Draft_Agreement.pdf

ATTACHMENT E – DRAFT AGREEMENT

PROFESSIONAL SERVICES AGREEMENT FOR

SOLID WASTE CONSULTING AND ENGINEERING SERVICES FOR THE LEON COUNTY LANDFILL

THIS AGREEMENT, by and between LEON COUNTY, FLORIDA, a charter county and a political subdivision of the State of Florida, hereinafter referred to as the "County" and <<INSERT CONSULTANT NAME>>, hereinafter referred to as the “Consultant," (both collectively referred to as the “Parties” or individually as a “Party”) is entered into as of the date of last signature below. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. PROFESSIONAL SERVICES TO BE PROVIDED; WARRANTY OF PERFORMANCE

A. The Consultant hereby agrees to provide to the County professional consulting and engineering services for the various tasks associated with the closure of the Leon County Landfill (the “Project”), each of which shall be described in individual task orders based on specific scopes of work in accordance with: 1) the solicitation for Solid Waste Consulting & Engineering Services for the Closure of the Leon County Landfill and Related Services, RFP# BC‐10‐24‐21‐37, a reduced portion of which is attached hereto with a full version available to view at https://secure.procurenow.com/portal/leoncounty, and is incorporated herein by this reference together with the reduced portion attached as Exhibit A;

and 2) the Consultant’s proposal response, which is attached hereto and incorporated herein as Exhibit B (all collectively referred to herein as the “Work”).

B. Warranty of Performance. The Consultant represents and warrants that it possesses the knowledge, skill, experience, and financial capability required to perform and provide all services under this Agreement and that each person and entity that will provide the services is duly qualified to perform such services by all appropriate governmental authorities, where required, and is sufficiently experienced and skilled in the area(s) for which such person or entity will render such services. The Consultant represents and warrants that the services shall be performed in a skillful and respectful manner, and that the quality of all such services shall equal or exceed prevailing industry standards for the provision of such services.

C. Breach of Warranty. In entering into this Agreement, the Consultant acknowledges that the County is materially relying on the warranties stated in this Section 1. The County shall be entitled to recover any damages it incurs to the extent any such warranty is untrue. In addition, if any such warranty is false, the County shall have the right, at its sole discretion, to terminate this Agreement without any further liability to the County, to deduct from any amounts due the Consultant under this Agreement the full amount of any value paid in violation of a warranty, and to recover all sums paid to the Consultant under this Agreement.

2. WORK

Any Work to be performed shall be upon the written request of the County Administrator or his representative, which request shall set forth the commencing date of such Work and the time within which such Work shall be completed.

The Consultant will be required to provide a written proposal for each task assigned, which shall include the following:

AGREEMENT BETWEEN LEON COUNTY AND <<CONSULTANT NAME>>

RFP# BC‐10‐24‐21‐37

A. A summary of the scope of Work as the Consultant understands it;

B. A professional services fee for the Work, including a fee breakdown by the following phases: pre‐ design, design, 50% and 100% construction documents, bid and construction administration;

C. A schedule depicting the start date of the Work, phase submittal dates, and completion of the Work up to 100% construction documents submittal to the appropriate authority having jurisdiction for plans review; and

D. Any specific exclusions from the Work.

The performance by the County of any of its obligations under this Agreement shall be subject to and contingent upon the availability of funds lawfully expendable for the purposes of this Agreement for the current and any future periods provided for within the bid specifications.

The County reserves the right to negotiate with the Consultant for any related products or services not specifically stated in the referenced solicitation.

3. TIME

Time is of the essence in performing the duties, obligations, and responsibilities required by this Agreement.

The Work to be performed under this Agreement shall be commenced within fifteen (15) days of the Notice to Proceed. All Work to be performed under this Agreement shall be completed in a reasonably timely manner in accordance with the Consultant’s proposed task schedule, with no undue delays.

4. CONTRACT SUM

A. The Consultant agrees that for the performance of the Work as outlined in Sections 1 and 2 above, it shall be paid a contract sum by the County according to the rates in the Fee Schedule contained in Exhibit C (the “Fee Schedule”) attached hereto and incorporated herein by this reference (the “Contract Sum”).

B. Travel Expenses: Any travel by the Consultant which is contained within, or otherwise associated with, the scope of Work for a specific task shall be considered incidental to, and a part of, the Contract Sum. As such, there shall be no reimbursement of such travel expenses by the County.

