RFP-604529_DRAFT_AGREEMENT.pdf

NOT FOR EXECUTION

Legal Counsel for Public Construction

(RFP-604529-23)

LEGAL COUNSEL FOR PUBLIC CONSTRUCTION

(RFP-604529-23)

THIS AGREEMENT is made and entered into this _____ day of ________________, 20____, by and between SEMINOLE COUNTY, a charter county and political subdivision of the State of Florida, whose address is Seminole County Services Building, 1101 E. 1st Street, Sanford, Florida 32771, in this Agreement referred to as “COUNTY”, and

______________________________________________________________, whose address is

______________________________________________________________, in this Agreement referred to as “ATTORNEY”.

W I T N E S S E T H:

WHEREAS, COUNTY desires to retain the services of a competent and qualified attorney to provide legal services to COUNTY for construction claims and litigation related to Seminole

County’s public construction projects; and

WHEREAS, COUNTY has requested and received proposals for the retention of the services of an attorney; and

WHEREAS, ATTORNEY is competent, qualified, and duly authorized to practice law in the State of Florida and the United States District Court for the Middle District of Florida and desires to provide professional legal services to COUNTY according to the terms and conditions stated in this Agreement, NOW, THEREFORE, in consideration of the mutual understandings and covenants set forth in this Agreement, COUNTY and ATTORNEY agree as follows:

Section 1. Services. ATTORNEY shall provide timely professional services for

COUNTY in the field of public construction contract litigation, dispute resolution, and dispute avoidance and specifically perform those services set forth in the Scope of Services attached to

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and incorporated in this Agreement as Exhibit A. ATTORNEY shall serve as co-counsel on an as-needed basis with COUNTY in-house staff attorneys in public construction litigation and dispute resolution and as an on-call consultant in public construction matters. All services are to be performed on an as-needed basis. This Agreement alone does not authorize the performance of any services or require COUNTY to authorize services.

Section 2. Requests for Services.

(a) Requests for performance of professional services by ATTORNEY under this

Agreement will be made in writing by the Deputy County Attorney or his or her designee on behalf of COUNTY. Each Request for Services will be numbered and will describe the services required, state the dates for commencement and completion, and state limitations on the Scope of Services or on the amount of compensation, if any. COUNTY makes no promise as to the number of service requests or that ATTORNEY will perform any services for COUNTY under this Agreement.

COUNTY reserves the right to contract with other parties for the services contemplated by this

Agreement when it is determined by COUNTY to be in the best interest of COUNTY to do so.

(b) It is recognized that questions in the day-to-day conduct of performance pursuant to this Agreement may arise. COUNTY designates the Deputy County Attorney as COUNTY’s employee to whom to address all communications pertaining to the day-to-day conduct of this

Agreement. 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.

(c) Expiration of the term of this Agreement will have no effect upon Requests for

Services issued pursuant to this Agreement and prior to the expiration date. Obligations of both parties entered under such Requests for Services will remain in effect until completion of the work authorized by the respective Request for Services or the conclusion of litigation in which

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ATTORNEY represents COUNTY, whichever occurs first. No additional Requests for Services may be issued after the expiration of this Agreement nor may any Requests for Services that survive expiration of this Agreement’s term be amended to add additional services beyond those expressed prior to this Agreement’s termination.

Section 3. Changes in the Scope of Services. COUNTY or ATTORNEY may request changes that would increase, decrease, or otherwise modify the Scope of Services. Such changes and method of compensation must be authorized by COUNTY in writing and duly signed by the parties.

Section 4. Responsibilities of ATTORNEY.

(a) ATTORNEY shall timely provide the professional services and facilities required to assist COUNTY in the field of public construction contract litigation, dispute resolution, and dispute avoidance.

(b) ATTORNEY shall keep abreast of statutes, regulations, codes, and applicable case law in all areas of responsibility at ATTORNEY’s sole expense.

(c) _________________________, Esquire is designated as the attorney to provide services to COUNTY.

(d) ATTORNEY shall utilize associates and legal assistants or paralegals under the supervision of ATTORNEY, where appropriate, to accomplish cost effective performance of services. ATTORNEY shall plan budgets for the defense of cases in terms of the use of experts and related matters.

(e) It is the responsibility of ATTORNEY to specifically request all required information and to allow for reasonably sufficient time to review all information so as not to delay performance under this Agreement without good cause.

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(f) ATTORNEY is responsible for the professional quality, technical accuracy, competence and methodology of the work done under this Agreement. ATTORNEY shall correct or revise any errors or deficiencies in the work performed under this Agreement that results from the negligence of ATTORNEY without additional compensation.

(g) COUNTY’s review of, approval and acceptance of, or payment for the materials or services required under this Agreement does not operate as a waiver of any rights under this

Agreement, or of any cause of action arising out of the performance of this Agreement. ATTORNEY is and will remain liable to COUNTY, in accordance with applicable law, for all damages to

COUNTY caused by ATTORNEY’s performance of any services or provision of any materials under this Agreement.

Section 5. Payment for Services and Billing.

