A_-_SAMPLE_PROFESSIONAL_SERVICES_AGREEMENT.pdf

SAMPLE PROFESSIONAL SERVICES AGREEMENT

(CONTRACT)

SECTION 8.0

SAMPLE CONTRACT – For Informational Purposes Only

PROFESSIONAL SERVICES CONTRACT

PROFESSIONAL ENGINEERING CONSULTING SERVICES FOR CONSTRUCTION ENGINEERING AND

INSPECTION (CEI) SERVICES

RSQ-25-079Q

THIS CONTRACT made and entered into by and between the:

FLAGLER COUNTY BOARD OF COUNTY COMMISSIONERS

1769 E. MOODY BLVD., BLDG 2

BUNNELL, FLORIDA 32110

A political subdivision of the State of Florida, hereinafter referred to as the “County”, and:

CONSULTANT NAME AND ADDRESS

A Florida profit corporation, hereinafter referred to as the “Consultant”.

RECITALS

WHEREAS, the County desires to retain the services of the Consultant for Professional Engineering Services FOR Construction Engineering and Inspection (CEI) related to Progressive Design-Build projects initiated by the County; and

WHEREAS, the Consultant responded to the RSQ-25-079Q, by submitting a proposal, dated _______________, which is on file with the County; and

WHEREAS, the selection and engagement of the Consultant has been made by the County in accordance with the provisions of the solicitation RSQ-25-079Q being atached hereto as “Exhibit C” and incorporated herein; and

WHEREAS, the County and Consultant now desire to enter into an agreement upon such terms and conditions as are set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE 1

DEFINITIONS AND IDENTIFICATIONS

For the purposes of this Contract and the various covenants, conditions, terms and provisions which follow, the definitions and identifications set forth below are assumed to be true and correct and are therefore agreed upon by the parties.

1.1 CONTRACT ADMINISTRATOR:

Whenever the term Contract Administrator is used herein, it is intended to mean the County Engineer or as otherwise designated in writing by the County Administrator. In the administration of this Contract, as contrasted with matters of policy, all parties may rely upon instructions or determinations made by the Contract Administrator.

1.2 PROJECT:

The project is the work assigned to the Consultant pursuant to a Work Authorization issued in accordance with Section 1.6 below.

1.3 PROJECT MANAGER:

The Project Manager shall mean the staff person within a specific County Department who is assigned by the Contract Administrator to oversee the Work Authorization work.

1.4 SCOPE OF SERVICES:

The Consultant will provide Professional Services as set forth in Exhibit “A”, attached hereto and incorporated herein.

1.5 SCOPE OF WORK:

The scope of work is the specific information relating to those certain services provided to the Consultant on an individual project Work Authorization including, but not limited to: project description with boundaries, intent of project, anticipated services required, and expected deliverables.

1.6 WORK AUTHORIZATION:

The Work Authorization is a formal written assignment of work, based upon negotiation, which will be issued to the Consultant pursuant to this Contract. The Work Authorization shall utilize the format shown in Exhibit “B” attached hereto and incorporated herein.

ARTICLE 2

PREAMBLE

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

2.1 Negotiations pertaining to hourly rates for professional services to be performed by the

Consultant were undertaken between the Consultant and a committee selected by the Board of County Commissioners, and this Contract incorporates the results of such negotiations.

2.2 The Board of County Commissioners has met the requirements of Section 287.055, Florida

Statutes, as amended, the Consultants' Competitive Negotiation Act, and has selected the Consultant to perform such services hereunder.

2.3 The County will budget funds for each Work Authorization issued under the Contract.

ARTICLE 3

SERVICES AND PERFORMANCE

3.1 The County hereby retains the Consultant to furnish the professional services as are described in

Exhibit A, the Scope of Services which is attached hereto and made a binding part hereof by this reference.

3.2 The Consultant shall provide to, and perform for, the County such services within the Scope of

Services as may be more specifically set forth in one or more Work Authorizations issued by the County and accepted by the Consultant.

3.3 In the performance of the professional services contemplated by this Contract, the Consultant shall use that degree of care and skill ordinarily exercised by other similar professionals in the field under similar conditions in similar localities. The Consultant further agrees to provide and perform the professional services set forth herein in accordance with the administrative rules promulgated by the Florida Board of Professional Engineers, and any and all laws, statutes, ordinances, codes, rules, regulations, and policies of any governmental agencies which may regulate or have jurisdiction over the professional services to be provided and/or performed by the Consultant.

3.4 The Consultant shall obtain and maintain throughout the term of this Contract, any and all licenses as are required to do business in the State of Florida, and Flagler County, including but not limited to, licenses required by any state boards or other governmental agencies responsible for regulating and licensing the professional services provided and performed by the Consultant pursuant to this Contract.

3.5 All professional services shall be performed by the Consultant to the satisfaction of the County’s

Project Manager. The decision of the Project Manager regarding satisfactory completion shall be final and conclusive, unless within fifteen (15) days from the date of receipt of such decision, the Consultant furnishes to the Contract Administrator a written notice of dispute. In the event a dispute still exists after the Contract Administrator and/or County Administrator concludes his/her review, the parties agree to a nonbinding mediation with subsequent appropriate legal proceedings, if required. Pending any settlement or binding decision, appeal or judgment, the Consultant shall proceed diligently with the performance of this Contract and any work authorized through the issuance of a Work Authorization.

3.6 In the event there are delays in the completion of work authorized through a Work Authorization, and such delays are beyond the Consultant’s reasonable control, the County will grant reasonable time extensions for the completion of the work. The determination regarding reasonable delays shall be made by the Project Manager and shall be final and conclusive, unless the procedures set forth in 3.5 above are utilized.

ARTICLE 4

ORDERING OF THE WORK

4.1 The Consultant is one of several firms selected to perform professional services on same or similar terms pursuant to this Contract. The County expressly reserves the exclusive right to assign each specific Work Authorization to the firm it deems best suited for the type of work to be accomplished. This Contract does not guarantee any amount or type of Work Authorizations to be assigned to the Consultant.

4.2 The scope of work, provided by the County, will constitute the basis for negotiation of each Work

Authorization. When requested by the County, the Consultant will provide a proposal to the County to perform the services requested under this scope of work. The County and the Consultant will enter negotiations to determine a fair and reasonable number of hours, by discipline, for such requested services.

4.3 In the event a mutually agreeable number of hours are reached, the County will issue a Work

Authorization, in the format depicted in Exhibit B of this Contract, which describes the services to be provided by the Consultant and the amount of compensation to be provided by the County. In the event a mutually agreeable number of hours cannot be reached, the Consultant will be requested to provide a best and final offer to the County. If this best and final offer is not acceptable to the County, negotiations will cease with the Consultant, and the County will open negotiations for the same scope of work with another firm.

ARTICLE 5

TIME FOR PERFORMANCE

5.1 As a part of its Work Authorization proposal, the Consultant shall submit to the County a schedule for completion of the scope of work. Pursuant to Article 4 above, this schedule is a negotiable item during Work Authorization negotiations.

5.2 A copy of the fully executed Work Authorization will serve as the Consultant’s written approval to begin the performance of the Consultant’s services. Prior to granting approval for the Consultant to proceed to a subsequent phase of a Work Authorization, the Contract Administrator may at his or her sole discretion require the Consultant to submit such documents and drawings as may be reasonably necessary for review and approval by the County.

ARTICLE 6

COMPENSATION AND METHOD OF PAYMENT

6.1 COMPENSATION:

(a) The County agrees to pay the Consultant, as compensation for its services under Section 3.1 of this Contract, a fee to be computed as described below and based upon the hourly rate schedule set forth in Exhibit C, attached hereto and incorporated herein. Individual Work Authorization(s) submitted to the Consultant will be paid through a budget line item recommended and approved by the Board of County Commissioners. For each such Work Authorization, the Consultant will be compensated by a lump sum fee as negotiated, unless otherwise mutually agreed to by the parties hereto.

(b) The term "salary costs” as used herein shall mean the hourly rate as shown on Exhibit C attached hereto and made a part hereof, including but not limited to, principals, engineers, surveyors, draftsmen, clerks, plus costs for sick leave, vacation, unemployment, excise and payroll taxes, contributions for social security, employment compensation insurance, retirement benefits, and medical and insurance benefits. Said salary costs shall be only for time directly chargeable to a Work Authorization under this Contract. A detailed breakdown for these costs shall be kept current and readily accessible to the County.

6.2 ANNUAL APPROPRIATION:

Pursuant to the requirements of Florida law and the Flagler County Code of Ordinances, the County’s performance and obligation to fund this Contract shall be contingent upon an annual appropriation by the Flagler County Board of County Commissioners.

6.3 ADJUSTMENT OF CONSULTANT’S RATES:

(a) Either party may request in writing, no later than ninety (90) days prior to each anniversary of the effective date of this Contract, an adjustment in the Consultant’s existing hourly rate schedule.

Both the Consultant and the County agree to enter into negotiations concerning such changes upon receipt of a written request from the other detailing the proposed changes and specifying the reasons for such changes. Should the parties fail to reach agreement on the Consultant’s revised hourly rates within thirty days after the commencement of such negotiations, this Contract shall terminate by operation of law on the anniversary of the effective date of the Contract following the failed negotiation, and the Consultant shall no longer be eligible to offer its services to the County pursuant to this Contract.

(b) Adjustments and/or revisions to the Hourly Rate Schedule (Exhibit C) shall be made a part of this Contract by the issuance of a written contract amendment executed by the Consultant and the County Administrator. The effective date of any such adjustment shall be the anniversary of the effective date of the Contract following the request for adjustment, or as otherwise set forth in the contract amendment, and shall apply to Work Authorizations negotiated after the effective date. The hourly rate schedule for active Work Authorizations will not be changed from the rate schedule and hours negotiated in the executed Work Authorization. The Consultant agrees that throughout the life of this Contract, at no time will the negotiated rates charged to the County be in excess of any other published or unpublished rates paid by any other of Consultant’s clients of the same class under similar terms and conditions of use and service.

(c) In addition, to the annual adjustments referenced herein, the County may request an adjustment to the Consultant’s existing hourly rate schedule, at any time, in order to add a specialist category that is not included in the rate schedule or to make such other amendments as are deemed necessary by the Contract Administrator in his/her sole discretion.

6.4 DIRECT EXPENSES:

(a) Direct expenses directly attributable to a Work Authorization will be borne by the Consultant, and will include, but not be limited to, the following:

1. All travel and per diem charges, and transportation expenses in connection with any

Work Authorization.

2. Living expenses in connection with travel inside and outside of Flagler County and other related expenses.

3. Long distance communications and other miscellaneous communications expenses.

4. Cost of printing drawings and specifications which are required by or of the

Consultant to deliver services set forth in this Contract.

5. Cost of any software or hardware used or developed for any Work Authorization.

(b) Direct expenses to be borne by the Consultant shall not include project permit fees or compensation owed to subcontractors engaged according to Section 10.5 of this Contract.

6.5 METHOD OF BILLING AND PAYMENT:

(a) The Consultant shall submit monthly invoices (payment requisitions) to the Project Manager for the amount and value of the work accomplished and services performed by the Consultant which meet standards of quality established under this Contract. The invoices shall be prepared by the Consultant and shall be accompanied by any supporting data required by the County.

Where the monthly invoices includes work done by a subcontractor, the Consultant shall attach copies of that subcontractor’s invoice for such work. The Consultant agrees no markup for overhead and profit on subcontractor’s invoices shall be allowed on any project Work Authorization.

(b) For lump sum contracts, the Consultant may submit bills at the completion and approval of each phase or for partial completion of each phase on a pro-rata basis. However, requests for payment shall not be made more frequently than once a month.

(c) Payments under this Contract and interest on any late payments shall be governed by the Florida Prompt Payment Act, Section 218.70, et. seq., Florida Statutes, as amended.

6.6 INVOICES AND NOTICES WILL BE MADE TO THE COUNTY AT:

1769 East Moody Blvd.

Building No. 2 Bunnell, Florida 32110

6.7 PAYMENTS AND NOTICES WILL BE MADE TO THE CONSULTANT AT:

Insert Consultant Info

(a) Any notice required hereunder or desired by the party giving such notice shall be given in writing and delivered by hand or via certified mail of the United States Postal Service or other private courier service, such as Federal Express.

(b) Unless otherwise notified in writing of a new address, notices, payments, and invoices shall be made to each party at the listed addresses. Rejection, or other refusal by the addressee to accept, or the inability of the courier service or the United States Postal Service to deliver because of a changed address of which no notice was given, shall be deemed to be receipt of the notice sent.

Any party shall have the right to change the address to which notices shall be sent by giving the other party at least ten (10) days prior notice of the address change.

6.8 FINAL PAYMENT REQUIREMENT/PAYMENT RECORDS:

The Consultant shall, at the time the final invoice is submitted, provide a report to the Project

Manager identifying the total of all payments made under the Contract to the Consultant and to each Sub-Consultant. This record shall include the final payments. The final payment will not be made until receipt of the final payment record. The final invoice must be clearly marked as such in bold letters. For those Contracts that are closed out before submittal of a final invoice (i.e., not to exceed awards) it is incumbent upon the Consultant to submit this final payment record to ensure accurate allocation of dollars awarded.

ARTICLE 7

ADDITIONAL SERVICES AND

CHANGES IN SCOPE OF SERVICES

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

7.2 The County or the Consultant may request changes that would increase, decrease, or otherwise modify the Scope of Work of individual project Work Authorizations. Such changes must be negotiated and mutually agreed upon by both parties. This mutual Contract will be formalized by a written change order to the Work Authorization issued by the County to the Consultant.

ARTICLE 8

COUNTY'S RESPONSIBILITIES

8.1 The County shall assist the Consultant by placing at its disposal available information pertinent to the project including previous reports, test results, surveys, property information, and any other data relative to design or construction of the project as available and as may be appropriate.

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

8.4 The County shall examine, within a reasonable time so as not to delay the services of the

Consultant, all studies, reports, sketches, drawings, specifications, proposals and other documents presented by the Consultant, obtain advice of an attorney, insurance counselor and other consultants, as the County deems appropriate, for such examination and the rendering of written opinions or decisions pertaining thereto.

8.5 The County shall give prompt written notice to the Consultant whenever the County observes or otherwise becomes aware of any development that affects the scope of timing of the Consultant's services, or any defect in the work of the Consultant.

ARTICLE 9

CONSULTANT’S RESPONSIBILITIES

9.1 QUALITY OF SERVICES:

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

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

(c) Neither the County’s review, approval, acceptance, or payment for the services required by this Contract shall be construed to operate as a waiver of any rights or of any cause of action arising out of the performance of this Contract. Additionally, the Consultant shall be and remain liable to the County in accordance with applicable law for all damages to the County caused by the Consultant’s negligent performance of any of the services furnished under this Contract.

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

9.2 CONSULTANT PROFESSIONAL REGISTRATION AND CERTIFICATION:

(a) The professional services provided to the County by the Consultant shall be certified by the appropriate architect, professional engineer and/or landscape architect registered to practice and in good standing in the State of Florida. Any project inspection services also shall be reviewed and shall be approved by such professionals as appropriate.

(b) The Consultant agrees to obtain and maintain, throughout the term of this Contract, including any renewal terms, all licenses as required to do business in the State of Florida and the County of Flagler, including, but not limited to, licenses required by any state boards or other governmental agencies responsible for regulating and licensing the professional services provided and performed by the Consultant pursuant to this Contract.

(c) Permit applications to State and Federal agencies prepared by the Consultant shall be signed and shall be sealed by the Consultant. For all such permit applications, post-construction certification also shall be made by the Consultant to the appropriate State or Federal permitting agency.

