Exhibit_D,_Consulting_Contract,_26-SQ-108SR_(REVIEW).pdf

CONTRACT FOR PROFESSIONAL DESIGN SERVICES FOR DIRKSEN DRIVE

(CR 4162) (US 17/92 TO SUNRISE BOULEVARD)

Between

THE COUNTY OF VOLUSIA

AND

Contract No. 26-SQ-108SR

County of Volusia

Purchasing and Contracts Division 123 West Indiana Avenue, Room 302

DeLand, Florida 32720-4608 www.volusia.org/purchasing

RSQ No. 26-SQ-108SR

CONTRACT FOR PROFESSIONAL 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 consultant to provide professional 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 No. 26-SQ-108SR for Professional Design Services for Dirksen Drive (CR 4162) (US 17/92 to Sunrise Boulevard); 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 287.055 (a/k/a “Consultant’s Competition Negotiation Act”) and 337.105 that the Consultant is competent and qualified to furnish said services stated hereunder to the County and Consultant desires to provide professional 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, and second by the incorporated Scope of Services/Work (Attachment A), third by the incorporated Fee Schedule (Attachment A-1), fourth by the incorporated Preferred Alternative Plans (Exhibit A), and fifth by the incorporated Volusia County Technical Specifications (Exhibit B). 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 including drawing and specifications prepared by the Consultant, approved and issued by the County and/or distributed to third parties.

1.2. Affidavit: The instrument which is to be signed by the Consultant or Consultant and submitted to the County upon the County’s request through the Project Manager, upon completion of the job, showing that all bills have been paid. It shall also mean such instrument that may be requested by the County incidental to partial payments.

1.3. Amendment: An amendment to this Contract in writing by the County, approved by the Director of

Purchasing and Contracts, and signed by the County of equal dignity herewith authorizing an addition, deletion, or revision in the scope of work that is issued after execution of this Contract.

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

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

1.5. Architect: A person or firm that is authorized to practice architecture pursuant to Florida Statute

481.299 or a general Consultant who provides architectural services under a design-build contract authorized by F.S. 481.299(3).

1.6. Architect/Engineer: The design professional identified in the contract documents and who is licensed and registered in the State of Florida. The terms “Architect” and “Architect/Engineer (A/E)” means the architect/engineer or its authorized representative.

1.7. Basic Contract: This Contract between the County and the Consultant covering the services requested from a formal solicitation.

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

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

1.10. 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 this Contract which includes all services, labor, materials, supplies, travel, training, profit, overhead, costs, expenses, and any other costs necessary to complete the Scope of Work.

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

1.12. Consultant: The person or entity qualified to perform work under this Contract. In addition, Consultant must be a professional Engineer or Engineering firm, including an Architect (or registered Landscape Architect, Surveyor and Mapper, professional Engineer, Architect or registered Landscape Architect providing professional services within the meaning of Section 287.055, F.S., who is registered in the State of Florida. In addition, the Consultant may be the Engineer or Architect or Landscape Architect of record or may provide services through and be subcontracted to the Engineer of record.

1.13. Continuing contract: A contract for professional services entered into in accordance with all the procedures of Section 287.055, F.S. between the County and a firm whereby the firm provides professional services to the County for projects for work of a specified nature as outlined in this Contract as required by the County, with no time limitation except one governed by the termination provisions of this Contract.

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

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

(1) This Contract (“Basic Contract’);

(2) Exhibits;

(3) Any valid modifications or Amendments to this Contract 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.

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

1.17. 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.

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

1.19. Drawings/Plans: The official approved drawings or plans or exact reproductions thereof, which have been prepared, signed, sealed and dated by the Consultant, which shows the location, character, dimensions and details of the work to be done and which are considered part of the Contract Documents.

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

1.21. Engineer: The person, firm, or corporation named as such in the contract and/or authorized by the County to act as the County’s representative or the County construction Engineer authorized to practice Engineering services pursuant to Florida Statute 471.03(2)(i)(as amended) and who may serve as the County’s Engineers of construction, Engineering and inspection. The term Engineer shall be synonymous with design Architect/Engineer or Architect/Engineer or Consultant.

1.22. Engineer of Record: The professional Engineer or engineering firm contracted or employed by the County and registered in the State of Florida who develops criteria and concept for the work, performs the analysis and is responsible for the preparation of the plans and specifications. The Engineer of record may be County in-house staff or a consultant retained by the County.

