Exhibit_A,_Consulting_Contract,_26-SQ-65SR_(REVIEW).pdf

CONTRACT FOR CONSULTING SERVICES

FOR

PROFESSIONAL HYDROGEOLOGICAL AND WELL SERVICES

Between

THE COUNTY OF VOLUSIA

AND

TBD

Contract No. 26-SQ-65SR

County of Volusia Purchasing and Contracts Division

123 West Indiana Avenue, Room 302 Deland, Florida 32720-4608 www.volusia.org/purchasing http://www.volusia.org/purchasing

CONTRACT FOR CONSULTING SERVICES

This Contract made and entered by and between _________________, duly authorized to conduct business in the State of Florida, whose principal place of business is located at ____________________ (hereinafter the “Consultant”) and County of Volusia, a body corporate and politic and a subdivision of the State of Florida, whose address is County of Volusia, 123 West Indiana Avenue, DeLand, Florida 32720 (hereinafter “County”).

RECITALS:

WHEREAS, the County requires a competent and qualified the consultant to provide services in support of the County's operations; and

WHEREAS, the County has requested and received expressions of interest for the retention of services of the consultants in accordance with Request for Statement of Qualifications 26-SQ-65SR, Professional Hydrogeological and Well Services; and

WHEREAS the County has determined that the Consultant is fully qualified to render the required service.

Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual; and

WHEREAS, the County has determined pursuant to Florida Statutes 337.105 that the Consultant is competent and qualified to furnish said services stated hereunder to the County and the Consultant desires to provide services according to the terms and conditions hereunder, and

WHEREAS, it has been determined that the execution of this Contract is beneficial to the people of County of Volusia, Florida.

NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by reference, and other specific consideration set forth in this Contract, the receipt and sufficiency of which is acknowledged by the Consultant and County, the parties agree and stipulate as follows:

1. DEFINITIONS.

For this Contract and any incorporated exhibits, certain terms, phrases, words and their respective derivations shall have the meaning set forth and defined therein and shall be applicable in both.

Definition of terms in the Contract shall first be governed by this Contract, second by the incorporated Consultant Rates (Exhibit A), third by the incorporated Scope of Work/Solicitation (Exhibit B), and third by incorporated Insurance Requirements (Exhibit C). In the event of any conflict among the foregoing, the conflict shall be resolved in the order of priority set forth in the preceding sentence. If there is no applicable definition as described above, the terms, phrases, and words, and their respective derivations when used in this Agreement and the Scope of Work, shall have the meanings ascribed to them in the following order of precedence: first, in the most current edition Black’s Law Dictionary and last, in the most current edition of the Oxford English Dictionary, if a term is not defined in the Agreement or Black’s Law Dictionary.

1.1. Addendum: A written explanation, interpretation, change, correction, addition, deletion, or modification of equal dignity herewith affecting the contract documents prepared by the Consultant, approved and issued by the County and/or distributed to third parties.

1.2. Agency: The state, a state agency, a municipality, a political subdivision, a school district, or a school board. The term "agency" does not extend to a nongovernmental developer that contributes public facilities to a political subdivision under Sections 380.06 or 163.3220-

163.3243 of the Florida Statutes.

1.3. Amendment: An amendment to an approved Task Assignment or this Contract in writing approved by the Director of Purchasing & Contracts, and signed by the County and Consultant authorizing a modification or revision to one or more terms or conditions of this Contract or the Task Assignment.

1.4. Application for Progress Payment: The current estimate form furnished and certified by the

Consultant, which is to be used by Contractor in requesting progress payments.

1.5. Basic Contract: This Contract between the County and the Consultant covering the services requested from a formal solicitation. Authorization for performance of services under the basic Contract shall be in the form of a written Task Assignment (see Task Assignment).

1.6. Bid Documents: The official forms on which the County requires formal bids to be prepared and submitted by the bidder.

1.7. Calendar day: Any day, including Saturdays, Sundays, and holidays, regardless of weather conditions.

1.8. Compensation: The amount paid by the County to Consultant for professional services regardless of whether stated as compensation or stated as hourly rates, overhead rates, or other figures or formulas from which compensation can be calculated which includes the total monies payable to the Consultant under a Task Assignment which includes all services, labor, materials, supplies, travel, training, profit, overhead, costs, expenses, and any other costs necessary to complete the Task Assignment.

1.9. Completion Date: The date that the County or its designated representative approves and accepts all Work or Services for a Scope of Work in a Task Assignment or this Contract.

1.10. Consultant: The person or entity qualified to perform work under this Contract.

1.11. Consultant's services: Those services within the scope of work of this Contract or any exhibit, attachment or addendum thereto which relates to the General Scope of Services in Section 3.1 to be performed by a Consultant in connection with the Consultant's employment or practice.

1.12. Contract Administrator: The Director of Purchasing and Contracts or his/her designee responsible for addressing any concerns within this Contract.