Consultant travel which is not covered within the scope of Work and which is billed separately to the County on a cost reimbursement basis must receive prior approval and will be reimbursed in accordance with the Leon County Travel Policy. Travel expenses shall be limited to those expenses necessarily incurred in the performance of a public purpose authorized by law to be performed by the County and must be within limitations described herein and in Section 112.061, Florida Statutes. Consultants traveling on a cost reimbursement basis must have their travel authorized by the department head from whose budget the travel expenses will be paid and by the County Administrator.

5. PAYMENTS

The County shall make payments to the Consultant within forty‐five (45) days of submission and approval of invoice for services.

6. PROMPT PAYMENT INFORMATION REQUIREMENTS

A. The County Project Manager is:

Name:

Street Address:

City, State, Zip Code:

Telephone:

E‐mail:

B. The Consultant’s Project Manager is:

City, State, Zip Code:

C. Notices to the Consultant are to be submitted to:

City, State, Zip Code:

D. Invoices are to be submitted to:

City, State, Zip Code:

E. Proper form for an invoice is:

The invoice shall be in a format approved by the County and shall include: a numbered invoice document with date of invoice; reference of the County purchase order number; itemized listing of all goods and services being billed with unit prices and extended pricing; vendor’s name, address, billing contact person information, and Federal tax identification number. The invoice must be properly addressed to the Division listed on the County purchase order and delivered to that address. Delivery to another County address will void the invoice.

F. Payment Dispute Resolution: Section 14.1 of the Leon County Purchasing Policy 96‐1, as may be amended, details the policy and procedures for payment disputes under this Agreement.

7. DISPUTES/REMEDIES

A. All disputes arising under or relating to this Agreement shall be resolved in accordance with this Section, except for disputes related to payments and payment disputes which shall be addressed and resolved in accordance with Section 6F above.

B. The Parties shall attempt to resolve all disputes that arise under this Agreement in good faith and in accordance with the following procedure:

1) The aggrieved Party shall give written notice to the other Party setting forth the nature of the dispute, date of occurrence (if known), and proposed equitable resolution.

2) Representatives of both Parties shall meet at the earliest opportunity to discuss and resolve the dispute. If the dispute is resolved to the mutual satisfaction of both, they shall report their decision to the Parties in writing.

3) If those representatives are unable to reconcile the dispute, they shall report their impasse to the appropriate County Director and the Consultant’s designee, who, at their earliest opportunity, shall meet and attempt to reconcile the dispute.

4) Should the Director and the Consultant’s designee fail to resolve the dispute, they shall report their impasse to the County Administrator, or authorized representative, and the Consultant’s designee, who, at their earliest opportunity, shall review and attempt to resolve the dispute.

5) If the County Administrator and the Consultant’s designee are not able to amicably resolve the dispute within fifteen (15) business days after the impasse is reported to them, then either Party can pursue whatever forms of relief that may be available to it under this Agreement, at law, or in equity.

8. STATUS

The Consultant at all times relevant to this Agreement shall be an independent contractor and in no event shall the Consultant nor any employees or sub‐consultants under it be considered to be employees of the County.

9. INSURANCE

The Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by the Consultant, their agents, representatives, employees or sub‐consultants. The cost of such insurance shall be included in the Consultant’s bid.

A. Minimum Limits of Insurance. The Consultant shall maintain limits no less than:

1) General Liability: $1,000,000 combined single limit for bodily injury and property damage per occurrence with a $2,000,000 annual aggregate. Completed operations coverage will be provided for a period of three (3) years beyond termination and/or completion of the Project. Coverage must include bodily injury and property damage, including Premise/Operations: a per location aggregate, broad form contractual liability; broad form property damage; fire legal liability; independent contractors coverage; cross liability and severability of interest clauses; and personal injury, and coverage for explosion, collapse, and underground (X, C, U).

2) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. (Non‐owned, Hired Car).

3) Workers’ Compensation and Employers Liability: Insurance covering all employees meeting statutory limits in compliance with the applicable state and federal laws and employer’s liability with a limit of $500,000 per accident, $500,000 disease policy limit, $500,000 disease each employee. Waiver of subrogation in lieu of additional insured is required.

4) Professional Liability Insurance, including errors and omissions: For all services provided under the terms of this Agreement with minimum limits of One Million and 00/100 Dollars ($1,000,000.00) per occurrence;

or claims made form with "tail coverage" extending four (4) years beyond the term of the Agreement.

Proof of "tail coverage" must be submitted with the invoice for final payment. In lieu of "tail coverage," Consultant may submit annually to the County a current certificate of insurance proving claims made insurance remains in force throughout the same four‐year period

5) Umbrella: $5,000,000 combined single limit for bodily injury and property damage combined per occurrence and annual aggregate. The coverage shall provide excess coverage for employer’s liability, general liability, including completed operations and auto liability.