1.23. Field Order: A written instrument issued by the Consultant to the Consultant, 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.

1.24. 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 Consultant(s) periodic waiver of liens and "no lien affidavits" at each payment.

1.25. 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 Consultant has submitted its request for final payment including the Consultant’s release and all Subconsultant affidavits.

1.26. Firm: Any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice Architecture, Engineering, or Surveying and Mapping in the state.

1.27. 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 Consultant.

1.28. Landscape Architect: A person or firm that is authorized to practice landscape architecture pursuant to Florida Statute 481.311.

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

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

Consultant.

1.29.2. 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.

1.30. Notice of Award: A written notice by 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.

1.31. Notice to Proceed: The official letter from the County to the Consultant establishing a date on which the Work will commence.

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

1.33. Owner: The owner is Volusia County for whom all Work or Services under this Contract are performed by the Consultant.

1.34. Professional Services: Those services within the scope of the practice of architecture, professional engineering, landscape architecture, or registered surveying and mapping, as defined by the laws of the state, or those performed by any Architect, professional Engineer, Landscape Architect, or registered Surveyor and Mapper in connection with his or her professional employment or practice.

1.35. Project: The Services or Work to be performed pursuant to a scope of services.

1.36. 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 or Consultant.

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

1.38. Request for Statement of Qualifications (RSQ): An invitation process initiated and used by the

County to select Consultant(s) or consultant(s) to perform work or provide services in a prospective project(s) based upon their apparent qualifications as submitted by them (respondents) in response to the invitation.

1.39. Scope of Services/Work: The general services/work, herein defined in this Contract including responsibility for performing and complying with all incidental matters pertaining thereto.

1.40. Services: Those services are the professional services of work or tasks as defined in Section 287.055, F.S. to be performed by the Consultant as provided for under this Contract which shall be performed by a duly licensed professional Engineer or Engineering firm, Architect or Architectural firm, Landscape Architect or Landscape Architectural firm, Surveyor, and/or Mapper who is registered in the State of Florida.

1.41. Shop Drawings: All diagrams, illustrations, brochures, schedules, and/or other data which are prepared by Consultant, subconsultant, manufacturer, supplier, distributor, or other person on behalf of the Consultant, and which illustrate the equipment, material, or some portion of the work.

1.42. Specifications: The document that establishes the material and performance requirements of goods and services.

1.43. State: State of Florida.

1.44. Subconsultant: A person other than a materialman or laborer who enters into a contract with a

Consultant for the performance of any part of the basic Contract.

1.45. 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.

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

1.47. Work: Any and all obligations, Services, duties and responsibilities necessary to the successful completion of the Project assigned to or undertaken by Consultant under the Contract Documents, including the furnishing of all labor, materials, equipment and other incident.

2. ORDER OF PRECEDENCE.

2.1. If Consultant finds a conflict, error, or discrepancy in the Contract Documents, 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 Addenda or Exhibits to this Contract

2.1.4 Scope of Work

2.1.5 Other Documents, exhibits, and attachments

3. SCOPE OF WORK.

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

3.2 of this Contract. The Consultant shall provide services under this Contract in accordance with the Scope of Services set forth in Attachment “A”.

3.2. Performance Criteria:

3.2.1. All Work or Services shall be performed in accordance with the Contract Documents.

3.2.2. All labor necessary to complete the Scope of Work shall be performed in a good and competent workmanlike manner to the satisfaction of the County.

3.2.3. The Consultant shall provide the services required herein strictly in an independent contractual 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. Nothing herein shall create any association, partnership, joint venture or agency relationship between them.

The County shall not provide vehicles or equipment to the Consultant to perform the duties required 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 this Contract. 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 under this Contract.

3.2.4. The County may at any time, by written order, make changes within the general scope of work and/or Services to be performed under this Contract. Except as provided in this Contract otherwise, if any such change causes an increase or decrease in the Consultant's cost of, or the time required for performance of Work or Services, an equitable adjustment shall be made and this Contract shall be amended in writing stating the 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 and 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 shall be allowed or approved by the County.

3.2.4.1. Changes to Scope of Work. Either party may propose changes to the scope or time schedule of the Work or Services under this Contract 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 in writing upon any proposed changes, including resulting equitable adjustments to costs and schedules for the performance of the Work or Services. The agreed changes shall be documented in one (1) or more Amendments to this Contract prior to the Commencement of any Work resulting from the changes. If despite good faith negotiations the parties are unable to agree to the terms of an amendment to this Contract, the parties shall follow the dispute resolution process provided under Section 18.

