2-C. Sample Services Contract.pdf

CONTRACT NUMBER:

AWARD DATE:

EXPIRATION DATE:

MASTER AGREEMENT FOR PROFESSIONAL SERVICES

SERVICES:

Project Name

OWNER:

City of Charlotte

CONSULTANT:

CONSULTANT FULL LEGAL NAME (IN ALL CAPS)

Name of Project: 1 Agreement Number:

STATE OF NORTH CAROLINA MASTER AGREEMENT FOR

COUNTY OF MECKLENBURG PROFESSIONAL SERVICES

This CONTRACT made and entered into this ________ day of __________________________, 2024 (“Effective Date”), by and between the CITY OF CHARLOTTE, a North Carolina municipal corporation (“City”), and [NAME OF CONSULTANT IN CAPS], a professional corporation doing business in North Carolina (“Consultant”).

GENERAL RECITALS

WHEREAS, the City advertised [Request for Proposal or Request for Qualifications] [RFP or RFQ #] for Professional Services [Name of Project] on [date solicitation advertised];

WHEREAS, the Consultant submitted a [Proposal or Statement of Qualifications] in response to the [RFP or RFQ};

WHEREAS, the City desires to engage the Consultant, as needed, to provide professional services as outlined hereinafter upon the terms and conditions as set out herein;

WHEREAS, the Consultant desires to provide such professional services as outlined hereinafter upon the terms and conditions set out herein;

WHEREAS, the City is authorized by the City Council to enter into a contract for performance of such professional services;

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and further consideration of the covenants and representation contained herein, the parties agree as follows:

AGREEMENT

1 INCORPORATION OF EXHIBITS

The following exhibits are attached to this Agreement and are incorporated into and made a part of this Agreement:

EXHIBIT A: Scope of Work EXHIBIT B: Project Schedule EXHIBIT C: Fee/Cost Breakdown EXHIBIT D: Key Personnel EXHIBIT E: Charlotte Business INClusion Program EXHIBIT F: Commercial Non-Discrimination Certification EXHIBIT G: Certificate of Insurance EXHIBIT H: Task Order

Name of Project: 2

2 DEFINITIONS

ACCEPTANCE refers to the receipt and approval by the City of a Deliverable or Service in accordance with the acceptance process and criteria set forth in this Agreement.

AGREEMENT refers to this written agreement executed by the City and the Consultant for the Services as outlined herein.

CONTRACT PERIOD refers to the number of calendar days or specified date set forth in the Agreement for completion of the Services, including authorized amendments or modifications thereto; also referred to as Time of Completion.

CITY refers to the City of Charlotte, North Carolina.

CITY PROJECT MANAGER refers to the specified City employee representing the best interests of the City for the Services.

CONSULTANT PROJECT MANAGER refers to the specified Consultant employee representing the best interests of the Consultant for the Services.

DELIVERABLES refer to all tasks, reports, information, designs, plans, specifications, documents and other items, which the Consultant is required to complete and deliver to the City in connection with Task Orders issued under this Agreement.

DEPARTMENT refers to a department within the City of Charlotte.

DOCUMENTATION refers to all written, electronic, or recorded works, that describe the use, functions, features, or purpose of the Deliverables or Services or any component thereof, and which are published or provided to the City by the Consultant or its subcontractors, including without limitation all end user manuals, training manuals, guides, program listings, data models, flow charts, logic diagrams, and other materials related to or for use with the Deliverables or Services.

SERVICES refer to the services to be performed by the Consultant pursuant to this Agreement.

SPECIFICATIONS AND REQUIREMENTS refer to all definitions, descriptions, requirements, criteria, warranties and performance standards relating to the Deliverables and Services which are set forth or referenced in: (i) this Agreement, (ii) the Documentation; and (iii) any functional and/or technical specifications which are published or provided by the Consultant or its licensors or suppliers from time to time with respect to all or any part of the Deliverable or Services.

WORK PRODUCT refers to the Deliverables and all other reports, information, designs, plans and other items developed by the Consultant in connection with this Agreement, and all partial, intermediate or preliminary versions of any of the foregoing.

Name of Project: 3

3 DESCRIPTON OF SERVICES

The City and the Consultant will negotiate the details of Task Orders for specific projects under this Agreement. The Consultant will execute and submit to the City a proposed Task Order in the form of Exhibit H for each scope of work that the Consultant proposes to provide to the City under this Agreement. The City may accept the proposed Task Order by issuing a purchase order. Upon issuance of such purchase order, the Task Order and the purchase order shall be deemed incorporated into and made a part of this Agreement, and each reference to an accepted Task Order in this Agreement shall be deemed to include both the Task Order in the form accepted by the City and the purchase order. In the event of a conflict between the main body of this Agreement and the Task Order, the main body of this Agreement shall prevail. In the event of a conflict between the City’s purchase order and the main body of this Agreement, the main body of this Agreement shall prevail. In the event of a conflict between the City’s purchase order and the remainder of the Task Order, the City’s purchase order will prevail. The City will not be legally obligated by a Task Order absent a City issued purchase order. This Agreement is for an indefinite quantity with no minimum purchase requirement. The Consultant is not approved to start work until receipt of a purchase order.

The Consultant shall perform the services detailed in the Task Order and generally described in Exhibit A attached to this Agreement and incorporated herein by reference (the “Services”).

Unless otherwise provided in the Task Order, the Consultant shall obtain and provide all labor, materials, equipment, transportation, facilities, services, permits, and licenses necessary to perform the Services.

The Consultant will comply with the schedule set forth in each Task Order issued during the Agreement Period. All references to days in this Agreement (including the exhibits) shall refer to calendar days rather than business days, unless a provision specifically uses the term “business days.” Any references to “business days” shall mean the days that the City’s offices are open for the public to transact business.

4 COMPENSATION

4.1 FEES AND CHARGES

The City agrees to pay the Consultant for actual Services performed in an amount not to exceed $___________, and to reimburse reasonable expenses incurred, in accordance with Task Orders issued under this Agreement. Fees provided in Task Orders shall be calculated using the hourly and unit rates set forth in Exhibit C.

The City will pay for the Services at the rates set forth in Exhibit C and these rates shall remain firm for the initial term of the Contract. For any renewal terms, Company may propose a price increase by submitting legitimate, bona fide documentation sufficient to demonstrate that the price increase is necessary. The City may approve such price increase for the remaining term of the renewal period or for a shorter specified period, in the City's sole discretion. No proposed price increase shall be valid unless accepted by the City in writing. If the City rejects such price increase, the Company shall continue the performance of this Contract.

Name of Project: 4

4.2 REIMBURSABLE EXPENSES

Reimbursable expenses shall be limited to the actual expenditures made by the Consultant during the performance of the Services. The following expenses may be reimbursed at cost:

Travel

a. Vehicular transportation at the rate established by the Internal Revenue Service current at the time the travel occurs; and

b. Parking fees.

Communications

a. Long-distance phone call expenses; and

b. Postage including express mail costs for sending Project documents.

Permitting Fees

a. Permit costs and fees paid for securing approval of authorities having jurisdiction over the Project.

Reprographics, Renderings, and Models

a. Copying and binding expenses for drawings, specifications, reports and other Project documents;

b. Photography as approved by the City’s Project Manager; and

c. Renderings and models requested by the City if not specifically included in basic services.

4.3 INVOICES

Each month after Services have been performed, the Consultant shall submit an invoice to the City stating the nature and quantity of Services performed and accompanied by proper supporting documentation as the City may require, including a monthly project status report. Hourly rates, unit prices, and reimbursable expenses, as applicable, shall be itemized on each invoice. The Consultant shall charge the City at regular hourly billing rates for any overtime hours worked (as defined by the Fair Labor Standards Act).

The Consultant may submit invoices using one of the following options:

OPTION 1:

The Consultant shall email all invoices to cocap@charlottenc.gov

OR

OPTION 2:

The Consultant shall mail all invoices to:

City of Charlotte AP Attn: Department P.O. Box 37979 Charlotte, NC 28237-7979

Each invoice must contain the following information:

mailto:cocap@charlottenc.gov

Name of Project: 5

Purchase Order Number: Individually assigned Agreement Number: [Insert Contract Number] City Contact Name: [Name of Project Manager] City Contact Department: [Enter Department Name]

The City will pay accurate, undisputed, properly submitted invoices within thirty (30) days after the receipt from the Consultant. An undisputed properly submitted invoice is defined as an invoice that indicates only those items that have been satisfactorily completed and accepted by the City.

As a condition of payment, the Consultant must invoice the City for Services within sixty (60) days after such Services are performed. The Consultant waives the right to payment for any Services that have not been invoiced to the City within sixty (60) days after such Services were rendered.

4.4 PRE-CONTRACT COSTS

The City shall not be charged for any Services or other work performed by the Consultant prior to the Effective Date of this Agreement.

4.5 COST OVERRUNS

If it appears during the course of performance of the Services that any of the estimated fees and allowances in a Task Order may be exceeded, the Consultant shall immediately notify the City’s Project Manager in writing. The estimated fees and allowances shall not be exceeded except by written amendment to the Task Order. Any work performed without prior written approval shall be at the Consultant’s expense.

