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Eden Land & Design/DOCS/$10,000/Consulting EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.O. #27834 Contract Not To Exceed $10,000.00 AGREEMENT FOR PROFESSIONAL SERVICES 4•ZAA. Pte 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 EDEN Land Design, 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, 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 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. \Ussvrappsl \User Data Adnun \LAW laharal \Prot Sve Goals Svcs \DOCS\EDEN LAND AND DESIGN, INC Professional Savtccs FORM Rev April 2011 do 12/13/2011 4 17 PM) EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.O. #27834 Contract Not To Exceed $10,000.00 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 43- 419 -99 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 Ten Thousand Dollars ($10,000.00) (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. 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. [\Ussvrappsl \Ustr Data Admm\LA W\ harcd\Pro] Svcs Goods Svcs \DOCS\EDEN LAND AND DESIGN, INC Protessm� Srry cc, FORM Rev Apn1 2011 .dtx 12/11/2011 4:17 PM] EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.O. #27834 Contract Not To Exceed $10,000.00 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, 2011, and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise 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 matter of this Agreement. This indemnification obligation shall survive the termination of this Agreement. \Uss rappsl \Usa Dda Ad= \LA W\sharul\ProC Goals Sv, \DOCS\EDEN LAND AND DESIGN, INC ProlessR Sv41m, FORM Rev Apr 1 2011 doc:12/11/2011 4 :17 PM] EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.O. #27834 Contract Not To Exceed $10,000.00 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. 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. [\Ussvrappel \User Data Adam \LAW hmtxl\Prof Goods Sv \DOCS\EDEN LAND AND DESIGN, INC Profcsa041 Servtc FORM Rev Apnl 2011 dot 12/132011 4 17 PM] EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.O. #27834 Contract Not To Exceed $10,000.00 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 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: City of Carmel Douglas C. Haney Department of Community Services Carmel City Attorney One Civic Square One Civic Square Carmel, Indiana 46032 Carmel, Indiana 46032 ATTENTION: Mike Hollibaugh PROFESSIONAL: EDEN Land Design, Inc. One North Meridian Street, Ste. 902 Indianapolis, IN 46204 ATTENTION: 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. \\Issvrapp \User Dam Ado= \LAA1sharul\Prol'. Goods Sva\DOCS \EDEN LAND AND DESIGN, INC ProfcssIo, ,I Sc rncs FORM Rcv Apnl 2011 dm, 12/11/2011 4 17 PM] EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.O. #27834 Contract Not To Exceed $10,000.00 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. 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. \Vaawappsl \User Data Ad,m \LAWLsItaralTrof Svcs Goals Svcs\DOCS\EDEN LAND AND DESIGN, MC Profeae,o6I Serv FORM Rcv April 21111 dot, 12/13 /2011 4 :17 PM] EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.O. #27834 Contract Not To Exceed $10,000.00 7.21 Copyright. City acknowledges that various materials which may be used and /or generated by Professional in performance of Services, including forms, 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. (remainder of page intentionally left blank) [Nssvrappsl \Usu Data Adn,m\LA\k I rul\ProfSvc. Good. Svcs\DOCS\EDEN LAND AND DESIGN, INC Prolessiogal St via. FORM Rev Aprd 201 Ldm, 12/13 /2011 4 .17 PM] EDEN Land Design, Inc. DOCS 2011 Appropriation 43- 419 -99; P.Q. #27834 Contract Not To Exceed $10,000.00 IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA EDEN Land Design, Inc. by and through its Board of Public Works and Safety BY: BY: 1?- yen' 1! James Brainard, Presiding Officer A6thorize'i Sign Date: �7 Printed Name: G i 7 Titte: fieslo Mary An Burke, ember Date: t FIDI IN: 3° 't9zS -33z Last Four of SSN if Sole Proprietor: Lo so4lembir Date: /2/i Date: /d 1 ATTEST: NIOPP 01 gi ata I rift Diana Cordray, IA or 1 Treasurer Date: 17' to..44.39-t.nCa.. nMud$ C_.wS•rtTXY;SlfI1 I LAND Noouacw. odzarntgl se FORM Pa+hmt t ADEN December 13, 2011 Adrienne Keeling, AICP Planning Administrator Department of Community Services One Civic Square City Hall Carmel, Indiana 46032 Re: Agreement for Professional Services Plan Commission 2012 Field Study Program Dear Adrienne, This letter serves as an agreement for services that we have discussed over the past several days. EDEN Land Design, Inc. (hereafter "Consultant will provide professional services to the City of Carmel, Indiana (hereafter "Client pertaining to a Plan Commission Field Study (hereafter "Program SCOPE OF SERVICES FIELD STUDY Spring /Fall 2012 Field Study EDEN will coordinate with DOCS Staff and create a field study program, to see and learn from other cities, successful urban planning examples and development concepts. This program will follow the below services outline