17-PA-Draft 2026.pdf

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CITY OF CINCINNATI

Professional Agreement

<Enter Project ID and Name>

Contract No. ____________________

THIS AGREEMENT is made and entered into on the Effective Date (as defined on the signature page hereof) by and between the City of Cincinnati through its Department of Sewers (the “City”) as the sole management agency for the operation and maintenance of the sewer system on behalf of the Metropolitan Sewer District of Greater Cincinnati, Hamilton County, Ohio, hereinafter "MSDGC" and <Enter Consultant Name>, <a/an [insert state of entity formation and type of entity]>, hereinafter “Consultant.”

WITNESSETH:

WHEREAS, the City has determined to undertake activities needed to plan and implement the <Enter the Services to be Provided> for the <Enter Project ID and Name >, hereinafter "Project", in conformance with the Consent Decree entered into in Case No. C-1-02-107, in the Federal District Court for the Southern District of Ohio, Western District (“Consent Decree”) and does not have a sufficient staff of permanent employees to do so; and, WHEREAS, the City issued a Request for Qualifications (RFQ) (RFQ#) to solicit statements of qualifications (SOQs) from interested vendors willing to provide the services required herein to the City; and, WHEREAS, the Consultant has submitted a SOQ in response to the aforementioned solicitation and has been determined by the City to be a skilled, competent, and experienced professional firm having the necessary personnel, equipment and other resources to perform the required services; and, WHEREAS, the Consultant has been selected in accordance with applicable portions of state laws and MSDGC policies to provide these services, WHEREAS, such services are professional in nature; and, NOW THEREFORE, for and in consideration of the promises, covenants and agreements herein contained, the parties mutually agree as follows:

ARTICLE 1 – THE AGREEMENT

1.1 The Agreement includes written contract terms of 43 Articles (“First Part of the Agreement”), EXHIBIT A [Scope of Work, including deliverables (the “Work”)], EXHIBIT B (Project Budget), EXHIBIT C (Key Personnel and Multipliers), EXHIBIT D (Schedule of Services), and EXHIBIT E (Subconsultant Utilization Plan).

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1.2 Where the terms and provisions of this First Part of the Agreement vary from the terms and provisions of the other documents included in the Agreement, the terms and provisions of this First Part of the Agreement shall prevail over the other documents included in the Agreement and, in like manner, EXHIBIT A shall prevail over EXHIBIT B.

ARTICLE 2 - SCOPE OF WORK

The Consultant shall, in accordance with current professional standards and in a satisfactory and proper manner as reasonably determined by the City Manager of the City of Cincinnati acting through the staff of MSDGC, perform the Work in Exhibit A.

ARTICLE 3 - CONTRACT TERM

3.1 This Agreement is effective upon execution by the City (the “Effective Date”) and terminates on [Insert Date] (the “Termination Date”). Consultant agrees that Agreement may be extended by the City for good cause for additional time, not to exceed [XX] twelve month (12-month) periods, upon written approval of the City Manager or his/her designee.

3.2 Consultant will be authorized to begin the Work described herein by written Notice-to- Proceed from the City Manager or his/her designee. All of the assignments of the Consultant shall be completed in accordance with the schedule included in this Agreement. All of the Work will be completed prior to the termination date of this Agreement or the termination date of any extension of this Agreement as provided in Article 3.1 (for the purposes of the Agreement “Termination Date” shall mean either the date set forth in the Article 3.1 or in the case of an extension, the extended termination date). Requests to modify the Work are to be transmitted via the MSDGC Project Management Information System (PMIS) (as defined in Section 15 herein).

3.3 Consultant agrees that time is of the essence in the performance of the Consultant’s obligations under this Agreement. The Consultant agrees that no other work in its office will be permitted to interfere with work required under this Agreement in order to achieve timely performance, and that the required level of resources will be provided to meet the schedules set forth herein.

3.4 The Consultant shall employ at all times professional and support personnel with requisite expertise and in adequate numbers for the complete and timely performance of the Consultant’s obligations hereunder. The City recognizes that the Consultant’s performance must be governed by sound professional practices.

3.5 All Work will be completed prior to the Termination Date. If Consultant fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then the City shall be entitled to the recovery of direct damages resulting from such failure. The City shall also be entitled to reasonable attorney fees and any costs incurred by the City in pursuing the recovery of damages resulting from Consultant’s failure to complete performance of its services within the time set forth in this Agreement.

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ARTICLE 4 – CONSULTANT'S GENERAL RESPONSIBILITES

4.1 For all Work on the Project, the Consultant will be responsible for providing requisite professional consulting or engineering services, special and optional services as requested; and providing the project management services and quality assurance necessary to accomplish these services in a timely, efficient and cost-effective manner as is consistent with the generally accepted standard of professional skill and care.

4.2 The Consultant shall cooperate fully with the City, and all other contractors employed for the Project, to effect proper coordination and progress to complete the Project on schedule and the Work in proper sequence.

