L_-Agreement.ModifiedH_LAP_with_Exhibits.pdf

AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES

THIS AGREEMENT is made and entered into by and between Escambia County, a political subdivision of the State of Florida (hereinafter referred to as “the County”), whose address is 221 Palafox Place, Pensacola, Florida 32502, and _______________, a [foreign OR Florida] for-profit [corporation OR limited liability company] authorized to transact business in the State of Florida, FEI/EIN ______________, whose principal address is ____________________________, (hereinafter referred to as the “Consultant”).

WITNESSETH:

NOW, THEREFORE, in consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, the County and the Consultant agree as follows:

ARTICLE I

PREAMBLE

1.1 In order to establish the background, context, and frame of reference for this Agreement and to generally express the objectives and intentions of the respective parties herein, the following statements, representations, and explanations shall be accepted as predicates for the undertakings and commitments included within the provisions which follow and may be relied upon by the parties as essential elements of the mutual considerations upon which this Agreement is based.

1.2 The Board of County Commissioners has complied with the requirements of the Consultants’ Competitive Negotiation Act, as provided in Section 287.055, Florida Statutes, as amended, and has selected the Consultant to perform the services hereunder.

ARTICLE 2

SCOPE OF WORK

2.1 The Consultant will provide certain professional consulting services for the tasks outlined in Escambia County’s Request for [Proposals or Qualifications], Specification No. P.D. XX- XX.XXX, ___________________________, attached hereto and incorporated herein as Exhibit A, and as represented in the Consultant’s Proposal, attached hereto and incorporated herein as Exhibit B. In the event of a conflict between the terms of the Exhibits and this Agreement, the terms of this Agreement shall prevail.

2.2 Such services shall include those services performed by the Consultant, its employees, and subcontractors, as further described in the Scope of Work set forth in Exhibit B and any other services specifically included therein.

ARTICLE 3

TIME FOR PERFORMANCE

3.1 The schedule for completion of the Consultant’s services shall be in accordance with the schedule set forth in Exhibit C. Such schedule may be modified from time to time upon the mutual consent of the County and the Consultant. Prior to beginning the performance of any services under this Agreement, the Consultant must receive in writing a Notice to Proceed from the Contract Administrator.

3.2 The services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the project. The Consultant’s schedule for the performance of its services shall include allowances for periods of time required for the County’s review and for its approval of submissions by the Consultant. Time limits established by this schedule, which are hereby approved by the County, shall not be exceeded by the Consultant except for reasonable cause as determined by the County.

3.3 This Agreement shall take effect upon the date last executed by the parties hereto and continue for a period not to exceed five (5) years.

ARTICLE 4

COMPENSATION AND METHOD OF BILLING AND PAYMENT

4.1 COMPENSATION: The County agrees to pay the Consultant, as compensation for its services under this Agreement, in accordance with the Fee Schedule set forth in Exhibit D, attached hereto and made a part hereof. Final payment may be subject to approval by the Board of County Commissioners.

4.2 FEE SCHEDULE: The fees represented in the Fee Schedule set forth in Exhibit D shall include, without limitation, salaries for professional and administrative staff, plus costs for sick leave and vacation, reemployment taxes, employment/payroll taxes, retirement benefits, and insurance benefits, as well as routine overhead expenses, profit, and all other expenses of every type.

4.3 DIRECT EXPENSES: Expenses directly attributable to the project will be exclusively borne by the Consultant and are included in its aggregate fee. Direct Expenses shall include, but not be limited to, the following:

(a) Transportation expenses in connection with the project.

(b) Living expenses in connection with travel and any other travel expenses.

(c) Long distance communications and other miscellaneous budget expenses.

(d) Cost of printing plans, drawings, and specifications that are required by or of the

Consultant to deliver the services set forth in this Agreement. The Consultant will furnish to the County two (2) sets of all project plans, reports, and specifications in a bound format acceptable to the County.

(e) Cost of any software or hardware used or developed for the project, including CAD/CADD time.

4.4 METHOD OF BILLING AND PAYMENT:

(a) Requests for payment shall not be made more frequently than once a month. The Consultant shall submit such monthly statements identifying the nature of the work performed.

Calculations shall be made monthly of the amount and value of services performed by Consultant that meet the standards of quality established under this Agreement. The estimates shall be prepared by the Consultant and accompanied by such supporting data as required by the Contract Administrator. Payments under this Agreement and interest on any late payments shall be governed by the Local Government Prompt Payment Act, §§ 218.70, et seq., as amended.