6) Mobile Equipment (Consultant’s Equipment): coverage should be in place while project is in process.

Equipment should be covered whether owned, leased, borrowed, or rented by Consultant or by its employees or sub‐consultants.

B. Deductibles and Self‐Insured Retentions. Any deductibles or self‐insured retentions must be declared to and approved by the County. At the option of the County, either: the insurer shall reduce or eliminate such deductibles or self‐insured retentions as respects the County, its officers, officials, employees and volunteers; or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses.

C. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions:

6) General Liability and Automobile Liability Coverages (County is to be named as Additional Insured).

a. The County, its officers, officials, employees and volunteers are to be covered as insured as respects; liability arising out of activities performed by or on behalf of the Consultant, including the insured’s general supervision of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protections afforded the County, its officers, officials, employees or volunteers.

b. The Consultant’s insurance coverage shall be primary insurance as respects the County, it’s officers, officials, employees and volunteers. Any insurance of self‐insurance maintained by the County, its officers, officials, employees or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.

c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the County, its officers, officials, employees or volunteers.

d. The Consultant’s insurance shall apply separately to each insured against whom claims is made or suit is brought, except with respect to the limits of the insurer’s liability.

7) All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the County.

D. Acceptability of Insurers. Insurance is to be placed with insurers with a Best’s rating of no less than A:VII.

E. Verification of Coverage. Consultant shall furnish the County with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by the County before Work commences. The County reserves the right to require complete, certified copies of all required insurance policies at any time. Certificates of insurance acceptable to the County shall be filed with the County prior to the commencement of the Work. These policies described above, and any certificates shall specifically name the County as an additional Insured and shall contain a provision that coverage afforded under the policies will not be canceled until at least thirty (30) days prior to written notice has been given to the County. Cancellation clauses for each policy should read as follows: Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail thirty (30) days written notice to the certificate holder named herein.

F. Sub‐Consultants. Consultants shall include all sub‐consultants as insureds under its policies or shall furnish separate certificates and endorsements for each sub‐consultant. All coverages for sub‐consultants shall be subject to all of the requirements stated herein.

10. PERMITS

The Consultant shall pay for all necessary plan review fees as required by law as a reimbursable expense.

11. LICENSES

The Consultant shall be responsible for obtaining and maintaining any licenses required pursuant to the laws of Leon County, the City of Tallahassee, or the State of Florida. Should the Consultant, by reason of revocation, failure to renew, or any other reason, fail to maintain their license to operate, the Consultant shall be in default as of the date such license is lost.

12. ASSIGNMENTS

This Agreement shall not be assigned or sublet as a whole or in part without the written consent of the County nor shall the Consultant assign any monies due or to become due to them hereunder without the previous written consent of the County.

13. INDEMNIFICATION

The Consultant shall indemnify and hold harmless the County, its officials, officers and employees from and against all liabilities, damages, losses, and costs, including, but not limited to, reasonable attorney’s fee, to the extent caused by negligence, recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of this Agreement.

The County may, at its sole option, defend itself or require the Consultant to provide the defense. The Consultant acknowledges that the sum of ten dollars ($10.00) of the amount paid to the Consultant constitutes sufficient consideration for the Consultant's indemnification of the County, its officials, officers and employees.

The Consultant shall be liable to the County for any reasonable costs incurred by it to correct, modify, or redesign any portion of the Project, which is the subject of the services provided under this Agreement, that is found to be defective or not in accordance with this Agreement, as a result and to the extent caused by the negligence, recklessness, or intentional wrongful conduct on the part of the Consultant and other persons employed or utilized by the Consultant in the performance of this Agreement.

14. AUDITS, RECORDS, AND RECORDS RETENTION

The Consultant agrees:

A. To establish and maintain books, records, and documents (including electronic storage media) in accordance with generally accepted accounting procedures and practices, which sufficiently and properly reflect all revenues and expenditures of funds provided by the County under this Agreement.

B. To retain all client records, financial records, supporting documents, statistical records, and any other documents (including electronic storage media) pertinent to this Agreement for a period of five (5) years after termination of the Agreement, or if an audit has been initiated and audit findings have not been resolved at the end of five (5) years, the records shall be retained until resolution of the audit findings or any litigation which may be based on the terms of this Agreement.

C. Upon completion or termination of the Agreement and at the request of the County, the Consultant will cooperate with the County to facilitate the duplication and transfer of any said records or documents during the required retention period as specified in Section B hereinabove.

D. To assure that these records shall be subject at all reasonable times to inspection, review, or audit by Federal, state, or other personnel duly authorized by the County.

