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HomeMy WebLinkAboutButler Fairman & Seufert, Inc./Engr • C it #a• ►(40ai1•0 • Engin ernabeparan and Sent- Inc. APPROVE Engineerine Depar[mem—2008, Web Hosting Agreement S O Appropriation#206-4462838 P.O. #17777 FORM BY: 1 Contract Not To Exceed 8360.00 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 Butler, Fairman, & Seufert, Inc. (hereinafter "Professional"). • RECITALS WHEREAS City owns and is responsible for the operation and maintenance of its property, • personnel, public works and infrastructure; and • WHEREAS, from time to time, City needs' professional assistance in fulfilling its foregoing responsibilities; and WHEREAS, Professional is experienced in providing and desires to provide to City the professional services ("Services") referenced herein; and WHEREAS, City desires to engage Professional as an independent contractor for the purpose of providing to City the Services referenced herein; NOW, THEREFORE, in consideration of the foregoing recitals and the covenants and conditions set forth herein, Cityand 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 Services set forth in attached Exhibit A, incorporated herein by this reference. 2.2 Professional understands and agrees that City may, from time to time, request Professional to provide additional or modified Services to City. When City desires additional Services from Professional, the City shall notify Professional of such additional Services desired, as•well as the time frame in which same are to be provided. Only after City has approved Professional's time and cost estimate for the provision of such additional Services, has encumbered sufficient monies to pay for same, and has authorized Professional, in writing, to provide such additional Services, shall such Services be provided by Professional to City. A copy of the City's authorization documents for the purchase of additional Services shall be numbered and attached.hereto in the • order in which they are approved by City. 2.3 Time is of the essence of this Agreement. 1 (T:WEW3SAly(Mommis'Pflof mJ SmisENGINEERING2G0tBWI6EIinoa Scurm ProlmimA Smimd ,4fAS 1043 AM] • Butler Fariman and Seufert,inc. Engineering Department—2008, Web Hosting Agreement Appropriation#206-4462838 P.O. #17777 Contract Not To Exceed$360.00 SECTION 3. CITY'S RESPONSIBILITIES • 3.1 City shall provide such information as is reasonably necessary for Professional to understand the Services requested. 3.2 City shall provide all data required for provision of Services. Professional may assume that all data so provided is correct•and complete. 3.3. City shall arrange for Professional to enter upon public and private property as reasonably required for Professional to perform the Services. 3.4 City shall designate payment of the Services from City budget appropriation number 206-4462838 funds. 3.5 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 Professional shall perform the. Services pursuant to the terms of this Agreement and within any applicable time and cost estimate. 4.2 Professional shall coordinate with City its performance of the Services. 4.3 Professional shall provide the Services .by following and applying at all times reasonable and lawful standards as accepted in the industry. SECTION 5. COMPENSATION 5.1 Professional estimates that the total price for the Services to be provided to City hereunder shall be no more than Three Hundred Sixty Dollars (S360.00) (the "Estimate"). Professional shall submit an invoice to City no more than once every thirty (30) days for Services provided City during the time period encompassed by such invoice. Invoices shall be submitted on a form containing the same information as that contained on the Professional Services Invoice attached hereto as Exhibit B, incorporated herein by this reference. City shall pay Professional for all.undisputed Services • rendered and stated on such invoice within sixty (60) days from the date of City's receipt of same, or be subject to a late charge of one percent (1%) of such unpaid and undisputed invoice amount for each month same•remains unpaid. 5.2 Professional agrees not to provide any Services to City that would cause the total cost of same to exceed the Estimate, without City's prior written consent. • R't6ss."Tly IMowmts'Ptolmia4J Smitcs'E\'LINEERI GUPt6MU+lly.Fain=ScalmRo1cssia.al 5mica cloc:IC2fA8 It}45 AM] ' Butler-Fariman and Seufert, inc. Engineering Department—2008. Web Hosting Agreement Appropriation#206-4462838 P.O. #17777 Contraci Not To Exceed S360.00 SECTION 6. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Section 7.1 . hereinbelow, this Agreement shall be in effect from the Effective Date through December 31, 2008, and shall, on the first day of each January thereafter, automatically renew for a period.of one (1) calendar year, unless,othenvise agreed by the parties hereto. SECTION 7. MISCELLANEOUS 7.1 Termination. 