4.6 ACCOUNTING AND AUDITING

The Consultant shall maintain complete and accurate records, using Generally Accepted Accounting Principles (GAAP), of all costs related to this Agreement and all Task Orders issued under this Agreement. Such records shall be open to inspection and subject to audit and/or reproduction, during normal working hours, by the City’s agent or authorized representative to the extent necessary to adequately permit evaluation and verification of any invoices, payments, or claims submitted by the Consultant or any of his payees in connection with this Agreement and all Task Orders issued under this Agreement. Records subject to examination will include, but are not limited to, those records necessary to evaluate and verify direct and indirect costs (including overhead allocations) as they may apply to costs associated with this Agreement and all Task Orders issued under this Agreement.

For the purpose of such inspections, the City’s agent or authorized representative shall have access to said records from the Effective Date of this Agreement, for the duration of the Services, and until three (3) years after the date of final payment by the City to the Consultant pursuant to this Agreement.

The City’s agent or authorized representative shall have access to the Consultant’s facilities and shall be provided an adequate and appropriate work place, in order to conduct audits in compliance with this Section. The City will give the Consultant reasonable advance notice of

Name of Project: 6 planned inspections. If, as the result of an audit hereunder, the Consultant is determined to have charged the City for amounts that are not allocable or verifiable, the Consultant shall promptly reimburse the City for said amount.

4.7 WITHHOLDING OF PAYMENTS

The parties agree that the City shall be entitled to withhold payments, including final payment, due to the Consultant under this Agreement until the City has received in a form satisfactory to the City all claim releases and other documentation, including but not limited to the City’s Charlotte Business INClusion Program.

4.8 PAYMENT AFFIDAVITS

To determine whether disparities exist in City contracting based on race, gender or other factors, and also to measure the effectiveness of the City’s Charlotte Business INClusion (“CBI”) Program, the City tracks the utilization of subcontractors and suppliers on certain City contracts based on race, gender, small business status, and other factors. For analysis purposes, it is important that the City obtain this data not only for minority, female and small business suppliers and subcontractors, but also for other subcontractors and suppliers. As a condition to receiving payment under this Agreement, the Consultant agrees to provide to the City with each invoice for payment submitted under this Agreement, a written payment affidavit detailing the amounts paid by the Consultant to subcontractors and suppliers in connection with this Agreement (“Payment Affidavits”). Payment Affidavits shall be in the format specified by the City from time to time, and shall include all payments made to subcontractors and suppliers under this Agreement that are not included on a prior Payment Affidavit.

Failure to provide a properly completed version of each Payment Affidavit required by this Section shall constitute a default under this Agreement, and shall entitle the City to: (a) withhold payment of any amounts due the Consultant (whether under this Agreement or otherwise), or (b) exercise any other remedies legally available for breach of this Agreement, or (c) impose any other sanctions permitted under the City’s Charlotte Business INClusion Program. In order to have a properly completed Payment Affidavit, each subcontractor identified must be registered in the City’s Vendor Registration System. The City may request on a case-by-case basis that the Consultant require certain suppliers to be registered in the City’s Vendor Registration System, and may withhold payment of any amounts due the Consultant in the event the Consultant fails to comply with such request.

4.9 PROMPT PAYMENT TO SUBCONTRACTORS

The Consultant shall pay subcontractors for satisfactory performance of their subcontracts within seven (7) days after the City has paid the Consultant for such work. If the Consultant withholds any retainage pending final completion of any subcontractor’s work, the Consultant is required to pay the retainage so withheld within seven (7) days after such subcontractor completes his work satisfactorily.

4.10 NON-APPROPRIATION OF FUNDS

If the Charlotte City Council does not appropriate the funding needed by the City to make payments under this Agreement for any given fiscal year, the City will not be obligated to pay amounts due beyond the end of the last fiscal year for which funds were appropriated. In such

Name of Project: 7 event, the City will promptly notify the Consultant of the non-appropriation and this Agreement will be terminated at the end of the fiscal year for which the funds were appropriated. No act or omission by the City, which is attributable to non-appropriation of funds shall constitute a breach of or default under this Agreement.

4.11 PRE-AUDIT CERTIFICATE

No pre-audit certificate is required under NCGS 159-28(a) because this Agreement is for an indefinite quantity with no minimum purchase requirement. Notwithstanding anything contained herein to the contrary, this Agreement does not require the City to purchase a single product or service, and a decision by the City to not make any purchase hereunder will violate neither this Agreement nor any implied duty of good faith and fair dealing. The City has no financial obligation under this Agreement absent the City’s execution of a valid and binding purchase order containing a pre-audit certificate.

5 CONTRACT PERIOD

This Agreement shall commence on the Effective Date and shall continue in full force until [Insert Ending Date] Any unexpended funds remaining in Task Orders at the end of the Contract term shall be liquidated.