E. Persons duly authorized by the County and Federal auditors, pursuant to 45 CFR, Part 92.36(I)(10), shall have full access to and the right to examine any of provider’s Agreement and related records and documents, regardless of the form in which kept, at all reasonable times for as long as records are retained.

F. To include these aforementioned audit and record keeping requirements in all approved subconsultants and assignments.

IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER

119, FLORIDA STATUTES, TO THE CONSULTANT’S DUTY TO PROVIDE PUBLIC

RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC

RECORDS AT:

LEON COUNTY PURCHASING DIVISION

ATTN: SHELLY KELLEY, PURCHASING DIRECTOR

1800‐3 N. BLAIRSTONE ROAD

TALLAHASSEE, FLORIDA 32308

PHONE: 850‐606‐1600

EMAIL: KELLEYS@LEONCOUNTYFL.GOV

15. MONITORING

To permit persons duly authorized by the County to inspect any records, papers, documents, facilities, goods, and services of the provider which are relevant to this Agreement and interview any clients and employees of the provider to assure the County of satisfactory performance of the terms and conditions of this Agreement.

Following such evaluation, the County will deliver to the provider a written report of its findings and will include written recommendations with regard to the provider’s performance of the terms and conditions of this Agreement. The provider will correct all noted deficiencies identified by the County within the specified period of time set forth in the recommendations. The provider’s failure to correct noted deficiencies may, at the sole and exclusive discretion of the County, result in any one or any combination of the following: (1) the provider being deemed in breach or default of this Agreement; (2) the withholding of payments to the provider by the County; and (3) the termination of this Agreement for cause.

16. TERMINATION

A. The County may terminate this Agreement without cause, by giving the Consultant thirty (30) days written notice of termination. The Consultant’s Fee Schedule rates must be maintained until the end of the thirty

(30) day period. Either party may terminate this Agreement for cause by giving the other party hereto thirty

(30) days written notice of termination. The County shall not be required to give Consultant such thirty (30) day written notice if, in the opinion of the County, the Consultant is unable to perform its obligations hereunder, or if in the County's opinion, the services being provided are not satisfactory. In such case, the County may immediately terminate the Agreement by mailing a notice of termination to the Consultant. The County may retain/withhold payment for nonperformance if deemed appropriate to do so by the County.

17. PUBLIC ENTITY CRIMES STATEMENT

In accordance with Section 287.133, Florida Statutes, Consultant hereby certifies that to the best of their knowledge and belief neither Consultant nor their affiliates have been convicted of a public entity crime.

Consultant and their affiliates shall provide the County with a completed public entity crime statement form no later than January 15 of each year this Agreement is in effect. Violation of this section by the Consultant shall be grounds for cancellation of this Agreement by the County.

18. UNAUTHORIZED ALIEN(S)

The Consultant agrees that unauthorized aliens shall not be employed nor utilized in the performance of the requirements of this solicitation. The County shall consider the employment or utilization of unauthorized aliens a violation of Section 274A(e) of the Immigration and Naturalization Act (8 U.S.C. 1324a). Such violation shall be cause for unilateral termination of this Agreement by the County.

19. EMPLOYMENT ELIGIBILITY VERIFICATION

A. Consultant agrees that it will enroll and participate in the federal E‐Verify Program for Employment

Verification under the terms provided in the “Memorandum of Understanding” governing the program.

Consultant further agrees to provide to the County, within thirty days of the effective date of this Agreement/amendment/extension, documentation of such enrollment in the form of a copy of the E‐ Verify “‘Edit Company Profile’ screen”, which contains proof of enrollment in the E‐Verify Program (this page can be accessed from the “Edit Company Profile” link on the left navigation menu of the E‐Verify employer’s homepage).

B. Consultant further agrees that it will require each sub‐consultant that performs Work under this

Agreement to enroll and participate in the E‐Verify Program within sixty days of the effective date of this Agreement/amendment/extension or within sixty days of the effective date of the Agreement between the Consultant and the sub‐consultant, whichever is later. The Consultant shall obtain from the sub‐ consultant(s) a copy of the “Edit Company Profile” screen indicating enrollment in the E‐Verify Program and make such record(s) available to the Agency upon request.

C. Consultant will utilize the U.S. Department of Homeland Security’s E‐Verify system to verify the employment eligibility of: (a) all persons employed during the term of the Agreement by Consultant to perform employment duties within Florida; and (b) all persons (including sub‐consultants) assigned by Consultant to perform Work pursuant to the Agreement.

1) Consultant must use E‐Verify to initiate verification of employment eligibility for all persons employed during the term of the Agreement by Consultant to perform employment duties within Florida within 3 business days after the date of hire.