3.2.5. Time is of the Essence. Time is of the essence for all work performed under this Contract performed in accordance herewith.

3.2.6. 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.

3.2.7. 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 terminate two (2) years from the Effective Date or upon project completion, whichever occurs later. This Contract may be renewed by the County if the County determines that renewal is in the best interest of the County and satisfies the requirements of Section 287.055, F.S. (as amended). Said renewal shall be in writing and made a part of this Contract and shall incorporate this Contract by reference.

4.2. The Work or Services to be rendered by the Consultant shall be completed within the time specified therein.

5. CONTRACT PRICE AND COMPENSATION.

5.1. In consideration of the performance of this Contract by the Consultant, the County agrees to pay the Consultant in current funds, as compensation for its services in the not to exceed amount of [Amount in word] DOLLARS AND XX/100 ($).

5.1.1. The Consultant shall be paid Compensation for all Work or Services, including labor and materials, performed under this Contract.

5.1.2. Compensation shall not be adjusted because of errors or omissions which are not the fault of the County in computing the Project costs which result in an increase in the cost of this Contract or because the time for completion varies from the original estimate, including completion or substantial completion of this Contract prior to the scheduled or Contract completion date or on account of County’s election to furnish any of the Work or Services.

In addition, Consultant shall certify that the original contract price or Compensation for a Project and any additions thereto shall be adjusted to exclude any significant sums by which the County determines the price or Compensation was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs.

5.1.3. Reimbursable Expenses.

5.1.3.1. 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 Project and to the expenses listed in the following subparagraphs:

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

5.1.3.1.2. Long distance calls and telegrams;

5.1.3.1.3. Fees paid for securing approval of authorities having jurisdiction over the tasks of the Project;

5.1.3.1.4. Expenses of reproductions;

5.1.3.1.5. Postage and handling of drawings and specifications;

5.1.3.1.6. Any other expenses related to the Project; and

5.1.3.1.7. If authorized by the County, the cost of other expenditures made by the Consultant that relate directly to the Scope of Work.

5.1.4. Truth-in-Negotiation Certificate. For any fixed fee/lump-sum, cost-plus-a-fixed-fee or guaranteed maximum-not-to-exceed compensation professional service contract 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 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. 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.

5.1.5. Fixed Fee or Price and Guaranteed Maximum-Not-To-Exceed Compensation. The total fixed fee, price or and Guaranteed Maximum-Not-To-Exceed Compensation for a Project shall be comprised of the total cost of the project, including all design engineering, materials, machinery, equipment, labor, all expenses and costs, temporary construction, capital spare parts, reimbursable expenses, all mark-ups for overhead and profit.

5.1.6. Retainage. The County shall not withhold retainage from Compensation paid to a Consultant.

5.1.7. Payments.

5.1.7.1. Punch List. If County in its reasonable discretion does not consider a Project substantially complete, the County shall notify Consultant in writing giving the reasons. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment, and the certificate shall state the time within which those items shall be completed or corrected, the time to be within the contract time. Disputes regarding payments shall be resolved through the dispute resolution procedure articulated in Section 18 of this Contract.

5.1.7.2. Approval of Payment. If, on the basis of the County Project Manager’s observation and review of Consultant’s Work or Services for a Project and, the County Project Manager’s satisfaction that the work has been completed and Consultant has fulfilled all of its obligations under the Contract Documents, County Project Manager, after receipt of the 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.

5.1.7.3 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 Exhibit “B.” 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 this Contract. All of the above shall sum to the total amount requested.

5.1.8. 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. The monthly statements shall reflect the Work or Services actually completed at the time of billing.

B. A Final Statement for the 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.

5.1.9. 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 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.

5.1.11. Within forty-five (45) days of acceptance by the County Project Manager of all the Work or Services for which Consultant has submitted the monthly statement of professional services, 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 Act as set forth in the Florida Statute § 218.70 (as amended).

5.1.12. 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.

5.1.13. Consultant's Continuing Obligations. Consultant’s obligation to perform the Work or services in accordance with the Contract Documents shall be absolute. Neither approval of any progress nor final payment to Consultant, nor the issuance of a certificate of substantial completion, nor any payment by County to 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 by 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 of Consultant any monies due to such Subconsultant claims of a Subconsultant for amounts owed by Consultant to 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 affected 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 termi-nation 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 CONSULTANT.

