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10/15/2008 Agreement DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: October 30, 2008 TO: Suzanne A. Hutton County Attorney FROM: Kathy M Peters Executive Assista~ Pamela G. Hanc~YD.c. ATTN: At the October 15, 2008, Board of County Commissioner's meeting the Board granted approval and authorized execution of an Agreement for Professional Engineering Services between Monroe County and Pistorino & Alam Consulting Engineers, Inc. to assist in preparation of the upcoming trial in Monroe County v. Bender & Associates, et.a!. Attached is a copy of the above-mentioned for your handling. Should you have any questions, please feel free to contact our office. cc: Finance File! .I.... PlSTORINO & ALAM ~ CONSULTING ENGINEERS, INC 7171 S. W. 6200 Ave., Fourth Floor. Miami, Florida 33143 (305) 669-2700. Fax: (305) 669-2165 AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES Client: Ferencik, Libanoff, Brandt, Bustamante and Williams, P.A. 150 South Pine Island Road, Ste. 400 Ft. Lauderdale, FL 33324 Engineer: Pistorino & Alam Consulting Engineers, Ine. 7171 S.W. 62nd Avenue, 4th Floor Miami, FL 33143 Attn: Ira Libanoff, Esq. jpistorino@pistorinoalam.com Phone: Fax: Date: Project No.: Project Name: Scope of Senices: Fee Arrangement: (954) 474-8080 (954) 474-7343 Phone: Fax: (305) 669-2700 (305) 669-2 J 65 September 5, 2008 Proposal Monroe County vs. Bender & Associates Architects, P.A. Professional Engineering Services. 3: C) t:::l :z :t.. ~("")::;: (':"'":iC:.... N = = CO> o c-> -i W o Hourly, based on the following rates: Additional services shall be per the following rates: '--';" Principal Engineer Senior Engineer/Architect Registered Engineer/Architect Staff Engineers Licensed Contractor ~:,;~ ,,= C,"ro"", The terms and conditions on the second page are part of this agreement Retainer Amount: Special Conditions: $300.001hr $ 175.001hr $175.001hr $J25.001hr $125.001hr CAD Drafts Person Technician Project Support Sworn Testimony $65.001hr $45.001hr $40.001hr $400.001hr ;>';--. ~ - ""C! 9? c.n .....'" - None All reimbursable expenses such as reproductions, photography, mileage, couriers etc. shall be billed at actual expense plus a surcharge of I 5%. Proposals for specific tasks will be provided upon request. A~~~pt~d!)~7 tC!:er:t): ~JO,~ (:SIgnature) OCT 1 5 2008 Mario DiGennaro, Mayor tJ-'rmted Name ana Iltle) AGE ~ Chent Please Return One (1) Copy with Original Signature Agreement for Professional Engineenng Services . Page lof2 I TERMS AND CONDITIONS Pistorino & Alam Consultin2 Engineers, Ine. (P & A) Th~ Engineer shall perform the services outlined in this agreement for the stated tee agreement. SCOPE OF WORK P&A shall perform services in accordance with an Agreement made with the Client. The Agreement consists of P&A's Proposal and these Standard Terms and Conditions. The scope of work, costs and time schedules, if any, defined in the Proposal are based on information provide by Client and shall be sutiject to the provisions of this Agreement. If this information is incomplete or inaccurate Of if Client dir.ects change to the scope of work established by the 'Proposal, a wntten amendment to the Agreement equitably adjusting the costs and time. schedules, sha}! be executed by Client an~ P&A. as soon as praclicable. Chent IS defined as the person on entIty requesting and/or authorizing the work, and in so doing. Client represents and warrants that he/she is duly authorized in this role. The acceptance of P&A's Proposal signifies the acceptance of the terms of the Agreement. ACCESS TO SITE Ul1;1e~~ otherwise statedl the Engineer will have access to the site for actlVlttes necessary for tne performance of the services. BILLINGIPAYMENTS Invoices will be submitted for services and reimbursable expenses and are due when rendered. Invoice shall be considered PAST DUE if not p~d withi,?