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Home My Public Portal About131-2011 - City - Dave Bruce Kessler AuctioneAGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT made and entered into this _I" _ day of _September , 2011, by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "CITY"), and Dave & Bruce Kessler Auctioneers, 510 Greenbrier Drive, Richmond, Indiana, 47374 (hereinafter referred to as "CONSULTANT"). WHEREAS, the CITY desires to receive professional auctioneering services for the purpose of conducting the annual city auction for the City of Richmond to be held on or about October 15, 2011, which includes the scope of work more particularly defined by the CITY' S Request for Proposals dated June 20, 2011, and located in the office of the City Controller of the City of Richmond, and the CONSULTANT'S proposal dated July 7, 2011, which is made a part of this Agreement and is attached hereto as Exhibit A; and WHEREAS, the CITY desires to engage the services of CONSULTANT to perform or furnish said services; and WHEREAS, CONSULTANT agree to provide personnel necessary to accomplish said services in a timely manner. NOW, THEREFORE, in consideration of the terms and conditions herein, including the above stated recitals, CITY and CONSULTANT mutually agree as follows: Article I — Professional Engagement CITY hereby engages CONSULTANT, as an independent contractor, to perform or furnish the services more particularly described in Exhibit A, commencing on the date of this Agreement and CONSULTANT hereby agrees to perform or furnish as an independent contractor such professional and related service. CONSULTANT shall at all times be deemed independent contractors and shall not be deemed to be an employee, agent, servant, partner or joint venturer of CITY. CONSULTANT shall have the exclusive supervision, direction and control of all employees, sub -consultants, employed, contracted with, or used by, CONSULTANTS in performing or furnishing services under this Agreement, subject only to the terms herein. No work shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance and/or warranties; 2. The City is in receipt of any required affidavit signed by Consultant in accordance with Indiana Code 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. Contract No. 131-2011 Article II — Scope of Services The scope of services performed or furnished by CONSULTANT under the terms of this Agreement is defined in Exhibit A. Duties of CONSULTANT shall not be construed to exceed those services specifically established in Exhibit A, and any additional fees associated with services not included in Exhibit A must be defined and agreed to by CITY in writing prior to initiation of those services. Article III — Pam CITY agrees to pay CONSULTANT, in full payment for services rendered under this Agreement, the sum of three percent (3%) commission on gross auction receipts, after deducting advertising expenses, and to pay for the cost of clerking/cashiering staff to be provided and employed by CONSULTANT, at $12.00 per hour, all in accordance with Exhibit A. Article IV — Indemnification To the fullest extent permitted by law, CONSULTANT shall indemnify, hold harmless and defend CITY, its commissioners, officers, directors, employees and agents from and against any and all claims, damages, costs, losses and expenses (including but not limited to attorney's fees) caused by, arising out of or related to the negligence (including but not limited to professional negligence, errors, or omissions) of CONSULTANT, its partners, officers, employees, agents, sub -consultants and sub -contractors in the performance or furnishing of services under this Agreement, provided however, that CONSULTANT'S liability to CITY under this Article IV shall not exceed the percentage share of such claim, damages, cost, loss and expense that the officers, employees, agents, sub -consultants and sub -contractors bears to the total negligence of all negligent entities and individuals determined on the basis of comparative negligence principles. Article V — Insurance A. CONSULTANT shall maintain a policy of professional liability insurance, protecting it against claims arising out of the negligent acts, errors, or omissions for which it is legally liable in the performance or furnishing of professional services pursuant to this Agreement. B. CONSULTANT is required to provide CITY with Certificates of Insurance evidencing the afore -referenced coverages and, upon CITY' S written request, complete copies of such policies or other evidence of coverage satisfactory to CITY shall provided to CITY. Approval or acceptance of said insurance by CITY shall not relieve or decrease the liability of CONSULTANT hereunder. C. CONSULTANT shall maintain such workers compensation insurance coverage for its employees as shall be required by the State of Indiana or, if out-of-state, by the state of its principal office. Article VI — Default In the event of any breach of this Agreement by CONSULTANT, and in addition to any other damages or remedies, CONSULTANT shall be liable for all costs incurred by City due to the enforcement of this Agreement, including but not limited to City's reasonable attorney's fees, whether or not suit is filed. Article VH - Non -Discrimination Pursuant to Indiana Code 22-9-1-10, CONSULTANT, sub -consultant, or any person acting on behalf of CONSULTANT or any sub -consultant shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. Article VIII — Compliance With Indiana E-Verify Program Requirements Pursuant to Indiana Code 22-5-1.7, CONSULTANT is required to enroll in and verify the work eligibility status of all newly hired employees of the CONSULTANT through the Indiana E-Verify program. CONSULTANT is not required to verify the work eligibility status of all newly hired employees of the CONSULTANT through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, CONSULTANT shall provide to the City a signed Affidavit affirming that CONSULTANT does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event CONSULTANT violates IC 22-5-1.7 the CONSULTANT shall be required to remedy the violation not later than thirty (30) days after the City notifies the CONSULTANT of the violation. If CONSULTANT fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the CONSULTANT to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new CONSULTANT. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the CONSULTANT will remain liable to the City for actual damages. Article VIII — Miscellaneous This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. It shall be controlled by Indiana law and shall be binding upon the parties, their successors and assigns. It constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and suit arising under this Contract, if any, must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. Any person executing this Contract in a representative capacity hereby warrants that he has been duly authorized by his or her principal to execute this Contract. In the event that an ambiguity or question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Public Works and Safety By:_S/S Vicki Robinson Vicki Robinson, President By:_S/S Dian Lawson Dian Lawson, Member By:_S/S Anthony L. Foster, II Anthony L. Foster, II, Member Date:_ September 1, 2011 APPROVED: S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date:_ September 2, 2011 "CONSULTANT" DAVE & BRUCE KESSLER AUCTIONEERS 510 Greenbrier Drive Richmond, IN 47374 By:_S/S Bruce Kessler Title: _Auctioneer Date:_ September 15, 2011