2) Consultant must initiate verification of each person (including sub‐consultants) assigned by

Consultant to perform Work pursuant to the Agreement within 60 calendar days after the date of execution of this Agreement or within 30 days after assignment to perform Work pursuant to the Agreement, whichever is later.

D. Consultant further agrees to maintain records of its participation and compliance with the provisions of the E‐Verify program, including participation by its sub‐consultants as provided above, and to make such records available to the County or other authorized state entity consistent with the terms of the Memorandum of Understanding.

E. Compliance with the terms of this Employment Eligibility Verification provision is made an express condition of this Agreement and the County may treat a failure to comply as a material breach of the Agreement.

20. NON‐WAIVER

Failure by the County to enforce or insist upon compliance with any of the terms or conditions of this Agreement or failure to give notice or declare this Agreement terminated shall not constitute a general waiver or relinquishment of the same, or of any other terms, conditions or acts; but the same shall be and remain at all times in full force and effect.

21. DELAY

No claim for damages or any claim other than for an extension of time shall be made or asserted against the County by reason of any delays. The Consultant shall not be entitled to an increase in the Contract Sum or payment or compensation of any kind from the County for direct, indirect, consequential, impact or other costs, expenses or damages, including but limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable;

provided, however, that this provision shall not preclude recovery of damages by the Consultant for hindrances or delays due solely to fraud, bad faith, or active interference on the part of the County or its agents. Otherwise, the Consultant shall be entitled only to extensions of the Agreement time as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above.

22. AMENDMENTS

No modification, amendment, or alteration in the terms or conditions contained in this Agreement shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by duly authorized representatives of the County and Consultant.

23. VENUE; WAIVER OF JURY TRIAL

Venue for all actions arising from, related to, or in connection with this Agreement shall be in the state courts of the Second Judicial Circuit in and for Leon County, Florida. If any claim arising from, related to, or in connection with this Agreement must be litigated in federal court, the exclusive venue for any such lawsuit shall be in the United States District Court or United States Bankruptcy Court for the Northern District of Florida. By entering into this Agreement, the County and Consultant hereby expressly waive any rights either Party may have to a trial by jury of any civil litigation related to this Agreement.

24. CONSTRUCTION OF THIS AGREEMENT

The validity, construction, and effect of this Agreement shall be governed by the laws of the State of Florida.

25. CONFLICTING TERMS AND CONDITIONS

In the instance that any other agreement exists concerning the matters herein, then the terms and conditions in this Agreement shall prevail over all other terms and conditions.

26. SEVERABILITY

It is intended that each section of this Agreement shall be viewed as separate and divisible, and in the event that any section, or part thereof, shall be held to be invalid, the remaining sections and parts shall continue to be in full force and effect.

27. FORCE MAJEURE

If either of the Parties is prevented from or delayed from performing any obligations under this Agreement (except payment or financial obligations) by circumstances beyond its control, including but not limited to fires, hurricanes, severe weather, floods, pandemics, quarantines, war, civil disturbances, acts of terrorism, acts of God, or significant threats of such circumstances, or any future laws, rules, regulations, orders, or acts of any local, state, or federal government (collectively “Force Majeure”), then the affected party shall be excused from performance hereunder during the period of inability to perform. The Party claiming Force Majeure shall promptly notify the other Party in writing when upon learning of the existence of a Force Majeure condition and when the Force Majeure condition has terminated. Notwithstanding anything in this Agreement to the contrary, the term “Force Majeure” does not include or excuse performance under this Agreement for events related to increased costs associated with fuel, labor, labor disputes, insurance, or other expenses of performing the obligations hereunder.

28. ORDER OF PRECEDENCE

If any provision contained in this Agreement conflicts with any provision in Exhibit A or Exhibit B, the provision contained in this Agreement shall govern and control. The order of precedence regarding the Agreement and Exhibits shall be as follows:

A. Agreement B. Exhibit A C. Exhibit B D. Exhibit C

ATTACHMENTS

Exhibit A – Solicitation Document Exhibit B –Consultant’s Proposal Response Exhibit C – Consultant’s Fee Schedule

WHERETO, the parties have set their hands and seals effective the date whereon the last party executes this Agreement.

LEON COUNTY, FLORIDA <<INSERT CONSULTANT NAME>>

By: By:

Vincent S. Long County Administrator

Printed

Title:

Date:

Date:

ATTEST:

Gwendolyn Marshall, Clerk of the Court & Comptroller, Leon County, Florida

BY:

DATE:

Approved as to Legal Sufficiency Chasity H. O’Steen, County Attorney Leon County Attorney’s Office

BY:

DATE: