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SEC. 1 PERIOD OF PERFORMANCE
1.1 The use of BCI's services signifies agreement to the following terms & conditions:
1.2 If the services under this Agreement continue for a period of more than one (1) year from the notice to proceed, CONSULTANT shall be entitled to renegotiate the terms of this Agreement.
1.3 CONSULTANT shall not be responsible for delays or considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by factors beyond the CONSULTANT'S reasonable control, including but not limited to delays because of acts of God, strikes, lockouts, work slowdowns or stoppages, accidents, failure of any governmental or other regulatory authority to act in a timely manner, failure of the Client to furnish timely information or approve or disapprove of the Consultant's services or work product, or delays caused by faulty performance by the Client or by contractors of any level, and labor disputes. Time of performance of CONSULTANT'S obligations hereunder are estimates only and shall be extended by a reasonable time period to overcome the effects of such force majeure occurrences.
SEC. 2 METHOD OF PAYMENT AND INVOICING
2.1 Payment is due upon delivery of CONSULTANT'S invoice. If payment is not received within thirty (30) days from the invoice date, CLIENT agrees to pay a finance charge on the principal amount of the past due account of one and one-half percent per month. CLIENT will be billed on a monthly basis. CLIENT further agrees that if payment is not received within sixty (60) days from the invoice date that it has waived any and all claims against the CONSULTANT and CONSULTANT'S professional employees. For time and materials contracts, invoices shall be submitted in accordance with CONSULTANT'S current professional fee schedule. If the contract consists of a retainer, the retainer will be applied on the completion of the project. Should an invoice not be paid within said forth terms, the retainer will be applied to the outstanding invoices and all work on the project will be ceased.
2.2 CONSULTANT reserves the right to suspend services and withhold reports and other supporting documents if invoices greater than sixty (60) days old are unpaid. Suspension or termination of services by CONSULTANT for this condition shall not constitute a breach of contract.
2.3 In the event litigation becomes necessary to collect funds due CONSULTANT, venue is agreed to be Polk County, Florida and attorney's fees and expenses will be awarded to the prevailing party.
SEC. 3 REIMBURSABLE EXPENSES
3.1 CONSULTANT shall be reimbursed for out-of-pocket expenses directly chargeable to the project, at actual cost incurred, plus a 12% administrative surcharge. Typical reimbursable expenses include travel, lodging, and meals when traveling on CLIENT'S behalf, identifiable communication expenses, and all reproduction costs.
SEC. 4 ADDITIONAL SERVICES
4.1 The undertaking by CONSULTANT to perform professional services defined within this Agreement extends only to those services specifically described herein. If upon request of CLIENT, CONSULTANT agrees to perform additional services hereunder, CLIENT shall be obligated to pay CONSULTANT for the performance of such additional services an amount (in addition to all other amounts payable under this Agreement) based on an hourly fee in accordance with CONSULTANT'S then current professional fee schedule, plus reimbursable expenses so incurred by CONSULTANT, unless a lump sum addendum to Agreement is executed by the parties to the Agreement which addresses the additional services.
4.2 Additional services shall include revisions to work previously performed that are required because of a change in the data or criteria furnished to CONSULTANT, or a change in the scope or concept of the project initiated by CLIENT, or services that are required by changes in the requirements of public agencies, after work under this Agreement has commenced.
SEC. 5 OWNERSHIP OF DOCUMENTS
5.1 All documents, including, but not limited to, drawings, specifications, reports, boring logs, field notes, laboratory test data, calculations, and estimates, prepared by CONSULTANT as instruments of service pursuant to this Agreement, shall be the sole property of CONSULTANT unless CLIENT agrees to waive any and all claims against the CONSULTANT and to defend, indemnify, and hold the CONSULTANT harmless from and against any and all claims, losses, liabilities, and damages arising out of or resulting from the unauthorized use, reuse, or alteration of the CONSULTANT'S designs, drawings, and specifications. Documents produced by CONSULTANT shall not be used at any location or for any project not expressly provided for in this Agreement without the written permission of CONSULTANT. CLIENT agrees that all documents of any nature furnished to CLIENT or CLIENT'S agents or designees, if not paid for, will be returned upon demand and will not be used by CLIENT for any purpose whatsoever.
5.2 CLIENT refers to the person or business entity ordering the work to be done by CONSULTANT. If CLIENT is ordering the work on behalf of another, CLIENT represents and warrants that CLIENT is the duly authorized agent of said party for the purpose of ordering and directing said work. Further, CLIENT shall disclose any such agency relationship to CONSULTANT in writing before the commencement of CONSULTANT'S work hereunder. Unless otherwise stated in writing, CLIENT assumes sole responsibility for reasonably determining whether the quantity and the nature of the work ordered by the CLIENT is reasonably adequate and sufficient for the CLIENT'S intended purpose. CONSULTANT'S work is for the exclusive use of CLIENT, and its properly disclosed principal. In no event shall CONSULTANT have any duty or obligation to any third party.