(a) In consideration of the promises and the faithful performance by ATTORNEY of

ATTORNEY’s obligations, COUNTY shall pay ATTORNEY a fee based on a “Time Basis

Method.” COUNTY shall compensate ATTORNEY at the rates as reflected in Exhibit C, Contract

Pricing, for all services authorized and performed.

(b) Authorized services may contain a “Limitation of Funds” amount. ATTORNEY is not authorized to exceed that amount without the prior approval of COUNTY. The approval, if given, will be in writing and indicate a new “Limitation of Funds” amount.

(c) In lieu of or in addition to establishment of a Limitation of Funds amount, COUNTY may provide for a “Not to Exceed” amount for any service authorization.

(d) COUNTY shall compensate ATTORNEY for the actual work hours required to perform the services authorized. Such actual work hours may not include compensation for travel time to or from the Seminole County Attorney’s Office or travel time to or from court appearances.

COUNTY shall make payment to ATTORNEY when requested as work progresses, but not more

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than once monthly for services rendered. ATTORNEY shall provide an itemized invoice based on actual services rendered, including, but not limited to, the following information:

(1) The name and address of ATTORNEY.

(2) Contract Number.

(3) Request for Services Number.

(4) A complete and accurate time record of services performed by ATTORNEY in increments of one-tenth (1/10) of an hour for all services performed by ATTORNEY during that month and for which COUNTY is being billed and the name of the individual who performed each service.

(5) A description of the services rendered in Section 5(d)(4) above, corresponding to the one-tenth (1/10) time increments, with sufficient detail to identify the exact nature of the work performed. As an example of the specificity required, it would not be appropriate to simply list the service performed as “research”; rather it is required that the specific matter being researched be defined in such detail as would permit a determination to be made as to the necessity for the research and whether the time attributable to it is reasonable.

(6) Submittal instructions for invoices are as follows:

The original invoice must be emailed to:

AP@SeminoleClerk.org

The original invoice may also be mailed or delivered to:

Director of County Comptroller’s Office Seminole County Board of County Commissioners

P.O. Box 8080 Sanford, FL 32772-8080

A copy of the invoice must be sent to:

mailto:AP@SeminoleClerk.org

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Deputy County Attorney Seminole County Attorney’s Office

County Services Building 1101 E.1st Street Sanford, Florida 32771

(e) ATTORNEY will also be entitled to payment from COUNTY for reimbursement at cost for court reporter fees and approved costs associated with litigation on behalf of COUNTY and document scan costs at actual cost.

Section 6. General Terms and Payment.

(a) Upon satisfactory completion of all work required under service authorizations issued under this Agreement or any supplement to it and upon acceptance of the work by

COUNTY, ATTORNEY may invoice COUNTY for the full amount of compensation provided for under the terms of this Agreement, less any amount already paid by COUNTY. Upon review and approval of ATTORNEY’s invoice, COUNTY shall pay ATTORNEY the approved amount in accordance with the provisions of Chapter 218, Part VII, Florida Statutes. Each service authorization will be treated separately for final payment purposes.

(b) COUNTY may perform or have performed an audit of the records of ATTORNEY at any time during the term of this Agreement and after final payment to support final payment under any service authorization issued under this Agreement. Audits may be performed at a time mutually agreeable to ATTORNEY and COUNTY. Total compensation to ATTORNEY 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 ATTORNEY. Performance of this audit will not delay final payment as provided in Section 6(a) above.

(c) ATTORNEY shall maintain any and all books, documents, papers, accounting records, and other evidences pertaining to services performed under this Agreement in such a manner as will readily conform to the terms of this Agreement. ATTORNEY shall make such

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materials available at ATTORNEY’s office at all reasonable times during the term of this

Agreement and for five (5) years from the date of final payment under this Agreement for audit or inspection as provided for in Section 6(b) above. ATTORNEY shall maintain separate accounting records for each service authorization.

(d) In the event any audit or inspection conducted after final payment, but within the period provided in Section 6(c) above, reveals any overpayment by COUNTY to ATTORNEY under the terms of this Agreement, ATTORNEY shall refund such overpayment to COUNTY within thirty (30) days of COUNTY’s notice of the overpayment to ATTORNEY.

Section 7. Ownership of Documents. All legal opinions or any other form of written instrument or document that may result from ATTORNEY’s services or that is created during the course of ATTORNEY’s performance under this Agreement will become the property of

COUNTY after final payment is made to ATTORNEY. However, ATTORNEY retains the right to retain copies of its work product and to use them for appropriate purposes.

Section 8. Term. This Agreement becomes effective upon execution by COUNTY and continues for a period of three (3) years. At the option of COUNTY, this Agreement may be renewed for two (2) successive periods not to exceed one (1) year each, unless terminated as provided in this Agreement.

Section 9. No Contingent Fees. ATTORNEY warrants that it has not employed or retained any company or persons, other than a bona fide employee working solely for

ATTORNEY, to solicit or secure this Agreement and that ATTORNEY has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for ATTORNEY, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from award or making of this Agreement. For the breach or violation of this provision, COUNTY has the right to terminate this Agreement, at its sole discretion and

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without liability, and to deduct from the price of this Agreement or otherwise recover the full amount of such fee, commission, percentage, gift, or consideration.