- ~O days after the invoice date and the Engineer may Without walvmg any claim or right against Client, and without liability what.soever to the C)lent, suspend performance of the service. Retamers shall be credited on the final mvoice. A service charge will be c~arged at 1.5% per month on the '..mpaid balance. In the evellt any portion or all at .ltl account remains unpaid 60 days aft~r bi1li!l~ thi~ Client shall pay cost of collection, including reasonable attorneys' fees and compensa~lon for the time .ofthe staff members required to collect the past due mvolces. All reimbursable e'9Jenses such as printing couner, mileage, testing laboratories etc. are m addition to the base fe~ and will be billed with a multiplier ofl.15. FEE Th~ total fee, except stated lump sum, shall be understood to be an estlmatc, based upon ~cope of Services. Where the fee arrangement is to bl? on an hourly baSIS, the rates shall be those that prevail at the time services are rendered. SAFETY It is understood and agreed that with the respect to Project site health and safety., P&A is responsible solely for the safe conduct of its personnel 10 the performance of their duties. It is expressly agreed that P&A has no responsibility f~ the protection and safety. of any other v.ersons on and about the Project SIte. Unless indicated otherwise in the Proposal. Client shall provided, at its eX}?ense, all facilities and labor necessary to afford P&A personnel safe access to sampling testing or obset;"vation locations in conformance with federal, stafe ana local. laws, ordm~cc::s and regulations. Unless access equipment is proVided by P&A, It IS understood and agreed that P&A shall not be in Charge of, and shall have no control or responsibilit:x over any aspect of tlie erection, construction or use of any scaffolds, hoIsts cranes ~tays, ladders supports or other similar devices as defined and mterpreted under any laws, ordinance or regulation relatin~ in any way' to Vroject safety. Environmental contaminants P&A s scope of services is confined to those items described in the applicable proposal or sla~ement of worK. It does not inclu~e .the identtfication, testing samphng, remova,l, abatement or remedlatton of any environmental pollutant,. i.:o!lta!TImant, hazard,. toxin, condition, ~rritant, material or problem, IlIl..audmg but not Itmlted to moldskfungl bacteria, mildew mycotoxins, spores or other irritants of any indo 'If in the course of P&A performance of its services it observes said conditions or falls to observe said conditions which were otherwise visually detectable Che~t. agrees P&A shall have no liability to anyone relative to said condlhons. STANDARD OF CARE Services provided by the Engineer under this Agreement will be perfofll!.ed in a qtanner consistent with that degree of care and skill ordmartly exerCIsed by members of the same profession '''the general~y !,-ccepted professional standar~ of care") currently practicing under Similar circumstances and at the time of the subject Services. OWNERSHIP OF DOCUMENTS ~ith ~he ~xception of P&A submittals to Client, all documents, mcludlOg field data, field notes, laboratory test data, calculations and analyses, prepared by P&A. as mstruments of service shall remain the prop.crty of P&A P&A will retain all p:ertinent records relating to the services ,l?erf~ed for a period of six (6) month following completion of P&A s services. After thisJ'eriod they may be discarded unless other arrangements are requeste and p'aid for by Client. Client Please Return One (1) Copy wlth Original Signature Agreement for Professional Engineering Services OPINIONS OF COST P&A's opinions of probable costs. If any, provided as part of the services under this agreement are made on the basic of P&A's ~owledge, experience. and qualifications, and represent P&A's Judg~ent ~s an expenenc.ed !l1ld qualified professional engineer fanuhar WIth the constructIOn mdustry. P&A cannot and does not guarantee that proposals, bids or actual costs will not vary from the opinions of probable costs provided by P&A. LIMITATIONS OF LIABILITY To the fullest e~ent permitte~ by, law, the total liability, in the aggregate, of Engmeer and