4.3 Consultant shall be solely responsible for coordination of all of the Work. Consultant shall cooperate fully with all subcontractors, testing and laboratory companies, governmental agencies and all others whose services, materials or equipment are required for the completion of the Project by the Termination Date.

4.4 Consultant shall utilize and conform to the requirements of the PMIS and MSDGC project delivery requirements, as detailed in Article 15.

ARTICLE 5 - COMPENSATION

5.1 The total compensation payable to the Consultant under agreement, including any extension period, shall not exceed $XX,XXX,XXX ($___________)(“Contract Amount”) in accordance with this Agreement, including the terms of this First Part of the Agreement and EXHIBIT B, for the Consultant's successful completion of the Work. The Consultant agrees that it shall complete the Work for the amount specified in EXHIBIT B unless such amount is modified as provided in this Agreement. The Contract Amount includes all of Consultant’s costs and fees, including profit.

5.2 Upon execution of this Agreement by the City Manager or his/her designee, the City will certify funds in the amount of $XX,XXX,XXX as funding to complete the services authorized in EXHIBIT A. Additional certification of funds may be authorized for completion of additional work or project phases, as needed, subject to the Contract Amount noted in 5.1. All certifications are subject to the appropriation of funds by the appropriate legislative body.

ARTICLE 6 –PAYMENT

6.1 Payment to the Consultant for the Work will be made in accordance with the project budget set forth in EXHIBIT B.

Payment for Consultant’s services shall be based upon a time and materials payment.

Payment shall be based on actual salaries paid (direct rate) multiplied by Direct Labor Multiplier (DLM) noted in EXHIBIT C (“Bill Rate”). Payment is tied to the acceptable completion and acceptance by the City of a deliverable (or deliverables) as identified in a schedule of deliverables within EXHIBIT A and EXHIBIT D.

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Payment will be in accordance with the agreed-upon Consultant’s employees performing the services and not exceeding the approved budget as shown in EXHIBIT B and in accordance with the Project Schedule noted in EXHIBIT D. Payment will also be subject to the requirements noted in EXHIBIT C. Subconsultant costs are subject to a maximum 5% mark-up by the Consultant, inclusive of any 2nd tier subconsultants. No reimbursable expenses or travel costs will be marked-up by Consultant or any subconsultants.

6.2 The City shall make payment not more frequently than monthly and upon submission of an approved requisition for payment (the “Invoice”). Invoices shall include a breakdown by Task listed in EXHIBIT B and include: i) a summary of the Work performed for the period invoiced; ii) current billing period for the Work invoiced; iii) amount of SBE participation; iv) identification of the Project with the applicable identifiers such as title, contract number, certification number, CIP number, sewer number; and project number;

v) amount due, amount previously invoiced, and amount remaining in contract; vi) total amount previously authorized; and vii) attachments presenting data such as time sheets satisfactory to the City to document entitlement to payment. The Consultant shall promptly submit satisfactory Invoices as determined by the City using the MSDGC PMIS.

Properly submitted and approved Invoices shall strive to be paid within thirty (30) days after receipt of the Invoices by the City. Inadequate Invoices will delay payment proportional to the additional review time required; however, undisputed invoice portions shall be processed for payment.

6.2.1 Any provision hereof to the contrary notwithstanding, the City shall not be obligated to make payment to the Consultant with respect to one or more of the following conditions for which the Consultant has been given at least fifteen (15) days written notice of the condition and failed to cure the condition:

6.2.1.1 The Consultant is in default of any of its obligations under the Agreement;

provided, however, that the City may retain only such amount as is reasonably necessary to cure the default.

6.2.1.2 Part of the payment requested is attributable to services that were not performed in accordance with this Agreement; provided, however, that such payment shall be made as to the part thereof attributable to services that were performed in accordance with this Agreement.

6.2.1.3 The Consultant has failed to make payments promptly to subconsultants or other third parties used in connection with the services for which the City has made payments to the Consultant, unless the payment is being withheld by the Consultant as the result of a bona fide dispute.

6.2.2 The City shall have the right to request certified payrolls for either or both the Consultant’s employees and the Consultant’s subconsultant’s employees.

6.2.3 The Consultant acknowledges the importance of submitting complete requisitions for payment for all Work performed during the billing period for which it is requesting payment and will require its subconsultants to do likewise.

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6.3 The Consultant also shall be reimbursed without markup for allowable or pre-approved reimbursable non-labor costs involved in performing the Work. The City shall not pay for costs associated with items included in the Consultant’s approved Federal Acquisition Regulation (FAR) certified indirect cost rate used in the determination of the direct labor Multiplier noted in EXHIBIT C. If no rate is approved, the City shall not pay for costs associated with any office administrative charges.

6.4 Expenses for travel expenses for lodging, meals, mileage, and incidental expenses shall be included in EXHIBIT B subject to the current MSDGC Consultant Travel Reimbursement Contract Requirements Policy.

6.5 The City may pay for expenses related to special education training for Consultant staff support that is requested by and approved in advance by the MSDGC Project Manager (as defined in Section 12.1) and that the MSDGC Project Manager has determined provides the Consultant staff support with essential information necessary to the delivery of the Consultant’s professional services to the City.

6.6 Additional costs for which the City shall not reimburse the Consultant:

6.6.1 Costs associated with the preparation of amendments to this Agreement or the preparation or filing of claims;

6.6.2 Expenses of the Consultant associated with anticipated lost profits, lost revenue, lost income, or lost interest on earnings;

6.6.3 Costs of special consultants or attorneys, whether or not in the direct employ of the Consultant, employed for services specifically related to the resolution of a claim, dispute, or other matter relating to the acceptability of the Work.

6.6.4 Continuing education training expenses for individual consultants working on MSDGC projects.

6.7 The Consultant shall submit its invoices via the MSDGC PMIS.

ARTICLE 7 - STANDARD OF CARE

7.1 In providing services under this Agreement, the Consultant will perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently performing similar services and practicing under similar circumstances. The Consultant makes no other representations or warranties, whether expressed or implied, with respect to the services rendered hereunder. Upon notice to the Consultant, and by mutual agreement between the parties, the Consultant will without additional compensation, correct those services not meeting such a standard.

7.2 The Scope of Work includes the development of Project-specific objectives and criteria.

Consistent with the applicable standard of care, the Consultant’s deliverables for the Project shall be consistent with agreed-upon Project-specific objectives and criteria. If the Consultant’s deliverables are not consistent with Project-specific objectives and criteria, <Project ID and Name> Page | 6 of 21 <Contract No> the Consultant shall notify the City in writing of the differences between the deliverables and Project-specific objectives and criteria in sufficient time and with sufficient detail for the City to respond to the Consultant so that the differences can be resolved to the City’s satisfaction.

7.3 Consultant and the City shall comply with applicable Laws and Regulations that are in effect as of the date the parties entered into this Agreement, or as amended. Changes to these requirements after the date the parties entered into this Agreement may be the basis for modifications to Consultant’s scope of services, times of performance, and compensation.

7.4 The deliverables for the Project as developed through the Scope of Work described in EXHIBIT A shall be subject to the approval of the City. Payments to the Consultant for Work performed do not constitute such approval by the City.

ARTICLE 8 - CONSULTANT’S REPRESENTATIVE AND KEY PERSONNEL

8.1 Consultant shall designate and authorize [Insert Name], who is an employee of Consultant, to act as its agent for all purposes under this Agreement (“Consultant’s Project Manager”). Consultant’s Project Manager shall be available at all times to the City for the purpose of notification and consultation and shall have overall responsibility for all phases of Consultant’s participation in the Project.

8.2 The parties acknowledge the importance of the City’s confidence in the personal services of key members of the Consultant’s team and the continuity of key members’ participation in the services to be provided under this Agreement. This Agreement has been entered into on the representation that the individuals, firm affiliations, assignments, responsibilities, and office locations as listed in EXHIBIT C will be maintained for this Project.

8.3 No substitution or replacement of individuals or change in status (e.g., firm affiliation, assignment, responsibilities or office location) of the key personnel listed in EXHIBIT C shall be made by the Consultant without the prior approval of the MSDGC Project Manager, except when necessitated by causes beyond the Consultant’s reasonable control.

The City shall have the right in any event to approve any substitution or replacement or change in status for Consultant’s personnel assigned to this Project. At the request of the City, the Consultant shall consult with it to resolve any situation in which a member of the Consultant’s team (including, without limitation, any subconsultant or any principal or employee thereof) is failing to perform to an adequate professional and technical standard. No act or omission of the City made or permitted under this Section shall relieve the Consultant of its sole responsibility for the Work.

ARTICLE 9 - ADDITIONAL WORK

9.1 The Consultant shall not be compensated for any work, except that which is specifically included in EXHIBIT A. Any work in addition to that included in EXHIBIT A shall be requested in writing, authorized by the City, and included in an amendment to this

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Agreement. Any additional work first requested in writing, and then approved by the City, will be paid in accordance with EXHIBIT B and EXHIBIT C.

9.2 The City may request changes in the Work within the general scope of the Work consisting of additions, deletions, or other revisions. If a change causes a change in the scope of work the parties shall agree upon adjustments to the Contract Amount, the Schedule, or Contract Term, if any, and such adjustments shall be made a written amendment to the Agreement signed by the parties prior to the performance of such change in the Work.