5.3 All work performed or product created by CONSULTANT on behalf of CLIENT is deemed privileged. CONSULTANT shall not disclose to any third party any proprietary or confidential information regarding the work, the project or the Client's business affairs, finances, technology, or processes without prior written consent. The contents of this agreement are proprietary and confidential.
5.4 If CONSULTANT is required by law to disclose information that is otherwise required to be maintained in confidence pursuant to this agreement, or if disclosure is required in connection with legal proceedings, the CONSULTANT may disclose such information nonwithstanding the provisions of the agreement provided; however, that CONSULTANT shall immediately notify CLIENT of the requirements to disclose and the terms thereof prior to actual disclosure, and shall minimize the disclosure of information to the extent allowable under law. Nothing herein diminishes the CLIENTS right to challenge any law or legal proceeding requiring the disclosure.
5.5 CONSULTANT'S obligation pursuant to this Agreement shall remain in full force and effect for a period of seven years after (1) the final project completion date or (2) termination of the work. All project files will be destroyed after the period of seven years.
SEC. 6 TERMINATION
6.1 This Agreement may be terminated by either party upon seven (7) days written notice in the event of the substantial failure by the other party to perform in accordance with the terms of this Agreement through no fault of the terminating party. For the purposes of this Agreement, the failure to pay any invoice submitted by CONSULTANT within sixty (60) days of the date of said invoice shall be considered a substantial failure on behalf of CLIENT. In the event of any termination, CONSULTANT shall be paid for all services rendered to the date of termination including all reimbursable expenses.
SEC. 7 LIMITATION OF LIABILITY
7.1 To the fullest extent permitted by law, CLIENT agrees that CONSULTANT'S and CONSULTANT'S professional employees, officers, directors, agents and independent professional associates, and any of them, the total aggregate liability to CLIENT and any one claiming by, through, or under CLIENT, and all construction and professional contractors and subcontractors employed directly or indirectly by CLIENT on the Project, for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any way related to CONSULTANT'S services, the project or this Agreement, from any cause or causes whatsoever, including but not limited to, the negligence, errors, omissions, strict liability, breach of contract, misrepresentation, or breach of warranty of CONSULTANT'S or CONSULTANT'S officers, directors, employees, agents or independent professional associates, or any of them, shall not exceed the total compensation received by CONSULTANT under this Agreement or $50,000.00, whichever is greater. In no event shall CONSULTANT be liable for any indirect, special or consequential loss or damage, including but not limited to damages for loss of profits, loss of revenues, and loss of business opportunities, for claims, disputes, or other matters in question arising out of or relating to this Agreement.
7.2 Exclusion of Liability for Matters Relating to Pollution and Indemnification - CLIENT agrees that CONSULTANT shall have no liability to CLIENT, or to any person or entity employed directly or indirectly by CLIENT on the project for damages of any kind from services rendered by CONSULTANT relating to the testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing of pollutants on or about the project site, whether caused by the negligence of CONSULTANT. If unanticipated hazardous and/or petroleum wastes or ground water or soil contamination are encountered, the CLIENT and the OWNER shall, to the fullest extent permitted by law, hold harmless and indemnify CONSULTANT, its officers, directors, employees, agents and independent consultants, and any of them from all claims and losses, including reasonable attorneys' fees and defense costs, arising out of, or in any way connected with, the performance or nonperformance of the obligations under this Agreement and all legal and remedial action associated with the discovery of waste materials unless and until there has been an adjudication by a court or forum of competent jurisdiction that the claims at issue are a direct result of the sole negligence of the Consultant. It shall be the CLIENT'S responsibility to notify the landowner and appropriate local, state, and federal agencies of the waste discovery. Health and safety costs associated with the discovery of hazardous or petroleum wastes are not included in the proposal budget or unit fee schedule.
SEC. 8 ATTORNEY'S FEES
8.1 In the event any party hereto breaches any of the terms of this Agreement whereby the party not in default employs attorneys to protect or enforce its rights hereunder and prevails, then the defaulting party agrees to pay the other party reasonable attorney's fees so incurred by such other party including trial and the appellate levels.