1.13. Contract Documents: Contract documents shall include but are not limited to the following:

(1) This Contract (“Basic Contract’);

(2) Exhibits;

(3) Task Assignments;

(4) Any valid modifications or Amendments to this Contract or Task Assignments issued after its execution of this Contract, and any Amendments to the foregoing;

(5) Certificates of insurance;

(6) Notice of Award and/or Notice to Proceed;

(7) The conditions of this Contract (general, special, supplementary, and other);

(8) Drawings;

(9) Project specifications;

(10) Written interpretations;

(11) Project manuals; and

(12) Addenda (including RSQs, RFPs and Consultant’s responses to RFPs) issued before the execution of this Contract.

1.14. County Representative: Also known as the Owner’s representative who is the County Engineer or person designated by the County to review, approve and make decisions regarding the scope of work.

1.15. County: Shall mean the County of Volusia (a body corporate and politic and a subdivision of the State of Florida).

1.16. Deliverable: The result(s) or end products or services of a Project or Task Assignment that meet the defined design or construction specifications, and functional parameters articulated in the Scope of Work for this Contract and a Task Assignment which, e.g., include but are not limited to: design drawings\specifications, structures, equipment, machinery, studies, reports, written documentation, training, systems or processes.

1.17. Effective Date: The date that this Contract, a Task Assignment, Addendum, Amendment, Modification is fully executed by the Consultant and the County.

1.18. Field Order: A written instrument issued by the Consultant to the Contractor, which clarifies or interprets the drawings and technical specifications, and/or orders minor variations in the work, as opposed to a change in the work, and which does not involve an adjustment in contract price or time.

1.19. Final Certificate of Payment: A certificate for payment which shall constitute a representation of the Consultant to the County that the quantity of the work has been performed in accordance with the Contract Documents. The Consultant shall obtain from the Contractor(s) periodic waiver of liens and "no lien affidavits" at each payment

1.20. Final Completion: That date when (a) the Work is complete in accordance with the Contract Documents including the minor items identified during the final inspection, and (b) the Contractor has submitted its request for final payment including the Contractor’s release and all Subcontractor affidavits.

1.21. Firm: Any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the discipline for which the County is contracting.

1.22. Inspector or Field Representative: County Employee or an authorized representative of the Consultant assigned to make inspections of the work performed and materials furnished by the contractor.

1.23. Modification: A written Amendment to the Contract Documents approved by the County which includes but is not limited to the following:

1.23.1. Field Order: A written clarification, interpretation, minor change or alteration issued by the Consultant.

1.23.2. Addenda: A document written by the Consultant and approved by the County that is added to the original Contract Documents to clarify, revise, add to, or delete from the original Contract Documents or previous addenda. The document includes a written clarification or interpretation prepared by the Consultant.

1.24. Notice of Award: A written notice by the County that the Consultant has been determined by an evaluation committee and the County Council to be highly qualified and approved for an award of a contract.

1.25. Notice to Proceed: The official letter from the County to the Consultant establishing a date on which the Task Assignment will commence.

1.26. Original Expiration Date: The date that this Contract is or was originally intended to expire excluding any extensions or renewals of this Contract for a time certain.

1.27. Owner: The owner is Volusia County for whom all Work or Services under this Contract and any Task Assignment related thereto are performed by the Consultant.

1.28. Project: A fixed capital outlay study or planning activity described in the public notice of the County which includes the entire Scope of Work including the Scope of Work in any Task Assignment that shall be performed in accordance with the Contract Documents. A Project may include:

1.28.1. A grouping of minor construction, rehabilitation, or renovation activities.

1.28.2. A grouping of substantially similar construction, rehabilitation, or renovation activities.

1.29. Project Manager or County Project Manager: The County employee who is assigned to the

Project and is responsible for the day-to-day administration and coordination of the Project for the County. The County may change the Project Manager at any time by providing notice to the Consultant and/or Contractor.

1.30. Proposal: The document submitted by the Consultant in response to a formal solicitation used to determine if the Consultant is highly qualified.

1.31. Request for Statement of Qualifications (RSQ): An invitation process initiated and used by the County to select contractor(s) or the consultant(s) to perform work or provide services in a prospective project or projects based upon their apparent qualifications as submitted by them (respondents) in response to the invitation.

1.32. Scope of Services/Work: The general services/work, herein defined in this Contract, as well as the scope of work in a Task Assignment including responsibility for performing and complying with all incidental matters pertaining thereto, as set out in the Task Assignment.

1.33. State: State of Florida.

1.34. Subconsultant: A person other than the primary contracting the Consultant who enters into a contract with the Consultant for the performance of any part of this Contract.

1.35. Sub-subconsultant: A person other than a materialman or laborer who enters into a contract with a subconsultant for the performance of any part of such subconsultant’s contract.

