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HomeMy Public PortalAbout005-2005 Kinzelman Kline Gossman, LPROFESSIONAL CONSULTING SERVICES AGREEMENT THIS AGREEMENT made and entered into this 14th day of March , 2005 and re- ferred to as Contract No. 5-2005 , 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 Kinzelman Kline Gossman, Ltd., 320 Whetstone Alley, Suite A, Cincinnati, OH 45202 (hereinafter referred to as the "Consultant"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Consultant to complete a new Comprehensive Master Plan for the City of Richmond. A Request for Qualifications, dated June 7, 2004, has been made available for inspection by Con- sultant, is on file in the office of the Department of Community Development, and is hereby in- corporated by reference and made a part of this Agreement. Consultant agrees to abide by the same. The original response of Consultant to said Request for Qualifications has been made available for inspection, is on file in the office of the Department of Community Development, which re- sponse is dated July 8, 2005, and is hereby incorporated by reference and made a part of this Agreement. Consultant shall perform all services described on said response. The amended response of Consultant to said Request for Qualifications is attached hereto as Ex- hibit A, which response is dated November 11, 2005, consists of twelve (12) pages, and is hereby incorporated by reference and made a part of this Agreement. Consultant shall perform all ser- vices described on said response. Attached hereto as Exhibit B is "Professional Services Third Party Provisions." Said Exhibit con- sists of eight (8) pages and is hereby incorporated by reference and made a part of this agreement. Consultant agrees to abide by the same. Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. The Consultant shall furnish all labor, material, equipment, and services necessary for the proper completion of all work specified. No work shall commence until the City is in receipt of any required bonds and certificates of in- surance, and until a purchase order has been issued by the Purchasing Department. SECTION IL STATUS OF CONSULTANT Consultant shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Consultant shall provide, at its own expense, competent supervision of the work. SECTION III. COMPENSATION City shall pay Consultant a sum not to exceed One Hundred Forty-four Thousand Dollars and No Cents ($144,000.00) for the complete and satisfactory performance of all work described on Con - Contract No. 5-2005 Page 1 of 5 sultant's response. Consultant understands and agrees that the final product must be approved by the Indiana Department of Commerce (IDOC) and that final payment cannot be issued until the plan is satisfactorily approved by the IDOC. The City of Richmond shall follow all grant guide- lines when issuing payments and Consultant understands and agrees to delays associated with grant draw down timing and requirements. SECTION IV. TERM OF AGREEMENT This Agreement shall become effective when signed by all parties and shall continue in effect until completion of the project. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the follow- ing: a. failure, for any reason of the Consultant to fulfill in a timely manner its obligations under this Agreement; b. submission of a report, other work product, or advice, whether oral or written, by the Consultant to the City that is incorrect, incomplete, or does not meet reasonable professional standards in any material respect; c. ineffective or improper use of funds provided under this Agreement; d. suspension or termination of the grant funding to the City under which this Agreement is made; or e. unavailability of sufficient funds to make payment on this Agreement. In the event of such termination, the City shall be required to make payment for all work per- formed prior to the date this Agreement is terminated, but shall be relieved of any other responsi- bility herein. This Agreement may also be terminated by either the City or the Consultant, in whole or in part, by mutual Agreement setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. SECTION V. INDEMNIFICATION AND INSURANCE Consultant agrees to obtain insurance and to indemnify the City for any damage or injury to per- son or property or any other claims which may arise from the Consultant's conduct or perform- ance of this Agreement, either intentionally or negligently; provided, however, that nothing con- tained in this Agreement shall be construed as rendering the Consultant liable for acts of the City, its officers, agents, or employees. Consultant shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Consultant's operations under this Agreement, whether such operations by the Consultant or by any sub -Consultants or by anyone directly or indirectly em- ployed by any of them, or by anyone for whose acts the Consultant may be held responsible. Page 2 of 5 Coverage Limits A. Worker's Compensation & Statutory Disability Requirements B. Employer's Liability $100,000 C. Comprehensive General Liability Section 1. Bodily Injury $300,000 each occurrence $300,000 aggregate Section 2. Property Damage $100,000 each occurrence D. Comprehensive Auto Liability Section 1. Bodily Injury $300,000 each person $300,000 each occurrence Section 2. Property Damage $100,000 each occurrence E. Comprehensive Umbrella Liability $1,000,000 each occurrence $1,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $500,000 each occurrence $500,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Consultant shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Consultant has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Consultant is an out of state employer and therefore subject to another state's worker's compensation law, Consultant may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. SECTION VIL PROHIBITION AGAINST DISCRIMINATION A. Pursuant to Indiana Code 22-9-1-10, Consultant, any sub -Consultant, or any person act- ing on behalf of Consultant or any sub -Consultant shall not discriminate against any em- ployee or applicant for employment to be employed in the performance of this Agree- ment, 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. B. Pursuant to Indiana Code 5-16-6-1, the Consultant agrees: That in the hiring of employees for the performance of work under this Agree- ment of any subcontract hereunder, Consultant, any subConsultant, or any person acting on behalf of Consultant or any sub -Consultant, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen Page 3 of 5 of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Consultant, any sub -Consultant, or any person action on behalf of Consult- ant or any sub -Consultant shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on ac- count of race, religion, color, sex, national origin or ancestry; 3. That there may be deducted from the amount payable to Consultant by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or in- timidation shall be considered a material breach of this Agreement. SECTION VIIL 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. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document 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. By executing this Agreement the parties agree that this document supersedes any previ- ous discussion, negotiation, or conversation relating to the subject matter contained herein. 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 any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no ar- bitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, Consultant is estopped from bringing suit or any other ac- tion in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Consultant may have to bring such suit in front of other tribunals or in other venues. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. 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 in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees. In the event that an ambiguity, 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 Page 4 of 5 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 John Kenny John Kenny, President Date: March 14, 2005 APPROVED: Sarah L. Hutton Sarah L. Hutton, Mayor Date: March 14. 2005 "CONSULTANT" KINZELMAN KLINE GOSSMAN, LTD. U'S a Title:_ Principal Date: March 14, 2005 Page 5 of 5