Engmeer s officers, directors, employees agents, and independent professional associates and Eng,ineers and any others, to Client and anyone claiming by thrOUgh or under Chent, for any. ~d all injuries, c.laims, losses, expenses, or damages wha~soever anslp.g out o.f or m any way related to Engineer's serVices, the project or thIS Agreement, from any causes or causes wh~ts?ever, I~clu~ing. but not limited to, the negligence, errors, omlsslon~ stnct habihty, breach of contract misr~presentation, or breach 01 warranty of El1gineer or Engine~'.s officers, dircctors, emP.Ioyees, agents or mdependent profeSSIOnal associates or r:ngmeers, or any 9thers, shall not exceed the professional liability I~sll;r~c~ as reqUIred by the state. Any other Client mandateo h!,-blhty m~urance coverage o:ver and above the state limits shall be a direct project cost under thiS Agreement. The provision of this paragraph should apply regardless of the cause of aA;.tion, whether in contn:lc,t. tort (including without limitation, negligcl1ce). statues or o:hcrv.:,s,;:. INDEMNIFICATION If any claim, suit or legal action arising out of the services under this Agreemen~ is asserted against P&A by a person or entity who is not a party to this Agreement. Client agrees to indemnify nold harmless. protect and defend P&A from ana against any such claim suit or legal action and any and all loss, liability, damage, c~sts and eXp'enses associated therewith, exce~ to the extent that the event anOlor damages giving rise to such claim, suit or legal action is found to pav~ been caused. by the neg~igence of P&A. The Client's obltgati~n hereunder mcludes, but IS not limited to, the payment of attorner. s fee, court costs, and elg)ert and consulting expenses required for the proper and vigorous defense ofP&A. HIDDEN CONDITIONS A conditi~ is h~dde.n if conl?ealed by exi~ing finishes or is not capable of investigation by Visual observatlon. Evaluation of the hidden conditions is not included in the scope of work. If the El,lgineer has reasol,l to believe that such a condition may exist, the l?hent . sh~1I authonze and. pay for all costs associated with the mveStigatlOn ,?f such a. ~ondltion and, if.necessary, all costs necessary to correct said condltlon. If the chent fails to authorize such investigation or believe that such a condition exists the client is responSible for all risks associated with this condftion and the Engi~eer shall not be responsible for the existing conditio'n nor any resultmg damages to persons or property. TERMINATION This Agreement .may' be terminated by either partY. upon at lease (7) days wrItten notice m the event of substantial failure by the other paJ"tx to perform in accordance with the terms hereof. Such termination shall not be effective if that substantial failure has been re~edied before expiration .of ~e fl:eriod specified ~n the mitten notice. In th~ event of te~ma~on, P&A shall be. paid for services performed pnor to the termmation date set forth m the notice plus reasonable termination expenses. NO THIRD PARTY BENEFICIARIES N?!!>i!!; ~!"' this :\gl~~!:'!.~':!'. :';~:J1l ""::'1:';: '\ :('1"ltra:::u~-! rd:ui.-";~;F With, or cause of action in favOl ot: a third party against Client ot P&A. SUBPOENA OR COURT ORDERS If any subpoena or court order is served upon P&A and/or any of its staff, subconsultants or subcontractors requiring the presentation of d?cuments or appearance at a deposition or trial, or for other dIscovery pu~oses, arising out of services provided under this AgreeJ;llent. . Client shall pay the charges applicable to P&A's comphance .Wlth the subpoena or court order. Charges will accrue on an actual time and related expense basis in accordance with the standard rates in effect at the time of service upon P&A of the ~ubpoena or court order. Invoices will include time and expenses mc~ed g<l;thering, organizing and duplicating documents, preparing to give testimony, travel and testifying in deposition or trial. Page 2 of2 <..... PISTORINO & AIAM CONSULTING ENGINEERS, INC.