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HomeMy WebLinkAboutKatz, Sapper & Miller, LLPKatz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer APPROVED, AS TO FORM BY: AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement"), is hereby made and entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (hereinafter, "City"); and Katz, Sapper & Miller, LLP (hereinafter, "Professional"). RECITALS WHEREAS, City owns and is responsible for its public works, which responsibility includes, by way of illustration and not by way of limitation, the planning, design, construction, operation and maintenance of the City' s infrastructure system; and WHEREAS, from time to time, City needs professional services to assist it in effectively and efficiently fulfilling its foregoing responsibilities; and WHEREAS, Professional is experienced in providing the professional services covered by this Agreement which relate to the planning, design, construction, operation and/or maintenance of City' s infrastructure systems; and WHEREAS, City desires to engage Professional as an independent contractor for the purpose of providing to City, on a non-exclusive basis, the professional services referenced herein; and WHEREAS, Professional is qualified and desires to provide City with such professional services as City may request in writing fi~om time to time. NOW THEREFORE, in consideration of the foregoing recitals and the covenants and conditions set forth herein, City and Professional mutually agree as follows: SECTION 1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated into this Agreement and made a part hereof. SECTION 2. SCOPE OF SERVICES. 2.1 City desires to engage Professional as an independent contractor for the professional services ("Services") set forth in Exhibit A, as attached hereto and incorporated herein. Professional desires to provide to City said Services. 2.2 Professional understands and agrees that, notwithstanding anything to the contrary Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer set forth herein, no Services or work of any kind shall be commenced by Professional under or pursuant to this Agreement until Professional receives a written Notice To Proceed from City, and that no compensation will be due or paid to Professional by City for any Services or work performed prior to the date on which such Notice is provided to Professional by City. 2.3 Professional acknowledges that it has read and understands this Agreement, and that Professional' s written acceptance and/or provision of any Services hereunder shall constitute Professional's acceptance of this Agreement and all of its terms and conditions. 2.4 Professional understands and agrees that City may, from time to time, request Professional, on a non-exclusive basis, to provide additional professional services to assist City in the planning, design, construction, operation and/or maintenance of its infrastructure system. The scope of such additional services to be provided by Professional to City shall be as requested and defined, in writing, by the Mayor or his duly authorized representative. When City desires additional services from Professional, the Mayor or his duly authorized representative shall notify Professional and set forth the scope of such additional services desired as well as the time frame in which such services are to be rendered. Professional shall then provide, at no cost to City, an estimated cost for such additional services, as well as the date by which such additional services will be provided. Only after City has approved Professional's time and cost estimate for the provision of such additional services shall Professional be authorized to commence same, the description of which additional services shall be set forth in written documents which shall be numbered and attached hereto in the order approved. 2.5 Professional understands and agrees that City reserves the right, at any time, to direct changes, or cause Professional to make changes in the Services provided, or to otherwise change the scope of the work covered by this Agreement, and Professional agrees to promptly make such changes. Any difference in price or time of performance resulting from such changes shall be equitably adjusted by City and Professional after receipt of documentation from Professional in such form and detail as City may require. 2.6 Professional expressly warrants that all Services covered by this Agreement will conform to the specifications, drawings, samples, instructions, directions and/or descriptions fumished to or by City, and that such Services will be performed in a timely, good and workmanlike manner and free from defects. 2.7 Professional acknowledges and agrees that it knows of City's intended use and expressly warrants that all Services covered by this Agreement which have been selected, provided or performed by Professional, based upon City's stated use, will be fit and sufficient for the particular purposes intended by City. Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer 2.8 Time is of the essence of this Agreement. SECTION 3. CITY'S RESPONSIBILITIES 3.1 Upon its request of Professional for a time and cost estimate for the Services and/or additional services to be provided hereunder, City shall provide such criteria and information with respect to the Services and/or additional services as are reasonably necessary for Professional to understand the specific Services and/or additional services requested and to provide a time and cost estimate thereon. 