Section 10. Equal Opportunity Employment. ATTORNEY shall not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, disability, or national origin. ATTORNEY shall take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, disability, or national origin. This provision includes, but is not limited to the following: employment, upgrading, demotion, or transfer; recruitment advertising;

layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

Section 11. Conflict of Interest.

(a) ATTORNEY shall not engage in any action that would create a conflict of interest in the performance of its obligations pursuant to this Agreement with COUNTY or violate or cause others to violate the provisions of Chapter 112, Part III, Florida Statutes, relating to ethics in government.

(b) ATTORNEY 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 ATTORNEY 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.

Section 12. Assignment. Neither this Agreement nor any interest in it may be assigned, transferred, or otherwise encumbered under any circumstances by either party without prior written consent of the other party and in such cases only by a document of equal dignity with this

Agreement.

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Section 13. Subcontractors. ATTORNEY shall first secure the prior written approval of

COUNTY before engaging or contracting for the services of any subcontractors under this

Agreement. ATTORNEY will remain fully responsible to COUNTY for the services of any subcontractors under this Agreement.

Section 14. Independent Contractor. Nothing in this Agreement is intended or may be construed as, in any manner, creating, or establishing a relationship of co-partners between the parties or as constituting ATTORNEY, including its officers, employees, and agents as an agent, representative, or employee of COUNTY for any purpose or in any manner whatsoever.

ATTORNEY is and will remain an independent contractor with respect to all services performed under this Agreement.

Section 15. Indemnification of COUNTY.

(a) ATTORNEY shall hold harmless, indemnify, and defend COUNTY, its commissioners, officers, employees, and agents against any and all claims, losses, damages, or lawsuits for damages arising from, allegedly arising from, or related to ATTORNEY’s provision of services under this Agreement caused by ATTORNEY’s act or omission in the performance of this Agreement.

(b) ATTORNEY shall require all subcontractors to enter an agreement containing the provisions set forth in the preceding subsection in which agreement the subcontractors fully indemnify COUNTY in accordance with this Agreement.

Section 16. Insurance.

(a) ATTORNEY shall maintain at all times throughout the duration of this contract, and at its sole expense, the insurance required under this Section and have this insurance approved by COUNTY’s Risk Program Manager with the Resource Management Department.

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(1) ATTORNEY shall require and ensure that each of its sub-Vendors/sub-

Contractors providing services under this Agreement (if any) procures and maintains until the completion of their respective services, insurance of the types and to the limits specified in this

Agreement.

(2) Neither approval by COUNTY nor failure by COUNTY to disapprove the insurance furnished by ATTORNEY will relieve ATTORNEY of its full responsibility for liability, damages, and accidents.

(3) Neither COUNTY’s review of the coverage afforded by or the provisions of the policies of insurance purchased and maintained by ATTORNEY in accordance with this

Section, nor COUNTY’s decisions to raise or not to raise any objections about either or both, in any way relieves or decreases the liability of ATTORNEY.

(4) If COUNTY elects to raise an objection to the coverage afforded by or the provisions of the insurance furnished, ATTORNEY shall promptly provide to COUNTY such additional information as COUNTY may reasonably request, and ATTORNEY shall remedy any deficiencies in the policies of insurance within ten (10) days.

(5) COUNTY’s authority to object to insurance does not in any way whatsoever give rise to any duty on the part of COUNTY to exercise this authority for the benefit of

ATTORNEY or any other party.

(b) General Requirements.

(1) Upon COUNTY’s request, ATTORNEY shall furnish COUNTY with a current Certificate of Insurance signed by an authorized representative of the insurer evidencing the insurance required by this Section and Exhibit B, and including the following as Certificate

Holder:

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Seminole County, Florida Seminole County Services Building

1101 E. 1st Street Sanford, FL 32771

The Certificate of Insurance must evidence, and all policies must be endorsed to provide the

COUNTY with, not less than thirty (30) days (10 days for non-payment) written notice prior to the cancellation or non-renewal of coverage. Until such time as the insurance is no longer required to be maintained, ATTORNEY shall provide COUNTY with a renewal or replacement Certificate of Insurance before the expiration or replacement of the insurance for which a previous certificate has been provided.

(2) In addition to providing the Certificate of Insurance, upon request of the

COUNTY, ATTORNEY shall provide COUNTY with a certified copy of each of the policies of insurance providing the coverage required by this Agreement within thirty (30) days after receipt of the request. Certified copies of policies may only be provided by the Insurer, not the agent or broker.

(3) Deductible and self-insured retention amounts must be declared to and approved by COUNTY and must be reduced or eliminated upon written request from COUNTY.

The risk of loss within the deductible amount, if any, in the insurance purchased and maintained pursuant to this document must be borne by ATTORNEY.

(4) The insurer’s cost of defense, including attorney’s fees and attorney’s fees on appeal must not be included within the policy limits but must remain the responsibility of insurer.