6 CONSULTANT’S RESPONSIBILITIES

Upon receipt of a written Task Order and Notice to Proceed, Consultant shall:

a. Provide for the City professional services in all phases of the Project to which this Agreement applies;

b. Serve as City’s professional for the Project as directed by the City’s Project Manager;

c. Furnish professional consultation and advice and furnish customary services incidental to the Project;

d. Review available data and consult with City to clarify and define the City’s requirements;

e. Obtain that information, conduct those investigations, and undertake other reasonable efforts necessary for the Consultant to become conversant with the philosophy and purpose of the Project and to carry out its responsibilities; and

f. Identify and analyze requirements of governmental authorities having jurisdiction and assist the City in obtaining required approval from such authorities

7 DUTY OF CONSULTANT TO IDENTIFY AND REQUEST INFORMATION, PERSONNEL AND FACILITIES

The Consultant shall identify and request in writing from the City in a timely manner: (i) all information reasonably required by the Consultant to perform the Services, (ii) a list of the City’s personnel whose presence or assistance reasonably may be required by the Consultant to perform the Services, and (iii) any other equipment, facility or resource reasonably required by the Consultant to perform the Services. Notwithstanding the foregoing, the Consultant shall not be entitled to request that the City provide information, personnel or facilities other than those which Exhibit A specifically requires the City to provide. The Consultant shall not be relieved of any failure to perform under this Agreement by virtue of the City’s failure to provide any information, personnel, equipment, facilities or resources: (i) that the Consultant failed to identify and request in writing from the City pursuant to this Section; or (ii) which the City is not required to provide pursuant to this Agreement. In the event the City fails to provide any information, Name of Project: 8 personnel, facility or resource that it is required to provide under this Section, the Consultant shall notify the City in writing immediately in accordance with the notice provision of this Agreement.

Failure to do so shall constitute a waiver by Consultant of any claim or defense it may otherwise have based on the City’s failure to provide such information, personnel, facility or resource.

8 POINTS OF CONTACT; NOTIFICATIONS

8.1 CITY PROJECT MANAGER

The duties of the City Project Manager include:

a. Examining the documents submitted by the Consultant and expediting decisions concerning the documents in order to avoid unreasonable delay in the progress of the Consultant’s Services;

b. Ensuring that the Consultant delivers all requirements and specifications outlined in this Agreement, including all Task Orders issued under this Agreement;

c. Coordinating the City’s resource assignment as required to fulfill the City’s obligations pursuant to this Agreement;

d. Promptly responding to the Consultant’s Project Manager when consulted in writing or by email with respect to Project issues; and

e. Acting as the City’s point of contact for all aspects of the Project including contract administration and coordination of communication with the City’s staff.

The City Project Manager is:

[Project Manager’s Name] [Title] City of Charlotte Department 600 E. 4th Street Charlotte, NC 28202 [Phone] [Email]

The Consultant shall contact the City Project Manager prior to all meetings involving City personnel.

8.2 CONSULTANT PROJECT MANAGER

The duties of the Consultant Project Manager include, but are not limited to:

a. Coordinating Project schedules and the Consultant’s resource assignment based upon the City’s requirements and schedule constraints;

b. Managing the overall Project by monitoring and reporting on the status of the Project and on actual versus projected progress, and by consulting with the City Project Manager when deviations occur and by documenting all such deviations in accordance with agreed upon change control procedures;

c. Providing consultation and advice to the City on matters related to Project implementation strategies, key decisions and approaches, and Project operational

Name of Project: 9 concerns/issues and acting as a conduit to the Consultant’s specialist resources that may be needed to supplement the Consultant’s normal implementation staff;

d. Acting as the Consultant’s point of contact for all aspects of contract administration, including invoicing for Services, and status reporting;

e. Facilitating review meetings and conferences between the City and the Consultant’s staff when scheduled or requested by the City;

f. Communicating among and between the City and the Consultant’s staff;

g. Promptly responding to the City’s Project Manager when consulted in writing or by email with respect to Project deviations and necessary documentation;

h. Identifying and providing the City with timely written notice of all issues that may threaten the Consultant’s Services in the manner contemplated by the Agreement (with “timely” meaning immediately after the Consultant becomes aware of them);

i. Ensuring that adequate quality assurance procedures are in place throughout the Project;

and

j. Meeting with other entities working on City projects that relate to this effort as necessary to resolve problems and coordinating the Services.

The Consultant Project Manager is:

______________ [Consultant’s PM’s Name] ______________ [Title] ______________ [Name of Firm] ______________ [Street Address] ______________ [City/State/Zip] ______________ [Phone] ______________ [Email]

8.3 NOTICES AND PRINCIPAL CONTACTS

Any notice, consent or other communication required or contemplated by this Agreement shall be in writing, and shall be delivered in person, by U.S. mail, by overnight courier, by electronic mail or by telefax to the intended recipient at the address set forth below:

For the City:

[Project Manager’s Name] [Title] City of Charlotte Department 600 E. 4th Street Charlotte, NC 28202 [Phone]

For the Consultant:

______________ [Consultant’s PM’s Name] ______________ [Title] ______________ [Name of Firm] ______________ [Street Address] ______________ [City/State/Zip] mailto:rjohnson@thinkboomerang.com

Name of Project: 10

______________ [Phone] ______________ [Email

Notice shall be effective upon the date of receipt by the intended recipient; provided that any notice that is sent by telefax or electronic mail shall also be simultaneously sent by mail deposited with the U.S. Postal Service or by overnight courier. Each party may change its address for notification purposes by giving the other party written notice of the new address and the date upon which it shall become effective.