Timeframe: Spring Fall 2012 Services: Meet with DOCS Staff to determine objectives and location for field study (2) Program Orientation Presentation to Plan Commission (2) Develop Field Study Logistics and Location Research (38) Field Study Administration (8) Field Study Trip (20) Field Study Summary Document (10) Time Estimate:80.0 Hours Participants: Carmel Plan Commission, BZA, Redevelopment Commission and Other Officials NOTE: Consultant is to be held harmless from any injury or accident that occurs during the course of this field study as a direct or indirect result of the consultant's activities as coordinator of the trip. EDEN Land Design, Inc. 1 North Meridian Street, Suite 902 Indianapolis, Indiana 46204 Exhibit A 317.750.0814 www.edencollaborative.com Cr" December 13, 2011 Page 2 DURATION The duration of this agreement shall be a maximum of one year from the signing by both parties. The Consultant and Client shall coordinate efforts to ensure efficient use of time. Should the project outlined in this agreement last more than one year each party will review performance and evaluate accordingly. COMPENSATION /FEES The Consultant will bill the client at a rate of $125.00 per hour of services, including time for project meetings to an estimated aggregate project fee total of $10,000.00. At the end of each month, the Consultant will invoice the Client for work completed and reimbursable expenses incurred. The Client must pay each invoice within 30 clays of its receipt or pay a late charge equal to 1% of the total amount for each month that the invoice is past due. REIMBURSABLE EXPENSES /CITY OF CARMEL COSTS In addition to the estimated aggregate project fee total outlined above, the Consultant will be reimbursed by the Client for all outlined expenses incurred during the course of the project. These reimbursable expenses will be noticed to the Client prior to the expense, when applicable. These reimbursable expenses will be invoiced monthly for payment within 30 days as outlined above. All expenses will carry a 5% markup for administrative costs. Expenses include: 1. Any transportation mileage that is incurred by the Consultant for travel outside Indianapolis, Indiana will be reimbursed at the standard IRS mileage rate at the time of the expense. Also lodging and dining expenses during field study activities. 2. Workshop materials such as markers, poster hoard, hinders etc. that might be utilized for workshops and sessions. 3. Any copies and review printouts made by the Consultant will be reimbursed at cost. Color Document prints (8.5x1 1) cost $1.25. 4. Phone charges as they relate to this specific effort. 5. Printing, Binding and Plan Document Costs 6. Digital Reproduction (Compact Discs, etc.) The City of Carmel will be responsible for several costs in the course of this project. Estimated cost totals for these items are not included in this agreement. These costs will he at the discretion of the City of Carmel and might include: 1. Coordination of all meeting times and locations with chosen participants by City of Carmel Staff. 2. Copy costs where applicable (The Consultant will provide a Copy Master when possible) 3. Reproduction Costs of Posters or Booklets for distribution December 13, 2011 Page 3 Conditions 1. Independent Contractor Status. In performance of the work, duties, and obligations assumed by Consultant under this Agreement, the parties hereto mutually agree, intend and understand that Consultant at all times shall act and perform solely as an independent contractor providing consulting services to Client. In that regard, Client shall neither have nor exercise any control or direction over the methods by which Consultant shall perform its work, duties, and obligations. 2. Non Exclusiveness. Client shall have the right to engage other consultants who may be engaged in providing services, advice, and assistance to Client of a similar nature as that to he provided by Consultant under the terms and conditions of this Agreement. Furthermore, Consultant may provide services and assistance similar to that being provided to Client under this Agreement to any other party. 3. Confidentiality. Consultant, and its members, managers, principals, agents and representatives, shall maintain the confidentiality of Client's proprietary information, in its possession or control, and it shall not publish or make known to others, without the prior express written approval of Client, any proprietary information obtained from the performance of the Scope of Services provided by Consultant hereunder. This provision shall survive the termination of this Agreement. As used in this Agreement, "proprietary information" means any business, financial, technical, property or project specific information, disclosed to or developed by Consultant with respect to Client's operation, development and business and /or the Project Services, including, without limitation, financial data, projections, know how, activities, actions, analysis, communications, business plans, trade secrets, documents, contact