ARTICLE 10

GENERAL CONDITIONS

10.1 OWNERSHIP OF DOCUMENTS

(a) Drawings, specifications, designs, models, photographs, reports, surveys, calculations, and other data provided in connection with this Contract are and shall remain the property of the County whether the project for which they are made is executed or not. Such finished or unfinished documents, data, calculations, studies, surveys, specifications, drawings, maps, models, photographs and reports prepared by the Consultant shall be delivered by the Consultant to the County at the conclusion of the project or the termination of the Consultant’s services.

(b) When such documents are provided to other parties, the Consultant shall ensure return of the County’s property.

(c) CONSULTANT will provide COUNTY with a set of reproducible copies, in both bond paper and electronic formats acceptable to the COUNTY, of all documents, maps and/or drawings that are produced.

10.2 SUSPENSION OR TERMINATION OF WORK:

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

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

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

(d) In no event shall a termination for convenience by the County be deemed a default, and any such termination shall not subject the County to any penalty or other claim for damages. If the Consultant abandons this Contract or causes it to be terminated, the Consultant shall indemnify the County against any loss pertaining to this termination up to a maximum of 1.3 times the full contracted fee amount of the project.

(e) Vendor suspension or debarment proceedings brought by the County pursuant to Flagler County Purchasing Policy, Section 28, shall be grounds for immediate termination of this Contract.

10.3 RECORDS:

(a) The Consultant shall keep such records and accounts and shall require any subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement and any expenses for which the Consultant expects to be reimbursed. Such books and records will be available at all reasonable times for examination and audit by the County, and shall be kept for a period of three (3) years after the completion of all work to be performed pursuant to this Contract. Incomplete or incorrect entries in such books and records will be grounds for disallowance by the County of any fees or expenses based upon such entries.

(b) Pursuant to Section 119.0701(2), Florida Statutes, the Consultant shall allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, made or received by the Consultant in conjunction with this Contract. Specifically, the Consultant must:

1. Keep and maintain public records that ordinarily and necessarily would be required by the County in order to perform the service, including but not limited to: emails and correspondence, meeting notes, daily progress reports, correspondence, test result reports, videos, progress schedule updates, and certifications; and

2. Provide the public with access to public records on the same terms and conditions that the County would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law; and

3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law; and

4. Meet all requirements for retaining public records and transfer, at no cost, to the

County all public records in possession of the Consultant upon termination of this Contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the County in a format that is compatible with the information technology systems of the County.

In performing the requirements herein, the Consultant shall promptly provide the County with a copy of any request to inspect or to copy public records in possession of the Consultant and consult with the County to ensure the request is responded to in accordance with the law. The Consultant shall promptly provide the County with a copy of the Consultant’s response to each such request. Failure to grant such public access shall constitute a material default, and the County shall be entitled to terminate this Contract and to pursue any other remedies against Consultant available in equity or at law.

IF THE CONSULTANT HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE

CONSULTANT’S DUTY TO PROVIDE PUBLIC RECORDS RELATING

TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC

RECORDS AT (386) 313-4005, publicrecords@flaglercounty.gov, FLAGLER

COUNTY BOARD OF COUNTY COMMISSIONERS, ATTN:

ADMINISTRATION, 1769 E. MOODY BLVD., BLDG. 2, BUNNELL, FL

32110.

10.4 NO 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 Contract and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the Consultant any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Contract. For the breach or violation of this provision, the County shall have the right to terminate the Contract without liability and at its discretion, to deduct from the contract price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration.

10.5 PERSONNEL AND SUBCONTRACTORS:

(a) The Consultant shall maintain an adequate and competent professional staff so as to enable the Consultant to perform all professional services requested by the County in a professional and timely manner, in accordance with this Contract and the requirements of each Work Authorization issued by the County.