9.3 If the Consultant requests a change in the Work, Consultant shall provide to the City within fourteen (14) days of the event giving rise to the request a written proposal stating:

(1) the reasons for the proposed change; (2) the impact of the proposed changes on compensation and schedule; and (3) the detailed nature of any costs to be incurred, including reasonable adjustment to other applicable provisions in this Agreement, and a cost to complete the remaining project work inclusive of any additional work. If the City accepts any such requested Consultant change, an amendment to the Agreement shall be properly executed by the parities.

9.4 The Consultant will not be compensated for performing any Work unless the written notice complying with the above Article 9 has been submitted in the time specified and a written amendment has been properly executed by the parties prior to performing these services.

ARTICLE 10 – PERFORMANCE EVALUATION RATING

A rating system has been established for this project to evaluate consultant performance in accordance with the MSDGC Professional Services Consultant Performance Evaluation form and process. The consultant may request a copy of the rating system from the Project Manager.

ARTICLE 11 - SCHEDULE MANAGEMENT

11.1 Without limiting the Consultant’s general obligations under this Agreement, the Consultant shall adhere to the time schedule set forth in EXHIBIT D.

11.2 Project Schedule – The Consultant shall be required to perform the services outlined in EXHIBIT A in accordance with the approved project baseline schedule maintained by MSDGC Project Controls. The Consultant shall periodically be required to review and update this schedule in coordination with the MSDGC Project Manager. EXHIBIT D reflects the initial requirements of the project baseline schedule and will be adjusted though the course of the Project. Consultant shall abide by the requirements of the then current approved baseline schedule.

11.2.1 Schedule Recovery- In the event that an updated Schedule indicates a delay and there is no force majeure excusable delay or change to support a time extension, Consultant, if requested by City, shall prepare and submit a recovery schedule ("Recovery Schedule") for acceptance by the City five (5) calendar days after the request from the City is received. The Recovery Schedule shall consist of proposed revisions to the Consultant's Schedule demonstrating how the

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Consultant intends to achieve all milestones set forth in this Agreement, including completion dates for Work allotted under the terms of this Agreement. An accompanying narrative shall describe the cause of the problems and the actions planned by the Consultant to recover lost time.

11.2.2 The Consultant shall promptly undertake appropriate action at no additional cost to the City to affect the Recovery Schedule. Appropriate recovery actions may include, but not be limited to, assignment of additional labor, and/ or overtime work, overlapping of activities or sequencing changes to increase activity concurrence.

11.3 The Consultant is responsible for coordinating its own schedules, including those of its subconsultants, as well as activities of others directed by the Consultant.

11.4 The Consultant shall provide copies of all schedules both in hard copy and electronically, for review by the City. The electronic schedule provided to MSDGC shall be in the format designated by the City.

ARTICLE 12 – MSDGC PROJECT MANAGER

12.1 The City will designate a party to act as its Project Manager on its behalf with respect to this Agreement (the “MSDGC Project Manager”). The MSDGC Project Manager may or may not be an employee of the City, in its sole discretion. The MSDGC Project Manager will examine the Consultant’s submissions for quality and completeness and will render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of the Work to be performed by the Consultant.

12.2 In the course of the Agreement, upon reasonable notice to the Consultant, the City may make such other or additional arrangements for the delegation of its rights and responsibilities under this Agreement as it deems to be in its best interests.

ARTICLE 13 - APPROVALS

The City will not unreasonably withhold any approval to be given by it with respect to submissions required to be made by the Consultant in the performance of this Agreement.

ARTICLE 14 –PROJECT BUDGET

14.1 The Consultant acknowledges the importance of completion of the Work in accordance with the Project Budget. The Consultant shall monitor the Work on a monthly basis.

Consultant shall report on its progress to guard against increases in costs that may be mitigated by the early attention of the parties with responsibility in the matter. Reports shall be made monthly.

14.2 A Project Progress Report will be required to be submitted with each Project Invoice for the corresponding period of Work. The format of the Project Progress Report shall generally follow the template provided by MSDGC.

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ARTICLE 15 – PROJECT MANAGEMENT INFORMATION SYSTEM

15.1 The Consultant shall use the web-based project management communications tool, e- Builder software, and protocols included in that software during this project (“Project Management Information System” or “PMIS”). The use of the Project Management Information System as herein described does not replace or change any contractual responsibilities of the Consultant.

15.1.1 Project management communication is available through the PMIS as provided in the form and manner required by MSDGC. Submissions or transmissions provided outside of the PMIS will not be accepted unless specifically requested by MSDGC.

15.1.2 The project communications database is on-line and fully functional. User registration, electronic and computer equipment, and Internet connections are the responsibility of each project participant. The sharing of user accounts is prohibited.

15.1.3 Training: A single day training session will be conducted by MSDGC for up to two Consultant users unless otherwise approved by MSDGC. Training registration will be provided at no cost; however the Consultant’s training time shall not be billable to the project. Users are required to attend the scheduled training session. Consultant may also obtain group training from e-Builder at their own expense. Please contact e-Builder for availability and cost.