1.36. Substantial Completion: The date as certified by the County’s Project Manager when the

Task Assignment or Project or a specified part as agreed to in writing by the parties is sufficiently completed to the satisfaction of County or its designated representative, in accordance with the Contract Documents, so that the project or specified part can be utilized for the purposes for which it was intended; or if there be no such certification, the date when final payment is due in accordance with the applicable Task Assignment.

1.37. Task Assignment: Specific, detailed services or work placed against an awarded and established continuing services Contract memorialized as an Amendment to this Contract by the parties prior to the commencement of such Work or Services by the Consultant.

1.38. Work: Any and all obligations, Services, duties and responsibilities necessary to the successful completion of Projects assigned to or undertaken by the Consultant under the Contract Documents.

2. ORDER OF PRECEDENCE.

2.1 If Consultant finds a conflict, error, or discrepancy in the Task Assignment, it shall call it to the County Project Manager’s attention, in writing, and request the County Project Manager’s interpretation and direction before proceeding with the Work affected thereby. Such notice shall be provided by the Consultant to the County Project Manager in a timely fashion so as not to cause additional costs due to delay. In resolving such conflicts, errors, and discrepancies, the documents shall be given precedence in the following order:

2.1.1 Modifications (i.e., amendments or field orders) to the contract

2.1.2 This contract between the county and consultant

2.1.3 Task Assignment

2.1.4 Addenda, exhibits, or attachments material to the contract

3. SCOPE OF WORK.

3.1. General Scope of Services. The general Scope of Services shall be governed by Section

3.2 of this Contract. In addition, the Consultant shall provide services under this Contract in accordance with the general Scope of Services set forth in Exhibit “B”.

3.2. Performance Criteria:

3.2.1. All Work or Services shall be performed in accordance with the Contract Documents and shall be approved by the County in writing prior to commencing any Work or Service(s) described herein or in a Task Assignment.

3.2.2. This Contract standing alone does not authorize the performance of any Work or

Services to be provided by the Consultant or require the County to place any orders for Work or a Service. Authorization for performance of services by the Consultant under this Contract shall be in the form of written Task Assignments issued and executed by the County and signed by the Consultant. Each Task Assignment shall describe the Services required, state the dates for commencement and completion of the Work, and establish the amount and method of payment.

3.2.3. Notwithstanding the General Scope of Work and Services provision in Section 3.1., the Scope of Work for a Project shall be set forth with specificity and describe in detail all work, requirements, deliverables, additional performance criteria, compensation, the commencement and completion dates, materials, equipment, testing and any other item or criteria required to complete the Work or Services in the Task Assignment. Each Task Assignment shall relate to the General Scope of Work and Services in Section 3.1, and shall supplement this Contract and be made a part thereof.

3.2.4. All materials and labor necessary to complete a Task Assignment shall be furnished by the Consultant unless the Contract Documents state otherwise. Said materials shall be of good quality and as specified in the Contract Documents; and all work and labor will be performed, pursuant to Section 7.3.5, to the satisfaction of the County.

3.2.5. The Consultant shall provide the services required herein strictly in an independent contractor relationship with the County and, except as expressly set forth herein, is not, nor shall be, construed to be an agent or employee of the County. In regards to the Work or Services to be performed under this Contract, nothing herein shall create any association, partnership, joint venture or agency relationship between County and Consultant. The County shall not provide vehicles or equipment to the Consultant to perform the duties required by a Task Assignment under this Contract nor will the County pay for any business, travel, office, or training expense or any other contract performance expense not specifically set forth in the scope of services of a Task Assignment. The Consultant is not exclusively bound to the County and may provide service to other private and public entities as long as the service by the Consultant for such entities does not conflict with the Consultant’s services to the County in any Task Assignment.

3.2.6. As applicable to each Project performed by the Consultant during the term of this

Contract or under a Task Assignment, the County may at any time, by written order (agreement), make changes to the scope of work in a Task Assignment for Work and/or Services to be performed through amendments to the Task Assignment.

Except as provided in this Contract otherwise, if any such change causes an in-crease or decrease in the Consultant's cost of, or the time required for performance of the Project Work or Services, an equitable adjustment shall be made and this Contract shall be amended through the Amendment of the Task Assignment stating the modification or equitable adjustment. Any claim by the Consultant for adjustment under this Section must be asserted in writing within thirty (30) days from the date of receipt by the Consultant of the notification of change unless the County grants in writing an additional period of time before the completion of the Contract; otherwise, the claim shall be deemed waived. The Consultant shall proceed with the prosecution of the Work or Service as changed. Except as otherwise provided in this Contract, no charge for any extra work or materials shall be allowed or approved by the County.

