Fort Walton Beach Council agenda — 06-26-2007 regular agenda — reading text

consideration of the services to be provided by Design Professional pursuant The Client shall pay all Project- related fees, hereto and, and In recognition of the time and expenses incurred by the Design including, but not limited to, any and alllega! and administrative fees fncident to plan review, platting, permitting, DR!, Professional in the hiring and training of their employees, Client hereby agrees PUD, rezoning applications and impact fees, and the Design Professional shall that, during the term of this Agreement, and for a period of one year following the have no liability therefore whatsoever. date of termination of this Agreement, Client shall not solicit for employment, ofter employment to, or engage or hire ( either as an employee, leased employee, R uv I imifit:ions Rllrlnpf:: or as, an contractor) who, during the term of this  Design Professional liquidated damages, and not as a penalty, an l! b,,~~u t equal to one year' s compensation of the employee who has been hired, upon the compensation that being paid to such employee was 20. Waiver of Consequential Damages Any other provisions of this Agreement to the contrary notwithstanding, and to immediately prior to his or her termination of employment with the Design the fullest extent permitted by law, except as expressly set forth in clause "( i)" of Professional. Client and Design Professional may, by mulual agreement, elect to the Standard of Care and Ailocation of Risk section set forth above, neither the waive this provision. Client nor the Design Professional, or any of their respective officers, directors; partners, employees, Gontractors, subcontractors, consultants or sUbconsultants, 16. Termination for Cause shail be liable to the other, or shall make any claim, for any incidental, indirect, This Agreement may be terminated by the Client upon. 3D days' written notice in resulting or consequential damages arising out of or connected in any way to this the event of a material breach hereof by the Design Professional, provided that Project or to this Agreement. This mutual waiver of incidental, indirect, resulting the Design Professional does not cure such material breach within the 3D- day and conseq.uentiai damages shall include, but not necessarily be limited to, any and ail claims for loss of use, loss of profit, loss of business, loss of income, loss periQd after it receives written notice of the same ( describing the alleged breach in detail) or, in relation to matters which cannot be cured within such 3D days, of reputation or any other form of incidental, indirect,. resulting or consequential unless the Design Professional has failed to initiate reasonable steps to cure damages that either party may have incurred, regardless of whether or not any such breach, In the event of a cure or the undertaking of reasonable steps to such party' s cause of action is based upon contract, tort, statute or otherwise. cure by the Design Professional within such 3D- day period, the Client shall have Both the Client and the Design Professional shall require similar waivers of no right to terminate for cause. This Agreement may be terminated by the incidental, indirect, resulting and consequential damages protecting all the Design Professional in the event that any of its statements have not been paid entities and persons named herein In ail contracts and subcontracts with others within seventy days of the date when such payment was due, provided that the involved in this Project; provided, however, that the failure to require such Client shall have the right to cure such default by making payment (including waivers shall not in any way negate the full extent of the waiver expressed in this applicable interest) within seven days of its receipt of a written notice from the paragraph as between the Client and the Design Professional. Design Professional describing the default in payment. 21. Indemnification 17. Termination for Convenience The Client and the Design Professional shall indemnify one another for their This Agreement may be terminated for convenience by the Client upon 30 days' respective acts and omissions, as well as for the acts and omissions of any advance written .notice to the Design Professional. In such event, the Design officers, directors, partners, employees, contractors, subcontractors, consultants Professional shall be entitled to be compensated for all services performed, and or subconsultants working by, through or under either of them ( whether in to be reimbursed for all reimbursable expenses incurred, through the effective contract with them directly or indirectly), from any claims, losses, costs, expenses date of termination; provided, however, that the Design Professional shall also be including, but not limited to, reasonable attorneys' fees) or other liabilities entitled to a termination expense equal to 10% of the lotal amount of fees to including, but not limited to, administrative fines or penalties), which arise out of which the Design Professional is entitled through the effective date of or result from any negligent or intentional act or omission of either of them ( or of termination. The Design Professional shall also have the right to terminate this anyone for whom either of them may be responsible or liable), provided that the Agreement for convenience upon 30 days' written notice to the. Client, in which party seeking such indemnification shall not have been actively at fault in relation event the Design Professional shall be entitled to be compensated for all services to the claim which has been so asserted against them. rendered, and to be reimbursed for all reimbursable expenses reasonably incurred, through the effective date of termination. In the event of such a 22. Mediation, Venue and Attorneys' Fees lation for convenience by either the Client or the Design Professional, all Prior to the filing of any litigation by the Client or the Design Professional against amounts shail be paid to the Design Professional no later than 15 days the other ( and, except as described below, as a precondition to .any such filing), I ing the effective date of such a termination for convenience. In either the Client and the Design Professional shall engage in pre- suit mediation. Such event, the amounts set forth herein. shall be the sole amounts the Design mediation may be requested by either party, a.t any time, and shall be conducted Professional is entitled to receive and, in the event of a termination for the same ' as if such mediation were ordered by a Florida Circuit Court ( Le" in convenience, neither party shall have any liability to the other for breach of accordance with, and subject to, all of the laws and rules applicable to court contract as a result of such a termination for convenience. ordered mediation). Such mediation shall be conducted within a reasonable period of time after the same is requested in writing by either party. If the parties 18. Hazardous Materials are unable to agree upon the selection of a mediator, either party may petition or Services related to asbestos, PCB, al1d any and all other hazardous or toxic request the Circuit Court in the county in which the Project is located ( or the materials are expresslyexc\uded from this Agreement. The CHent agrees that Mediation Coordinator, if any, for the Courts of the county in which the Project is the Client shall provide a site that complies with all applicable laws and located) to appoint a mediator. A mediator who is so appointed may only be regulations, and the Client shall defend, indemnify and hold harmless the Design challenged for cause, and not peremptorily. While the request for and the Professional, and its officers, directors, employees, agents, servants and conducting of such a mediation shall be a precondition to the filing of a civil representatives, from any and all claims of any nature whatsoever, including, but action, in the event that either party is in jeopardy of losing its right to sue ( e. g., not limited to, reasonable attorneys' fees, which arise out of or relate to the the statute of limitations is about to expire), then a suit may be filed before presence of any asbestos, PCB, or other hazardous or toxic materials on the mediation. is conducted, provided that mediation is requested before, or Project site. In the event any asbestos, PCB, or other hazardous or. toxic simultaneously with, the filing of such suit, and is conducted before the named materials are found to be. present on the Project site, the Design Professional defendant in the suit is required to respond to the Complaint. If the scheduling of may, a.l its option and without any liability for any direct, incidental or the mediation requires, the plaintiff in the suit shall therefore grant the defendant consequential damages, suspend services until the Client ( acting through an appropriate extension of time to respond to the Complaint so as to permit the appropriate specialist consultants) abates or removes any and all such asbestos, mediation to be conducted before the defendant must so respond. PCB, hazardous or toxic materials from the Project site. The Client and the Design Professional agree that any litigation between them 19. Standard of Care and Allocation of Risk arising out of, resulting from or relating to this Agreement or the Project shall be The Design Professional' s services under this Agreement will be consistent with venued. and shall only be venued ( I.e., exclusively), in a state court of competent the degree of care and skill exercised by reasonably prudent members of the jurisdiction in the county in which the Project is located. Design