15.1.4 User Licenses: Two (2) named user licenses will be provided to the consultant for use on this project at no cost to the Consultant. Additional user licenses can be obtained with approval from MSDGC.

ARTICLE 16 – PROJECT CLOSEOUT

16.1 Prior to payment of the final invoice, Consultant agrees that it shall deliver to the City the following:

16.1.1 All electronic data files, inclusive of all final reports, technical memorandums, drawings, specifications, meeting notes, and other information related to the Project as required by the City. Consultant may retain copies of any or all of the aforementioned materials for its files.

16.1.2 All non-expendable equipment and materials purchased and approved by the City as Other Direct Costs as defined in EXHIBIT B.

16.1.3 A formal written release of all claims seeking further payment and financial requirements arising by virtue of this Agreement, other than such claims, if any, as may be specifically exempted by Consultant from the operation of the release in a specific amount identified in the release.

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ARTICLE 17 – SUBCONSULTANTS

17.1 The Consultant shall advise the City on a periodic basis of the identities of key personnel engaged by its subconsultant for this Agreement, of their availability to perform the work for which they are responsible to the Consultant, and of the sufficiency of their staffing for the Project.

17.2 None of the Work shall be subcontracted to a subconsultant without the prior written approval of the City, which shall not be unreasonably withheld. Identification of specific subconsultant utilization in EXHIBIT E shall constitute the required prior written approval of the City. Any services subcontracted shall be by written contract available to the City and such contract shall explicitly state that it is subject to each provision of this Agreement. The Consultant shall provide the same level of documentation for subcontract billing as is required for the Consultant’s own workforce. The Consultant may not mark-up work performed by a subconsultant unless such mark-up is specifically identified in this Agreement. Any changes, substitutions or additions to the subconsultant utilization noted in EXHIBIT E require that Consultant submit a Subcontractor Approval & Substitution Request Form for approval prior to making such changes.

17.3 The City maintains a list of Vendors Debarred from Contracting or Subcontracting with the City, which may be accessed at: http://www.cincinnati-oh.gov/purchasing or may be furnished in other form upon request. The City will not contract with any firm or person on the list. It is the Contractor’s (Consultant’s) responsibility to verify that each subcontractor (subconsultant) it proposes to use is an eligible firm or person. The City will not approve a subcontractor whose name appears on the list. The City shall neither accept nor be liable for any increase in costs, or other expenses, delay, loss, or subsequent ineligibility to contract with the City, incurred by a contractor as a result of the City rejecting any proposed person, firm, partner, principal, affiliate, subcontractor or supplier that is debarred or suspended after the submission of a bid, proposal, or other communication leading to a contract, but before the approval or award of the contract.

17.4 Nothing in this Article shall relieve the Consultant of its sole and prime responsibility for the performance of this Agreement, including all performance by subconsultants.

ARTICLE 18 - ASSIGNMENT

The Consultant shall not assign, transfer, convey, sublet or otherwise dispose of any interest, rights, or obligations under this Agreement, without the prior written consent of the City.

ARTICLE 19 -EQUAL EMPLOYMENT OPPORTUNITY AND SMALL BUSINESS ENTERPRISE

19.1 The Consultant's employment and contracting practices related to this Agreement shall conform to the MSDGC Small Business Enterprise (SBE) Program.

19.2 The Consultant shall abide by its Subcontractor Utilization Plan which is included as EXHIBIT E of this Agreement.

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19.3 The Consultant agrees to enter SBE subconsultant payments into the City’s online reporting site, the “Vendor Compliance & Certification System” (VCCS), or any successor site or system the City uses for this purpose, for this Project on a monthly basis. The Consultant agrees that its SBE subconsultants will also access the online reporting site monthly to review and confirm the accuracy of SBE subconsultant payments entered by the Consultant. Upon execution of this Agreement, the Consultant shall contact the MSDGC SBE Program to obtain instructions, the proper internet link, login information, and password to access the site and set up the necessary reports.

19.4 In connection with the performance of services under this Agreement, the Consultant hereby agrees not to discriminate against any employee or applicant for employment because of race, religion, color, sex or national origin. The aforesaid provisions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. The Consultant agrees to post hereafter in conspicuous places, available for employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. To the extent applicable, the Consultant shall comply with Title VI and VII of the Civil Rights Act of 1964, as amended; Title 49, Code of Federal Regulations; Part 21 through Appendix H and Title 23, CFR 710.405(b). To the extent applicable, the Consultant is required to comply with the provisions of Executive Order 11246, entitled "Equal Employment Opportunity", as amended by Executive Order 11375, and as supplemented in Department of Labor Regulations (41 CFR Part 60). To the extent applicable, the Consultant shall comply with the Immigration Reform and Control Act (IRCA) of 1986 and agrees to permit the MSDGC and its agents access to the Consultant's personnel records to verify its compliance with IRCA requirements.