(b) Invoices to the County shall be sent to:

Escambia County Engineering 3363 West Park Place Pensacola, Florida 32505

ARTICLE 5

ADDITIONAL SERVICES AND CHANGES IN SCOPE OF WORK

The County or the Consultant may request changes that would increase, decrease, or otherwise modify the Scope of Work to be provided under this Agreement. Such changes must be in accordance with the procurement policies of the County and must be contained in a written amendment, executed by the parties thereto, with the same formality and of equal dignity prior to any deviation from the terms of this Agreement, including the initiation of any extra work.

ARTICLE 6

COUNTY’S RESPONSIBILITIES

6.1 The County shall make available to the Consultant, as required for performance of the Consultant’s services, all available data prepared by or the result of the services of others, including without limitation (as may be appropriate): building plans and related drawings; core borings, probings, and subsurface explorations; hydraulic surveys; laboratory tests, and inspections of samples, materials, and equipment; environmental assessments and impact statements; appropriate professional interpretations of the foregoing; property boundary, easement, rights-of-way, topographic and utility surveys; property descriptions; zoning, deed, and other land use restrictions; and any other special data or consultations.

6.2 The County shall arrange for access to and make all provisions for the Consultant to enter upon public and private property as required for the Consultant to perform its services.

6.3 Within a reasonable time so as not to delay the services of the Consultant, the County shall examine all studies, reports, sketches, drawings, specifications, proposals, and other documents presented by the Consultant, and obtain the advice of an attorney, insurance counselor, or other consultants as the County deems appropriate for such examinations and, if required, the rendering of written opinions or decisions pertaining thereto.

6.4 The County will assist in obtaining approvals and permits from all governmental authorities having jurisdiction over the project and such other authorization as may be necessary for completion of the project.

6.5 The County will provide the Consultant with written notice whenever the County observes or otherwise becomes aware of any development that affects the scope or timing of the Consultant’s services or any defect in the work of the Consultant.

6.6 The County shall perform a determination of allowable costs in accordance with the Federal cost principles for services rendered under this Agreement.

ARTICLE 7

CONSULTANT’S RESPONSIBILITIES

7.1 QUALITY OF SERVICES:

(a) The Consultant shall be responsible for the professional quality, technical accuracy, and the coordination of all designs, drawings, specifications, and other services furnished pursuant to this Agreement.

(b) To that end, the Consultant shall correct or shall revise, without additional compensation, any errors or omissions in its work product or shall make such revisions as are necessary as the result of the failure of the Consultant to provide an accurate, more efficient, and properly constructable product in its designs, drawings, specifications, or other services.

(c) The County's review/approval/acceptance of or payment for the services required by this Agreement shall not be construed to operate as a waiver of any rights or of any cause of action arising out of the performance of this Agreement. Additionally, the Consultant shall be and remain liable to the County in accordance with applicable law for all damages to the County caused by the Consultant's negligent performance of any of the services furnished under this Agreement.

(d) The rights and remedies of the County provided for under this Agreement are in addition to any other rights and remedies otherwise provided by law.

(e) If the Consultant is comprised of more than one legal entity, each such entity shall be jointly and severally liable hereunder.

7.2 CONSULTANT PROFESSIONAL REGISTRATION AND CERTIFICATION:

(a) The Project Manager and the Project Engineer assigned to the Project must be two different individuals. The Project Manager must be currently employed by the Prime Consultant.

Both the Project Manager and the Project Engineer shall be Professional Engineers registered in the State of Florida.

(b) The design services provided by the Consultant pursuant to this Agreement shall be certified by professional consultants registered to practice and in good standing in the State of Florida. Any project inspection services shall be reviewed and approved by such professional consultants.

(c) The survey services provided by the Consultant pursuant to this Agreement shall be certified by professional land surveyors registered to practice and in good standing in the State of Florida.

(d) Permit applications to state and federal agencies prepared by the Consultant shall be signed and sealed by the Consultant, as the project's Consultant of Record. For all such permit applications, post-construction certification also shall be made by the Consultant to the appropriate state or federal permitting agency.

ARTICLE 8

GENERAL PROVISIONS

8.1 OWNERSHIP OF DOCUMENTS:

(a) Drawings, specifications, design, models, photographs, reports, surveys, and other data, including intellectual property of any type or description, produced by the Consultant in connection with this Agreement are and shall remain the property of the County whether the project for which they were made is completed or not. Such ownership also shall include any electronic files developed or created of such documents. Such finished or unfinished documents, data, calculations, studies, surveys, specifications, drawings, maps, models, photographs, and reports prepared by the Consultant shall be delivered by the Consultant to the County at the conclusion of the project or the termination of the Consultant’s services.

(b) When such documents are provided to other parties, the Consultant shall ensure return of the County’s property by collecting a deposit equal to the cost of reproduction. Such deposit shall be returned if the documents are timely returned in a useable condition. Otherwise, such deposit shall be retained by the Consultant.

