Okaloosa County BOCC — January 21, 2014 — Hatch Mott — reading text

laws of the State of Florida. If a dispute arises out of or relates to this contract, or the breach thereof, and if said dispute cannot be settled through direct discussion between the parties, then the parties agree to first endeavor to settle the dispute in an amicable manner by mediation before having recourse to a judicial forum. In the event a dispute shall arise under or about this Agreement, then the prevailing party therein shall be entitled to recover from the non-prevailing party all costs, expenses, and attorney's fees which may be incurred on account of such dispute, whether or not suit or other legal or quasi-legal proceedings may be brought, as well as at every stage of any such proceedings from the time such dispute first arises through trial or other proceedings and all appellate processes. Any and all legal action necessary to enforce the Agreement shall be held in Okaloosa County, Florida. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shail be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder shal! preclude any other or further exercise thereof. ARTICLE 15: INDEPENDENT CONTRACTOR 15.1 15.2 The CONSULTANT is, and shall be, in the performance of all work services and activities under this Agreement, is an independent contractor and is not an employee, agent, or servant of the COUNTY. All persons engaged in any of the work or services performed pursuant to this Agreement shall at all times, and in all places, be subject to the CONSULTANT'S sole direction, supervision and control. The CONSULTANT shall exercise control over the means and manner in which it and its employees perform the work, and in all respects the CONSULTANT’s relationship and the relationship of its employees to the COUNTY shall be that of an independent contractor and not as employees or agents of the COUNTY. The CONSULTANT shail be solely responsible for withholding of all taxes, social security and insurance payments for its employees or agents. The CONSULTANT does not have the power or authority to bind the COUNTY in any promise, agreement or representation. Page 13 of 20 15.3 The CONSULTANT shall not pledge the COUNTY'S credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. ARTICLE 16: SUCCESSORS AND ASSIGNS 16.1 16.2 This Agreement shall be binding upon the COUNTY and the CONSULTANT and their respective partners, successors, heirs, assigns, and legal representatives. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the COUNTY and the CONSULTANT, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the COUNTY and the CONSULTANT and not for the benefit of any other party. Neither the COUNTY nor the CONSULTANT shall assign, sublet, or transfer any rights under or interests (including, but without limitation, monies that may become due or monies that are due) in this Agreement without the written consent of the other. However, nothing contained herein shall prevent or restrict the CONSULTANT from employing independent professional associates or subconsultants as the CONSULTANT may deem appropriate to assist in the performance of services hereunder. ARTICLE 17: SUBCONSULTANTS 17,1 17.2 17.3 For purposes of this agreement, the following firms shall be deemed approved Subconsultants as part of the CONSULTANT design team: - [list of approved subconsultants] included in Consultant's proposal The CONSULTANT shall have the right, with the COUNTY'S prior written consent, which shall not be unreasonably withheld, to employ other firms to serve as subconsultants to the CONSULTANT in connection with the CONSULTANT’s performance of the Basic Services and any Additional Services hereunder. The CONSULTANT agrees, at the COUNTY’s written request (which may be made by the COUNTY with or without cause), promptly to terminate the services of any such subconsultant and promptly replace each such terminated person or firm with a person or firm of comparable experience approved by the COUNTY in writing. ARTICLE 18: PRIVILEGED INFORMATION The CONSULTANT agrees, during the period of this Agreement, not to knowingly divulge, furnish or make available to any third person, firm or organization, without the COUNTY’s prior written consent, or unless incident to the proper performance of the CONSULTANT’s obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any information concerning the services to be rendered by the CONSULTANT or any subconsultant pursuant to this Agreement. Page 14 of 20 ARTICLE 19: NONDISCRIMINATION The CONSULTANT agrees to comply with all local, state, and Federal laws and ordinances regarding discrimination in employment against any individual on the basis of race, color, religion, sex, national origin, physical or mental impairment, or age. In particular, the CONSULTANT agrees to comply with the provisions of Title 7 of the Civil Rights Act of 1964, as amended, and applicable Executive Orders, including, but not limited to, Executive Order No. 11246. ARTICLE 20: CONTINGENT FEES 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 any other consideration, contingent upon or resulting from the award or making of this Agreement. ARTICLE 21: WARRANTY The CONSULTANT warrants that its Services under this Agreement shall be performed in a thorough, efficient and workmanlike manner, promptly and with due diligence and care, and in accordance with the practice