3.2.6.1. Changes to Scope of Work. Either party may propose changes to the scope or time schedule of the Work or Services under a Task Assignment which shall be submitted to the other party in writing for consideration of feasibility and the likely effect on the cost and schedule for performance of the Work or Services. The parties shall mutually agree upon any proposed changes, including resulting equitable adjustments to costs and schedules for the performance of the Services. The agreed changes shall be documented in one (1) or more Amendments to the Task Assignment signed by the County and Consultant prior to the commencement of Work or Services covered by the equitable adjustment. If, despite good faith negotiations, the parties are unable to agree to the terms of an Amendment to a Task Assignment, the parties shall follow the dispute resolution process provided under Section 18.

3.2.7 Time is of the Essence. Time is of the essence for each Task Assignment issued under this Contract and all Projects performed in accordance herewith.

3.2.8 For each purpose related to this Contract, Consultant’s Subconsultants or Sub- Subconsultants shall be independent consultants with respect to the County and nothing herein shall create any association, partnership, joint venture or agency relationship between them.

3.2.9 County and Consultant shall exhaust all methods to resolve issues, including but not limited to, the dispute resolution procedures in Section 18 of this Contract before any action is taken to declare the County or Consultant in default of this Contract.

4. TERM OF CONTRACT.

4.1. Subject to Section 4.2, the Term of this Contract shall commence on the Effective Date of this

Contract or when it is fully executed by all parties and shall:

A. Terminate three (3) years from the Effective Date.

B. Have an initial term of three (3) years from the Effective Date followed by two (2) one (1) year renewal terms exercisable at the option of the County.

C. Terminate on _____________________.

The expiration of the Term of a Task Assignment issued under this Contract shall have no effect upon this Contract if renewed by the County. This Contract may be renewed by the County if the County determines that renewal is in the best interest of the County. Said renewal shall be in writing and made a part of this Contract and shall incorporate this Contract by reference.

4.2. All Task Assignments issued under this Contract shall terminate at the expiration of the term of the Task Assignment, unless amended in writing by the parties, or the term of this Contract, except if a Task Assignment issued before the expiration of this Contract cannot be completed until after the expiration of this Contract, then this Contract shall expire on the Completion Date of said Task Assignment, including any amendments thereto, and after all Work or Services under the Task Assignment have been approved and accepted by County’s Project Manager.

As such, the obligations entered therein by both parties under this Contract and said Task Assignment shall remain in full force and effect until completion of all Work or Services performed under this Contract and/or the Task Assignment.

4.3. The Work or Services to be rendered by the Consultant shall be commenced, as specified in the Task Assignments as may be issued hereunder, and shall be completed within the time specified therein.

4.4. No new or additional Task Assignments shall be issued after the Original Expiration Date of this Basic Contract. The extension of this Contract to coincide with the completion of an existing Task Assignment issued prior to the original expiration date of this Contract shall not be construed as or constitute authorization by the County or the Consultant to enter into a new or additional Task Assignment after the original expiration date of this Contract, unless this Contract is renewed prior to entering into an Contract for a new or additional Task Assignment.

5. CONTRACT PRICE AND COMPENSATION.

5.1. For Work, Services, or each separate Project performed under a Task Assignment during the term of the Contract, the Consultant shall be paid Compensation for all Work or Services performed in a Task Assignment, including labor and materials on a “fixed fee,” “time and materials”, “cost-plus-a-fixed-fee” or “guaranteed maximum-not-to-exceed” basis as applicable in the Task Assignment. The Task Assignment shall state the method of Compensation.

5.1.1. Regardless of the method of Compensation, e.g., “fixed fee”, “time and materials”, “cost-plus-a-fixed-fee” or “guaranteed maximum-not-to-exceed” basis , Compensation shall not be adjusted because of errors or omissions which are not the fault of the County in computing the Project or Task Assignment costs which result in an increase in the cost of the Task Assignment or because the time for completion varies from the original estimate, including completion or substantial completion of the Task

Assignment prior to the scheduled or contract or Task Assignment completion date or on account of County’s election to furnish any of the Work or Services. In addition, Consultant shall certify in the Task Assignment that the original contract price or Compensation for a Project or Task Assignment and any additions thereto shall be adjusted to exclude any significant sums by which the County determines the contract price or Compensation was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs.

5.1.2. Reimbursable Expenses. Subject to the County’s Travel and Reimbursement Policy, Sections 112.061 (7) and (8), Florida Statutes, or their successor, reimbursable expenses include actual and verifiable expenditures without any mark-up made by the Consultant or Consultant’s employees and/or agents that directly relate to the Task Assignment and to the expenses listed in the following subparagraphs:

5.1.2.1. Expenses of transportation, when traveling is directly related to the Project and necessary, based on and in accordance with the Scope of Work of a Task Assignment;

5.1.2.2. Long distance calls and telegrams;

5.1.2.3. Fees paid for securing approval of authorities having jurisdiction over the tasks of the Project or Task Assignment;

5.1.2.4. Expenses of reproductions;

5.1.2.5. Postage and handling of drawings and specifications;

5.1.2.6. Any other expenses related to the Project; and

5.1.2.7. If authorized in the Task Assignment, the cost of other expenditures made by the Consultant that relate directly to the Scope of Work in the Task Assignment.