3.2 Once City has accepted Professional's time and cost estimate for the Services, City shall: 3.2.1 Furnish to Professional, upon request, such studies, reports and other available data in City's possession that City considers reasonably pertinent to the Services to be provided, and which Professional shall be entitled to rely upon in performing the Services unless, in its review of same, Professional determines that such information is not consistent and fails to promptly so notify City; and 3.2.2 Arrange and make all provisions for Professional to enter upon public and private property as reasonably required for Professional to perform the Services; and 3.2.3 Make available to Professional for consultation, as needed, such individuals as are necessary for Professional to provide the Services to City. 3.3 City shall designate the Mayor or his duly authorized representative to act on City' s behalf on all matters regarding the Services. SECTION 4. PROFESSIONAL'S RESPONSIBILITIES 4.1 Once requested by City, Professional shall provide, within five (5) business days thereafter, a time and cost estimate and/or a request for specific information necessary to provide same to City. 4.2 Once City has accepted Professional's time and cost estimate for the Services, such Services shall be performed pursuant to the terms of this Agreement, within such time and cost estimate, and pursuant to any other terms and conditions specifically enumerated in any Services description which may be attached hereto. 4.3 Professional shall coordinate its performance, in the form of physical meetings and/or written status reports, with the Mayor or his duly authorized representative, pursuant to a mutually agreeable schedule and/or as circumstances dictate. Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer 4.4 Professional shall provide the Services by following and applying at all times the highest professional and technical guidelines and standards. SECTION 5. COMPENSATION 5.1 As full and complete compensation for the Services performed by Professional hereunder, and subject to the terms and conditions contained in this Agreement, including, but not limited to, the termination provisions set forth in paragraph 7.2 hereinbelow, City shall pay Professional according to the Schedule of Fees attached hereto as Exhibit A. 5.2 Professional shall submit an invoice to City every thirty (30) days for Services provided City during the time period encompassed by such invoice. City shall pay Professional for all undisputed Services rendered and stated on such invoice within thirty (30) days after the date of City's receipt of same. If the undisputed portion of an invoice amount is not paid within thirty (30) days of its receipt by City, Professional shall so notify City, in writing. If such undisputed portion of the invoice amount is not thereafter paid within five (5) business days after City' s receipt of such written notice, then a late charge in a sum equal to one percent (1%) of such unpaid and undisputed invoice amount shall accrue and be immediately due and payable as a separate debt for each month same remains unpaid. 5.3 In the event an invoice amount is disputed, City shall so notify Professional. If such dispute is not resolved to City's satisfaction within ten (10) business days after notice of such dispute is sent by City to Professional, City shall pay such amount, under protest, into the City Court of Carmel, which Court shall hold such money until notified of a resolution signed by both parties hereto or the entry of a final judgment thereon. 5.4 City, in its sole discretion, may agree to pre-pay all or any portion of the compensation to be paid Professional as a result of its provision of the Services hereunder, which pre-payment shall be expressly contingent upon and subject to an accounting and reconciliation by and between the parties at such time as the Services are fully performed, this Agreement is terminated and/or upon City's request. Professional agrees to immediately disgorge to City any prepayment amount it has received from City for Services that are disputed by City. 5.5 If additional professional services are required and Professional wishes to hire outside sources for the performance of same, Professional shall so notify City, in writing and in advance of the engagement of such outside sources, with an explanation of the need and the qualifications of same. If City consents to such outside sources, which consent shall not be unreasonably withheld, City shall reimburse Professional for the actual cost of such outside services, which Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer reimbursement sum shall be subtracted from the amount of compensation due Professional from City hereunder. Professional understands and agrees that any and all outside sources so hired shall be employees or contractors of Professional only. Professional warrants and indemnifies City for and from any and all costs, fees, expenses and/or damages incurred by City as a direct or indirect result of the services or use by Professional of outside sources. This indemnification obligation shall survive the termination of this Agreement. SECTION 6. TERM Subject to the termination provisions set forth in Section 7.2 hereinbelow, this Agreement shall be in effect through December 31, 1997, and shall therealter, on the 1 st day of January in each subsequent year, automatically renew for a period of one ( 1 ) year, unless earlier terminated in accordance with the terms and conditions hereof. SECTION 7. MISCELLANEOUS 7.1 City Property. Any and all documentation (other than original tracings and calculations) generated by Professional pursuant to this Agreement shall be considered City's exclusive property and shall be disclosed only to City and to no other person without City's prior written consent. Professional shall keep confidential all working and deliberative material pursuant to IC 5-14-3-4. 