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8GREEMENT FOR PROFESSIONAL SERVII
THIS AGREEMENT is entered into on the - day of . 1999, by and between City a/Clermont, hereinafter called
"CLIENT," and BOYLE ENGINEERING CORPORATION, a California corporation, hereinafter called "BoYLE," as follows:
CLIENT engages BOYLE to perfonn professional services for a project known and described as Professional Engineering Services related to the design
of the Orange Avenue Cul-de-sac, School and Second Street water mains, Central Business District parking and Waterfront Park boat dock,
hereinafter called the "PROJECT."
CLIENT and BOYLE, for mutual consideration, agree as follows:
l.
Scope of Services. BOYLE agrees to provide and perform certain
professional services for CLIENT in connection with the PROJECT as set
forth in Exhibit "A" attached hereto and incorporated by this reference.
Schedule, BOYLE shall perform its services in accordance with the
schedule set forth in Exhibit "A." CLIENT agrees that BOYLE shall not be
responsible for delays which are due to causes beyond BOYLE'S reasonable
control. In the case ofany such delay, the time for completion of BOYLE'S
services hereunder shall be extended accordingly.
2.
3.
Compensation.
a.
Fees. CLIENT agrees to pay BOYLE a lump sum fee of$40,654. Fees
and all other charges will be billed monthly as the work progresses,
and the net amount shall be due at the time of billing. Should CLIENT
dispute in good faith any portion of an invoice, CLIENT shall pay' the
undisputed portion as provided herein. Interest of 1.5% per month
(but not exceeding the maximum rate allowable by law) will be
payable on any amounts wrongfully withheld or not paid within
thirty days of the billing date, payment thereafter to be applied first
to accrued interest and then to the principal unpaid amount. Any
attorneys' fees or other costs incurred in collecting any delinquent
amount shall be paid by CLIENT.
Project Delav. In the event that BOYLE'S services hereunder are
delayed for a period in excess of six months due to causes beyond
BOYLE'S reasonable control, BOYLE'S compensation shall be subject
to renegotiation.
b,
c.
Retention. If any portion of BOYLE'S fee is held in retention, such
amount shall be released within thirty days after completion of the
corresponding services. Interest shall be paid at the rate of 1.5% per
month on any retention amounts not paid within this thirty-day
period.
Partial Services. In the event any portion of the work prepared or
partially prepared by BOYLE is suspended, abandoned, or terminated,
CLIENT shall pay BOYLE for the work performed on such portion on
an hourly basis, not to exceed ~!nY maximum contract amount
specified herein.
d.
4.
Standard of Care, In the performance of its professional services, BOYLE
will use that degree of care and skill ordinarily exercised under similar
conditions in similar localities and no other warranties, express or implied,
are made or intended in any of BOYLE'S proposals, contracts or reports.
BOYLE shall be entitled to rely upon the accuracy of data and information
provided by CLIENT or others without independent review or evaluation
unless provided otherwise in Exhibit "A." BOYLE shall perform its
services in connection with applicable laws, rules, regulations and
standards that are in effect as of the date of this agreement. If any changes
occur in such laws, rules, regulations or standards that materially affect the
scope of work or schedule of this agreement, BOYLE'S compensation shall
be renegotiated accordingly.
Construction Safety and Methods, CLIENT agrees that in accordance
with generally accepted construction practices, the construction contractor
will be required to assume sole and complete responsibility for job site
conditions during the course of construction of the PROJECT, including
safety of all persons and property, and that this requirement shall be made
to apply continuously and not be limited to normal working hours. BOYLE
shall not have control over or charge of, and shall not be responsible for,
construction means, methods, techniques, sequences or procedures, as
these are solely the responsibility of the construction contractor. BOYLE
shall not have the authority to stop or reject the work of the construction
contractor.
5.
6.
Opinion of Construction Cost. Any Opinion of the Construction Cost
prepared by BOYLE represents its judgment as a design professional and is
supplied for the general guidance of CLIENT. Since BOYLE has no control
over the cost of labor and material, or over competitive bidding or market
conditions, BOYLE does not guarantee the accuracy of such opinions as
compared to contractor bids or actual cost to CLIENT.
Governmental Immunity, In performing the services required under this
agreement, BOYLE is acting as an agent of CLIENT, subject to the general
supervision and control of its governing body. As such, to the fullest
extent permitted by law, BOYLE shall be entitled to the same immunities
and protections as any other government employee exercising discretion
under all applicable statutes, regulations and judicial and administrative
precedent. Notwithstanding the foregoing, BOYLE shall not be entitled to
receive any other employee benefits from CLIENT and shall not have the
authority to independently authorize the expenditure of CLIENT'S funds.