9 REMOVAL, REPLACEMENT AND PROMOTION OF CONSULTANT PERSONNEL

The City will have the right to require the removal and replacement of any personnel of the Consultant or the Consultant’s subcontractors who are assigned to perform Services for the City.

The City shall be entitled to exercise such right in its sole discretion by providing written notice to the Consultant.

The City must approve in writing any hires or transfers of personnel to “Key Personnel” positions on the Project, and the City shall have the right to interview all personnel that the Consultant proposes to hire or transfer to such positions. As used in this Agreement, the term “Key Personnel” shall mean any personnel of the Consultant or its subcontractors who are identified as Key Personnel in Exhibit D to the Agreement, or whom the City from time to time designates in writing to the Consultant as fulfilling a key role in the Project. Unless approved by the City in writing, the Consultant will not: (i) remove the Consultant’s Key Personnel from the Project or permit its subcontractors to remove Key Personnel from the Project; or (ii) materially reduce the involvement of the Consultant’s Key Personnel in the Project or allow its subcontractors to materially reduce the involvement of Key Personnel in the Project.

The Consultant will replace any personnel who leave the Project with equivalently qualified persons. The Consultant will replace such personnel as soon as reasonably possible, and in any event within thirty (30) days after the Consultant first receives notice that the person will be leaving the Project.

If the Consultant falls more than 7 days behind in completing any Deliverable required by this Agreement, the Consultant will devote all personnel assigned to the Project to working on the Project on a first priority basis. As used in this Agreement, the term “personnel” includes all staff provided by the Consultant or its subcontractors, including but not limited to Key Personnel.

10 PROGRESS REPORTS

The Consultant shall prepare and submit to the City, at such times as may be agreed under a specific Task Order, written progress reports, which accomplish each of the following:

a. Update the project schedule, indicating progress for each task and Deliverable.

b. Identify all information, personnel, equipment, facilities and resources of the City that will be required for the Consultant to perform the Services for the subsequent month.

mailto:rjohnson@thinkboomerang.com

Name of Project: 11

c. Identify and report the status of all tasks and Deliverables that have fallen behind schedule.

d. Identify and summarize all risks and problems identified by the Consultant, which may affect the performance of the Services.

e. For each risk and problem, identify the action and person(s) responsible for mitigating the risk and resolving the problem.

f. For each risk and problem identified, state the impact on the project schedule.

11 QUALITY CONTROL PROGRAM

The Consultant shall establish and follow a quality control program throughout duration of the Agreement. The Quality Control Program will identify review personnel and describe the procedures to be used to verify, to independently check, and to review all Deliverables prepared, as well as any function, activity, or task as part of this Agreement. The Quality Control Program will specify the manner for documenting the check and review processes, recording required procedures, and verification of work activities. It will provide for internal reviews and will detail the frequency and types of reviews to be conducted for the specific job to ensure compliance with quality standards. The City Project Manager, at his/her sole discretion, may request a copy of the Quality Control Program from the Consultant.

Throughout the Agreement duration, the Consultant will maintain quality control procedures as covered in the approved Quality Control Program and documentation of the Consultant’s internal reviews for inspection by the City Project Manager. The City Project Manager will have the option to review proposed Deliverables in the Consultant’s office periodically to verify that proper quality control procedures are employed in the development process.

12 ACCEPTANCE OF DELIVERABLES

If the City Project Manager is not satisfied that the Deliverable(s) have been met, a notice of rejection (a “Rejection Notice”) shall be submitted to the Consultant by the City Project Manager that specifies the nature and scope of the deficiencies that require correction. Upon receipt of a Rejection Notice, the Consultant shall: (a) act diligently and promptly to correct all deficiencies identified in the Rejection Notice, and (b) immediately upon completing such corrections give the City a written, dated certification that all deficiencies have been corrected (the “Certification”). In the event the Consultant fails to correct all deficiencies identified in the Rejection Notice and provide a Certification within fifteen (15) days after receipt of the Rejection Notice, the City shall be entitled to terminate this Agreement for default without further obligation to the Consultant and without obligation to pay for the defective work.