(5) In the event of loss covered by Property Insurance, the proceeds of a claim must be paid to COUNTY, and COUNTY shall apportion the proceeds between COUNTY and

ATTORNEY as their interests may appear.

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(6) Additional Insured: Seminole County, Florida, its officials, officers, and employees must be included as Additional Insureds under General Liability, Umbrella Liability, and Business Auto policies.

(7) Coverage: The insurance provided by ATTORNEY pursuant to this

Agreement must apply on a primary and non-contributory basis and any other insurance or self-insurance maintained by the Seminole County Board of County Commissioners or COUNTY’s officials, officers, or employees will be in excess of and not contributing with the insurance provided by ATTORNEY.

(8) Waiver of Subrogation: All policies must be endorsed to provide a Waiver of Subrogation clause in favor of the Seminole County, Florida and its respective officials, officers, and employees. This Waiver of Subrogation requirement does not apply to any policy that includes a condition that specifically prohibits such an endorsement or voids coverage should the Named

Insured enter into such an agreement on a pre-loss basis.

(9) Provision: Commercial General Liability and Umbrella Liability Policies required by this Agreement must be provided on an occurrence rather than a claims-made basis.

(c) Insurance Company Requirements. Insurance companies providing the insurance must meet the following requirements.

(1) Such companies must be either: (a) authorized by maintaining Certificates of Authority or Letters of Eligibility issued to the companies by the Department of Insurance of the State of Florida to conduct business in the State of Florida, or (b) with respect only to the coverage required by this agreement for Workers’ Compensation/Employers’ Liability, authorized as a group self-insurer by Section 624.4621, Florida Statutes, as this statute may be amended from time to time.

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(2) In addition, such companies other than those authorized by Section

624.4621, Florida Statutes, as this statute may be amended from time to time, must have and maintain a Best’s Rating of “A-” or better and a Financial Size Category of “VII” or better according to A.M. Best Company.

(3) If, during the period which an insurance company is providing the insurance coverage required by this Agreement, an insurance company (A) loses its Certificate of Authority or Letter of Eligibility, (B) no longer complies with Section 624.4621, Florida Statutes, as this statute may be amended from time to time, or (C) fails to maintain the Best’s Rating and Financial

Size Category, then ATTORNEY shall immediately notify COUNTY as soon as ATTORNEY has knowledge of any such circumstance and, upon request of COUNTY, 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 ATTORNEY has replaced the unacceptable insurer with an insurer acceptable to the COUNTY, ATTORNEY will be deemed to be in default of this Agreement.

(d) Specifications. Without limiting any of the other obligations or liabilities of

ATTORNEY, ATTORNEY, at ATTORNEY’s sole expense, shall procure, maintain, and keep in force amounts and types of insurance conforming to the minimum requirements set forth in Exhibit

B. Except as otherwise specified in this Agreement, the insurance must become effective prior to the commencement of work by ATTORNEY and must be maintained in force until final completion or such other time as required by this Agreement. The amounts and types of insurance must conform to the following minimum requirements:

(1) Workers’ Compensation/Employer’s Liability.

(A) ATTORNEY’s insurance must cover ATTORNEY and its subcontractors of every tier for those sources of liability which would be covered by the latest

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edition of the standard Workers’ Compensation and Employers Liability Policy (NCCI Form WC

00 00 00 A), as filed for use in Florida by the National Council on Compensation Insurance. In addition to coverage for the Florida Workers’ Compensation Act, where appropriate, coverage is to be included for the United States Longshoremen and Harbor Worker’s Compensation Act, Federal Employer’s Liability Act and any other applicable Federal or State law.

(B) Subject to the restrictions of coverage found in the standard

Workers’ Compensation and Employer’s Liability Policy, there must be no maximum limit on the amount of coverage for liability imposed by the Florida Workers’ Compensation Act, and if applicable, the United States Longshoremen’s and Harbor Worker’s Compensation Act or any other coverage customarily insured under Part One of the standard Workers’ Compensation and

Employers Liability Policy.

(C) The minimum limits to be maintained by ATTORNEY are as specified in Exhibit B.

(D) If ATTORNEY asserts an exemption to the provisions of Chapter

440, Florida Statutes, Workers’ Compensation, ATTORNEY shall provide notification to

COUNTY’s Risk Manager with the Resource Management Department and shall complete the

COUNTY’s Workers’ Compensation Waiver Request. Approval of exemption is subject to

COUNTY’s sole discretion.

(E) Any Vendor/Contractor using an employee leasing company shall complete the COUNTY’s Leased Employee Affidavit.

(2) Commercial General Liability.

(A) ATTORNEY’s insurance must cover ATTORNEY for those sources of liability which would be covered by the latest edition of the standard Commercial

General Liability Coverage Form (ISO Form CG 00 01), as filed for use in the State of Florida by

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the Insurance Services Office. ATTORNEY agrees coverage shall not contain any endorsement(s) excluding or limiting Products/Completed Operations, Contractual Liability, or Separation of

Insureds.

(B) The minimum limits to be maintained by ATTORNEY are as specified in Exhibit B.