8.2 SUSPENSION OR TERMINATION:

(a) The County, in writing, may order the Consultant to suspend, delay, or interrupt all or any part of the work for the period of time that the County determines to be appropriate for the convenience of the County. The Consultant expressly acknowledges and agrees that it shall receive no damages for delays. The Consultant’s sole remedy, if any, against the County will be the right to seek an extension to the schedule as provided for the completion of the project.

(b) This Agreement may be terminated by either party for cause, or by the County for convenience, upon fourteen (14) days written notice by the terminating party to the other party of such termination. In the event of termination, the Consultant shall be paid its compensation for services performed through the date of termination, including all reimbursable expenses then due or incurred through the date of termination.

(c) Termination for cause shall include, but not be limited to, misuse of funds, fraud, lack of compliance with applicable rules, laws, regulations, and ordinances, and failure to perform in a timely manner any provision of this Agreement.

(d) In no event shall a termination for convenience by the County be deemed a default, and any such termination shall not subject the County to any penalty or other claim for damages. If the Consultant abandons this Agreement or causes it to be terminated, the Consultant shall indemnify the County against any loss pertaining to this termination up to a maximum of 1.3 times the full contracted fee amount of the project. All finished or unfinished documents, data, studies surveys, drawings, maps, models, photographs, and reports prepared by the Consultant shall become the property of the County and shall be immediately delivered by the Consultant to the County.

(e) The Consultant will not be liable for such additional costs if the failure to perform this Agreement arises out of causes beyond the control and without the fault or negligence of Consultant. Matters beyond the fault or negligence of Consultant include, but are not limited to, acts of God or of the public enemy, acts of the County in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargos, and unusually severe weather, but, in every case, the failure to perform must be beyond the control and without the fault or negligence of Consultant.

(f) Vendor suspension or debarment proceedings brought by County pursuant to Chapter 46, Article II, Division 2, Section 46-102, Escambia County Code of Ordinances, shall be grounds for immediate termination of this Agreement.

8.3 RECORDS:

(a) The Consultant shall keep such records and accounts and shall require any subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement and any expenses for which the Consultant expects to be reimbursed. Such books and records will be available at all reasonable times for examination and audit by the County and shall be kept for a period of five

(5) years from the date of final payment for all work to be performed pursuant to this Agreement.

Incomplete or incorrect entries in such books and records will be grounds for disallowance by the County of any fees or expenses based upon such entries.

(b) The Consultant acknowledges that this Agreement and any related financial records, audits, reports, plans, correspondence, and other documents may be subject to disclosure to members of the public pursuant to Chapter 119, Florida Statutes, as amended. The Consultant shall maintain all such public records and, upon request, provide a copy of the requested records or allow the records to be inspected within a reasonable time. The Consultant shall also ensure that any public records that are exempt or exempt and confidential from disclosure are not disclosed except as authorized by law. Upon the expiration or termination of the Agreement, Consultant agrees to maintain all public records for a minimum period of five (5) fiscal years in accordance with the applicable records retention schedules established by the Florida Department of State. In the event the Consultant fails to abide by the provisions of Chapter 119, Florida Statutes, the County may, without prejudice to any right or remedy and after giving the Consultant seven (7) days written notice, during which period the Consultant still fails to allow access to such documents, terminate the Agreement. In such case, the Consultant shall not be entitled to receive any further payment. Reasonable terminal expenses incurred by the County may be deducted from any payments left owing the Consultant (excluding monies owed the Consultant for subcontractor work).

IF CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION

OF CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT’S

DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS

CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:

Escambia County Office of the County Administrator 221 Palafox Place, Suite 420 Pensacola, Florida 32502

(850) 595-4947

8.4 AUDIT OF RECORDS:

(a) County may perform, or have performed, an audit of the records of CONSULTANT at any time during the term of this Agreement and after final payment to support final payment under this Agreement. Audits may be performed at a time mutually agreeable to Consultant and County.

Total compensation to Consultant may be determined subsequent to an audit as provided for in this Section and the total compensation so determined will be used to calculate final payment to Consultant. Conduct of this audit will not delay final payment as required by Section 4.5.

(b) In the event any audit or inspection conducted after final payment, but within the period provided in Section 8.3(a), reveals any overpayment by County under the terms of this Agreement, Consultant shall refund such overpayment to County within thirty (30) days of notice by County.

8.5 NO CONTINGENT FEES: In accordance with Section 287.055(6), Florida Statutes, and Section 46-97, Escambia County Code of Ordinances, the Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Consultant to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the Consultant any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the County shall have the right to terminate the Agreement without liability and at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration.