7.2 Termination. 7.2.1 7.2.2 7.2.3 The obligation to provide Services under this Agreement may be terminated by City or Professional without cause upon thirty (30) days' written notice to the other party. The obligation to provide Services under this Agreement may also be terminated by City for cause, or upon City's failure to appropriate monies sufficient to pay for all of the Services to be rendered hereunder, immediately upon Professional's receipt of City's notice to cease all Services. In the event of Agreement termination, and as full and complete compensation hereunder, Professional shall be paid for all Services rendered and expenses incurred to date of termination that are not in dispute, less any reasonable attorney fees, costs and other damages incurred by City in the enforcement of its termination rights hereunder. Disputed compensation amounts shall be resolved as set forth in paragraph 5.3 hereinabove. Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer 7.3 Binding Effect. City and Professional, and their respective officers, officials, agents, partners, successors, executors, administrators, assigns and legal representatives are bound to the other and to its officers, agents, partners, successors, executors, administrators, assigns and legal representatives, in all respects as to all covenants, agreements and obligations of this Agreement not illegal nor otherwise unenforceable in law or equity. 7.4 No Third Party Beneficiaries. Nothing contained herein shall be construed to give any fights or benefits hereunder to anyone other than City and/or Professional. 7.5 Relationship. The relationship of the parties hereto shall be as provided for in this Agreement, and Professional shall in no fashion be deemed to be an employee of City. In this regard, Professional and all of its agents, employees, contractors, outside sources and other persons shall not be employees of City. Furthermore, Professional shall have the sole responsibility to pay to or for its agents, employees, contractors, outside sources and other persons all statutory, contractual and other benefits and/or obligations as they become due, and City shall not be responsible for same. Rather, the compensation to be paid hereunder by City to Professional shall be the full and maximum amount of compensation and monies required of City to be paid to Professional hereunder. Professional hereby warrants and indemnifies City for and from any and all costs, fees, expenses and/or damages incurred by City as a direct or indirect result of any statutory, contractual or other claim for wages, benefits or otherwise by any agent, employee, outside source, contractor or other person of Professional regarding or related to the subject matter of this Agreement. This indemnification obligation shall survive the termination of this Agreement. 7.6 Insurance. Professional shall procure and maintain, with an insurer licensed to do business in the State of Indiana and reasonably acceptable to City, Professional Responsibility Insurance and such other insurance as is necessary for the protection of City and Professional from any and all claims for damages or otherwise under workers' compensation, occupational disease and/or unemployment compensation acts, because of errors and omissions, because of bodily injury, including, but not limited to, personal injury, sickness, disease or death of any and all of Professional's employees, agents, contractors, outside sources and other persons, and/or because of injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer than those amounts set forth on attached Exhibit B. Professional shall cause its insurers to name City as an additional insured on all such insurance policies (except on its Professional Responsibility Insurance policy), promptly provide City with copies of all such policies, and provide that such policies will not be canoeled without thirty (30) days' prior written notice to City. 7.7 Price Terms. Professional warrants and agrees that all of the prices, terms and warranties granted by Professional herein are at least as favorable to City as those offered by Professional to other customers purchasing similar services under the same material terms and conditions. Professional agrees that it will pass on to City all discounts, rebates and/or savings that it receives as a result of this Agreement or the Services hereunder provided. 7.8 Force Majeure. Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to the extent, that it is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, dots, natural disasters, wars, sabotage, labor problems (including, but not limited to, lockouts, strikes and slowdowns), inability to obtain power, material, labor, equipment or transportation, or court injunction; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party within five (5) business days after discovery of the cause of such delay. During any such period of delay or failure to perform by Professional, City, in its sole option, may purchase some or all of the Services from other sources and reduce the Services requested of Professional hereunder by such degree, without liability to Professional, or have Professional provide some or all of the Services from other sources at times requested by City and at the prices set forth in this Agreement. 7.9 Liens. Professional shall not cause or permit the filing of any lien on any of City's property. In the event such a lien is filed of record and Professional fails to remove it within fifteen (15) days after the date of filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at Professional's sole cost and expense. Professional shall indemnify and hold harmless City from and against any and all liabilities, losses, claims, costs, attorney fees, expenses and/or damages incurred by City in connection with any such lien or the removal thereof. This indemnification obligation shall survive the termination of this Agreement. Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer 7.10 Default. In the event Professional: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Professional's warranties; (b) fails to perform the Services as specified; (c) fails to make progress so as to endanger timely and proper completion of the Services and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of written notice from City specifying such failure or breach; or (d) becomes insolvent, files, or has filed against it, a petition in bankruptcy, for receivership or other insolvency proceeding, makes a general assignment for the benefit of creditors or, if Professional is a partnership or corporation, dissolves, each such event constituting an event of default hereunder, City shall have the right to, among other things, (1) terminate all or any part of this Agreement, without liability to Professional; (2) perform or obtain, upon such terms and in such manner as it deems appropriate in its sole discretion, the Services which were to be provided by Professional and Professional shall be liable to City for any excess costs to City in performing or obtaining the same or similar Services; and/or (3) exercise any other right or remedy available to City at law or in equity. 7.11 Setoff. In addition to any right of setoff provided by law, all amounts due Professional shall be considered net of indebtedness of Professional to City; and City may deduct any amounts due or to become due from Professional to City and its subsidiaries from any sums due or to become due from City to Professional hereunder. 7.12 Govemment Compliance. Professional agrees to comply with all present and future federal, state and local laws, executive orders, rules, regulations, codes and ordinances which may be applicable to Professional's performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Professional agrees to indemnify and hold harmless City from any and all losses, damages, costs, attomey fees and/or liabilities resulting from any violation of such law, order, rule, regulation, code or ordinance. This indemnification obligation shall survive the termination of this Agreement. 7.13 Indemnification. Professional shall indemnify and hold harmless City and its officers, officials, employees, agents, assigns and legal representatives from any and all losses, liabilities, claims, judgments and liens, including, but not limited to, all damages, Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer costs, expenses and attorney fees arising out of any intentional or negligent act or omission of Professional and/or any of its employees, agents, outside sources, contractors or other persons in the performance of this Agreement, or otherwise. The failure to do so shall constitute a material breach of this Agreement. This indemnification obligation shall survive the termination of this Agreement. 7.14 Discrimination Prohibition. Professional represents and warrants that it and each of its employees, agents, contractors, outside sources and other persons shall comply with all existing laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment and/or other person in the subcontracting of work and/or in the performance of any Services contemplated by this Agreement with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, subcontracting or work performance hereunder because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status or Vietnam era veteran status. City reserves the right to collect a penalty as provided in IC 5- 16-6-1 for any person so discriminated against. This indemnification obligation shall survive the termination of this Agreement. 7.15 Severability. If any provision or portion of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, that provision or portion thereof shall be stricken, and all other provisions of this Agreement which can operate independently of such stricken provision shall continue in full force and effect. 