SEC. 9 PROFESSIONAL STANDARDS
9.1 All work performed by CONSULTANT will be performed in a manner consistent with that degree of skill and care ordinarily exercised by practicing CONSULTANTS performing similar services in the same locality, at the same site and under the same or similar circumstances and conditions. The CONSULTANT makes no other representations or warranties, whether express or implied, with respect to the services rendered hereunder.
9.2 Unless the Scope of Services of this Agreement includes an investigation into the applicable land use, zoning and platting requirements for the Project, CONSULTANT shall proceed on the assumption that the Project as presented by CLIENT is in accordance with all applicable governmental regulations.
SEC. 10 GENERAL
10.1 Legal Construction - In any case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision and had never been contained herein.
10.2 Sole Agreement of the Parties - This agreement and referenced attachments constitute the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter within it.
10.3 Insurance - CONSULTANT maintains statutory Workers' Compensation and Employer Liability Insurance. In addition, Consultant maintains Comprehensive General Liability Insurance and Automobile Liability Insurance with bodily injury limits of at least $500,000/$500,000 and property damage limits of $100,000. A certificate of insurance will be provided, upon request.
10.4 Construction Site Visits - It is agreed that CONSULTANT shall have no control over nor responsibility for the construction means, methods, techniques, sequences, or procedures of construction nor for safety precautions or programs in connection with the work, and it is understood that field services provided by CONSULTANT will not relieve the contractor of his responsibilities for performing the work in accordance with the plans and specifications.
10.5 Construction Site Safety - CLIENT agrees that, in accordance with generally accepted construction practices, the contractor will be solely and completely responsible for working conditions on the job site, including safety of all persons and property during the performance of the work, and compliance with OSHA regulations, and that these requirements will apply continuously and not be limited to normal working hours. Any monitoring of the contractor's procedures conducted by CONSULTANT is not intended to include review of the adequacy of the contractor's safety measures, in, on, adjacent to, or near the construction site.
10.6 Right-of-Entry - Unless otherwise agreed, CLIENT will furnish right-of-entry on the property to make the planned borings, surveys, tests, and/or explorations. CONSULTANT will take reasonable precautions to minimize damage to the property caused by CONSULTANT'S operations, but have not included in the fee the cost of restoration of damage, which may result. If CLIENT desires to restore the property to its former condition, CONSULTANT will accomplish this and add the cost to the fee.
10.7 Damage to Existing Man-Made Objects - It shall be the responsibility of CLIENT or his duly authorized representative to disclose the presence and accurate location of all hidden or obscure man-made objects relative to field tests or boring locations. CONSULTANT'S field personnel are trained to recognize clearly identifiable stakes or markings in the field, and without special written instructions, to initiate field testing, drilling, and/or sampling within a reasonable distance of each designated location. If CONSULTANT is cautioned, advised, or given data in writing that reveal the presence or potential presence of underground or overground obstructions, such as utilities, CONSULTANT will give special instruction to its field personnel. As evidenced by CLIENT'S acceptance of this proposal, CLIENT agrees to indemnify and save harmless CONSULTANT from all claims, suits, losses, personal injury, death, and property liability resulting from unusual subsurface conditions or damages to subsurface structures, owned by CLIENT or third parties, occurring in the performance of the proposed services, whose presence and exact locations were not revealed to CONSULTANT in writing, or to reimburse CONSULTANT for expenses in connection with any such claims or suits, including reasonable attorney's fees.
10.8 Sampling or Testing Location - Field tests or boring locations described in CONSULTANT'S report or shown on sketches are based on specific information furnished by others or estimates made in the field by CONSULTANT'S personnel. Such dimensions, depths, or elevations should be considered as approximations unless otherwise stated in the report.
10.9 Sample Disposal Agreement - CONSULTANT reserves the right, unless otherwise requested, to dispose of soil, water, or rock samples within sixty (60) days after submission of the report. Upon written request, CONSULTANT will retain test samples for a mutually acceptable storage charge and period of time.
10.10 Governing Law - This agreement shall be governed in all respects by the laws of the State of Florida.
SEC. 11 MEDIATION
11.1 Prior to the initiation of any legal proceedings, the parties to this Agreement agree to submit all claims, disputes or controversies arising out of or in relation to the interpretation, application, or enforcement of this Agreement to non-binding mediation. Such mediation shall be conducted under the auspices of the American Arbitration Association or such other mediation service or mediator upon which the parties agree. The Party seeking to initiate mediation shall do so by submitting a formal, written request to the other party to this Agreement. This section shall survive completion or termination of this Agreement, but under no circumstances shall either party call for mediation of any claim or dispute arising out of this Agreement after such period of time as would normally bar the initiation of legal proceedings to litigate such claim or dispute under the laws of the State of Florida.
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