7.1.1 The obligation to provide all or any portion of the Services under this Agreement may be terminated by City or Professional, without cause, upon thirty (30) days' notice. 7.1.2 The obligation to provide all or any portion of the Services under this Agreement may be terminated by City, for cause, immediately upon Professional's receipt of City's "Notice To Cease Services." 7:1.3 In the event of full or partial Agreement termination, and as full and complete compensation hereunder, Professional shall be paid for all such Services rendered and expenses incurred as of the date of termination that are not in dispute, except that such payment amount shall not exceed the Estimate. Disputed compensation amounts shall be resolved as allowed by law. 7.2 Binding Effect. City and Professional, and their respective officers, officials, agents, partners and successors in interest are bound to the other as to all Agreement terms, conditions and obligations. 7.3 No Third Party Beneficiaries. Nothing contained herein shall be construed to give rights or benefits to anyone other than the parties hereto. 7.4 Relationship. The relationship of the parties hereto shall be as provided for in this Agreement, and neither Professional nor any of its agents, employees or contractors are City employees. Professional shall have the sole responsibility to pay to or for its agents, employees and contractors all statutory, contractual and other benefits and/or obligations as they become due. Professional hereby warrants and indemnifies City for and from any and all costs, fees, expenses and/or damages incurred by City as a result of any claim for wages, benefits or otherwise by any agent, employee or contractor of Professional regarding or related to the subject smatter of this Agreement. This indemnification obligation shall survive the termination of this Agreement. IZ:IF,BUSHY Doumc,u Pmfessiovl SenkeiENGINEENSL`.'rotouda:Ninon Scufwt Professional SmicaM[:II73 W91045 ANI Butler Fariman and Seufert, Inc. Engineering Department—2008, Web Hosting Agreement Appropriation#206-4462838 P.O. #17777 Contract Not To Exceed 8360.00 7.5 Insurance. Professional shall procure and maintain with an insurer licensed to do business in the State of Indiana such insurance as is necessary for the protection of City and Professional from all claims under workers' compensation, occupational disease and/or unemployment compensation acts, because of errors and omissions, because of bodily injury, including, but not limited to, the personal injury, sickness, disease, or death of any of Professional's employees, agents or contractors and/or because of any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom.. The coverage amounts shall be no less than those amounts set forth on attached Exhibit C. Such insurance policies shall 'not be canceled without thirty (30) days' prior written notice to City. 7.6 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 and Professional fails to remove it within ten (10) days after the date of filing, City shall have the right to pay or bond over such lien at Professional's sole cost and expense. 7.7 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 after receipt of notice from City specifying same; or (d) becomes insolvent, files, or has filed against it, a petition for receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to terminate all or any part of this Agreement, without liability to Professional and to exercise any other rights or remedies available to it at law or in equity. 7.8 Government Compliance. Professional agrees to comply with all laws, executive orders, rules and regulations applicable to Professional's performance of its obligations under this Agreement, all relevant provisions of which being hereby incorporated herein by this reference, to keep all of Professionals' required professional licenses and certifications valid and current, and to indemnify and hold harmless City from any and all losses, damages, costs, liabilities, damages, costs and attorney fees resulting from any failure by Professional to do so. This indemnification obligation shall survive the termination of this Agreement. rL^F.RUCMy W[ummts'PmfcssianA Sovica'L\GI\EF.Af\'a:CVfi BUJa.Favmn Smlcn Rofetival]wuladw'.IiYtOm 1045 AM] Butler Fariman and Seufert; inc. Engineering Department—2008. Web Hosting Agreement Appropriation#206-4462838 P.O. #17777 Contract Not To Exceed S360.00 7.9 indemnification. Professional shall indemnify and hold harmless City and its officers, officials, employees and agents from all losses, liabilities, claims, judgments and liens, including, but not limited to, all damages, costs, expenses and attorney fees arising out of any intentional or negligent act or omission of Professional and/or any of its employees, agents or contractors in the performance of this Agreement. This indemnification obligation shall survive the termination of this Agreement. 