Crowe Chizek & Company, LLPi'rowe Chizek and Company
Utilities Department
2000
APPROVED, AS TO
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 Crowe Chizek and Company, 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 such professional accounting consultation
and other services as are covered by this Agreement; 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.
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 attached Exhibit A which is incorporated herein by this reference.
Professional desires to provide the Services to City.
2.2 Professional acknowledges that it has read and understands this Agreement. and that
Professional's acceptance and/or provision of any Services hereunder shall constitute
Professional's acceptance of this Agreement and of all its terms and conditions.
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2.3
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 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 ~vell 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 documents which shall be numbered and attached hereto in
the order approved.
2.4
Professional understands and agrees that City reserves the right, at any time, to direct changes, or
cause Professional to make changes, in the Services and/or additional 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.
2.5
Professional expressly warrants that all Services and/or additional services covered by this
Agreement will conform to the specifications, drawings, samples, instructions, directions and/or
descriptions furnished to City by Professional or by Professional to and accepted by City, and that
such Services and/or additional services will be performed in a timely manner. in a good and
workmanlike manner and free from defects.
2.6
Professional acknowledges and agrees that it knows of City's intended use and expressly warrants
that all Services and/or additional 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.
2.7 Time is of the essence of this Agreement.
SECTION 3.
CITY'S RESPONSIBILITIES
3.1
Upon City's 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
same as are reasonably necessary for Professional to understand the 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 and/or additional
services, City shall:
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2000
3.2.1 Furnish to Professional, upon request, such studies, reports and other available data in
City's possession as City considers reasonably pertinent to the Services and/or additional services
to be provided, and which Professional shall be entitled to rely upon in performing the Services
and/or additional 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/or additional services; and
3.2.3 Make reasonably available to Professional for consultation, as needed, such individuals as
are necessary for Professional to provide the Services and/or additional 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 and/or additional services.
SECTION 4.
PROFESSIONAL'S RESPONSIBILITIES
4.1
Professional shall provide to City, within five (5) business days after City requests same, a time
and cost estimate for the Services and/or additional services requested by City to be performed by
Professional.
4.2
Once City has accepted Professional's time and cost estimate for the Services and/or additional
services, such Services and/or additional 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 set
forth or referenced herein or attached hereto.
4.3
Professional shall coordinate its performance, in the form of physical meetings and/or status
reports, with the Mayor or his duly authorized representative, pursuant to a mutually agreeable
schedule and/or as circumstances dictate.
4.4
Professional shall provide the Services and/or additional services by following and applying at all
times the highest professional and technical guidelines and standards.
SECEION 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 7.1 hereinbelow, City shall pay Professional as set
forth in the attached Exhibit A.
5.2
Professional shall submit an invoice to City no more than once every thirty (30) days, and no less
frequently than once every sixty (60) days, for Services and/or additional 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, which is incorporated herein by this reference. City shall pay Professional for
all undisputed Services and/or additional services rendered and stated on such invoice within thirty
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2000
(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. If such
undisputed portion of the invoice amount is not thereafter paid within five (5) business days after
City's receipt of such 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 by City to
Professional 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 Carreel,
which Court shall hold same 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 and/or additional 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 such Services and/or additional 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
and/or additional services that are disputed by City and/or which constitutes an overpayment for
5.5
If additional professional services are required and Professional wishes to hire an outside source
for the performance of same, Professional shall so notify City, in advance of the engagement of
such outside source, with an explanation of the need and qualifications of same. If City consents
to such outside source, which consent shall not be unreasonably withheld. City shall reimburse
Professional for the actual cost of same, which reimbursement sum shall be subtracted from the
amount of compensation due Professional from City hereunder. Professional understands and
agrees that any and all outside sourues 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 use by Professional of an
outside source. This indemnification obligation shall survive the termination of this Agreement.
SECTION 6. TERM
Subject to the termination provisions set forth in Section 7.1 hereinbelow and upon execution by
each of the Parties hereto, this Agreement shall be in effect from January 1, 1999 through
December 31, 2000, and shall thereafter, on the first 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 Termination.
7.1.1
The obligation to provide all or any portion of the Services and/or additional services
under this Agreement may be terminated by City or Professional without cause upon thirty
(30) days notice to the other party.
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2000
7.1.2
The obligation to provide all or any portion of the Services and/or additional services
under this Agreement may be terminated by City for cause, or upon City's failure to
appropriate monies sufficient to pay for same, 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 and/or additional
services rendered and expenses incurred as of the date of termination of same that are not
in dispute. Disputed compensation amounts shall be resolved as set forth in paragraph 5.3
hereinabove.
7.2 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.
7.3 No Third Party Beneficiaries.
Nothing contained herein shall be construed to give any rights or benefits hereunder to anyone
other than City and/or Professional.
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, contractors, subcontractors and outside sources are
or shall become employees of City. Furthermore, Professional shall have the sole responsibility to
pay to or for its agents, employees, contractors, subcontractors and outside sources 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 subcontractor of Professional regarding or related to the subject
matter of this Agreement. This indemnification obligation shall survive the termination of this
Agreement.
7.5 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
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2000
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, subcontractors or outside sourues, 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 than those amounts set forth on attached Exhibit C. Professional shall cause its
insurers to name City as an additional insured on all such insurance policies (except on its
Professional Responsibility Insurance policy), shall, upon request, provide City with copies of all
such policies, and shall provide that such policies will not be canceled without thirty (30) days
prior notice to City.