7.1. Consultant shall be a duly licensed under the laws of the State of Florida as an architect, engineer, landscape architect, mapper or surveyor for the purposes of this Contract and to satisfy the requirements of Section 287.055, F.S. (as amended).

7.2. Consistent with Section 7.3 below, Consultant’s performance of Work or Services shall be in accordance with the terms and conditions of this Contract. The Consultant’s performance of Work or Services shall be as a professional consultant to the County to carry out the activities of the Scope of Work or Services under the direction of the County’s Project Manager.

7.3. Consultant shall perform Work or Services required under this Contract, including but not limited to reports, studies, schedules, estimates or other documentation pertaining to a Project. Consultant shall confer with the Project Manager to ascertain the functional or design criteria of the scope of work. The services of the Consultant shall also include of the following:

7.3.1. Consultant shall certify to the County in all reports submitted that all reports, studies, schedules, estimates and other required documents therewith conform to the Scope of Work or Services in this Contract 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 incorporated herein by reference.

7.3.2. 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.

7.3.3. 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.

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

Consultant shall be in accordance with the most current specifications or technology at the time this Contract is fully executed and as of the time Consultant delivers to County the specifications and/or Deliverables. Thereafter, Consultant shall keep the County informed of any changes or advancements in such specifications or technology occurring any time prior to or during actual implementation of the Project.

7.3.5. Consultant covenants and agrees as follows:

7.3.5.1. That Consultant recognizes that its special talent, training, and experience caused the County to select Consultant to be the prime professional on the Project;

7.3.5.2. That Consultant comprehends the specifications and requirements of the Scope of Work or Services and the use of the same in their entirety to provide Project Deliverables;

7.3.5.3. That Consultant possesses 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;

7.3.5.4. That Consultant shall adhere to the standard of care applicable to a consultant with the degree of skills and diligence normally employed by a licensed professional in his field or practice performing the same or similar services or Work in compliance with all applicable federal, state, and municipal laws, regulations, codes, and ordinances.

7.3.6. Consultant covenants and agrees that any Project data, reports, studies, designs, drawings, specifications and requirements prepared by Consultant or its agents or sub consultants shall be completed in a competent and workmanlike manner. In addition, Consultant shall include in any such reports, studies, bulletins, schedules, designs, drawings, and/or specifications warnings about known hazards to the Project.

7.3.7. Consultant covenants and agrees to the following: (1) the Project plans and specifications shall conform to their foreseeable use in the Project with all the amenities as set forth in the plans and specifications; and, (2) the Consultant shall produce Deliverables made in a competent and workmanlike manner. Consultant's duties as set forth herein shall at no time be in any way diminished by reason of any approval by County of any plans or specifications nor shall Consultant be released from any liability by reason of such approval by County, it being understood that County at all times is ultimately relying on Consultant's skill, expertise, and knowledge in preparing the plans and specifications or any other documentation. As such, said approval shall not be a defense to a claim or cause of action for contribution or indemnification by the County.

7.3.8. Consultant covenants and agrees that all persons connected with Consultant directly in charge of the professional work are duly registered and licensed under Florida law and pursuant to this Contract.

7.3.9. Consultant covenants and agrees that it shall be liable for all negligent acts, errors, or omissions proximately caused by Consultant, if any, in judgment relative to the Work or Services under which Consultant provides Work or Services.

7.3.10. Consultant covenants and agrees to call to County's attention anything of any nature in any reports, studies, bulletins, schedules, designs, drawings, documentation, plants, specifications, requirements or instructions prepared by Consultant or data supplied to Consultant by the County or any other party that Consultant regards in Consultant’s professional opinion as unsuitable, improper, or inaccurate in connection with the purposes for which such data is furnished in the Project.

7.3.11. Consultant covenants and agrees to furnish efficient business administration of the Project and perform all Work or Services in the most expeditious and economical manner consistent with the standard of care articulated in Section 7.3.5.4.

7.3.12. Consultant covenants and agrees that it shall, at its own cost, make good any defects in its Work or Services as soon as Consultant becomes aware of such defects or is notified of such defects. Should Consultant refuse or neglect to make good such defects within a reasonable time after receiving notice requesting such remedial work, then County, pursuant to Section 6 - Termination, shall be entitled to make good such defective Services at the expense of Consultant or terminate this Contract.