, title commitments, title insurance policies and O&E reports; general title research;

updates to title insurance commitments, title search reports, and O&E reports; endorsements;

products for tax deed sales and opportunity purchases (quick response purchases services); and real estate closings needed for land acquisition and land management by the Department (collectively the services required hereunder may be referred to as “Services”).

During the term of this contract, the Contractor shall: (a) have a physical office located in the State of Florida; (b) be authorized to transact business in the State of Florida; and (c) be authorized to write title insurance for title insurance underwriter(s) that are authorized to transact business in the State of Florida. The underwriters must be acceptable to Department, in the Department’s sole discretion.

Contractor must maintain, during the term of the Contract, sufficient resources to handle a real estate closing from start to finish, including problem resolution. When requested by the Department, the Contractor shall participate in meetings and closings in Tallahassee, Florida.

2. General Title Research includes any type of research requested of the Contractor by the Department unrelated to a particular transaction being insured by the Contractor including, but not limited to, searches of public records for documents; research to resolve questions about access to property; ownership and/or encumbrance searches; oil, gas and mineral interest searches, lien searches, tax information searches; and general public records research.

3. Title Searches/Commitments for a Closing and Policies includes determining insurability in accordance with sound underwriting practices; determining and clearing underwriting objections and requirements to eliminate risk; conducting and evaluating title searches (including the initial title search, closing check-down, and close-out search through date of recording); confirming grantor’s marketability of title and authority to convey; searching and/or confirming amounts needed to pay outstanding assessments, judgments, claims, and liens and obtaining estoppel certificates related to same, as applicable; researching and calculating tax payments and tax escrows, as necessary;

examining and providing copies of encumbrance documents, including covenants, conditions, restrictions, and reservations, including recorded oil, gas, and mineral reservations and analyses of

DEP Contract No. PL356, Attachment A, Page 13 of 30 the elimination of the right of entry under the Marketable Record Title Act; and in general, performing all tasks related to the examination, preparation, and issuance of title commitments, closing protection letters, and title insurance policies, including endorsements and corrections to clarify requirements or the scope of the listed encumbrances, and/or to delete encumbrances which do not affect the insured parcel(s).

4. Updates to title insurance commitments, title search reports, and O&E reports means a search of the public records subsequent to the effective date of the initial title search and the same may be necessary if the effective date of the title commitments or reports need to be updated to a more current date. No separate charge shall be assessed for a closing check-down or close-out search through date of recording related to a transaction being insured by Contractor since those search updates are included within the scope of the initial title search fee.

5. Closing Services generally include all tasks related to the preparation and processing of closing documents, including the preparation of documents necessary to close a transaction, such as deeds, affidavits, resolutions, closing/settlement statements and other documents necessary or desirable to complete a closing; preparing recordable lien releases and coordinating payoffs; coordinating mortgage payoffs and satisfactions; processing tax payments and tax escrows, and other matters required to convey clear title; providing documents to sellers and Department for execution;

conducting the closing of real estate transactions and disbursing settlement or closing funds;

recording warranty deeds and other instruments that may be required or appropriate in perfecting the title; preparing and recording corrective documents; delivery of recorded documents, settlement statement, and other closing documents together with the owners title insurance policy to Department within forty-five (45) days of the date of closing; preparing and filing 1099 forms for each closing (including eminent domain actions); adhering to closing dates and all time frames and due dates specified in each real estate contract; and other related services as needed. Contractor may electronically record the fully executed deed upon closing, if available, provided that forty-five days after closing Department receives the original executed deed with the recording information date-stamped thereon.

6. Post Closing Title Insurance Endorsements shall mean endorsements that are requested by Department after the closing of the real estate transaction to conform the title insurance policy to a change in circumstances relating to the title as originally insured, including but not limited to easements that are recorded after closing, the deletion of survey exceptions based upon the receipt of a final survey subsequent to closing, and the deletion of exceptions that no longer affect title to the land. Post closing endorsements that are issued to conform the title insurance policy to the title commitment or to correct an error in the title insurance commitment or policy are included under Title Searches/Commitments for a Closing and Title Policies above (i.e. in instances where a post closing title endorsement is necessary due to an error on the part of Contractor), in which case the charge therefor is encompassed within the risk premium and there shall be no additional charge to the DEP.

7. Expert Witness Services include testimony from Contractor’s employees or authorized subcontractors testifying as to any product produced, research performed, or any other matters related to services rendered under this Contract.

8. An Opportunity Purchase (aka Quick Response Purchase) relates to the sale of property by means of a forced sale or auction, a private auction, or a distress sale. The most common types of forced sale auctions are: foreclosure, bankruptcy, tax deed sale, IRS, and government seizure.

9. Quick Response Purchase Services would include the completion of a title search and preparation of the products necessary for a quick response purchase. For a quick response purchase products must typically be received by Department within three (3) working days of the date work is assigned by the DEP, via task assignment…