5.1.3. Truth-in-Negotiation Certificate. For any fixed fee, cost-plus-a-fixed-fee or guaranteed maximum-not-to-exceed compensation professional service contract or Compensation in a Task Assignment over $150,000.00, Consultant shall execute a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the Compensation are accurate, complete, and current at the time of contracting. Any Professional Service contract or Task Assignment under which such a certificate is required must contain a provision that the original contract price or Compensation and any additions thereto will be adjusted to exclude any significant sums by which the County determines the contract price or Compensation was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs. All such contract or Compensation adjustments must be made within one

(1) year following the end of the contract. Otherwise, such adjustments shall be deemed waived by the Consultant and null and void for the purposes of this Contract or the Task Assignment. The signature on this Contract by Consultant shall act as the execution of a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation of this Contract are accurate, complete, and current at the time of contracting.

5.1.4. Fixed Fee or Price & Guaranteed Maximum-Not-To-Exceed Compensation. The total Fixed Fee or Price and Guaranteed Maximum-Not-To-Exceed Compensation for a Task Assignment shall be comprised of the total cost of the project, including all design engineering, materials, machinery, equipment, labor, temporary construction, capital spare parts, reimbursable expenses, all mark-ups for overhead and profit. In addition, the Task Assignment shall state with specificity the commencement and completion dates, all materials, contingency and escalation allowances, any and all expenses (including those referenced in Section 5.1.2 herein), and all other items of cost necessary to complete the Task Assignment, whether furnished by County, Consultant, third parties, or others. A Scope of Work for a Task Assignment specifying Compensation on guaranteed maximum-not-to-exceed basis shall allocate the guaranteed maximum-not-to-exceed price or Compensation among and provide for payments against specified deliverables and performance.

5.1.5. Retainage. The County shall have the right to withhold retainage from Compensation paid to a Consultant. Should the County decide that retainage shall be withheld from Compensation, the amount to be retained from each payment to the Consultant shall be:

A. % of the total contract price.

B. % of each payment of a milestone payment based on a Project milestone schedule.

C. No retainage will be taken.

The retainage shall be included with the final payment after all Work or Services have been approved and accepted by the County and all disputed invoices have been resolved by the parties. The County shall never be required to pay an amount that would leave unpaid from the contract price or Compensation an amount less than the amount County would need to have in order to pay another consultant to complete the Work or Services should the Consultant fail to complete the Work as of that date. The County shall not be obligated to pay retainage or make a final payment in connection with a project sign-off milestone or documentation to the Consultant until all work to be performed as set forth in the Scope of Work or Services is completed and all outstanding issues arising and relating to the Scope of Work or Services in this Contract are resolved. In addition, payment by County of this retainage amount to the Consultant shall be contingent upon final acceptance of all the work in the Scope of Work or Services.

5.1.6. Payments.

5.1.6.1. Approval of Project Payment. If, on the basis of the County Project

Manager’s observation and review of the Consultant’s Work or Services performed during the Task Assignment and the County Project Manager’s satisfaction that the work has been completed and the Consultant has fulfilled all of its obligations under the Contract Documents, County Project Manager, after receipt of the final project invoice shall indicate in writing his or her approval of payment and present the invoice to Accounts Payable, for payment. Otherwise, the County Project Manager shall return the invoice to the Consultant, indicating in writing the reasons for refusing to approve final payment, in which case the Consultant will make the necessary corrections and resubmit the invoice.

5.1.6.2. Invoice Detail. Regardless of the method of compensation, e.g., “fixed fee”, “time and materials”, or “guaranteed maximum no-to-exceed” basis, the Consultant shall submit an invoice for which professional services were rendered to the County in response to its request therefore upon the completion and acceptance of the services detailed in Section 3.1 herein.

Each invoice shall show detailed explanations of the services accomplished by labor hours by classification, associated rates, any material or subcontracted costs and any indirect rates or costs in accordance with the prices set forth in a Task Assignment. All of the above shall sum to the total amount requested.

5.1.7. Invoices. Invoices or payment requests shall be addressed by Consultant and submitted to the County’s Project Manager. The Consultant shall submit:

A. A monthly statement for Professional Services rendered to the date of the statement subject to Section 5.1.5. The monthly statements shall reflect the Work or Services actually completed at the time of billing.

B. A Final Statement for each County requested Project indicating the Work or Services actually completed after final acceptance of said Work or Services by the County. The Consultant’s determination of the Work or Services actually completed is to be prepared by the Consultant, and accompanied by such supporting data as may be required by the County Project Manager.

County Project Manager shall review the Consultant's statement and notify the Consultant in writing within twenty (20) business days from receipt of the statement if any amounts requested are disputed or lack adequate support or documentation.