8.6 COMPLIANCE: The Consultant agrees to comply, at its own expense, with all federal, state, and local laws, codes, statutes, ordinances, rules, regulations and requirements related to the performance of this Agreement, including but not limited to the Local Agency Program Federal-Aid Terms for Professional Services Contracts provided in composite Exhibit E. The Consultant shall also be required to execute the Truth in Negotiation Certification as referenced in Section 8.13, the Affidavit of E-Verify Requirements Compliance as referenced in Section 8.23, the Certification for Disclosure of Lobbying Activities on Federal-Aid Contracts, and the Certification Regarding Debarment, Suspension, all attached in Exhibit F.

8.7 SUBCONTRACTORS: The County approves the use of subcontractors by the Consultant.

In the event the Consultant, during the course of the work under this Agreement, requires the services of any subcontractors or other professional associates in connection with services covered by this Agreement, it must secure the prior written approval of the County for employment of such subcontractors. Any subcontractors or other professional associates retained by the Consultant must carry the appropriate insurance coverage as specified in Section 8.9 below in an amount equal to or greater than the coverage carried by the Consultant.

8.8 ASSIGNMENT: This Agreement, or any interest herein, shall not be assigned, transferred, or otherwise encumbered, under any circumstances, by the Consultant, without the prior written consent of the County. However, the Agreement shall run with the Escambia County Board of County Commissioners and its successors.

8.9 HOLD HARMLESS AND INDEMNIFICATION:

To the extent provided by law, the Consultant shall indemnify, defend and hold harmless the County and the State of Florida, Department of Transportation, including the Department’s officers, agents, and employees, against any actions, claims, or damages arising out of, relating to, or resulting from negligent or wrongful act(s) of Consultant, or any of its officers, agents or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by the Consultant.

The foregoing indemnification shall not constitute a waiver of the Department’s or County’s sovereign immunity beyond the limits set forth in Section 768.28, Florida Statutes. Nor shall the same be construed to constitute agreement by the Consultant to indemnify the County for the negligent acts or omissions of the County, its officers, agents, employees, or third parties. Nor shall the same be construed to constitute agreement by the Consultant to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, employees, or third parties. This indemnification shall survive the termination of the Agreement.

County and Consultant agree one percent (1%) of the Compensation paid by County to Consultant shall be given as separate consideration for this indemnification and any other indemnification by Consultant as provided herein, the sufficiency of such separate consideration being acknowledged by Consultant’s acceptance and execution of the Agreement.

Consultant agrees to include the following indemnification provision in all contracts with sub-consultants, contractors, or subcontractors (each referred to as “Entity” for the purposes of the below indemnification) who perform work in connection with this Agreement:

“To the extent provided by law, [ENTITY] shall indemnify, defend, and hold harmless the County and the State of Florida, Department of Transportation, including the Department’s officers, agents, and employees against any actions, claims, or damages arising out of, relating to, or resulting from negligent or wrongful act(s) of [ENTITY], or any of its officers, agents or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by [ENTITY]. The foregoing indemnification shall not constitute a waiver of the County’s or Department’s sovereign immunity beyond the limits set forth in Section 768.28, Florida Statutes.

Nor shall the same be construed to constitute agreement by the [ENTITY] to indemnify the County for the negligent acts or omissions of the County, its officers, agents, employees, or third parties.

Nor shall the same be construed to constitute agreement by the [ENTITY] to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, employees, or third parties. This indemnification shall survive the termination of the Agreement.”

8.10 INSURANCE: The Consultant is required to carry the following insurance:

(a) Commercial General Liability, Form CG1, with $1,000,000 minimum per occurrence/$2,000,000 annual aggregate limit;

(b) Business Automobile Liability with $1,000,000 per occurrence minimum combined single limits for all hired, owned, and non-owned vehicles. Coverage must include owned, non-owned, and hired autos or any auto used by Consultant. In the event Consultant does not own automobiles, Consultant shall maintain coverage for hired and non-owned auto liability for autos used by Consultant, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Business Auto Liability policy;

(c) Florida statutory workers’ compensation and employers’ liability with employer’s liability limits of at least $1,000,000 each accident and $1,000,000 each employee/$1,000,000 policy limit for disease; and

(d) E&O/Professional Liability coverage with $1,000,000 minimum limit, except where the estimated construction contract price for the project described in the

Agreement is greater than $5 million dollars, the minimum limit of professional liability coverage shall be equal to 25% of the estimated construction contract price for the project. Said coverage shall be continuously maintained and in effect for a period of not less than five (5) years from the effective date of this Agreement.

