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HomeMy WebLinkAboutMcComas Engineering, Inc/Incomplete Contract, no project description, no proof of insurance- 2009AGREEMENT FOR SERVICES This Agreement for Services (the "Agreement "), executed as of January 1, 2009 (the "Effective Date "), by and between The City of Carmel Redevelopment Commission ( "CRC "), and McComas Engineering, Inc. (the "Service Provider "), WITNESSES: Recitals WHEREAS, CRC has determined that it is necessary to obtain the services generally described on Exhibit A; WHEREAS, Service Provider has submitted to CRC a proposal for the performance of such services (the "Proposal "); WHEREAS, CRC has accepted the Proposal; and WHEREAS, CRC and Service Provider desire to enter into this Agreement to formalize the terms and conditions upon which Service Provider shall perform such services; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged hereby, CRC and Service Provider agree as follows: 1. Services. Service Provider shall perform the work detailed on Exhibit B (the "Work "). Service Provider shall be an independent contractor of CRC. The term of this Agreement shall be for a period commencing: (a) on the Effective Date; and (b) ending on the date that is five years thereafter, unless earlier terminated in accordance with the terms and conditions of this Agreement. Service Provider hereby agrees that its performance of the Work may be non - exclusive, in CRC's sole discretion. 2. Payment. Service Provider's compensation for the Work shall be computed in the manner, and at the rates, described on Exhibit B -1. To receive compensation from CRC, Service Provider shall submit to CRC an invoice, which invoice shall be reviewed by CRC at its next regularly scheduled monthly meeting; provided that, if the next regularly scheduled monthly meeting occurs during the month in which Service Provider submits its invoice, then such invoice shall not be considered until the next regularly scheduled monthly meeting after the regularly scheduled meeting that occurs during the month in which Service Provider submits its invoice. CRC shall pay the amount set forth on the invoice within a reasonable amount of time after approval of such invoice. 3. Presentations. If CRC requests that Service Provider attend a CRC meeting to: (a) make a presentation with respect to any completed portion of the Work; or (b) answer questions with respect to an invoice submitted to CRC for approval; then Service Provider shall: (a) attend such meeting, and provide such information as CRC reasonably requests; and (b) not receive any compensation in excess of the Service Fee. If CRC requests that Service Provider attend a CRC meeting for any other purpose, including, without limitation, making any other sort of presentation with respect to the Work, then Service Provider shall: (a) attend such meeting, and provide such information as CRC reasonably requests; and (b) receive additional compensation in the amounts set forth on Exhibit B -2. 4. Performance. Service Provider shall perform the Work: (a) in coordination with CRC; (b) in accordance with the prevailing professional standards in the Carmel, Indiana, area for similar services; and (c) in compliance with all applicable laws, statutes, and /or ordinances, and any applicable governmental rules, regulations, guidelines, orders, and /or decrees (the "Laws "). Prior to commencing the Work, Service Provider shall: (a) obtain all permits and approvals required by the Laws; and (b) obtain, and maintain during performance of the Work, all professional licenses and certifications required by the Laws. All Work performed by Service Provider, regardless of whether completed (the "Work Product "), shall belong to CRC. If performance of the Work requires the entry by Service Provider onto real estate not owned by CRC or Service Provider, then Service Provider shall be responsible for obtaining permission to enter onto such real estate. CRC shall designate the executive director of CRC, currently Les Olds, or his duly authorized representative to act on CRC's behalf with respect to Service Provider's performance of the Work. 5. Relationship. The employees of Service Provider: (a) are (and shall be considered for all purposes to be) the employees or contractors of Service Provider; and (b) are not (and shall not be considered for any purpose to be) the employees or contractors of CRC or the City of Carmel, Indiana (the "City "). Accordingly, CRC and the City shall have no obligations or liabilities with respect to such employees, who shall look exclusively to Service Provider to discharge all obligations and duties as their employer or principal. Service Provider shall indemnify and hold harmless CRC from and against all claims, suits, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) that result from any claim for wages, benefits, or otherwise by any agent, employee, or contractor of Service Provider. The indemnities set forth in this Section shall survive the termination of this Agreement and the completion of the Work by Service Provider. 