Upon receipt of the corrected Deliverable(s), or a Certification, whichever is later, the above-described Acceptance procedure shall recommence. The City shall not be obligated to allow the Consultant to recommence curative action with respect to any deficiency previously identified in a Rejection Notice, or more than once for any given Deliverable and shall be entitled to terminate this Agreement for default if the Consultant does not meet this time frame.

Name of Project: 12

13 NON-EXCLUSIVITY

The Consultant acknowledges that it is one of several providers of professional services to the City and the City does not represent that it is obligated to contract with the Consultant for any particular project.

14 REPRESENTATIONS AND WARRANTIES OF CONSULTANT

14.1 GENERAL WARRANTIES.

a. The Services shall satisfy all requirements set forth in the Agreement and the Task Orders, including but not limited to the attached Exhibits;

b. The Consultant has taken and will continue to take precautions sufficient to ensure that it will not be prevented from performing all or part of its obligations under the Agreement by virtue of interruptions in the computer systems used by the Consultant;

c. All Services performed by the Consultant and/or its subcontractors pursuant to this Agreement shall meet the customary industry standards and shall be performed in a professional and workmanlike manner by staff with the necessary skills, experience and knowledge;

d. Neither the Services, nor any Deliverables provided by the Consultant under this Agreement will infringe or misappropriate any patent, copyright, trademark or trade secret rights of any third party. The Consultant shall not violate any non-compete agreement or any other agreement with any third party by entering into or performing this Agreement;

e. The Consultant and each employee provided by the Consultant to the City for this Project shall have the qualifications, skills and experience necessary to perform the Services described or referenced in Exhibit A;

f. All information provided by the Consultant about each employee is accurate; and

g. Each employee is an employee of the Consultant, and the Consultant shall make all payments and withholdings required for by law for the Consultant for such employee.

14.2 ADDITIONAL WARRANTIES

The Consultant further represents and warrants that:

a. It is a legal entity and if incorporated, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation or licensing and is qualified to do business in North Carolina;

b. It has all the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

c. The execution, delivery, and performance of this Agreement have been duly authorized by the Consultant;

d. No approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement;

e. In connection with its obligations under this Agreement, it shall comply with all applicable federal, state and local laws and regulations and shall obtain all applicable permits and licenses; and

f. The performance of this Agreement by the Consultant and each employee provided by the Consultant will not violate any contracts or agreements with third parties or any third

Name of Project: 13 party rights (including but not limited to non-compete agreements, non-disclosure agreements, patents, trademarks or intellectual property rights).

15 OTHER OBLIGATIONS OF THE CONSULTANT

15.1 WORK ON CITY PREMISES

The Consultant will, whenever on the City premises, obey all instructions and City policies that the Consultant is made aware of with respect to performing work on the City premises.

15.2 RESPECTFUL AND COURTEOUS BEHAVIOR

The Consultant shall assure that its employees interact with City employees and with the public in a courteous, helpful and impartial manner. All employees of the Consultant in both field and office shall refrain from belligerent behavior and/or profanity. Correction of any such behavior and language shall be the responsibility of the Consultant.

15.3 REGENERATION OF LOST OR DAMAGED DATA

If the Consultant loses or damages any data in the City’s possession, the Consultant shall, at its own expense, promptly replace or regenerate such data from the City machine-readable supporting material, or obtain, at the Consultant's own expense, a new machine-readable copy of lost or damaged data from the City data sources.

15.4 REPAIR OR REPLACEMENT OF DAMAGED EQUIPMENT OR FACILITIES

In the event that the Consultant causes damage to the City equipment or facilities, the Consultant shall, at its own expense, promptly repair or replace such damaged items to restore them to the same level of functionality that they possessed prior to the Consultant’s action.

16 REMEDIES

16.1 RIGHT TO COVER

If the Consultant fails to meet any completion date or resolution time set forth in a Task Order under this Agreement (including the Exhibits), the City may take any of the following actions with or without terminating this Agreement, and in addition to and without limiting any other remedies it may have:

a. Employ such means as it may deem advisable and appropriate to perform itself or obtain the Services from a third party until the matter is resolved and the Consultant is again able to resume performance under this Agreement; and

b. Deduct any and all expenses incurred by the City in obtaining or performing the Services from any money then due or to become due to the Consultant and, should the City’s cost of obtaining or performing the Services exceed the amount due the Consultant, collect the amount due from the Consultant.

16.2 RIGHT TO WITHHOLD PAYMENT

If the Consultant breaches any provision of this Agreement, the City shall have a right to withhold all payments due to the Consultant until such breach has been fully cured.

Name of Project: 14

16.3 OTHER REMEDIES

Upon breach of this Agreement, each party may seek all legal and equitable remedies to which it is entitled. The remedies set forth herein shall be deemed cumulative and not exclusive and may be exercised successively or concurrently, in addition to any other available remedy.