(b) The Consultant, with the consent of the County and as authorized through the issuance of a Work Authorization, may associate with subcontractors or other professional associates in connection with services covered by this Contract. The services of any such subcontractors shall be performed without additional cost to the County, other than those costs negotiated within the limits and terms of this Contract and each Work Authorization issued by the County. The Consultant shall be fully responsible for the satisfactory completion of all subcontracted work. In addition, the Consultant shall ensure that all subcontractors comply with the duties and obligations imposed upon Consultant by this Contract, Work Authorizations and/or amendments hereto, including but not limited to, requirements regarding licenses, indemnification, insurance requirements and standards of care.

(c) The Consultant agrees to promptly replace any persons in its employ, including subcontractors or employees thereof, who were engaged by the Consultant to perform professional services pursuant to this Contract, if the County requests, for cause, that the individual be stopped from performing professional services under this Contract.

10.6 ASSIGNMENT:

This Contract, or any interest herein, shall not be assigned, transferred or otherwise encumbered, under any circumstances, by the Consultant, without the prior written consent of the County.

10.7 HOLD HARMLESS AND INDEMNIFICATION OF COUNTY AND FDOT (IF APPLICABLE):

The Consultant shall indemnify, hold harmless, and defend the County, and its officers, agents, and employees, from and against any and all liabilities, damages, losses, claims, damages, demands, expenses, costs, and actions, whether in law or equity, including, but not limited to, reasonable court costs and attorneys’ fees, that may hereafter at anytime be made or brought by anyone on account of personal injury, property damage, loss of monies, or other loss, allegedly caused or incurred, in whole or in part, as a result of any negligent, wrongful, recklessness, or intentional act or omission of the Consultant and other persons employed or utilized by the Consultant in connection with the performance of this Contract.

For Work Authorizations related to any project paid in whole or in part by the Florida Department of Transportation (FDOT), the Consultant shall also indemnify, defend, and hold harmless the FDOT, including the FDOT’s officers, agents, and employees, against any actions, claims, or damages arising out of, relating to, or resulting from negligent or wrongful act(s) of Consultant, or any of its officers, agents, or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by Consultant hereunder to the extent and within the limitations of Section 768.28, Florida Statutes.

This indemnification shall survive the termination or expiration of this Agreement. Nothing contained in this paragraph is intended to nor shall constitute a waiver of the State of Florida or the County’s sovereign immunity.

PURSUANT TO SECTION 558.0035, FLORIDA STATUTES,

ANY DESIGN PROFESSIONAL, AS DEFINED IN SECTION

558.002(7), FLORIDA STATUTES, EMPLOYED BY THE

CONSULTANT OR AN AGENT OF THE CONSULTANT IS

NOT INDIVIDUALLY LIABLE TO THE COUNTY FOR

ECONOMIC DAMAGES, NOT INCLUDING PERSONAL

INJURY OR DAMAGES UNRELATED TO THIS

AGREEMENT, RESULTING FROM NEGLIGENCE

OCCURRING WITHIN THE COURSE AND SCOPE OF THIS

AGREEMENT SO LONG AS THE CONSULTANT

MAINTAINS THE INSURANCE COVERAGE REQUIRED

UNDER THIS AGREEMENT.

10.8 CLAIMS AND DISPUTES:

(a) A claim is a demand or assertion by one of the parties to this Contract seeking an adjustment or interpretation of the terms of the Contract documents, payment of money, extension of time or other relief with respect to the terms of the Contract documents. The term claim also includes other disputes and matters in question between the County and the Consultant arising out of or relating to the Contract documents. The responsibility to substantiate a claim shall rest with the party making the claim.

(b) Claims by the Consultant shall be made in writing to the County with supporting data. All claims shall be submitted during the performance term of the Contract, or else the Consultant shall be deemed to have waived that claim.

(c) The Consultant shall proceed diligently with its performance, as directed by the County, regardless of any pending claim, legal action, suit, or administrative proceeding, unless otherwise agreed to by the County in writing. The County shall continue to make payments in accordance with the Contract documents during the pendency of such claim.

10.9 REPRESENTATIVE OF COUNTY AND CONSULTANT:

(a) It is recognized that questions in the day-to-day conduct of a project will arise. The Consultant shall transmit all communications pertaining to pertaining the day-to-day conduct of the project to the Project Manager.