6. Insurance. Service Provider shall maintain customary insurance coverages with respect to the performance of the Work, including, without limitation, those insurance coverages set forth on Exhibit C. All policies of liability insurance, except professional liability policies, maintained by Service Provider with respect to the performance of the Work shall: (a) name CRC as an additional insured; and (b) not be canceled without 30 days' prior written notice to CRC. 7. Liens. Service Provider shall not suffer or cause the filing of any mechanic's lien against CRC's property, or any part thereof, by reason of labor, services or materials claimed to have been performed or furnished to or for Service Provider. If any such mechanic's lien is filed against CRC's property, or any part thereof, then Service Provider shall cause such mechanic's lien to be discharged of record within 30 days after notice of filing by bonding, or as provided or required by law. Nothing in this Agreement shall be deemed or construed to: (a) constitute consent to, or request of, any party for the performance of any work for, or the furnishing of any materials to, Service Provider; or (b) give Service Provider the right or authority to contract for, authorize, or permit the performance of any work, or the furnishing of any materials, that would permit the attaching of a mechanic's lien to CRC's interest in its property. 8. Remedies. If there is a default by Service Provider with respect to the performance of its obligations under this Agreement, and such default continues for 15 days after CRC delivers written notice of such default to Service Provider, then CRC may terminate this Agreement and recover from Service Provider all damages incurred as a result of such default, including, without limitation, the cost to CRC to employ a different Service Provider to complete the Work. CRC or Service Provider may terminate this Agreement, without cause, upon 30 days' written notice to Service Provider or CRC, respectively. CRC may terminate this Agreement, for cause, immediately upon delivery of "Notice to Cease Services" to Service Provider. If Service Provider: (a) becomes insolvent, files, or has filed against it, a petition for receivership or bankruptcy; (b) makes a general assignment for the benefit of creditors; or (c) dissolves; CRC may: (a) terminate this Agreement, without liability to Service Provider; or (b) exercise any other rights or remedies available at law or in equity. If this Agreement is terminated as permitted pursuant to this Section, then: (a) Service Provider shall turn the Work Product over to CRC; (b) subject to, and in accordance with, Section 2, CRC shall pay to Service Provider, as full compensation hereunder, an amount reasonably attributable to Work performed by Service Provider as of the date of termination that remain unpaid as of such date. Any delay by either party in exercising or pursuing its rights or remedies under this Agreement or the Laws shall not operate to waive any such rights or remedies, nor in any way affect the rights of such party to exercise or pursue such rights or remedies at any time thereafter. 2 9. Indemnity. Service Provider shall indemnify and hold harmless CRC from and against all claims, suits, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees and court costs) that result from: (a) the performance of the Work; (b) the failure of Service Provider to comply with the terms and conditions of this Agreement; and /or (c) the entry by Service Provider onto real estate not owned by CRC or Service Provider in the course of performing the Work. The indemnities set forth in this Section shall survive the termination of this Agreement and the completion of the Work by Service Provider. 10. Additional Work. If CRC and Service Provider agree that Service Provider shall provide services to CRC that are not included within the Work (the "Additional Work "), then CRC and Service Provider either shall: (a) amend this Agreement to include the Additional Work; or (b) enter into a new agreement with respect to the performance of the Additional Work. Until such time as there is either: (a) an amendment to this Agreement that includes the Additional Work; or (b) a new agreement with respect to the performance of the Additional Work; in either case executed by CRC, CRC shall have no obligation to compensate Service Provider for the performance of the Additional Work. 11. Assignment. Service Provider shall not assign this Agreement or any of its obligations hereunder without the prior written consent of CRC, which consent may be withheld in CRC's sole discretion. CRC may assign this Agreement without the prior written consent to the City or any agency or instrumentality thereof. CRC otherwise shall not assign this Agreement without the prior written consent of Service Provider, which consent may be withheld in Service Provider's sole discretion. In the event of any assignment in accordance with this Section, CRC or Service Provider shall remain liable to Service Provider or CRC, respectively, for the performance such obligations. 