lists, business concepts and business relationships or targeted business relationships, and other information (whether or not designated as confidential) furnished at any time (whether orally, electronically or in writing or other tangible medium) by or on behalf of Client to Consultant or its member, managers, principals, agents and representatives in connection with any services provided by Consultant hereunder, except that which is publicly available or in the public domain at the time disclosed; becomes publicly available or enters the public domain through any lawful means; or is specifically approved in writing or by e -mail for release or disclosure by Client without restriction. Consultant agrees that it shall (a) maintain the strictest confidence with respect to the proprietary information and not reveal the same to any third parties, and (b) not disclose to any third party or use the proprietary information for its own benefit or the benefit of any third party. 4. Address for Invoices and Notices. All invoices, notices, requests, demands, consents and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly and properly given on the date of service if delivered personally or on the date of mailing if deposited in a receptacle of the United States Postal Service registered or certified mail, first class postage prepaid, return receipt requested, addressed appropriately as follows: If to Client: Mr. Michael P. Hollibaugh, RLA, AICP Director Department of Community Services December 13, 2011 Page 4 One Civic Square Carmel, Indiana 46032 If to Consultant: EDEN Land Design, Inc. 686 Tappan Street #1032 Carmel, Indiana 46032 5. Miscellaneous. This Agreement contains the entire agreement of the parties with respect to the matters addressed in this Agreement and may not be amended or modified except by a written instrument executed by both of the parties to this Agreement. If any dispute between the parties should arise with respect to this Agreement or any provision hereof, whether or not resulting in litigation, the prevailing party shall he entitled to recover from the other party all reasonable costs, including, without limitation, reasonable attorneys' fees. This Agreement may be executed in a number of counterparts each of which shall constitute one and the same agreement. This Agreement shall he governed and construed in accordance with the laws of the State of Indiana. Each provision of this Agreement is intended to be severable; if any term or provision hereof shall be determined by a court of competent jurisdiction to he illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. 6. Limit of Liability. Client shall hold Consultant, and its officers, shareholders, representatives, agents and employees, harmless and indemnified against any claims, liabilities, losses, cost and expenses (including reasonable attorneys' fees incurred by or imposed on such parties in connection therewith) arising from or in connection with the implementation of or development pursuant to any site plan or plan document approved by Client, including but not limited to losses or liability resulting from personal injury (including death) and property damage. 7. Indemnity. Each party agrees to indemnify and hold the other harmless against any and all claims, expenses, demands, costs and fees, including attorney's fees, made against the other party by any third party in connection with an actionable misrepresentation, fraud or violation of law concerning this Agreement. 8. Survival. All of the terms and provisions hereof shall survive the termination of this Agreement. 9. Rights to Drawings and Information. The Consultant shall have the right to utilize all original drawings and information generated by the Consultant for purposes of reference and marketing by the Consultant. Any original designs or intellectual property of land design and /or project design shall he owned by the Consultant, with the Client being granted rights to use such materials for the purpose of executing the project outlined in this contract. 10. Termination. Each party shall have the right to terminate this agreement based on just cause with a minimum of 15 -day notice to the other party. The description of the just cause must be put in writing and agreed to by the other party through a signed understanding of the just cause. 4 December 13, 2011 Page 5 If the above terms are acceptable, please sign and return one original copy to EDEN Land Design, Inc. This agreement will commence on the date when both parties have signed the agreement. EDEN Land Design, Inc. The City of Carmel, Indiana Adam D. Thies Signature President Printed: Title: Date: Date: SAC December 13, 2011 Page 5 If the above terms are acceptable, please sign and return one original copy to EDEN Land Design, Inc. This agreement will commence on the date when both parties have signed the agreement. EDEN La Design, Inc. The City of Carmel, Indiana l/ Alf 7y Ct ./9 Ad,D Thies Signature nature 6 President Printed: P/I■ l�ll1 i5 L I Title: Ur t3C'S Date: 4 15,, /3 „O Date: l 113 t' A tr