The policy limit of liability shall not include legal fees and other defense costs. If a “claims made” form of coverage is provided, the retroactive date of coverage shall be no later than the effective date of this Agreement and shall not be advanced. If at any time during the aforementioned policy period there should be a cancellation, non-renewal, or lapse in coverage, professional liability coverage shall be extended for the remainder of the five-year period with a supplemental extended reporting period (SERP) endorsement to take effect upon expiration of the policy period referenced above. The limits of liability applicable to the SERP coverage shall be equal to the limits of liability applicable to the policy referenced above and to which the endorsement attaches.

It is understood and agreed by the parties that in the event that the Consultant consists of a joint venture, partnership, or other association of professional or business firms, each such firm shall be required to individually carry the above cited coverages.

All liability coverage shall be through carriers admitted to do business in the State of Florida.

Carriers. shall be rated as "A-" (excellent) or better as to general policy holders rating and a financial size category of Class VII or higher according to the AM Best Rating Guide, latest edition.

Liability policies shall be underwritten on the occurrence basis, except the professional liability coverage may be provided on a “claims made” basis.

If, during the period that an insurance company is providing the insurance coverage required by this Agreement, an insurance company (i) loses its Certificate of Authority, or (ii) fails to maintain the requisite Best’s Rating and Financial Size Category, Consultant shall immediately notify County as soon as Consultant has knowledge of any such circumstance and immediately replace the insurance coverage provided by the insurance company with a different insurance company meeting the requirements of this Agreement. Until such time as Consultant has replaced the unacceptable insurer with an insurer acceptable to County, Consultant will be deemed to be in default of this Agreement.

The Florida Department of Transportation, Escambia County, and the Board of County Commissioners shall be “additional insureds” on all liability policies (except professional liability).

Certificates of insurance shall be provided to the Department and the County’s Purchasing Manager prior to commencement of work hereunder. Certificates shall reflect the additional insured status of the foregoing named parties and shall provide for a minimum of thirty (30) days’ notice of change/cancellation. The State of Florida Department of Transportation, Escambia County, and the Board of County Commissioners shall also be the certificate holders. Certificates shall be provided to the Department and County at the following addresses:

Florida Department of Transportation Escambia County Attn: Local Programs Risk Manager 1074 Highway 90 P.O. Box 1591 Chipley, FL 32428 Pensacola, FL 32591

8.11 REPRESENTATIVE OF CONSULTANT: The Consultant shall notify the Contract Administrator in writing of the Consultant’s designated representative to whom matters regarding the project shall be addressed. The designated representative will have the authority to transmit instructions, receive information, and interpret and define County’s policy and decisions pertinent to the work covered by this Agreement.

At all times during the normal work week, Consultant shall designate or appoint one or more representatives of Consultant who are authorized to act on behalf of Consultant and bind Consultant regarding all matters involving the conduct of the performance pursuant to this Agreement, and who will keep County continually advised of such designation.

8.12 ALL PRIOR AGREEMENTS SUPERSEDED:

(a) This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained herein, and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or Agreements whether oral or written.

(b) It is further agreed that no modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith.

8.13 TRUTH-IN-NEGOTIATION CERTIFICATE: In accordance with Section 287.055(5), Florida Statutes, and Section 46-97, Escambia County Code of Ordinances, the signing of this Agreement by the 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 Agreement are accurate, complete, and current at the time of contracting. To the extent such wage rates and other factual unit costs are determined by the County to be inaccurate, incomplete, or non-current, the original contract price and any additions thereto shall be adjusted to exclude any increases in the compensation paid to the Consultant due to such inaccurate, incomplete, or non-current wage rates and other factual unit costs. A determination of allowable costs in accordance with the Federal cost principles will be performed for all services rendered under this Agreement. All such contract adjustments shall be made within one (1) year following the end of this Agreement.

8.14 HEADINGS: Headings and subtitles used throughout this Agreement are for the purpose of convenience only, and no heading or subtitle shall modify or be used to interpret the text of any section.

8.15 GRATUITIES: Neither the Consultant nor any of its employees, agents, and representatives shall offer or give to an officer, official, or employee of the County gifts, entertainment, payments, loans, or other gratuities. The Consultant acknowledges knowledge of the State of Florida’s ethics statutes, and to the extent applicable to the Consultant, the Consultant agrees to abide by such statutes.

8.16 CONFLICT OF INTEREST:

(a) Consultant agrees it shall 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 under this Agreement. Consultant further agrees it will neither take any action nor engage in any conduct that would cause any County employee or official to violate the provisions of Chapter 112, Florida Statutes, relating to ethics in government. Consultant also agrees to comply with Section 46-127, Escambia County Code of Ordinances, prohibiting conflicts of interest by retained consultants.