(C) Seminole County, Florida, its officials, officers, and employees are to be included as Additional Insureds. ISO Endorsement CG 20 10 or CG 20 26 and CG 20 37or their equivalent must be used to provide such Additional Insured status.

(3) Business Auto Policy.

(A) ATTORNEY ‘s insurance must cover ATTORNEY for those sources of liability which would be covered by Section II of the latest edition of the standard

Business Auto Policy (ISO Form CA 00 01), as filed for use in the State of Florida by the

Insurance Services Office. Coverage must include owned, non-owned, and hired autos or any auto. In the event ATTORNEY does not own automobiles, ATTORNEY shall maintain coverage for hired and non-owned auto liability, which may be satisfied by way of endorsement to the

Commercial General Liability policy or separate Business Auto Liability policy. If the contract involves operations governed by Sections 29 or 30 of the Motor Carrier Act of 1980, endorsement

MCS-90 is required.

(B) The minimum limits to be maintained by ATTORNEY are as specified in Exhibit B.

(4) Professional Liability.

(A) If required by Exhibit B, ATTORNEY shall provide a Professional

Liability policy which must cover professional misconduct or lack of ordinary skill for those positions defined in the scope of services of this contract.

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(i) In the event that the professional liability insurance required by this contract is written on a claims-made basis, ATTORNEY warrants that any retroactive date under the policy will precede the effective date of this Agreement and that either continuous coverage will be maintained or an extended discovery period will be exercised for a period of three

(3) years beginning at the time work under this contract is completed.

(ii) If such insurance is maintained on a claims-made basis, ATTORNEY shall maintain such insurance for an additional period of three (3) years following termination of the contract.

(iii) If ATTORNEY contends that any of the insurance it maintains pursuant to other sections of this clause satisfies this requirement (or otherwise insures the risks described in this section), then ATTORNEY shall provide proof of such satisfactory coverage, subject to approval of COUNTY.

(B) The minimum limits to be maintained by ATTORNEY are as specified in Exhibit B.

(5) Blanket Commercial Fidelity Bond.

(A) ATTORNEY shall maintain Employee Dishonesty coverage for

COUNTY-owned property and money in the care, custody, and control of the contractor.

Coverage limits shall not be less than the amount specified in Exhibit B. The policy shall include as loss payee Seminole County, Florida.

(e) The maintenance of the insurance coverage set forth in this Section may not be construed to limit or have the effect of limiting ATTORNEY’s liability under the provisions of

Section 15(a) above concerning indemnification.

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Section 17. Dispute Resolution.

(a) In the event of a dispute related to any performance or payment obligation arising under this Agreement, the parties shall exhaust COUNTY administrative dispute resolution procedures prior to filing a lawsuit or otherwise pursuing legal remedies. COUNTY administrative dispute resolution procedures for proper invoice and payment disputes are set forth in Section

22.15, “Prompt Payment Procedures,” Seminole County Administrative Code. COUNTY administrative dispute resolution procedures for contract claims related to this Agreement, other than for proper invoice and payment disputes, are set forth in Section 3.5541, “Contract Claims,”

Seminole County Administrative Code.

(b) In any lawsuit or legal proceeding arising under this Agreement, ATTORNEY hereby waives any claim or defense based on facts or evidentiary materials that were not presented for consideration in COUNTY administrative dispute resolution procedures set forth in subsection

(a) above of which ATTORNEY had knowledge and failed to present during COUNTY administrative dispute resolution procedures.

(c) In the event that COUNTY administrative dispute resolution procedures are exhausted and a lawsuit or legal proceeding is filed, the parties shall exercise best efforts to resolve disputes through voluntary mediation and to select a mutually acceptable mediator. The parties participating in the voluntary mediation shall share the costs of mediation equally.

Section 18. Services Not Provided For. No claim for services provided by ATTORNEY not specifically provided for in a Request for Services issued under this Agreement will be honored by COUNTY.

Section 19. All Prior Agreements Superseded. This Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained in this Agreement, and the parties agree that there are no

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commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained or referred to in this Agreement. Accordingly, it is agreed that no deviation from the terms of this Agreement will be predicated upon any prior representations or agreements, whether oral or written.

Section 20. Modifications, Amendments, or Alterations. No modification, amendment, or alteration in the terms or conditions contained in this Agreement will be effective unless contained in a written amendment executed with the same formality and of equal dignity with this

Agreement.

Section 21. Agreement and Service Authorization in Conflict. Except as otherwise set forth in this Agreement, whenever the terms of this Agreement conflict with any service authorization, this Agreement controls.

Section 22. Rights at Law Retained. The rights and remedies of COUNTY provided under this Agreement are in addition and supplemental to any other rights and remedies provided by law.

Section 23. Governing Law, Jurisdiction, and Venue. The laws of the State of Florida govern the validity, enforcement, and interpretation of this Agreement. The sole jurisdiction and venue for any legal action in connection with this Agreement will be in the courts of Seminole

County, Florida.