5.1.8. For each Task Assignment, Consultant shall submit a monthly statement for Professional Services rendered to the date of the statement. The monthly statements shall reflect the Work or Services actually completed at the time of billing. The Consultant’s determination of the Work or Services actually completed is to be prepared by the Consultant, and accompanied by such supporting data as may be required by the County Project Manager. County Project Manager shall review the Consultant's statement and notify the Consultant in writing within twenty (20) days from receipt of the statement if any amounts requested are disputed or lack adequate support or documentation.5.1.10. The County may withhold payment of any specific invoiced charges that it disputes in good faith and pay all undisputed charges on the invoice.

5.1.9 The County may withhold payment of any specific invoiced charges in a pay request or monthly statement which it disputes in good faith and pay all undisputed charges on the invoice, pay request or monthly statement.

5.1.10. Within forty-five (45) days of acceptance by the County Project Manager of all the

Work or Services for which Consultant has submitted an invoice, the Consultant shall be paid the unpaid balance of any money due for any undisputed Work or Services covered by said statement. All payments shall be governed by the Florida Prompt Payment Act as set forth in the Florida Statute § 218.70, as amended.

5.1.11. Taxes. County is a tax exempt entity and shall not be charged or invoiced for the payment of taxes for work or services performed under this Contract.

5.1.12. Pursuant to the terms and conditions articulated in this Contract, an appropriate fee shall be negotiated for each specific Project or Task Assignment to be performed and such fee shall be stipulated in writing, signed by the parties, together with the Scope of Work for each Task Assignment or project, in separate Task Assignments to this Contract.

5.1.13. Consultant's Continuing Obligations. The Consultant’s obligation to perform Work or services and complete the Task Assignment in accordance with the Contract Documents shall be absolute. Neither approval of any progress nor final payment by the Consultant, nor the issuance of a certificate of substantial completion, nor any payment by the County to The Consultant under the Contract Documents nor any act of acceptance by the County nor any failure to do so, nor any correction of defective work or service by the County shall constitute an acceptance of Work or Services not in accordance with the Contract Documents.

5.2 Payment of Consultant’s Subconsultants or Sub-Subconsultants. Consultant shall save and hold the County harmless from any and all claims or actions by Consultant’s Subconsultants or Sub-Subconsultants for payment of monies such Subconsultant or Sub-Subconsultant claims to be owed by Consultant for Work performed under this Contract.

5.3 Nothing in this Contract shall create any obligation on the part of the County to pay directly to any Subconsultants or Sub-Subconsultants of Consultant any monies due to such Subconsultant or Sub-Subconsultant or claims of a Subconsultant or Sub-Subconsultants for amounts owed by Consultant to Subconsultant or Sub-Subconsultant for Work performed under this Contract.

6. TERMINATION.

6.1. The performance of Work or Services under this Contract may be terminated by the County in accordance with this clause in whole or from time to time in part, upon at least thirty (30) days prior written notice to Consultant whenever the County shall determine that such termination is in the best interest of the County. Any such termination shall be effected by delivery to the Consultant of a Notice of Termination specifying the extent to which performance of work under the Contract is terminated, and the subsequent date upon which such termination becomes effective.

6.2. Non-Appropriation. Notwithstanding any other term or provision of this Contract, the continuation of this Contract beyond a single fiscal year of County is subject to the appropriation and availability of funds in accordance with Chapter 129, Florida Statutes. Termination by the County due to non-appropriation shall be without a termination charge by Consultant. County shall not be obligated to pay Consultant under this Contract beyond the date of termination except as set forth in this Contract. County’s obligation to pay Consultant is limited to the budgeted amount for a fiscal year approved by the Volusia County Council for the then current fiscal year of this Contract and is otherwise limited to legally available non-ad valorem tax revenues.

6.3 Upon receipt of such notification, Consultant shall inform County of the extent to which performance is completed and unless notified in writing by the County otherwise, the Consultant shall take no further steps towards completion of the Project. Upon payment by County, Consultant shall deliver to County any and all completed Deliverables and Deliverables-in-progress that then exist for the Project. If the County terminates the Project due to the Consultant’s failure to meet a completion deadline as set forth in this Contract, the County may seek the services for the Project from another consultant. Payment will be made to the Consultant pursuant to 6.4.15.

6.4. After receipt of a Notice of Termination as set forth in Section 6.1 above, and except as otherwise directed by the County, the Consultant shall:

6.4.1. Stop work under this Contract on the date and to the extent specified in the Notice of Termination.

6.4.2. Place no further orders or subcontracts for materials, services or facilities, except as may be necessary for completion of such portion of the work under this Contract, as it is not terminated.

6.4.3. Terminate all orders and subcontracts pursuant to this Section 6 to the extent that they relate to the performance of Work or Services terminated by the Notice of Termination.