(b) The Consultant hereby certifies that it will completely disclose to the County all facts bearing upon any possible conflicts, direct or indirect, with its performance which it believes any officer, employee, or agent of the Consultant now has or will have. Said disclosure shall be made by the Consultant contemporaneously with the execution of this Agreement and at any time thereafter such facts become known to the Consultant. The Consultant at all times shall perform its obligations under this Agreement in a manner consistent with the best interests of the County.

Failure to abide by this section shall result in the immediate termination of this Agreement pursuant to Chapter 46, Article II, Division 4, Section 46-128, Escambia County Code of Ordinances.

(c) The Consultant hereby certifies that no officer, agent, or employee of County has any material interest (as defined in Section 112.312(15), Florida Statutes, as over 5%), either directly or indirectly, in the business of Consultant to be conducted under this Agreement and that no such person will have any such interest at any time during the term of this Agreement.

(d) No member, officer, or employee of the Consultant may enter into any contract, subcontract, or arrangement in connection with the Project or any property included or planned to be included in the Project in which any member, officer, or employee of the County or the locality during his tenure or for two years thereafter shall have any interest, direct or indirect.

Contractor agrees to include the following provision in all contracts with subcontractors who perform work in connection with this Agreement:

“No member, officer, or employee of the County or of the locality during his tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof.”

(e) Consultant agrees to complete a Conflict of Interest/Confidentiality Certification, in the form of Exhibit F, incorporated into this Agreement by reference.

8.17 NOTICE. Any notice, payment, or other communication under this Agreement required hereunder or desired by the party giving such notice shall be given in writing and delivered by hand or through the instrumentality of certified mail of the United States Postal Service or private courier service, such as Federal Express. Unless otherwise notified in writing of a new address, notices and payments to the Consultant and notices to the County shall be delivered to each party as follows:

To: Consultant To: County Attention:____________ Attention: County Administrator ____________________ 221 Palafox Place, Suite 420 ____________________ Pensacola, Florida 32502

Rejection, or other refusal by the addressee to accept, or the inability of the courier service or the United States Postal Service to deliver because of a changed address of which no notice was given, shall be deemed to be receipt of the notice sent. Any party shall have the right, from time to time, to change the address to which notices shall be sent by giving the other party at least ten

(10) days prior notice of the address change in accordance with the requirements of this provision.

8.18 SURVIVAL: All other provisions which, by their inherent character, sense, and context are intended to survive termination of this Agreement, shall survive the termination of this Agreement.

8.19 GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, and the parties stipulate that venue for any matter which is a subject of this Agreement shall be in the County of Escambia.

8.20 INTERPRETATION:

(a) For the purpose of this Agreement, the singular includes the plural and the plural shall include the singular. References to statutes or regulations shall include all statutory or regulatory provisions consolidating, amending, or replacing the statute or regulation referred to. Words not otherwise defined that have well-known technical or industry meanings, are used in accordance with such recognized meanings. References to persons include their respective permitted successors and assigns and, in the case of governmental persons, persons succeeding to their respective functions and capacities.

(b) If the Consultant discovers any material discrepancy, deficiency, ambiguity, error, or omission in this Agreement, or is otherwise in doubt as to the meaning of any provision of the Agreement, the Consultant shall immediately notify the County and request clarification of the County’s interpretation of this Agreement.

(c) This Agreement shall not be more strictly construed against either party hereto by reason of the fact that one party may have drafted or prepared any or all of the terms and provisions hereof.

8.21 SEVERABILITY: The invalidity or non-enforceability of any portion or provision of this Agreement shall not affect the validity or enforceability of any other portion or provision. Any invalid or unenforceable portion or provision shall be deemed severed from this Agreement and the balance hereof shall be construed and enforced as if this Agreement did not contain such invalid or unenforceable portion or provision.

8.22 COMPLIANCE WITH LAWS: The Consultant shall keep fully informed regarding and shall fully and timely comply with all current laws and future laws that may affect those engaged or employed in the performance of this Agreement. Without limiting the generality of the foregoing, the Consultant shall observe all rules and regulations of federal, state, and local officials relating to the subject matter of this Agreement. Any violation of these statutes, ordinances, rules, or regulations will constitute a material breach of this Agreement and will entitle County to terminate this Agreement immediately upon delivery of written notice of termination to Consultant.

8.23 E-VERIFY: In accordance with §448.095, Florida Statutes, Consultant shall register with and utilize the E-Verify System operated by the United States Department of Homeland Security (USDHS) to verify the employment eligibility of all new employees hired during the term of the Agreement and shall expressly require any subcontractors performing work or providing services pursuant to this Agreement to likewise utilize the E-Verify System to verify the employment eligibility of all new employees hired by the subcontractor during the term of this Agreement. If Consultant enters into a contract with a subcontractor performing work or providing services on its behalf, Consultant shall also require the subcontractor to provide an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien.