Section 24. Notices. Whenever either party desires to give notice to the other, it must be given by written notice sent by certified United States mail, return receipt requested addressed to the party for whom it is intended at the place last specified. The place for giving of notice will remain such until it has been changed by written notice in compliance with the provisions of this

Section. For the present, the parties designate the following as the respective places for giving of notice:

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For COUNTY:

Seminole County Attorney’s Office Seminole County Services Building 1101 E 1st Street

Sanford, FL 32771

For ATTORNEY:

Section 25. Termination.

(a) By written notice to ATTORNEY, COUNTY may terminate this Agreement or any

Request for Services issued under this Agreement, in whole or in part, at any time, either for

COUNTY’s convenience or because of the failure of ATTORNEY to fulfill its obligations under this Agreement. Upon receipt of such notice:

(1) ATTORNEY shall immediately discontinue all services affected unless the notice directs otherwise; and

(2) ATTORNEY shall deliver to COUNTY all data, drawings, specifications, reports, estimates, summaries, and any and all such other information and materials of whatever type or nature as may have been accumulated by ATTORNEY in performing this Agreement, whether completed or in process.

(b) If the termination is for the convenience of COUNTY, ATTORNEY will be paid compensation for services performed to the date of termination.

(c) If the termination is due to the failure of ATTORNEY to fulfill its obligations under this Agreement, COUNTY may take over the work and carry it to completion by other agreements or otherwise. In such case, ATTORNEY will be liable to COUNTY for all reasonable additional costs associated with ATTORNEY’s failure to fulfill its obligations under this Agreement.

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(d) ATTORNEY 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

ATTORNEY. ATTORNEY will be responsible and liable for the actions of its subcontractors, agents, employees, persons, and entities of a similar type or nature. Matters beyond the fault or negligence of ATTORNEY include, but are not limited to, acts of God or of the public enemy, acts of COUNTY in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, but, in every case, the failure to perform must be beyond the control and without the fault or negligence of ATTORNEY.

(e) If after notice of termination for ATTORNEY’s failure to fulfill its obligations under this Agreement, it is determined that ATTORNEY did not so fail, the termination will be conclusively deemed to have been effected for the convenience of COUNTY. In such event, compensation for services performed will be made as provided in Section 24(b) above.

(f) The rights and remedies of COUNTY provided for in this Section are in addition and supplemental to any and all other rights and remedies provided by law or under this Agreement.

Section 26. Headings and Captions. All headings and captions contained in this

Agreement are provided for convenience only, do not constitute a part of this Agreement, and may not be used to define, describe, interpret or construe any provision of this Agreement.

Section 27. E-Verify System Registration.

(a) ATTORNEY must register with and use the E-Verify system to verify the work authorization status of all new employees prior to entering into this Agreement with COUNTY. If

COUNTY provides written approval to ATTORNEY for engaging with or contracting for the services of any subcontractors under this Agreement, ATTORNEY must require certification from the subcontractor that at the time of certification, the subcontractor does not employ, contract, or subcontract with an unauthorized alien. ATTORNEY must maintain a copy of the foregoing

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certification from the subcontractor for the duration of the agreement with the subcontractor.

(b) If COUNTY has a good faith belief that ATTORNEY has knowingly violated this

Section, COUNTY shall terminate this Agreement. If COUNTY terminates this Agreement with

ATTORNEY, ATTORNEY may not be awarded a public contract for at least one (1) year after the date on which this Agreement is terminated. If COUNTY has a good faith belief that a subcontractor knowingly violated this Section, but ATTORNEY otherwise complied with this

Section, COUNTY must promptly notify ATTORNEY and order ATTORNEY to immediately terminate its agreement with the subcontractor.

(c) ATTORNEY shall execute and return the Affidavit of E-Verify Requirements

Compliance, attached to this Agreement as Exhibit D, to COUNTY.

IN WITNESS WHEREOF, the parties have made and executed this Agreement for the purposes stated above.

ATTEST: ____________________________________

_________________________________ By: ____________________________________

[CORPORATE SEAL] Date: ____________________________________

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SEMINOLE COUNTY, FLORIDA

By:

Witness TAMMY ROBERTS, Procurement Administrator

Print Name Date:

Witness

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For the use and reliance of Within the authority delegated by the County

Seminole County only. Manager pursuant to Section 3.554, Seminole County Administrative Code.

Approved as to form and legal sufficiency.

County Attorney GLK/lpk 3/27/23 T:\Users\Legal Secretary CSB\Purchasing 2023\RFP-604529.docx

Attachment:

Exhibit A – Scope of Services

Exhibit B – Insurance Requirements

Exhibit C – Contract Pricing

EXHIBIT A

SCOPE OF WORK

The ATTORNEY will provide professional legal services for the County on an as needed basis and as authorized by specific request for service, including but not limited to:

1. Provide advice, review, analysis and drafting with respect to new contract documents, for the purposes of preparing legally enforceable agreements, and ensuring that the County is aware of potential areas of exposure prior to entering agreements. This includes contract documents, including American Institute of Architects {AIA) construction documents, bid specifications and related documents.

2. Provide specialized analysis of the merits of claims arising out of a contract, both on behalf of and against the County.