6.4.4. Assign to the County, in the manner, at the times and to the extent directed by the

County, all of the right, title, and interest of the Consultant under the orders and subcontracts so terminated, in which case the County shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts.

6.4.5. With the approval of the County and to the extent required by the County, settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts. County's approval of such settlements shall be final for all the purposes of a termination under Section 6. In addition, Consultant shall transfer title and deliver to the County, in the manner, at the times, and to the extent, if any, directed by the County:

6.4.5.1. The sketches, calculations, reports, models, studies and other Work-in-process, completed Work or Services, supplies, and other materials produced as a part of, or acquired in connection with the performance of the Work or Services terminated by the Notice of Termination; and,

6.4.5.2. The completed or partially completed designs, plans, drawings, information, and other property, which, if the Contract has been completed, would have been required to be furnished to the County.

6.4.6. Consultant shall complete performance of such part of the Work or Services as shall not have been terminated by the Notice of Termination.

6.4.7. After receipt of a Notice of Termination, the Consultant shall submit to the County its termination claim, in the form and with a certification as prescribed by the County.

Such claim shall be submitted promptly but in no event later than thirty (30) days from the effective date of termination, unless one (1) or more extensions in writing are granted by the County, upon request of the Consultant made in writing within such thirty (30) day period or authorized extension thereof. Upon failure of the Consultant to submit its termination claim within the time allowed, the County may determine on the basis of information available to it, the amount, if any, due to the Consultant by reason of the termination and shall there upon pay to the Consultant the amount so determined.

6.4.8. Subject to the provisions of Section 6.4.7., the Consultant and the County may agree upon the whole or any part of the amount or amounts to be paid to the Consultant by reason of the total or partial termination of work pursuant to Section 6 which amount or amounts may include a reasonable allowance for profit on work done; provided, that such agreed amount or amounts exclusive of settlement costs, shall not exceed the total contract price or Compensation as reduced by the amount of payments otherwise made and as further reduced by the contract price of Compensation for Work not terminated. As such, the Contract shall be amended accordingly and the Consultant shall be paid the agreed amount. Nothing herein, prescribing the amount to be paid to the Consultant in the event of failure of the Consultant and the County to agree upon the whole amount to be paid to the Consultant by reason of the termination of Work or

Services pursuant to this clause, shall be deemed to limit, restrict, or otherwise determine or affect the amount or amounts which may be agreed upon to be paid to the Consultant.

6.4.9. In the event of the failure of the Consultant and the County to agree as provided in

Section 6.4.8. above upon the whole amount to be paid to the Consultant by reason of the termination of work pursuant to Section 6, the County shall pay to the Consultant the amounts determined by the County as follows, but without duplication of any amounts already agreed upon by the parties.

6.4.9.1. For completed Work or Services accepted by the County, the price or prices or Compensation specified in the Contract for such work, less any payments previously made.

6.4.9.1.1. Notwithstanding section 5.1.4., the total compensation shall include the total of the following:

6.4.9.1.1.1. The costs incurred by the Consultant in the

performance of the Work and Services terminated, including initial costs and preparatory expenses allocable thereto, but exclusive of any costs attributable to the Work and Services paid or to be paid for under Sections 6.4.8., and 6.4.9.1., hereof;

6.4.9.1.1.2. The cost of settling and paying claims arising out of the termination of Work or Services under subcontracts or orders as provided herein, which are properly chargeable to the terminated portion of the Contract exclusive of amounts paid or payable on account of work or services delivered or furnished by Subconsultants or Sub-Subconsultants prior to the effective date of termination, which amounts shall be included in the costs payable herein.

6.4.10. This Contract may be terminated by the Consultant if the Consultant provides a minimum of thirty (30) days written notice to the County’s Director of Purchasing and Contracts. In the event the Consultant breaches any of the terms and conditions of this Contract and after receipt of notice from the County of said breach and time to cure the same the Consultant fails to cure the breach, the County may take over the Work and Services and complete the Work or Services; or otherwise, the Consultant shall be liable to the County for any increased cost of the Project reasonably incurred by the County in the process of completing the Consultant's unfinished Work and Services. As such, County may apply unpaid Compensation due and owing to the Consultant prior to the default as a set off against the costs incurred by the County for taking over such Work or Services.

6.4.11. In the event that there is a partial termination of this Contract by the County or

Consultant because of non-appropriation by County, subject to Section 4 - Term of Contract and Section 5 - Contract Price and Compensation, Consultant shall be paid in accordance with terms of this Section 6, to the date of termination on a prorated basis for any task, milestone, or Deliverable started but not completed which were designated for payment on a payment schedule provided to the County prior to the commencement of work on the task, milestone or Deliverable which is the subject of the partial termination. County’s obligation to pay Consultant under this Contract is limited to the budgeted amount for the fiscal year approved by the Volusia County Council for the then current fiscal year of this Contract and is otherwise limited to legally available non-ad valorem tax revenues. Consultant shall have no right to compel the Volusia County Council to appropriate funds for any fiscal year to pay the compensation set forth in Section 5-Contract Price and Compensation. Consultant and County shall be obligated to continue performance under this Contract for the work or services within the Scope of Work or Services under this Contract which is not the subject of the partial termination by non-appropriation.