12. Nondiscrimination. In connection with the performance of this Agreement, Service Provider shall not discriminate against any employee, applicant for employment, and /or other person in the subcontracting and /or performance of the Work with respect to hire, tenure, terms, conditions, or privileges of employment or any matter directly or indirectly related to employment, because of race, age, color, religion, sex, disability, national origin, or ancestry. No notice or cure period shall apply with respect to the obligation of Service Provider under this Section, and a default under this Section shall be an immediate event of default. 13. Notice. All notices required to be delivered hereunder shall be in writing, and shall be deemed to have been delivered when: (a) delivered in person or by; (b) sent by facsimile, with electronic confirmation of receipt; or (c) sent by nationally recognized overnight carrier; in any case addressed as follows: (a) to CRC at: One Civic Square, Carmel, Indiana 46032, Attn: President, Facsimile: 317 - 571 -2426, with a copy to Karl P. Haas, Esq., Wallack Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204, Facsimile: 317 - 231 -9900; and (b) to Service Provider at: 1717 East 116th Street, Suite 200, Carmel, Indiana 46032, Facsimile: 317 - 582 -0766. Either party may change its address for notice by written notice delivered to the other party as provided in this Section. Notwithstanding the foregoing, CRC orally may provide to Service Provider any notice required or permitted by this Agreement; provided that such notice also shall be delivered as required by this Section within 10 business days after the date of such oral notice. 14. Miscellaneous. Time is of the essence of this Agreement. This Agreement shall: (a) bind, and inure to the benefit of, CRC and Service Provider and their respective successors and assigns; and (b) be governed by, and construed in accordance with, the laws of the State of Indiana. The parties agree that, in the event of a lawsuit on this Agreement: (a) they shall waive the right to a jury trial, if any; and (b) an appropriate court in Hamilton County, Indiana shall be the venue for, and have jurisdiction over, the lawsuit. This Agreement shall not be construed to create a contractual relationship with, give rights or benefits to, or create a cause of action in favor of, anyone other than the parties hereto. The invalidity or unenforceability of any term or condition of this Agreement shall not affect the other terms and conditions, and this Agreement shall be construed in all respects as if such invalid or unenforceable term or condition 3 had not been contained herein. Each of the undersigned represents that he or she has: (a) the authority to bind CRC or Service Provider, as applicable; and (b) the proper power and authority to execute this Agreement. All Exhibits referenced in this Agreement are attached hereto and incorporated herein by reference. This Agreement may be executed in separate counterparts, each of which when so executed shall be an original, but all of such counterparts shall together constitute but one and the same instrument. [Signature page to follow.] 4 IN WITNESS WHEREOF, CRC and Service Provider have executed this Agreement as of the Effective Date. CRC: THE CITY OF CARMEL ' _D%VELOPMENT CO MI By: Printed: Title: SERVICE PROVIDER: McCOM4AS, GINEERI G, INC. By: f 01 t�il!''M"/�R� Printed: Rod McComas Title: President 5 INDEX OF EXHIBITS Exhibit A General Description of Services Exhibit B Detailed Description of the Work Exhibit B -1 Schedule of Fees to Be Paid to Service Provider Exhibit B -2 Compensation for Attendance at Certain CRC Meetings Exhibit C Required Insurance Coverages EXHIBIT A General Description of Services EXHIBIT B Detailed Description of the Work EXHIBIT B -1 Schedule of Fees to Be Paid to Service Provider 2009 Standard Hourly Service Rates: Principal $200.00 Project Manager $160.00 Design Engineer $120.00 CAD Manager $120.00 CAD Designer $100.00 QC Engineer $160.00 Administrative $ 35.00 EXHIBIT B -2 Compensation for Attendance at Certain CRC Meetings Standard Hourly Service Rates per Exhibit B -1. r,. EXHIBIT C Required Insurance Coverages Professional Liability $3,000,000 Each Claim $3,000,000 Aggregate $25,000 Deductible Business $1,000,000 Employers Liability $2,000,000 Commercial Umbrella Indiana Workers Compensation