Information on registration for and use of the E-Verify Program can be obtained at the USDHS website: http://www.dhs.gov/E-Verify.

8.24 PROHIBITION AGAINST CONTRACTING WITH SCRUTINIZED COMPANIES:

In accordance with §287.135, Florida Statutes, by executing this Agreement, Consultant hereby http://www.dhs.gov/E-Verify certifies that the Consultant is not on the Scrutinized Companies that Boycott Israel List created pursuant to §215.4725, Florida Statutes, and is not engaged in a boycott of Israel as defined in §215.4725, Florida Statutes. Further, Consultant acknowledges that if the Consultant is found to have submitted a false certification, has been placed on the Scrutinized Companies that Boycott Israel List; or has been engaged in a boycott of Israel then the County reserves the right to immediately terminate this Agreement.

If the contract amount is $1 million dollars or more, by executing this Agreement, Consultant further certifies that the Consultant is not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to §215.473, Florida Statutes; and Consultant is not engaged in business operations in Syria as defined in §287.135(1)(c), Florida Statutes. Further, Consultant acknowledges that if the Consultant is found to have submitted a false certification; has been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List; or has been engaged in business operations in Syria then the County reserves the right to immediately terminate this Agreement.

8.25 FOREIGN GIFTS/CONTRACTS: [Contract amount $100,000 or more] In accordance with §286.101, Florida Statutes, by executing this Agreement, Consultant certifies it has timely disclosed any current or prior interest of, contract with, or grant or gift received from a “foreign country of concern” as defined in §286.101(1)(b), Florida Statutes, if such interest, contract, grant, or gift has a value of $50,000 or more and such interest existed at any time or such contract, grant, or gift was received or in effect during the previous five (5) years. Reporting information may be obtained at the Department of Financial Services website:

http://www.myfloridacfo.com/Transparency.

8.26 Public Entity Crimes: Consultant warrants that it has not violated any State or Federal law with respect to the transaction of business with any public entity. Consultant shall, prior to execution of this Agreement, file a sworn statement, in the form of Exhibit J, incorporated by reference, with County of whether Consultant, or an affiliate of Consultant, has been convicted of a public entity crime. If Consultant requests approval of subcontractors, Consultant shall, prior to approval of the subcontractor by County, require the subcontractor, to file a Sworn Statement on Public Entity Crimes, in the form of Exhibit G, incorporated by reference, with County of whether the subcontractor, or an affiliate of the subcontractor, has been convicted of a public entity crime.

For the violation or breach of this provision, County shall have the right to terminate this Agreement at its sole discretion, without further liability to Consultant.

8.27 PARTICIPATION IN OTHER PROCEEDINGS: At the County’s request, the Consultant shall allow itself to be joined as a party in any legal proceeding that involves the County regarding the design, construction, or installation of any matter which is the subject of this Agreement. This provision is for the benefit of the County and not for the benefit of any other party.

8.28 FURTHER DOCUMENTS: The parties shall execute and deliver all documents and perform further actions that may be reasonably necessary to effectuate the provisions of this Agreement.

8.29 NO WAIVER: The failure of the Consultant or the County to insist upon the strict performance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of any other provision or of either party’s right to thereafter enforce the same in accordance with this Agreement.

8.30 MODIFICATION: No modification or change to the Agreement shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to be bound by it.

8.31 THIRD PARTY BENEFICIARIES: This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties hereto.

8.32 AUTHORITY: Any individual executing this Agreement on behalf of a corporate or governmental party represents and warrants that he/she is duly authorized to execute and deliver this Agreement on behalf of said party, in accordance with any duly adopted action of the governing board of said party, as may be applicable and in accordance with applicable law, and that this Agreement is binding upon said party in accordance with its terms.

8.33 ANNUAL APPROPRIATION: Pursuant to the requirements of Florida law and Article II of Chapter 46, Escambia County Code of Ordinances, the County’s performance and obligation to fund this Agreement shall be contingent upon an annual appropriation by the Escambia County Board of County Commissioners.

8.34 INSPECTOR GENERAL: Consultant shall comply with and require its sub-consultants and contractors to comply with Section 20.055(5), Florida Statutes, which requires every contractor and subcontractor to cooperate with state agency inspectors general in any investigation, audit, inspection, review, or hearing pursuant to this provision. The Consultant shall provide access by the Florida Department of Transportation, Agency, Federal Highway Administration, U.S.

Department of Transportation’s Inspector General, Comptroller General of the United States, or any other duly authorized representatives to any books, documents, papers, and records of the Consultant that are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions.