6.4.12. If termination of this Contract occurs for any reason:

6.4.12.1. The County shall continue to have the unfettered right to use or access any license, designs, plans, or exhibits, any of the Deliverables or work products from tasks or milestones, arising under that Contract and produced pursuant to the Contract Documents for which the County has paid prior to termination of this Contract or for which County makes payment after termination of this Contract.

6.4.13. Except as otherwise provided in this Contract, Consultant shall return to the County all

County Confidential Information in Consultant’s possession and Consultant shall certify in a written document signed by the Consultant that all such information has been returned.

6.4.14. Except as provided in Section 6.4.12.1., the County shall return to Consultant or destroy all Consultant’s Confidential Information in the County’s possession (including, without limitation, all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment or other documents or property relating to such Consultant’s Confidential Information and all copies of any of the foregoing (in whatever medium recorded)) and all Third- Party Products in its possession not yet accepted and not yet paid for in full together with all copies of documentation and other material related thereto, and shall certify in a written document signed by the County Project Manager that all such information and material has been returned or destroyed.

6.4.15. For all undisputed outstanding invoices submitted to the County prior to the effective date of the termination and subject to Section 4 - Term of Contract, Section 5 - Contract Price and Compensation, and this Section 6, the County shall cause payments to be made to Consultant within thirty (30) days of receipt of invoice. Consultant shall invoice the County for any sums Contactor claims to be owed by County under this Contract for work performed from the last invoice to the effective date of termination.

County shall review such invoice for payment and County shall pay any undisputed amount within thirty (30) days.

6.4.16. In the event of termination by the County for non-appropriation, for all items or products ordered by Consultant before receipt by Consultant of the Notice of Termination which Consultant could not cancel without imposition of a fee, the County shall cause payments to be made to Consultant within thirty (30) days of receipt of an undisputed invoice for all cancellation, restocking or residual fees resulting from the cancellation or return of third party products ordered from or shipped by the vendor thereof prior to the effective date of the termination.

6.4.17. All provisions of this Contract which imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Contract.

7. RESPONSIBILITY OF THE CONSULTANT.

7.1. The Consultant’s performance of Work or Services shall be as a professional consultant to the County to carry out the activities of a Task Assignment under the direction of the County’s Project Manager.

7.2. Consultant shall perform Work or Services required under this Contract or Task Assignment, including but not limited to reports, studies, schedules, estimates, the development or preparation of plans, specifications, and cost estimates pertaining to a Project. Consultant shall confer with the County Project Manager to ascertain the functional or design criteria of each Task Assignment. The services of Consultant shall also include of the following:

7.2.1. Unless otherwise provided in this Contract or Task Assignment, the Consultant shall furnish in accordance with the Contract Documents the Services required for the Project or Task Assignment within ten (10) days of the County’s Notice to Proceed.

7.2.2. Consultant shall verify to the County for the applicable Task Assignment that all designs, and specifications, and all data reports, studies, plans, bulletins, schedules, and other drawings therewith conform to the Scope of Work in the Task Assignment and applicable governmental regulations, statutes, and ordinances, including any amendments thereto. Said certification shall be in the form acceptable to the County and made a part of this Contract and attached to the Task Assignment and incorporated herein by reference.

7.2.3. Consultant covenants, and agrees that there are no obligations, commitments, or impediments of any kind that shall limit or prevent Consultant’s performance of the Work or Services.

7.2.4. The Consultant covenants and agrees that it will not contract for or accept employment for the performance of any Work or Service with any individual, business, corporation or government unit that would create a conflict of interest in the performance of its obligations pursuant to this Contract with the County.

7.2.5. Consultant covenants and agrees that all of the Work or Services to be furnished by

Consultant under this Contract and any Task Assignment from the inception of this Contract or Task Assignment until the Project has been fully completed, shall be of the standard and quality that prevail among similarly situated licensed professional consultants engaged in the Consultant’s profession or practice in the State of Florida under the same or similar circumstances involving the design and/or construction of the Project.

7.2.6. Consultant covenants and agrees as follows:

7.2.6.1. Consultant recognizes that its special talent, training, and experience caused the County to select the Consultant to be the prime professional on the Project or Task Assignment;

7.2.6.2. Consultant comprehends the specifications and requirements of the Scope of Work of the applicable Task Assignment and the use of the same in their entirety to provide Project Deliverables;

7.2.6.3. Consultant possess the special skills to recognize material errors or omissions that shall make a Deliverable fail to perform within the specifications and requirements of the Scope of Work for the applicable

Task Assignment;

7.2.6.4. That Consultant shall adhere to…