3. Alert the County to changes in statutory or case law that may impact County projects.

4. Provide legal services on a case-by-case basis relating to dispute avoidance, dispute resolution, and construction contract litigation.

5. Serve as lead, or co-counsel with attorneys from the County Attorney's Office in construction contract litigation in state and federal courts, including mediation and arbitration proceedings.

6. Provide guidance to the County with respect to selection of Owners' Representatives, and their scope of work, and with respect to insurance, warranty and bonding issues.

7. Hire litigation-related expert witnesses and consultants with prior County approval.

8. Prepare case budgets including estimated fees and costs for each case assigned to the firm. Provide to the County Attorney or designee, regular updates on case progress and opportunities for settlement.

9. Provide telephone consultation with the County Attorney or designee, or with County staff as authorized by the County Attorney or designee.

10. Provide other construction contract assistance to the County Attorney or designee upon request.

Requests for performance of professional services by the Attorney under this agreement shall be made in writing by the County's Deputy County Attorney or designee on behalf of the County.

Each request for services shall be numbered and shall describe the services required, state the dates for commencement and completion and state limitations on the scope of services or on the amount of compensation, if any. The County makes no promise as to the number of service requests nor that will the Attorney perform any services for the County under this Agreement.

RFP-604529-23/LAS - Legal Counsel For Seminole County Public Construction Projects

SEMINOLE COUNTY, FLORIDA

PROVISIONS FOR CONTRACTOR'S INSURANCE

Section 1 GENERAL The CONTRACTOR shall not commence Work until the CONTRACTOR has, at the CONTRACTOR'S own cost, procured the insurance required under this Section and such insurance has been approved by the COUNTY. All specifications noted herein are REQUIRED unless waived in writing by the COUNTY.

1.1 Before commencing Work, the CONTRACTOR shall furnish the COUNTY’S Purchasing and Contracts Division with a Certificate of Insurance on a current ACORD Form signed by an authorized representative of the insurer evidencing the insurance required by Section 3and including the following as Certificate Holder and Additional Interest as noted in the solicitation:

Seminole County Board of County Commissioners Attn: Purchasing and Contracts Division 1301 East Second Street Sanford, FL 32771

The Certificate of Insurance shall provide that the COUNTY’S purchasing and Contracts Division shall be given, by policy endorsement, not less than thirty (30) days written notice prior to the cancellation, or non-renewal. Such shall be endorsed on the policy or by another means acceptable to Seminole County. Until such time as the insurance is no longer required to be maintained by the CONTRACTOR, the CONTRACTOR shall provide the COUNTY’S Purchasing and Contracts Division with a renewal or replacement Certificate of Insurance before the expiration or replacement of the insurance for which a previous certificate has been provided.

1.2 Notice of Cancellation and/or Non-Renewal: A policy must be specifically endorsed to provide the COUNTY’S Purchasing and Contracts Division with written notice as required under Section 1.1 of cancellation and/or non-renewal.

1.3 The certificate shall have this Agreement number marked on its face.

1.4 In addition to providing the Certificate of Insurance, upon request as required by the COUNTY, the CONTRACTOR shall, within thirty (30) days after receipt of the request, provide the COUNTY with a certified copy of each of the policies of insurance providing the coverage required by this Section 3. Certified copies of policies may only be provided by the Insurer, not the Agent/Broker.

1.5 Neither approval by the COUNTY nor failure to disapprove the insurance furnished by the CONTRACTOR shall relieve the CONTRACTOR of the CONTRACTOR'S full responsibility for liability, damages and accidents.

1.6 Deductible/self-insured retention amounts must be declared to and approved by the COUNTY, and shall be reduced or eliminated upon written request from the COUNTY. The risk of loss within the deductible amount, if any, in the insurance purchased and maintained pursuant to this document will be borne by the CONTRACTOR.

1.7 The insurer's cost of defense including attorney's fees (and attorney's fees on appeal) shall not be included within the policy limits but shall remain the responsibility of insurer.

EXHIBIT B

RFP-604529-23/LAS - Legal Counsel for Seminole County Public Construction Projects

1.8 In the event of loss covered by Property Insurance, the proceeds of a claim shall be paid to the COUNTY, and the COUNTY shall apportion the proceeds between the COUNTY and the CONTRACTOR as their interests may appear.

1.9 Neither the COUNTY’S review of the coverage afforded by or the provisions of the policies of insurance purchased and maintained by the CONTRACTOR in accordance with this Section, nor the COUNTY’S decisions to raise or not to raise any objections about either or both, shall in no way relieve or decrease the liability of the CONTRACTOR. If the COUNTY elects to raise an objection to the coverage afforded by or the provisions of the insurance furnished, the CONTRACTOR shall promptly provide to the COUNTY such additional information as the COUNTY may reasonably request, and the CONTRACTOR shall remedy any deficiencies in the policies of insurance within ten (10) days.

1.10 The COUNTY’S authority to object to insurance shall not in any way whatsoever give rise to any duty on the part of the COUNTY to exercise this authority for the benefit of the CONTRACTOR or any other party.