7.10 Discrimination Prohibition. Professional represents and warrants that it and each of its employees, agents and contractors shall comply with all existing and future laws 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. This indemnification obligation shall survive the termination of this Agreement. 7.11 Severability. If.any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, that provision shall be stricken, and all other provisions of this Agreement that can operate independently of same shall continue in full force and effect. 7.12 Notice. Any notice, invoice, order or othercorrespondence required or allowed to be sent pursuant to this Agreement shall be written and either hand-delivered or sent by prepaid U.S. certified mail, return receipt requested, addressed to the parties as follows: CiTY: City of Carmel Douglas,C. Haney Department of Engineering Carmel City Attorney One Civic Square One Civic Square Carmel, Indiana 46032 Carmel, Indiana 46032 ATTENTION: Amanda Foley PROFESSIONAL: Butler, Fairman & Seufert 8450 Westfield Blvd., Suite 300 Indianapolis,,Indiana 46240-8302 ATTENTION: John W. Brand 'L IE Bfv'y Docamentstroftaional Smi[a'ENGINEEIUNGQ0DS1Bwla.Odms Saufat Professional knifes dun:Ilgatll¢435 A2ll Butler Fariman and Seufert, Inc. Engineering Department—2008, Web Hosting Agreement Appropriation#206-4462838 P.O. #17777 Contract Not To Exceed $360.00 Notwithstanding the above, City may orally provide to Professional any notice required or permitted by this Agreement, provided that such notice shall also then be sent as required by this paragraph within ten(10) business days from the date of such oral notice. 7.13 Effective Date. The effective date ("Effective Date") of this Agreement shall be the'date on which the last of the parties hereto executes same. - 7.14 Governing Law; Lawsuits. • This.Agreement shall be governed 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 ordinances and codes of the City of Carmel, Indiana. The parties agree that, in the event a lawsuit is filed hereunder, they waive any right to a jury trial they may have, agree to file 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. 7.15 Waiver. Any delay or inaction on the part of either party 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 such party to require such performance at any time thereafter. 7.16 Non-Assignment. Professional shall not assign or pledge this Agreement nor delegate its obligations hereunder without City's prior written consent. 7.17 Entire Agreement. 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. To the extent any provision contained in this Agreement conflicts with any provision contained in any exhibit attached hereto, the provision contained in this Agreement shall prevail. 7.18 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. REBass:Slg Omnnaavhohai®al Senion'EPGINtERIFC]00CEaNa.FaInw Smfm Professional Savi[es4oc,114 S I0.45 AS1I Butler Fariman and Seufert, Inc. . Engineering Department—2008. Web 1-iosting Agreement Appropriation#206-4462.8.38 P.O. #17777 Contract Not To Exceed $360.00 7.19 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. 7.20 Advice of Counsel. The parties warrant that they have read this Agreement and fully understand it, have had an opportunity to obtain the advice and assistance of.counsel throughout the negotiation of same, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 7.21 Copyright. City acknowledges that various materials which may be used and/or generated by Professional in performance of Services, including fornis, job description formats, comprehensive position questionnaire, compensation and classification plan and reports are copyrighted. City-agrees that all ownership rights and copyrights thereto lie with Professional, and City will use them solely for and on behalf of its own operations. City agrees that it will take appropriate action with its employees to satisfy its obligations with respect to use, copying, protection and security of Professional's property. 7.22 Personnel. Professional represents that it has, or will secure at its own expense, all personnel required in performing the services under this agreement. Such personnel shall not be employees of or have any contractual relationship with City. All of the services required hereunder will be performed by Professional or under his supervision and all personnel engaged in the work shall be fully qualified to perform such services. 