19.5 Details concerning these programs may be obtained from Department of Sewers Procurement, 805 Central Avenue, Suite 234, Cincinnati, Ohio 45202; (513) 352-3278 and the MSDGC Office of Workforce and Business Development – Small Business Enterprise Program, 1600 Gest Street, Cincinnati, Ohio 45204; (513) 557-5967.

ARTICLE 20 - TERMINATION OF THE AGREEMENT, EVENTS OF DEFAULT, AND THE

CITY'S RIGHT TO PERFORM CONSULTANT'S OBLIGATIONS

20.1 TERMINATION BY CONSULTANT. If the Consultant, in whole or substantial part, is stopped during the performance of the Work for a period of one hundred twenty (120) days under an order of any court or other public authority having jurisdiction, or as a result of an act of government, such as a declaration of a national emergency making materials unavailable, through no negligent act, negligent omission, intentional misconduct or other fault of Consultant, or if the Consultant is not paid for a period of thirty (30) days from City’s acceptance of invoice, due to the City's failure to make proper payment to the Consultant, the Consultant may, upon thirty (30) days' written notice to the City, terminate this Agreement and recover from the City payment through the month during which such termination takes place for all services satisfactorily performed. Costs associated with the start-up and shut-down of the Work shall be at the Consultant's expense. Upon termination by Consultant, the Consultant shall provide all documents for the Project and other Project-

<Project ID and Name> Page | 12 of 21 <Contract No> related data theretofore prepared by the Consultant for the Project by whatever method the City deems expedient, and the City may use such documents and other Project-related data prepared by Consultant to complete the Project.

20.2 EVENTS OF DEFAULT. Any of the following events shall constitute "Events of Default" by Consultant under this Agreement:

20.2.1 The City should at any time determine, in its reasonable judgment, and notify Consultant in writing that the City has determined the performance of the Work is not proceeding in substantial compliance with the requirements of this Agreement and Consultant fails, within ten (10) days after the City notifies Consultant of the same, to furnish to the City evidence reasonably satisfactory to the City that either

(i) the performance of the Work is or will be brought into substantial compliance with the requirements of this Agreement, or (ii) provides reasonable justification for the noncompliance with the requirements of this Agreement and satisfies the City that such noncompliance will not adversely affect any milestone dates for the Work.

20.2.2 Consultant materially defaults in the performance of any other obligations of Consultant under this Agreement and fails to commence to cure satisfactorily such default within seven (7) days after the City gives Consultant written notice of the default; provided, however, that the City shall not be required to give additional written notice of, and Consultant shall not be entitled to a cure period with respect to, persistent defaults in the performance of the obligations of Consultant under this Agreement.

20.2.3. Consultant, after receipt of notice of same, persistently disregards any federal, state or local statute or ordinance, rule, regulation, permit or order of any public authority having jurisdiction over the Work or the Project.

20.2.4. The entry of an order for relief pursuant to any Chapter of Title 11 of the U.S. Code, as the same may be amended from time to time, with Consultant as debtor, or the filing by or against Consultant of any other insolvency proceeding or any other proceeding for compromise, adjustment or other relief under the laws of the United States or of any state relating to the relief of debtors.

20.3 Upon the occurrence and during the continuance of an Event of Default, the City may, but shall not be obligated to, take such actions as the City deems reasonable in order to cure the act or omission of Consultant that is the basis for the Event of Default, and shall have the right to pursue any and all rights and remedies to the City against Consultant, subject to 20.2.1 and 20.2.2, without thereby waiving the Event of Default, and the Contract Amount shall be reduced by the cost to the City of taking any such actions and Consultant shall only be paid for services rendered prior to the termination.

20.4 Upon the occurrence and during the continuance of an Event of Default, the City may, without prejudice to or limitation upon any other right or remedy which might be available to it at law or in equity, terminate the services of Consultant effective immediately upon written notice to the Consultant, and the Consultant shall provide to

<Project ID and Name> Page | 13 of 21 <Contract No> the City all documents for the Project and other Project-related data prepared by the Consultant for the Project by whatever method the City deems expedient, and the City may use such documents and other Project-related data prepared by Consultant to complete the Project. In such case, Consultant shall not be entitled to receive any further payment with respect to the Consultant's compensation until the Work is finished, nor shall it be relieved from its obligations under this Agreement. If the Agreement is terminated by the City as provided herein, the Consultant will be paid for the satisfactory services authorized and performed to the termination date, in a timely manner.

20.5 Termination for Convenience – The City may terminate this Agreement at any time by giving at least fourteen (14) days’ notice, in writing, from the City to the Consultant. If the Agreement is terminated by the City as provided herein, the Consultant will be paid for the satisfactory services authorized and performed to the termination date, in a timely manner, and in accordance with applicable payment schedules set forth herein. The City shall take into account identified tasks and hours spent in determining the value of compensated services.