1.11 ADDITIONAL INSURED: The Board of County Commissioners of Seminole County, Florida, its officials, officers and employees must be included as additional insured under General Liability, and Umbrella Liability policies. If the policy provides for a blanket additional insured coverage, please provide a copy of the section of the policy along with the COI. If the coverage does not exist, the policy must be endorsed to include the additional insured verbiage.

1.12 Coverage: The insurance provided by the CONTRACTOR pursuant to the Contract Documents shall apply on a primary and non-contributory basis and any other insurance or self-insurance maintained by the Board of County Commissioners of Seminole County, Florida or the COUNTY’S officials, officers or employees shall be excess of and not contributing with the insurance provided by the CONTRACTOR.

1.13 Waiver of Subrogation: All policies shall be endorsed to provide a Waiver of Subrogation clause in favor of the Board of County Commissioners of Seminole County Florida, its officials, officers and employees.

1.14 Provision: Commercial General Liability, Umbrella Liability and the Owners Protective Policies required by the Contract Documents shall be provided on an occurrence rather than a claims-made basis.

Section 2 INSURANCE COMPANY REQUIREMENTS Insurance companies providing the insurance under the Contract Documents must meet the following requirements.

2.1 Such companies must be authorized by maintaining Certificates of Authority issued to the companies by the Department of Insurance of the State of Florida to conduct business in the State of Florida.

2.2 In addition, such companies shall have and maintain a Best's Rating of "A-" or better and a Financial Size Category of "VII" or better according to A.M. Best Company.

2.3 If, during the period which an insurance company is providing the insurance coverage required by the Contract Documents, an insurance company shall: 1) lose its Certificate of Authority, or 2) fail to maintain the Best's Rating and Financial Size Category, the CONTRACTOR shall, as soon as the CONTRACTOR has knowledge of any such circumstance, immediately notify the COUNTY’S Purchasing and Contracts Division and upon request of the COUNTY, immediately replace the insurance coverage provided by the insurance company with a different insurance company meeting the requirements of the Contract Documents. Until such time as the CONTRACTOR has replaced the unacceptable insurer with an insurer acceptable to the COUNTY, the CONTRACTOR shall be deemed to be in default of the Contract Documents.

Section 3 SPECIFICATIONS Without limiting any of the other obligations or liabilities of the CONTRACTOR, the CONTRACTOR shall, at the CONTRACTOR'S sole expense, procure, maintain and keep in force amounts and types of insurance conforming to the minimum requirements set forth in this Section.

Except as otherwise specified in the Contract Documents, the insurance shall become effective upon execution of the Agreement by the CONTRACTOR and shall be maintained in force until Final Completion or such other time as required by the Contract Documents. Failure by the CONTRACTOR to maintain insurance coverage within the stated period and in compliance with the Insurance requirements of the COUNTY shall constitute a material breach of the Agreement, for which this Agreement may be immediately terminated by the COUNTY. The amounts and types of insurance shall conform to the following minimum requirements.

3.1 WORKERS' COMPENSATION/EMPLOYERS' LIABILITY (MANDATORY - NO

EXCEPTIONS)

3.1.1 The CONTRACTOR'S insurance shall cover the CONTRACTOR and its subcontractors of every tier for those sources of liability which would be covered by the latest edition of the standard Workers' Compensation and Employers Liability Policy, (NCCI Form WC 00 00 00 A), as filed for use in Florida by the National Council on Compensation Insurance. In addition to coverage for the Florida Workers Compensation Act, where appropriate, coverage is to be included for the United States Longshoremen and Harbor Workers' Compensation Act, Federal Employers' Liability Act and any other applicable federal or state law.

3.1.2 Subject to the restrictions of coverage found in the standard Workers' Compensation and Employers Liability Policy, there shall be no maximum limit on the amount of coverage for liability imposed by the Florida Workers' Compensation Act, the United States Longshoremen's and Harbor Workers' Compensation Act, or any other coverage customarily insured under Part One of the standard Workers' Compensation and Employers Liability Policy.

3.1.3 The minimum limits to be maintained by the CONTRACTOR are as specified in Section 4.1.

3.2 COMMERCIAL GENERAL LIABILITY

3.2.1 The CONTRACTOR'S insurance shall cover the CONTRACTOR for those sources of liability which would be covered by the latest edition of the standard Commercial General Liability Coverage Form (ISO Form CG 00 01), as filed for use in the State of Florida by the Insurance Services Office, without the attachment of restrictive endorsements other than the elimination of Coverage C. Medical Payment and the elimination of coverage for Fire Damage Legal Liability.

3.2.2 The CONTRACTOR shall maintain separate limits of coverage applicable only to the Work performed under the Contract Documents. The minimum limits to be maintained by the CONTRACTOR shall be those that would be provided with the attachment of the Amendment of

Limits of Insurance (Designated Construction Project(s) General Aggregate Limit) endorsement ISO Form CG 25 03 to a Commercial General Liability Policy with amounts as specified in Section

4.2. XCU (Explosion, Collapse, Underground property damage perils) shall not be excluded under the General Liability and Umbrella policy.

3.2.3 The CONTRACTOR (applicable to construction contracts only) shall continue to maintain…