17 TERMINATION OF CONTRACT

17.1 TERMINATION FOR CONVENIENCE

The City may terminate this Agreement for convenience at any time, for any reason or no reason, by giving thirty (30) days’ prior written notice to the Consultant. In the event the Agreement is terminated pursuant to this Section, the Consultant shall continue performing the Services under authorized Task Orders until the termination date designated in the termination notice. As soon as practicable after written notice of termination without cause, Consultant shall submit a statement to the City showing in detail the authorized Services performed under this Agreement through the date of termination. In the event of termination without cause pursuant to this Section, the City agrees to: (i) pay the Consultant for authorized Services rendered through the termination date at the rates set forth in Exhibit C. The foregoing payment obligation is contingent upon: (i) the Consultant having fully complied with this Section; and (ii) the Consultant having provided the City with written documentation reasonably adequate to verify the number of hours of Services rendered by each person through the termination date and the percentage of completion of each Deliverable.

Nothing in this Section shall be construed as limiting any right of either party in the event of a breach.

17.2 TERMINATION FOR DEFAULT

By giving written notice to the Consultant, the City may terminate the Agreement upon the occurrence of one or more of the following events:

a. The Consultant fails to complete a particular task by the completion date set forth in a Task

Order;

b. The Consultant makes or allows to be made any material written misrepresentation or provides any materially misleading written information in connection with this Agreement, or any covenant, agreement, obligation, term or condition contained in this Agreement or any Task Orders under this Agreement; or

c. The Consultant takes or fails to take any action which constitutes grounds for immediate termination under the terms of the Agreement, including but not limited to failure to obtain or maintain the insurance policies and endorsements as required by the Agreement, or failure to provide the proof of insurance as required by the Agreement.

d. The Consultant violates or fails to perform any covenant, provision, obligation, term or condition contained in the Agreement, provided that, unless otherwise stated in the Agreement, such failure or violation shall not be cause for termination if both of the following conditions are satisfied: (i) such default is reasonably susceptible to cure; and (ii) the other party cures such default within fifteen (15) days of receipt of written notice of default from the non-defaulting party;

e. The Consultant attempts to assign, terminate or cancel the Agreement contrary to the terms hereof;

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f. The Consultant ceases to do business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or has an involuntary bankruptcy petition filed against it (except in connection with a reorganization under which the business of such party is continued and performance of all its obligations under the Agreement shall continue), or if a receiver, trustee or liquidator is appointed for it or any substantial part of the Consultant’s assets or properties.

Any notice of default shall identify this Section of the Agreement and shall state the City’s intent to terminate the Agreement if the default is not cured within the specified period.

Notwithstanding anything contained herein to the contrary, upon termination of this Agreement by the City for default, the Consultant shall continue to perform the Services required by this Agreement: (i) for six (6) months after the date of written termination notice; (ii) until the date on which the City completes its transition to a new service provider; or (iii) until a date specified by the City in the written termination notice.

17.3 CANCELLATION OF ORDERS AND SUBCONTRACTS

In the event this Agreement is terminated by the City for any reason prior to the end of the term, the Consultant shall upon termination immediately discontinue all service in connection with this Agreement and promptly cancel all existing orders and subcontracts, which are chargeable to this Agreement. As soon as practicable after receipt of notice of termination, the Consultant shall submit a statement to the City showing in detail the authorized Services performed under this Agreement to the date of termination.

17.4 AUTHORITY TO TERMINATE

The following persons are authorized to terminate this Agreement on behalf of the City: (a) the City Manager; (b) any Assistant City Manager; or (c) the Department Director of the City Department responsible for administering this Agreement.

17.5 OBLIGATIONS UPON EXPIRATION OR TERMINATION

Upon expiration or termination of this Agreement, the Consultant shall promptly return to the City (i) all computer programs, files, documentation, media, related material and any other material and equipment that is owned by the City; (ii) all Deliverables that have been completed or that are in process as of the date of termination; and (iii) a written statement describing in detail all work performed with respect to Deliverables which are in process as of the date of termination.

17.6 NO EFFECT ON TAXES, FEES, CHARGES OR REPORTS

Termination of this Agreement shall not relieve the Consultant of the obligation to pay any fees, taxes or other charges then due to the City, nor relieve the Consultant of the obligation to file any daily, monthly, quarterly or annual reports nor relieve the Consultant from any claim for damages previously accrued or then accruing against the Consultant.