7.
8.
Limitation of Liability, In recognition of the relative risks and benefits of
the PROJECT to the parties, CLIENT agrees to limit BOYLE'S liability for
damages to CLIENT arising out of services performed hereunder to a sum
not to exceed $50,000 or BOYLE'S fee, whichever is greater.
Instruments of Service, All tracings, survey notes, machine-readable
information and data ("CADD data") and other original documents are
instruments of service and shall remain the property of BOYLE, except
where by law or precedent these documents become public property.
9.
10. Reuse of Documents, Documents, including drawings and specifications,
prepared by BOYLE pursuant to this agreement are not intended or
represented to be suitable for reuse by CLIENT or others on extensions of
the PROJECT or on any other project. Any use of completed documents for
other projects and any use of incomplete documents without specific
written authorization from BOYLE will be at CLIENT'S sole risk and
without liability to BOYLE. Further, any and all liability arising out of
changes made to BOYLE'S deliverables under this agreement by CLIENT or
persons other than BOYLE is waived as against BOYLE and the CLIENT
assumes full responsibility for such changes unless CLIENT has given
BOYLE prior notice and has received from BOYLE written consent for such
changes.
11. CADD Data, CADD data delivered to CLIENT shall not include the
professional stamp or signature of an engineer or architect. CLIENT agrees
that BOYLE shall not be liable for claims, liabilities or losses arising out of,
or connected with (a) the modification or misuse by CLIENT, or anyone
authorized by CLIENT, ofCADD data; (b) the decline of accuracy or
readability ofCADD data due to inappropriate storage conditions or
duration; or (c) any use by CLIENT, or anyone authorized by CLIENT, of
CADD data for additions to this PROJECT, for the completion of this
PROJECT by others, or for any other project, excepting only such use as is
authorized, in writing, by BOYLE. By acceptance of CADD data, CLIENT
agrees to indemnify BOYLE for damages and liability resulting from the
modification, use or misuse of such CADD data.
12. Construction Contractor.
a.
Construction Contractor Indemnification. CLIENT will require that
any construction contractor performing work in connection with the
PROJECT hold harmless, indemnify and defend CLIENT, BOYLE, their
consultants, and each of their directors, officers, agents and
employees from any and all liabilities, claims, losses, damages and
costs, including attorneys' fees, arising out of or alleged to arise from
the construction contractor's performance of the work described in
the construction contract documents, but not including liability that
may be due to the sole negligence of CLIENT, BOYLE, their
consultants, or their directors, officers, agents and employees.
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b.
Construction Contractor Insuranc.NT also will require that
the construction contractor provide workers' compensation and
commercial general liability insurance, including completed
operations and contractual liability, with the latter coverage sufficient
to insure the construction contractor's indemnity, as above required;
and such insurance shaIl include CLIENT, BOYLE, their consultants,
and each of their directors, officers, agents and employees as
additional insureds. The insurance afforded to these additional
insureds shaIl be primary insurance. If the additional insureds have
other insurance which might be applicable to any loss, the amount of
the insurance provided under this paragraph shaIl not be reduced or
prorated by the existence of such other insurance.
Construction Contract Documents, CLIENT will provide a copy of
the construction contract documents before they are executed in order
that BOYLE may confirm that the above requirements have been met.
CLIENT agrees to forward to BOYLE a complete copy of the fully
executed construction contract documents. The documents copied to
BOYLE will include, but not be limited to, the executed agreement,
bonds, insurance certificates and endorsements.
c.
13. Fees and Permits. CLIENT shaIl pay the cost ofall fees, permits, bond
premiums, title company charges, blueprints and reproductions in
connection with the PROJECT and BOYLE'S services hereunder unless
otherwise specified in Exhibit "A."
14. AsbestoslHazardous Materials, BOYLE is not licensed to provide
services involving the identification or handling of asbestos or hazardous
materials. Therefore, in providing its services hereunder, BOYLE shall not
be responsible for the identification, handling, containment or abatement
of any asbestos or other hazardous material present in connection with the
PROJECT. In the event that CLIENT becomes aware of the presence of
asbestos or any other hazardous material at the jobsite, CLIENT
immediately shall notifY BOYLE. BOYLE shall be entitled to cease any of
its services that may be affected by the asbestos or other hazardous
material and shaIl not be liable for damages in connection with such
termination of services. CLIENT shall be responsible for complying with
all applicable federal and state rules and regulations in connection with the
asbestos or other hazardous material. Further, CLIENT shall indemnity and
defend BOYLE, its consultants, agents, directors, officers and employees
horn all claims, damages, losses and expenses, including but not limited to
attorneys' fees and court and arbitration costs (coIlectively "the
Liabilities"), which Liabilities are related to asbestos or other hazardous
materials and arise out of work performed on the PROJECT by others.