20.6 The City reserves the right to reduce the services required herein of the Consultant and reduce any project budget in a manner which reflects such reduction, by giving notice of such, in writing, stating the date such reduction will become effective.

20.7 Prior to final payment Consultant shall meet the requirements listed in Article 16 -

PROJECT CLOSEOUT.

ARTICLE 21 – DISPUTE RESOLUTION

21.1 The City and Consultant agree to negotiate all disputes between them in good faith for a period of thirty (30) days from the date of notice of a dispute by one of the parties, prior to invoking the procedures described in the following paragraphs.

21.2 If the parties fail to resolve a dispute through negotiation under Paragraph 21.1, then the dispute shall be subject to mediation, followed by litigation, as described in the following paragraphs.

21.3 Mediation. Any dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party, unless the parties mutually agree otherwise.

Mediation shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect or rules of such other forum as the parties have agreed. Request for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association, if this is the forum selected by the parties. The request may be made concurrently with the filing of a legal action but, in such event, mediation shall proceed in advance of any legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.

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21.4. Litigation. Disputes arising under this Agreement and related to the Project that are not resolved successfully through informal discussions between the parties or through mediation will be the subject of litigation in the Court of Common Pleas for Hamilton County, Ohio.

ARTICLE 22 - COMPLIANCE WITH LAWS AND POLICIES

22.1 In the performance of the Work, the Consultant shall, as is consistent with the generally accepted standards of professional skill and care, comply with applicable statutes, ordinances, regulations, and rules of the Federal Government, the State of Ohio, Hamilton County, and the City of Cincinnati. Whenever notices, approvals, authorizations, waivers, instructions, or determinations by the City are required under this Agreement, they shall be effective only when given either (i) in writing and signed by the City, or (ii) by regulations and policies issued from time to time by the City.

22.2 In particular, as is consistent with the generally accepted standards of professional skill and care, the Consultant agrees to comply with applicable regulations pertaining to approvals for federal and state grants, and with applicable environmental regulations, including timely applications for permits. If a change in regulations would substantially increase or decrease the scope of the Work, the Consultant shall consent to such modifications of this Agreement as may be required by the City and the parties shall agree upon any necessary equitable adjustments in compensation.

22.3 This Agreement is subject to and the Consultant shall comply with the provisions of Chapter 319 of the Cincinnati Municipal Code that provide for a Prompt Payment System.

ARTICLE 23 -HOLD HARMLESS

23.1 The Consultant shall indemnify, defend, save and hold the City of Cincinnati and the Board of County Commissioners of Hamilton County, Ohio and their officers, employees and agents free and harmless against any and all claims, demands, actions, judgments, losses, damages, settlements, costs, charges, professional fees, or other expenses or liabilities to the proportionate extent arising directly or indirectly out of or relating to any and all negligent acts, errors, or omissions by the Consultant (including its employees and agents employees, agents and subconsultants) in performance of the Work or any ambiguities in the plans and specifications prepared by the Consultant or any of its subconsultants, provided that such ambiguities are originated by or the responsibility of the Consultant or subconsultant(s) and to the extent that such ambiguity is the result of a negligent act, error, or omission of the Consultant or subconsultant(s) in the performance of this Agreement. The Consultant shall not be required to provide indemnification beyond the requirements in R.C. 153.81. The Consultant shall be given the opportunity to defend on behalf of the City of Cincinnati and Hamilton County, any action or claim brought against it which, if successfully prosecuted, would give rise to a claim hereunder against the Consultant.

23.2 This indemnification shall not result in the unjust enrichment of the City of Cincinnati or the Board of Commissioners of Hamilton County. In the case of any material ambiguities, the City shall afford the Consultant a reasonable opportunity to mitigate damage and

<Project ID and Name> Page | 15 of 21 <Contract No> clarify any such ambiguities within a reasonable time after discovery by or notice to the City. The City shall promptly notify the Consultant of any claim, demand, action, cause of action or other liability for which it may seek indemnification from the Consultant.

23.3 Subsurface Investigations. In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect total cost and/or execution. These conditions and cost/execution effects are not the responsibility of Consultant.

ARTICLE 24 – FORCE MAJEURE

Neither party to the Agreement shall be deemed to be in default in the performance of its obligations hereunder if that party is prevented or delayed from performing by forces beyond its reasonable control including, without limitation, acts of God or of a public enemy; interference or delay by municipal, state, federal, or other governmental agency; any catastrophe resulting from flood, fire, extreme weather conditions, explosion, or other cause beyond the reasonable control of the non-performing party and labor disputes or other work stoppages.

ARTICLE 25 -REPORTS, INFORMATION AND AUDITS

25.1 The Consultant, at such time and in such form as the City may require, shall furnish the City such reports as may be requested pertaining to the Work, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this Agreement. The Consultant shall retain all financial and administrative records for a minimum of three (3) years following completion of this Agreement, and shall permit the City or any of its representatives or auditors access to such records upon advance notice during normal business hours at no cost to the City.