of the profession. ARTICLE 22: ESTIMATES OF PROBABLE COSTS If and as requested in an authorized Task Order, the CONSULTANT shall provide opinions of cost, financial analyses, economic feasibility projections, and schedules for Services to the best of its ability based on historical observations of the cost or price of labor and materials in comparable projects. The CONSULTANT makes no warranty that the COUNTY’s actual project costs, financial aspects, economic feasibility, or schedules will not vary from the CONSULTANT'S opinions, analyses, projections, or estimates. ARTICLE 23: FORCE EURE: The CONSULTANT is not responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the CONSULTANT. In any such event, the CONSULTANT’s contract price and schedule shall be equitably adjusted. ARTICLE 24: LIMITATION OF LIABILITY The CONSULTANT shall not be held liable for the acts or omissions of the COUNTY’s contractors, subcontractors, vendors or their employees and agents. ARTICLE 25: SHOP DRAWING REVIEW 25.1. As required per authorized Task Order, the CONSULTANT shall review construction contractor submittals, such as shop drawings, product data, samples and other data, Page 15 of 20 25.2 only for the limited purpose of checking for conformance with the design concept and the information expressed in the contract documents. The CONSULTANT’s review shail be conducted with reasonable promptness while allowing sufficient time to permit adequate review. The CONSULTANT shail not be required to review partial submission or those for which submissions of correlated items have not been received, until such time that full submission or correlated items are received. ARTICLE 26: WAIVER The waiver by either party of any breach of any term, covenant, condition or agreement contained herein or any default in the performance of any obligations hereunder shall not be deemed to be a waiver or any other breach or default of the same or of any other term, covenant, condition, agreement or obligation. No waiver of any rights under this Agreement shall be binding unless it is in writing signed by the party waiving such rights. ARTICLE 27: TITLE TO PLANS AND SPECIFICATIONS Drawings, calculations, specifications, reports, plans, field data, computer software enhancements, CAD files and such other data and information compiled or prepared by the CONSULTANT pursuant to this Agreement which the COUNTY may require CONSULTANT to supply in accordance with the Agreement, shall be and shall remain the property of the COUNTY. Any reuse of the above referenced work product other than for the specific project and intent for which the information was prepared by the CONSULTANT shall be at user's sole risk and without liability to the CONSULTANT, ARTICLE 28: SEVERABILITY If any provision of this Agreement or any application thereof to any person or circumstances shail, ta any extent, be invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby, and each provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. ARTICLE 29: MODIFICATIONS TO AGREEMENT 29.1 The COUNTY reserves the right to make changes in the work, including alterations, reductions therein or additions thereto. Upon receipt by the CONSULTANT of the County's notification of a contemplated change, the CONSULTANT shall (1) if requested by the COUNTY, provide an estimate for the increase or decrease in cost due to the contemplated change, (2) advise the COUNTY in writing if the contemplated change shall affect the CONSULTANT’s ability to meet the completion dates or schedules established by this Agreement or the original Task Order, and (3) notify the COUNTY of any estimated change in the completion date. Page 16 of 20 29.2 If the COUNTY so instructs in writing, the CONSULTANT shall suspend work on that portion of the Work affected by the contemplated change, pending the COUNTY’s decision to proceed with the change. 29.3 If the COUNTY elects to make the change, the COUNTY shall issue a contract amendment, task order amendment, or change order and the CONSULTANT shall not commence work on any such change until such written amendment or change order has been issued and signed by each of the parties. 29.4 None of the provisions, terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise altered, except by a written instrument executed by the parties hereto. ARTICLE 30: NOTICES Any and all notices required or authorized ta be given pursuant to this Agreement, shall be given in writing and either hand-delivered, sent by facsimile or addressed and sent by certified or registered mail, postage prepaid, and return receipt requested, as follows: If to COUNTY: Okaloosa County Airports Attn: Mr. Sunil Harman 1701 State Road 85 North Eglin Air Force Base, Fiorida 32542 with copy to: Okaloosa County Purchasing Attn: Contracts Coordinator 602C North Pearl Street Crestview, Florida 32536 If to CONSULTANT: [Name/address] Hatch Mott MacDonald Florida, LLC Attention: [Contact] 3111 North 12th Avenue Pensacola, Floria 32504 Attn: Heath Jenkins Tel: 850-602-9778 with copy to: _[Name/address] Email: heath jenkins@hatchmott.com Attention: [Contact] Page 17 of 20 ARTICLE 31: FEDERAL AND STATE TAX 31.1 31.2 The COUNTY is exempt from payment of Florida State Sales and Use Taxes. The COUNTY will sign an exemption certificate submitted by the CONSULTANT. The CONSULTANT shall not be exempted from paying sales tax to its suppliers for