8.34 Performance Evaluation: A performance evaluation will be conducted and may be used for future project reference. County reserves the option to evaluate Consultant’s performance at any time during the Project, using the form substantially similar found in Exhibit E, incorporated by reference. Performance evaluations will become a part of the public record. The evaluation will be provided to the Consultant within 90 days from Project completion.

8.35 EXHIBITS: The following documents are expressly agreed to be incorporated by reference and made a part of this Agreement.

Exhibit A: Solicitation (P.D. _______________) Exhibit B: Consultant’s Scope of Services Exhibit C: Schedule for Performance Exhibit D: Fee Schedule Exhibit E: LAP Federal-Aid Terms for Professional Services Contracts (#375-040-84) Exhibit F: LAP Federal Program Requirements and Forms:

DBE Bid Package Information (#275-030-11)

DBE Professional Services Commitment Form (#375-030-83) DBE Participation Statement (#375-030-21) Truth-in-Negotiation Certificate (#375-030-30)

Certification Regarding Debarment/Suspension (#375-030-32) Certification for Disclosure of Lobbying Activities (#375-030-33) Disclosure of Lobbying Activities (#375-030-34) Conflict of Interest/Confidentiality Certification (#375-030-50) E-Verify Certification (#375-031-06) Bid Opportunity List for Commodities/Contractual Services (#375-040-62) Exhibit G: Local Requirements and Forms:

Drug Free Workplace Certification

Sworn Statement on Public Entity Crimes CEI Work Performance Evaluation

IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature:

ESCAMBIA COUNTY, FLORIDA

Witness: By: __ Wesley J. Moreno, County Administrator Witness: ______________________ Date: __________________________

BCC Approved: _________________

CONSULTANT: ___________________

By: __ Corporate Secretary [President or Vice President]

Date: __________________________

[SEAL]

Exhibit B

Consultant’s Scope of Work

Required Tasks

Task 1 – Required Task based on Scope of the Solicitation

More in-depth details for Task 1

Task 2 – Required Task based on Scope of the Solicitation

More in-depth details for Task 2

Task 3 – etc.

Optional Task

Task 4 – Task that was in original scope of solicitation but may not be required for project

More in-depth details for Task 4

Exhibit C

Consultant's Schedule for Performance Required Tasks Task 1 NTP + 7 days Task 2 NTP + 14 days Task 3 NTP +14 days Optional Tasks Task 4 Task 3 +45 days

Sam ple

Exhibit D

Consultant's Fee Schedule Main Job $185 Secondary Job $150 Admin $100 Total Required Tasks Task 1 10 20 10 $5,850 Task 2 25 5 $2,500 Task 3 5 10 $500 Required Tasks Sub-Total $8,850 Optional Tasks Task 4 1 10 3 $1,985 Total $10,835

Job Title Per hour Main Job $185 Secondary Job $150 Admin $100

SAMPLE

LOCAL AGENCY PROGRAM FEDERAL-AID TERMS

For PROFESSIONAL SERVICES CONTRACTS

375-040-84

PROGRAM MANAGEMENT

1/24

TERMS FOR FEDERAL AID CONTRACTS (APPENDIX I):

The following terms apply to all contracts in which it is indicated that the services involve the expenditure of federal funds:

A. It is understood and agreed that all rights of the Local Agency relating to inspection, review, approval, patents, copyrights, and audit of the work, tracing, plans, specifications, maps, data, and cost records relating to this Agreement shall also be reserved and held by authorized representatives of the United States of America.

B. All tracings, plans, specifications, maps, computer files and/or reports prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived therefrom, will be considered works made for hire and will become the property of the Agency upon completion or termination without restriction or limitation on their use and will be made available, upon request, to the Agency at any time during the performance of such services and/or completion or termination of this Agreement. Upon delivery to the Agency of said document(s), the Agency will become the custodian thereof in accordance with Chapter 119, Florida Statutes. The Consultant will not copyright any material and products or patent any invention developed under this agreement. The Agency will have the right to visit the site for inspection of the work and the products of the Consultant at any time.

C. It is understood and agreed that, in order to permit federal participation, no supplemental agreement of any nature may be entered into by the parties hereto with regard to the work to be performed hereunder without the approval of the U.S. Department of Transportation, anything to the contrary in this Agreement not withstanding.

D. The Consultant shall provide access by the Florida Department of Transportation (recipient), the Agency

(subrecipient), the Federal Highway Administration, the U.S. Department of Transportation’s Inspector General, the Comptroller General of the United States, or any of their duly authorized representatives to any books, documents, papers, and records of the Consultant which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions.

E. Compliance with Regulations: The Consultant shall comply with the Regulations: relative to nondiscrimination in

Federally-assisted programs of the U.S. Department of Transportation Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Agreement.

F. Nondiscrimination:…