7.6 Force Majeure.
Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to
the extent, it is caused by an event or occurrence beyond the reasonable control of the party and
without its fault or negligence, provided that 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 pumhase some or all of the same or
similar Services and/or additional 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 and/or additional services from other sources at times
requested by City and at the prices set forth in this Agreement.
7.7 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 ten (10) 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.
7.8 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 and/or
additional services as specified; (c) fails to make progress so as to endanger timely and proper
completion of the Services and/or additional 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 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
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2000
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 and/or additional 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 same; and/or (3) exercise any other right or remedy available to
City at law or in equity.
7.9 Government 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, attorney 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.
7.10 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, 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 subcontractors 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.
7.11 Discrimination Prohibition.
Professional represents and warrants that it and each of its employees, agents, contractors,
subcontractors and outside sources shall comply with all existing and future 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 and/or additional 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.
7.12 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.
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Utilities Department
2000
7.13 Notice.
Any notice, invoice, order or other correspondence 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:
PROFESSIONAL:
City of Carreel
One Civic Square
Carmel, IN 46032
ATTN: John Duffy
(with a copy to the City Attorney,
Department of Law, same address)
Crowe Chizek and Company, LLP
2 I}00 Market Tower
10 West Market Street
Indianapolis, Indiana 46204-2976
ATTN: Michael A. Claytor
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
( l 0) business days from the date of such oral notice.
7.14 Effective Date.
The effective date ("Effective Date") of this Agreement shall be the date on which the last of the
parties hereto executes same.
7.15 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 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.
7.16 Waiver.
Any delay or inaction on the part of either party in exercising or pursuing its fights 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.
7.17 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
consent.
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7.18 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.
7.19 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.
7.20 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 provisi<~n hereof.
7.21 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 opportunity 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.
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Crowe Chizek and Company
~_ltilities Department
2000
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
Dat~
CROWE CHIZEK AND COMPANY, LLP
Printed Name:
Title:
FID/SSN: 35-0~1-680
ATTEST:
CROWE CHIZEK
July 17, 2000
Board of Public Works
City of Carmel
One Civic Square
Carmel, Indiana 46032
Board Members:
The purpose of this letter is to formulate a mutually acceptable agreement between the Board of
Public Works of the City of Carmel (Board) and Crowe, Chizek and Company LLP (Crowe
Chizek) pursuant to which Crowe Chizek will perform certain professional services for the
Board as directed by the Board and/or its representatives.
Services provided by Crowe Chizek would include, but not be limited to: revenue sufficiency
reviews for the Cannel Municipal Water Utility and the Carreel Municipal Sewage Works
(Utilities); cost of service studies to design rates and charges; analyze financing alternatives and
financing methods for capital improvements to determine potential economic impacts;
preparation of necessary financial documents including Official Statements or other offering
documents; provide representation before federal state or local regulatory agencies, courts,
boards and/or councils; representation before and negotiations with rating agencies, bond
insurers and potential purchasers; review and completion of annual or periodic reports for
arbitrage rebate, continuing disclosure obligations or other appropriate filings; short or long
term strategic planning; system and technology consulting; human resource consulting; audit,
tax and accounting services; and other services as required or requested.
Crowe Chizek will be acting in an individual capadty while performing services for the Board
and will not, unless otherwise indicated, be acting as agents, employees, partners, joint
venturers or associates of the Board. All work product produced by Crowe Chizek during the
course of performing services to the Board will be considered the property of the Board and will
be provided to the Board upon request.
CROWE, CHIZEK AND COMPANY LLP
2t100 MARKET TOWER, 10WESTMARKETSTREET INDIANApOLIS, INDIANA46204-2976 317.632.1100 FAX317.635.6127 AmemberofHorwalhlntemalional
Board of PubLic Works
July 17, 2000
Page 2
Services provide by Crowe Chizek will be billed monthly based on the actual number of hours
worked and the actual out-of-pocket expenses incurred during the previous calendar month.
Crowe Chizek's standard hourly rates range as follows:
Serdor Manager
Staff Consultant
$200 to $225
$105 to $135
$65 to $85
If required, Crowe Chizek would be wLlling to provide quotes for specific assignments based on
our estimate of the time and effort to complete the task. This contract is the only agreement
between the parties and supersedes all other written or verbal agreements between the parties
relating to any and all services provided.
d of PubLic Works
Name of Company:
Address & Zip:
Telephone No.:
Fax No.:
EXHIBIT B
Professional Services Invoice
Date:
Project Name:
Invoice No:
Person
Performing
Service
Service
Date
Services Provided Hourly
(Describe in detail in one-Rate
tenth hour units)
Hours
Worked
Total
GRAND TOTAL
Signature
Printed Name
EXHIBIT C
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:
$1,000.000
$1.000.000
Personal & Advertising injury
Limit:
Each Occurrence Limit:
Fire Damage (any one fire):
Medical Expense Limit
(any one person):
$1,000,000
$1,000,000
$ 50,000
$ 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
$1,000.000
$ 10.000
Professional Responsibility insurance:
Per Occurrence: $1,000,000
Aggregate: $1,000,000