15. Termination of Aereement. In the event CLIENT fails to pay BOYLE
within thirty days after an invoice is rendered, then CLIENT agrees that
BOYLE shall have the right to consider said default a total breach of this
agreement and the duties of BOYLE under this agreement terminated upon
five days' written notice. This agreement may be terminated by either
CLIENT or BOYLE upon thirty days' written notice in the event of
substantial failure of the other party to perform in accordance with the
terms of this agreement. CLIENT expressly agrees to hold BOYLE harmless
from any liability arising out of BOYLE'S termination of its services
hereunder due to CLIENT'S failure to perform and/or pay in accordance
with the provisions of this agreement. In the event of termination of this
agreement, CLIENT shaIl promptly pay BOYLE for all of the fees, charges
and services performed by BOYLE in accordance with the compensation
arrangements under this agreement-or on an agreed hourly basis.
agreement. In the. that any dispute cannot be resolved through direct
discussions, the parties agree to endeavor to settle the dispute by
mediation. Either party may make a written demand for mediation, which
demand shaIl specifY the facts of the dispute. The matter shall be
submitted to a mediator who shall hear the matter and provide an informal
nonbinding opinion and advice in order to help resolve the dispute. The
mediator's fee shall be shared equally by the parties. If the dispute is not
resolved through mediation, the matter may be submitted to the judicial
system, in which event all litigation and coIlection expenses, witness fees,
court costs and attorneys' fees shaIl be paid to the prevailing party.
17. Assienment, Services provided under this agreement are for the exclusive
use of CLIENT. Neither CLIENT nor BOYLE shaIl assign its interest in this
agreement without the written consent of the other.
18. Severability. Should any provision herein be found or deemed to be
invalid, this agreement shall be construed as not containing such provision,
and all other provisions which are otherwise lawful shall remain in full
force and effect, and to this end the provisions of this agreement are
declared to be severable.
19. Other Aereements, There are no understandings or agreements except as
herein expressly stated. Any purchase order issued by CLIENT for the
services to be provided hereunder shall be deemed to have been issued for
its own purchasing, accounting and other record-keeping purposes only
and shall not be deemed to be a part of this agreement or to modifY or
amend this agreement in any way. This agreement may only be modified
by a writing signed by both parties.
20. Counterparts, This agreement may be executed in one or more
counterparts, each of which shaIl be deemed an original, but all of which
together shall constitute one and the same instrument.
21. Governine Law, This agreement shall be governed by and construed in
accordance with the laws of the state of Florida.
22. Consideration for Indemnifieation. BOYLE agrees to pay to CLIENT, or
to credit CLIENT against compensation due hereunder, the sum of one
hundred dollars ($ I 00.00) as specific consideration for the
indemnifications specified in this agreement.
23. Prohibition Aeainst Contineent Fees, BOYLE warrants that it has not
employed or retained any company or person, other than a bona fide
employee working for BOYLE 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 for BOYLE
any fee, commission, percentage, gift, or other consideration contingent
upon or resulting hom the award or making of this agreement.
24. Consideration for Indemnification, BOYLE agrees to pay to CLIENT, or
to credit CLIENT against compensation due hereunder, the sum of one
hundred dollars ($100.00) as specific consideration for the
indemnifications specified in this agreement.
25, Prohibition Allainst Contineent Fees. BOYLE warrants that it has not
employed or retained any company or person, other than a bona fide
employee working for BOYLE 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 for BOYLE
any fee, commission, percentage, gift, or other consideration contingent
upon or resulting from the award or making of this agreement.
16. Dispute Resolution. The parties agree in good faith to attempt to resolve
amicably, without litigation, any dispute arising out of or relating to this
IN WITNESS WHEREOF, BOYLE and CLIENT have executed this agreement this ~ day of \J...e. ~ -e m b €.. ç-
"BoYLE"
:: YLq;;;J7(
David R. Refling, Managing Engine
LIST OF EXHIBITS: Exhibit "A" - Scope ofServices/Schedule
,1999.
"CLIENT"
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Title:
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