25.2 Whenever the Consultant has obtained the Cincinnati Area Geographical Information System (CAGIS) data at no cost for the purpose of performing the Work, the Consultant agrees not to use any such CAGIS data for non-MSDGC projects. Additionally, the Consultant shall require its subconsultants to agree not to use any such CAGIS data for any non-MSDGC project. If the Consultant has purchased CAGIS data for multi-client use, no portion of those costs will be reimbursed by the City.

25.3 Except as authorized by the City, the Consultant and other subconsultants shall not provide MSDGC infrastructure records or information to persons outside of the Consultant's organization and subconsultants except as may be required by subpoena or legal proceeding.

ARTICLE 26 - CONFLICT OF INTEREST

No officer, employee, or agent of the City who exercises any functions or responsibilities in connection with the planning and carrying out of the Work, nor any immediate family member, close business associate, or organization which is about to employ any such person, shall

<Project ID and Name> Page | 16 of 21 <Contract No> knowingly have any personal financial interest, direct or indirect, in the Consultant or in this Agreement. The Consultant shall take appropriate steps to assure compliance. The Consultant agrees that it will not contract with any subconsultant in whom the Consultant has any personal financial interest, direct or indirect. The Consultant further covenants that no person who has any financial or conflicting interest in the Work shall be knowingly employed. The Consultant has the responsibility to request disclosure of potential conflicts of interest. The Consultant must report potential conflict of interest to the City for direction and disposition.

ARTICLE 27 - CONSULTANT INSURANCE

27.1 It shall be the responsibility of the Consultant to protect all life and property, and to protect the City, the Consultant, and its employees and subconsultants from liability claims that may result from performance of the Work.

27.2 The Consultant shall secure and maintain general liability insurance protecting Consultant against claims for bodily injury, death or property damage which may arise as a result of the Consultant's actions during the performance of the Work in an amount of at least One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) per project in the aggregate. The City of Cincinnati and the Board of Commissioners of Hamilton County, Ohio shall be named as additional insureds under this policy.

27.3 The Consultant shall secure and maintain professional liability insurance with a combined single limit of One Million Dollars ($1,000,000.00) per claim with a maximum deductible not to exceed Twenty-Five Thousand Dollars ($25,000.00). Such insurance shall extend to the Consultant and to its legal representatives in the event of death, dissolution or bankruptcy, and shall cover the negligent acts, errors and omissions of the Consultant, subconsultants and employees. Such insurance shall extend to any negligent act, error or omission in the performance of the Work committed by the Consultant, its subconsultants, or employees, or any other person or entity for whom the Consultant is legally liable. Such coverage shall be in effect from the date services are first provided under this Agreement and shall be maintained in force until the later of (i) the completion of the Work or (ii) official acceptance of the Project by the City; and, provided that such insurance is generally available, shall be maintained for an additional period of three (3) years after the later of (i) the completion of the Work or (ii) official acceptance of the Project by the City.

27.4 The Consultant shall secure and maintain Workers Compensation insurance as required by the laws of the State of Ohio.

27.5 The Consultant shall also carry insurance coverage for valuable papers for the restoration of plans, field notes, drawings, computations, specifications or other documents in the event of loss or destruction of such materials in the custody of the Consultant, in an amount sufficient to cover the cost of restoration.

27.6 The Consultant shall secure and maintain automobile liability insurance with a limit of One Million Dollars ($1,000,000.00) per occurrence. The City of Cincinnati and the Board of Commissioners of Hamilton County, Ohio shall be named as additional insureds under this policy.

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27.7 Prior to executing this Agreement the Consultant shall provide the City with proof of all the insurances required herein. The Consultant shall provide the City thirty (30) days written notice prior to any cancellation (except for non-payment) or non-renewal of any insurance required herein. Consultant shall deliver to the City one copy of each of the certificates of insurance and endorsements (and other evidence of insurance requested by the City or any other additional insured) for each policy Consultant and all subconsultants are required to purchase and maintain.

27.8 All insurance must be provided through companies authorized to do business in the State of Ohio and rated at least A: VII by the A. M. Best Company.

ARTICLE 28 - INDEPENDENT CONTRACTOR

The Consultant shall perform all of the Work as an independent contractor and not as an officer, agent, servant, or employee of the City. The Consultant shall have exclusive control of and the exclusive right to control the details of the Work and all persons performing the same and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors, and subconsultants, if any. Nothing herein shall be construed as creating a partnership or joint venture between the City and the Consultant. No person performing any of the Work shall be considered an officer, agent, servant, or employee of the City, nor shall any such person be entitled to any benefits available or granted to employees of the City.

ARTICLE 29 – NOT USED

ARTICLE 30 - SEVERABILITY

In the event that any provision of this…