7.16 Notice. Any notice, invoice, order or other correspondence required or allowed to be sent pursuant to this Agreement shall be in writing and either hand-delivered or sent by first-class U.S. mail, postage prepaid, addressed to the parties at the following addresses: CITY: PROFESSIONAL: City of Carmel One Civic Square Carmel, IN 46032 ATTN: Diana L. Cordray (with a copy to the City Attomey, Department of Law, same address) Katz, Sapper & Miller, LLP 11711 N. Meridian St. Suite 800 P.O. Box 40857 Indianapolis, IN 46240 ATTN: Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer Notwithstanding the above, City may orally notify Professional to cease all Services pursuant to paragraph 7.2.2 hereinabove, provided that such notice shall also then be sent as required by this paragraph. 7.17 Effective Date. The effective date ("Effective Date") of this Agreement shall be the date on which the last of the parties hereto executes same. 7.18 Govemin~ Law: Lawsuits. This Agreement shall be govemed by and construed in accordance with the laws of the State of Indiana, except for its conflict of laws provisions, as well as by all municipal ordinances and codes of the City of Carmel, Indiana, as the same may be in full force and effect upon the Effective Date. The parties further agree that, in the event a lawsuit is filed hereunder, they waive any rights to a jury trial they may have, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 7.19 Waiver. Any delay or inaction on the part of City in exercising or pursuing its rights and/or remedies hereunder or under law shall not operate to waive any such rights and/or remedies nor in any way affect the rights of City to require such performance at any time thereafter. 7.20 Exhibits. All exhibits and/or appendices referenced herein, whether marked "Exhibit", "Appendix", or by some other title, shall be considered a part of this Agreement as though fully set forth herein. 7.21 Non-Assignment. Professional shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement, without City' s prior written consent. 7.22 Prior Agreements. This Agreement contains the entire agreement of and between the parties hereto with respect to the subject matter hereof, and no prior agreement, understanding or representation pertaining to such subject matter, written or oral, shall be effective for any purpose. No provision of this Agreement may be amended, added to or subtracted from except by an agreement in writing signed by both parties hereto and/or their respective successors in interest. Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer 7.23 Representation and Warranties. Each party hereto represents and warrants that it is authorized to enter into this Agreement and that any person or entity executing this Agreement on behalf of such party has the authority to bind such party or the party which they represent, as the case may be. 7.24 Headings. All headings and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 7.25 Entire Agreement. This Agreement represents the entire understanding and agreement between Professional and City with respect to the subject matter hereof and supersedes all prior negotiations, representations and/or contracts, either oral or written, regarding salTle. 7.26 Advice of Counsel The parties warrant that they have read this Agreement and understand it, are fully aware of their respective rights, have had the oppommity for the advice and assistance of an attorney throughout the negotiation of this Agreement, and enter into this Agreement freely, voluntarily, and without any duress, undue influence, coercion or promise of benefit, except as expressly set forth herein. Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA by and through its Board of Public Works and Safety BY: Brai~;~,~ MaryAn~ urke,9 ~nber ~alker, Member Date: ~ ~-qf KATZ, SAPPER & MILLER, LLP BY: Printed Name: '~~ Title: 12 Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer EXHIBIT A Scope of Services: Professional agrees to furnish and perform accounting and financial advisory services as required by City. These services are expected to include assistance in the development of a monthly and annual cash flow forecast of City revenues and expenditures. The cash flow forecast is intended to assist the City in financial planning and will allow the City to anticipate funds availability for investment so as to develop an investment strategy that will optimize the City' s investment earnings. Schedule of Fees: Professional's fees for services rendered pursuant to the Agreement shall not exceed the following hourly rates: January through April May through December Partner $195.00 $150.00 Manager $150.00 $115.00 Senior $ 95.00 $ 70.00 Staff $ 70.00 $ 55.00 Clerical $ 50.00 $ 40.00 13 Katz, Sapper & Miller, LLP Accounting Services Clerk-Treasurer EXHIBIT B INSURANCE COVERAGES Worker's Compensation & Disability Statutory Limits Employer' s Liability: Bodily Injury by Accident: Bodily Injury by Disease Bodily Injury by Disease $100,000 each accident $ 500,000 policy limit $100,000 each employee Property damage, contractual liability, products-completed operations: General Aggregate Limit (other than Products/Completed Operations): Products/Completed Operations: $2,000,000 $2,000,000 Personal & Advertising Injury Limit: Each Occurrence Limit: Fire Damage (any one fire): Medical Expense Limit (any one person): $1,000,000 $1,000,000 $ 5O,OOO $ 5,000 Comprehensive Auto Liability Owned, hired and non-owned Bodily Single Limit: injury and property damage each accident $1,000,000 Umbrella Excess Liability Each occurrence and aggregate Maximum Deductible $2,000,000 $ 10,000 General Liability Insurance: Errors and Omissions $5,000,000 14