7.23 Records and Inspections Professional shall maintain full and accurate records with respect to all matters covered under this agreement for three (3) years after the expiration or early termination of this agreement. City shall have free access at all proper times to such records and the right to examine and audit the same and to make transcripts there from, and to inspect all program data, documents, proceedings and activities. 7.24 Accomplishment of Project Professional shall commence, carry on, and complete the project with all practicable dispatch, in a sound economical and efficient manner, in accordance with the provisions thereof and all applicable laws. in accomplishing the project, Professional shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on within City's organization. �Z:`E Bari MY DecamennTTalcssiowl Smicn FFGINEEmNQVC06`Omlm F.ilcm213 Steen RoRtimW Swia.6u:IC7M61045 AM} Butler Perlman and Seufert, Inc. Engineering Department—2008, Web Hosting Agreement Appropriation n206-4462838 P.O. #17777 Contract Not To.Exceed$360.00 IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL,.INDIANA BUTLER, FAIRMAN & SEUFERT by and through its Board of Public Works and Safety BY: BY: h/1• Ja es Brainard, Presiding Aut rized Signature Dte: /— / - b Printed Name: John W. Brand Mary Ann urke, lem er Title: President Date: ' a FTD/TTN: 35-1063590 I Lori S. Writson ' 1,tier SSN if Sole Proprietor: Date: �/ /itojo Date: January 8. 2008 ATTE : Tana Cordray, I C, Clerk-Treasurer Date: /-/6.Or 2£B.ui NP floe 5mirn E\GI]Et RING lo]SBuJn.Fa tri,Scufm Prof<tlimul Sm'it1YE1r:I?1SW610:45 MO] WEB HOSTING AGREEMENT This Hosting Agreement ("Agreement"), dated the ) l, day of , 2008, is made and entered into by and between Butler, Fairman and Se ert, Inc., to ated at 8450 Westfield Boulevard, Suite 300, Indianapolis, IN 46240-8302 (the "Host"), and 'f Cairns-4 , located at O+46. CIV 2 c S , Caar r,.e..( , IN 44032.(-"Client'). RECITALS A. Host is in the business of offering Internet services relating to, among other things, hosting of sites on the World Wide Web portion of the Internet, and 'Host is willing to provide services to Client on the terms and subject to the conditions set forth below; and B. Client desires to engage Host, and Host desires to be engaged by Client, to provide Internet services on the terms and subject to the conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Host and Client hereby agree as follows: TERMS This Agreement shall be effective when signed by both Parties (the "Effective Date") and thereafter shall remain.in effect for one (1) year; unless earlier terminated as otherwise provided in this Agreement (the "Initial Term"). Services. Hosting Services 1. Host agrees to provide Client with services for hosting of a website on the World Wide Web portion of the Internet (the "Website") as set forth or described in SERVICES TO BE PROVIDED hereto (the "Hosting Services"). Host shall provide the Hosting Services so that the Website is accessible to third Parties via the World Wide Web portion of the Internet as specified in this Agreement. 2. Except as expressly provided in this Agreement, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any other services or tasks not specifically set forth in SERVICES TO BE PROVIDED. 3. To the extent that Client wishes to receive from Host, and Host wishes to provide to Client, services other than the Hosting Services (collectively the "Additional Services"), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the "Services Addendum"), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the "Services"). " .XHIBIT " Page 1 Availability of Website Unless otherwise expressly indicated on SERVICES TO BE PROVIDED hereto, the Website shall be accessible to third Parties via the World Wide Web portion of the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures. Additional Storage and Transfer. In the event that the Website requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Client may request that Host: 1. Upgrade the level of Hosting Services; or 2. Acquire additional incremental storage-to be included in the Hosting Services, on a time and materials basis and in accordance with the fee and payment schedule in SERVICES TO BE PROVIDED. Host shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests, and if so, and at its option, Host shall propose a procedure and budget for complying with such request. Fees and Taxes. Hosting Services Fees Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in SERVICES TO BE PROVIDED. Host expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein). Additional Services Fees Unless otherwise agreed in writing, Client shall pay to Host all fees for Additional Services on a time and materials basis as invoiced by Host. Warranties. Host Warranties Hosts represents and warrants that: 1. Host has the power and authority to enter into and perform its obligations under this Agreement; and 2. Host's services under this Agreement shall be performed in a workmanlike manner. Client Warranties 21e Client represents and warrants that: 66 EXHIBIT Page 2 1. Client has the power and authority to enter into and perform its obligations under this Agreement; 2. Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third Party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third Party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Website; 3. Client's use of its Website will not violate any law or regulation of any governmental or regulatory/administrative entity; and, 4. Client has obtained any authorization(s) necessary for hypertext links from the Website to other third Party Websites. Should Client receive notice of a claim regarding the Website, Client shall promptly provide Host with written notice of such claim. Client Restrictions Client represents and warrants that it shall not use the Website or the Services provided to Client to: 1. Send unsolicited mail messages, including the. sending of "junk mail" or other advertising material to individuals who did not specifically request such material, who were not previous customers of CLIENT or with whom CLIENT does not have an existing business relationship ("E-mail spam"); 2. Engage in harassing behavior, whether through language, frequency or size of email message; 3. Use without authorization or forge e-mail header information; 4. Solicit mail for any other e-mail address other than that of the Client's account with the intent to harass or to collect replies; 5. Create or forwarding "chain letters" or other "pyramid schemes" of any type; and/or, 6. Use unsolicited e-mail originating from within Host's network or the networks of other Internet Service Providers. Indemnification. 1) Client Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, at trial and on appeal, to the extent that such action is based upon a claim that: 1. If true, would constitute a breach of any of Client's representations, warranties, or agreements hereunder; II FIIT .HIBIT 5 Page 3 • 2. Arises out of the negligence or willful misconduct of Client; or, 3. Any of the Client Content to be provided by Client hereunder or other material on the Website infringes or violates any rights of'third Parties; including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses. 2) Host Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including.reasonable attorneys' fees, at trial and on_ appeal, to the extent that such action arises out of the gross negligence or willful misconduct of Host. 3) Notice In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party's written consent, which shall not be unreasonably withheld. LIMITATION OF LIABILITY. Host shall have no liability for unauthorized access to, or alteration, theft or description of, the website or Client's data files, programs or information through accident, fraudulent or unauthorized means or devices. Host shall have no liability with respect to Host's obligations under this Agreement or otherwise for consequential, exemplary, special, incidental, or punitive damages even if Host has been advised of the possibility of such damages. In any event, the liability of the Host to Client for any reason and upon any cause of action shall be limited to the amount actually paid to Host by Client under this Agreement. This limitation applies to all causes of action in the aggregate, including, without limitation, to breach of contract, breach of warranty, negligence, strict liability; misrepresentations, and other torts. Amendment. No amendment, waiver, or modification of this Agreement or any provision of this Agreement shall be valid unless in writing, stating with specificity the particular amendment or modification to be made, and duly executed by the Host and Client. Enforceability. If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, administrative agency or as a result of future legislative action, such holding or action shall be strictly construed and the unenforceable provision shall be deemed severable from the remainder of the Agreement to the extent permitted by law, and the validity or effect of any other provision of this Agreement shall remain binding with the same effect as though the void parts were deleted. Page 4 i6 EXHIBIT • IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives set forth below. HOST: CLIENT: John W. Brand SERVICES TO BE PROVIDED Web Hosting Package Selected: Shared Server . Cost of Selected Package is $ 360.00 for a twelve (12) month period. Payment is due within 30 days of execution of this Agreement. "EXHIBIT k51 ) „ Page 5