(b) The Consultant shall inform the Contract Administrator in writing of the representative of the Consultant to whom matters involving the conduct of the project shall be addressed.

10.10 ALL PRIOR CONTRACTS SUPERSEDED:

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

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

10.11 TERM OF CONTRACT:

The term of this Contract shall be for three (3) years from the effective date; however, by mutual consent, this Contract may be extended for two additional two-year terms, not to exceed a total of seven (7) years. Such extensions shall be made a part of this Contract by the issuance of a written contract amendment executed by the Consultant and the County. Any Work Authorizations issued during the effective period of this Contract and not completed within that period, shall be completed by the Consultant within the time specified in the Work Authorization.

The Contract shall govern the parties’ rights and obligations with respect to that Work Authorization to the same extent as if the Work Authorization were completed during the Contract's effective period.

10.12 TRUTHS-IN-NEGOTIATION CERTIFICATE:

Signature of this Contract by the Consultant shall act as the execution of a truth in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation of this Contract are accurate, complete, and current at the time of contracting. The original Contract price and any additions thereto shall be adjusted to exclude any significant sums by which the County determines to have increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs. All such Contract adjustments shall be made within one (1) year following the end of this Contract.

10.13 HEADINGS:

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

10.14 GRATUITIES:

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

10.15 CONFLICT OF INTEREST:

The Consultant hereby certifies that it will completely disclose to the County all facts bearing upon any possible conflicts, direct or indirect, with its performance which it believes that any officer, employee, or agent of the Consultant now has or will have. Said disclosure shall be made by the

Consultant contemporaneously with the execution of this Contract and at any time thereafter that such facts become known to the Consultant. The Consultant at all times shall perform its obligations under this Contract in a manner consistent with the best interests of the County.

Failure to abide by this section shall result in the immediate termination of this Contract.

10.16 SURVIVAL:

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

10.17 GOVERNING LAW:

This Contract shall be governed by and construed in accordance with the laws of the State of Florida, except its conflict of laws provisions, and the parties stipulate that the exclusive venue for enforcement or interpretation of this Contract is the Circuit Court of the Seventh Judicial Circuit in and for Flagler County.

10.18 INTERPRETATION:

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

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

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

10.19 SEVERABILITY:

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

10.20 COMPLIANCE WITH LAWS:

The Consultant shall keep fully informed regarding, and shall fully and timely comply with, all current laws and future laws that may affect those engaged or employed in the performance of this Contract. Without limiting the generality of the foregoing, the Consultant shall observe all rules and regulations of federal, state, and local officials relating to the subject matter of this Contract.

10.21 PARTICIPATION IN OTHER PROCEEDINGS:

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

10.22 FURTHER DOCUMENTS:

The parties shall execute and deliver all documents and perform further actions that may be reasonably necessary to effectuate the provisions of this Contract.

10.23 NO WAIVER:

The failure of the Consultant or the County to insist upon the strict performance of the terms and conditions hereof shall not constitute or be construed as a waiver or relinquishment of any other provision or of either party’s right to thereafter enforce the same in accordance with this Contract.

[SIGNATURE PAGES TO FOLLOW]

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement effective this _____ day of ______________, 2024.

ATTEST: FLAGLER COUNTY BOARD OF

COUNTY COMMISSIONERS

TOM BEXLEY ANDREW S. DANCE, CHAIR

Clerk of the Circuit Court & Comptroller (Date Signed)

APPROVED–AS-TO-FORM

SEAN MOYLAN, DEPUTY COUNTY ATTORNEY

ATTEST: CONSULTANT:

(Signature) (Signature)

(Typed or Printed Name) (Typed or Printed Name)

(Title) (Title)

CORPORATE SEAL: ____________________________

(Date Signed)

As authorized for execution by the Board of Flagler County Board of County Commissioners at its ___ _ regular meeting.

SAMPLE PROFESSIONAL SERVICES AGREEMENT (CONTRACT)