David F. Hurley,Attorney at LawDavid F. Hurley
City Center Environmental
1999
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 l)~:i~,F~.:Hurtcy, Attorney At Law (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 consultation and training
services as are covered by this Agreement; and
WHEREAS, City desires to engage Professional on an "on-call" basis as an independent
contractor, for the purpose of providing to City, on a non-exclusive basis, environmental legal counsel
regarding the City's "City Center Project"; 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.
2.1
2.2
SCOPE OF SERVICES.
City desires to engage Professional on an "on-call" basis 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.
Professional acknowledges that it has read and understands this Agreement,
Professional's acceptance and/or provision of any Services hereunder shall
Professional's acceptance of this Agreement and of all its terms and conditions.
and that
constitute
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David F. Hurley
City Center Environmental
1999
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. 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 well as the time flame 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 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.
2.6 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:
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 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.
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David F. Hurley
City Center Environmental
1999
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.
PROFES SIONAL'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.
SECTION 5.
COMPENSATION
5.1
As full and complete compensation for the Services and/or additional 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 the compensation set forth in attached Exhibit A.
5.2
Professional shall submit an invoice to City no more than once every thirty (30) 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 (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 Carmel,
which Court shall hold same until notified of a resolution signed by both parties hereto or the entry
of a final judgment thereon.
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David F. Hurley
City Center Environmental
1999
5.4
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 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 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, this Agreement shall be
in effect from the Effective Date through December 31, 1999, 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.
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.
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David F. Hurley
City Center Environmental
1999
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
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 sources, 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 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.
7.7 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 and/or
additional services as specified; (c) fails to make progress so as to endanger timely and proper
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David F. Hurley
City Center Environmental
1999
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
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.
7.8 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.
7.9 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.
7.10 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.
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David F. Hurley
City Center Environmental
1999
7.11 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.
7.12 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 Carmel
One Civic Square
Carmel, IN 46032
ATTN: James Brainard
(with a copy to the City Attorney,
Department of Law, same address)
David F. Hurley
Attorney At Law
244 Noah College Avenue
Indianapolis, Indiana 46202
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 five
(5) 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 Governin~ 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.
7.15 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.
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David F. Hurley
City Center Environmental
1999
7.16 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.
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.
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 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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David F. Hurley
City Center Environmental
1999
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:
DAVID F. HURLEY
Attomey At Law
BY:
Indiana Attom y o. 7 ~/q't/_ q ~
Date: ~~y~
ATTEST:
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David F. Hurley
City Center Environmental
1999
EXHIBIT A
Professional will provide legal counsel to the City on environmental issues relating to the Carmel City
Center Project. Such services will be provided as follows:
A. FEES
One Hundred Twenty-Five Dollars ($125.00) per hour for the legal services of
David F. Hurley, Esquire, except for travel time, which shall be paid at the rate
of Seventy Dollars ($70.00) per hour.
All other legal fees require prior City approval.
B. EXPENSES
Facsimile transmissions within Marion and Hamilton County - NO CHARGE
Travel within Marion and Hamilton County - NO MILEAGE CHARGE
Photocopies - Ten Cents ($.10) per page
Meals within Marion County and Hamilton County - NO CHARGE
Binding documents - NO CHARGE
All other expenses - Prior City approval required.
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David F. Hurley
City Center Environmental
1999
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
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David F. Hurley
City Center Environmental
1999
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:
Aggregate:
$1,000,000
$1,000,000
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Ci .y o'5 Carme:
September 14, 1999 ..
David F. Hurley
Attorney at Law
244 North College Ave.
Indianapolis, IN 46202
Dear Mr. Hurley:
On September 1, 1999, the Board of Public Works and Safety approved a contract to do business
with your company. Enclosed are several documents which will ensure a successful and
profitable business relationship with the City of Carreel.
Please review the enclosed sample invoice (Exhibit B of your contract). You do not need to use
this specific form, but we do require you to submit all information requested on the sample in a
similar layout. This format replaces any other form previously used by the City and was effective
upon approval of your contract.'
We also ask that you review and complete the enclosed questionnaire and the attached W-9. We
must receive these forms in order to process your claims for services rendered.
Also enclosed is a copy of the signed agreement between your business and the City. Please call
Clerk-Treasurer Diana Cordray at 571-2414 if you have any questions.
Sincerely,
Robin L. Butler
Deputy Clerk
Enclosure
pc: James Brainard, Mayor
ONE CIVIC SQUARE CARMEL, INDIANA 46032 317/571-2400