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HomeMy Public PortalAbout070-2006 AGREEMENT for WinstonTerr (2)AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN RICHMOND SANITARY DISTRICT AND WINSTON/TERRELL GROUP THIS AGREEMENT made and entered into this _loth_ day of October, 2006, by and between the City of Richmond, Indiana, acting through its Department of Sanitation as authorized by the Board of Commissioners for the Richmond Sanitary District (hereinafter referred to as "DISTRICT"), and Winston/Terrell Group., 150 West Market Street, Suite 412, Indianapolis, Indiana, 46204, (hereinafter referred to as "CONSULTANT"). WHEREAS, the DISTRICT desires to receive professional services relating to management training, which includes the scope of work more particularly defined by the DISTRICT'S Request for Proposals and the CONSULTANT'S proposal dated September 8, 2006, which document is made a part of this Agreement and is attached hereto as Exhibit A; and WHEREAS, the DISTRICT desires to engage the services of CONSULTANT to perform or furnish said services; and WHEREAS, CONSULTANT agrees 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, DISTRICT and CONSULTANT mutually agree as follows: Article I — Professional Engagement DISTRICT 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 an independent contractor and shall not be deemed to be an employee, agent, servant, partner or joint venturer of DISTRICT. CONSULTANT shall have the exclusive supervision, direction and control of all employees, sub -consultants, employed, contracted with, or used by, CONSULTANT in performing or furnishing services under this Agreement, subject only to the terms herein. Article II — SCone 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. Any additional fees associated with services not included in Exhibit A must be defined and agreed to by DISTRICT in writing prior to initiation of those services. Article III — Cooperation by DISTRICT DISTRICT shall, to the extent reasonable and practicable, cooperate with CONSULTANT in the Contract No. 70-2006 Page 1 of 5 performance of CONSULTANT'S services hereunder. Such cooperation shall include, but not necessarily be limited to: providing right of access to work sites as required for CONSULTANT to perform or furnish services under this Agreement. DISTRICT shall appoint Robert Tyler, P.E., District Director as DISTRICT'S REPRESENTATIVE with respect to the services to be performed under this Agreement. DISTRICT'S REPRESENTSTIVE shall have complete authority to transmit instructions, receive information, and interpret and define DISTRICT'S policies. CONSULTANT shall be entitled to rely on representations made by DISTRICT'S REPRESENTATIVE unless otherwise specified in writing by DISTRICT. Article IV — Schedule A schedule for carrying out services performed by CONSULTANT under the terms of this Agreement is set forth in Exhibit A. CONSULTANT will perform or furnish all services under this Agreement in accordance with said schedule. Article V — Assignment of Contract CONSULTANT shall not assign this Agreement or any portion of the services to be performed or furnished hereunder. Article VI — Ownership of Work Products Reports, drawings, specifications, submittals, and other work products of CONSULTANT prepared in conjunction with the services provided herein, except working notes and internal documents, shall become the property of DISTRICT upon payment for the services which produced said documents in accordance with this Agreement. Reuse or modification of these work products of CONSULTANT by DISTRICT shall be at DISTRICT'S risk. Article VII — Pam Payment for services set forth in Exhibit A shall not exceed Five Thousand Dollars and Zero Cents ($5,000.00) and shall be made by DISTRICT to CONSULTANT and shall be considered as full compensation for such services and for all personnel, materials, supplies, and equipment used and costs incurred in carrying out such services. Article VIII — Suspension of Work DISTRICT may, at DISTRICT'S discretion, suspend, in writing, all or a portion of the services under this Agreement at any time. CONSULTANT may suspend the services under this Agreement in the event DISTRICT does not make payment in accordance with the payment terms in Article VII; however, the services under this Agreement will only be suspended for non-payment after written notice is received by DISTRICT from CONSULTANT of its intention to suspend performance and such non-payment continues for a period of seven (7) days after receipt of such notification by DISRTICT. The time for completion of the services under this Agreement shall be extended by the number of days the services under this Agreement is suspended. If the period of suspension exceeds ninety (90) days, the terms of this Agreement are subject to renegotiation, and both parties shall have the option to terminate the services under this Agreement on the suspended portion in accordance with Article IX. Page 2 of 5 Article IX — Termination of Services DISTRICT, by notifying CONSULTANT in writing, may terminate any or all of the services covered by this Agreement at any time. All charges thus incurred, together with associated expenses reasonably incurred by CONSULTANT and reasonable charges for any other commitments outstanding at the time of termination (such as for termination of sub -consultants, rental agreements, etc.), shall be payable by DISTRICT within thirty (30) days following submission of a final statement by CONSULTANT. However, in the event that termination of said Agreement with CONSULTANT occurs at the completion of a specific phase of the services, the aforesaid provision for the proper filing and closing will not apply unless agreed to by DISTRICT under a specific Task Order. The payment provided for under this Article IX shall constitute full satisfaction of any obligation DISTRICT has, may have or could be found to have to pay for services performed or furnished and expenses or charges incurred by CONSULTANT pursuant to this Agreement and any and all liabilities or damages arising out of or resulting from termination of this Agreement. Article X — Indemnification To the fullest extent permitted by law, CONSULTANT shall indemnify, hold harmless and defend DISTRICT 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 DISTRICT under this Article X 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 XI — 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. (Such insurance shall be maintained for one (1) year after final completion of survey work). B. CONSULTANT is required to provide DISTRICT with Certificates of Insurance evidencing the aforementioned coverage and, upon DISTRICT'S written request, complete copies of such policies or other evidence of coverage satisfactory to DISTRICT shall provided to DISTRICT. Approval or acceptance of said insurance by DISTRICT shall not relieve or decrease the liability of CONSULTANT hereunder. Article XII — 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. Page 3 of 5 Article XIII - 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 XIV — 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. Page 4 of 5 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. "DISTRICT" THE RICHMOND SANITARY DISTRICT, RICHMOND, INDIANA, by and through its Board of Sanitation Commissioners By:_S/S Rodney Phenis Rodney Phenis, President Date: October 18. 2006 APPROVED:_S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date: October 23. 2006 "CONSULTANT" WINSTON/TERRELL GROUP I0 Title: President Date: November 2, 2006 Page 5 of 5