17.7 TRANSITION SERVICES UPON TERMINATION

Upon termination or expiration of this Agreement, the Consultant shall cooperate with the City to assist with the orderly transfer of the Services provided by the Consultant to the City. Prior to

Name of Project: 16 termination or expiration of this Agreement, the City may require the Consultant to perform and, if so required, the Consultant shall perform certain transition services, necessary to shift the Services of the Consultant to another provider or to the City itself as described below (the “Transition Services”). Transition Services may include but shall not be limited to the following:

a. Working with the City to jointly develop a mutually agreed upon Transition Services Plan to facilitate the termination of the Services;

b. Notifying all affected service providers and subcontractors of the Consultant;

c. Performing the Transition Service Plan activities;

d. Answering questions regarding the Services on an as-needed basis; and

e. Providing such other reasonable services needed to effectuate an orderly transition to a new service provider.

18 CHANGES

In the event changes to the Services (collectively “Changes”), become necessary or desirable to the parties, the parties shall follow the procedures set forth in this Section. A Change shall be effective only when documented in writing which expressly references and is attached to this Agreement (an “Amendment”). The Amendment shall set forth in detail: (i) the Change requested, including all modifications of the duties of the parties; (ii) the reason for the proposed Change;

and (iii) a detailed analysis of the impact of the Change on the results of the Services and time for completion of the Services, including the impact on all milestones and delivery dates and any associated price.

In the event either party desires a Change, the Project Manager for such party shall submit to the other party’s Project Manager a proposed Amendment. If the receiving party does not accept the Amendment in writing within ten (10) days, the receiving party shall be deemed to have rejected the Amendment. If the parties cannot reach agreement on a proposed Change, the Consultant shall nevertheless continue to render performance under this Agreement in accordance with its (unchanged) terms and conditions.

19 RELATIONSHIP OF THE PARTIES

The relationship of the parties established by this Agreement is solely that of independent contractors. Nothing contained in this Agreement shall be construed to (i) give any party the power to direct or control the day-to-day administrative activities of the other; or (ii) constitute such parties as partners, co-owners or otherwise as participants in a joint venture. Neither party nor its agents or employees is the representative of the other for any purpose, and neither party has power or authority to act for, bind, or otherwise create or assume any obligation on behalf of the other.

20 CITY OWNERSHIP OF WORK PRODUCT

The parties agree that the City shall have exclusive ownership of all reports, documents, designs, ideas, materials, reports, concepts, plans, specifications, creative works, software, data, programming code, documents and other work product developed for or provided to the City in connection with this Agreement, and all patent rights, copyrights, trade secret rights and other intellectual property rights relating thereto (collectively the “Intellectual Property”). The Consultant hereby assigns and transfers all rights in the Intellectual Property to the City. The Consultant further agrees to execute and deliver such assignments and other documents as the

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City may later require to perfect, maintain and enforce the City’s rights as sole owner of the Intellectual Property, including all rights under patent and copyright law. The Consultant hereby appoints the City as attorney in fact to execute all such assignments and instruments and agrees that its appointment of the City as an attorney in fact is coupled with an interest and is irrevocable.

The City grants the Consultant a royalty-free, non-exclusive license to use and copy the Intellectual Property to the extent necessary to perform this Agreement. The Consultant shall not be entitled to use the Intellectual Property for other purposes without the City’s prior written consent.

The Consultant represents and warrants that the Intellectual Property will not infringe or misappropriate the intellectual property or other rights of any person or entity, and that the City shall have the unrestricted right to use the Intellectual Property for any purpose. The Consultant further represents and warrants that it has the right to grant the rights granted to the City in this Section on behalf of the Consultant subcontractors.

The City recognizes that the Intellectual Property may be generated, stored, transmitted or published in various media, including, but not limited to traditional hard-copy (i.e., blue prints), CADD formats, via Internet or Extranet websites or other electronic or other media and such Intellectual Property may be subject to unauthorized tampering, modifications and alterations (collectively hereinafter referred to as “Unauthorized Use”) by parties over whom the Consultant has no control. The Intellectual Property is also subject to discrepancies as a result of numerous factors, including without limitation, transmission and translation errors resulting from differences in computer software, hardware and equipment-related problems, disk malfunctions, and user error (collectively hereinafter referred to as “Discrepancies”).

Accordingly, the Consultant has no responsibility for any Discrepancies in the Intellectual Property that are beyond the Consultant’s reasonable control. The Consultant shall maintain a hard copy of the Intellectual Property for three (3) years from the date it completes all work under this Agreement. If requested, the Consultant shall provide the City with the Intellectual Property in electronic form, and the City agrees to release the Consultant from all claims, causes of action, suits, demands and damages, arising from or relating to any Discrepancies in such Intellectual Property that are beyond the Consultant’s reasonable control.

21 LICENSING

The Consultant may be required to provide evidence of all valid licenses and certificates required for performance of the Services. Such evidence shall be delivered to the City no later than ten (10) days after the Consultant receives the notice requesting such information from the City. Licenses and certificates required for this Agreement include, by way of illustration and not limitation, licenses pertaining to or that may be required to be held by field professionals participating in the contract work.

22 INDEMNIFICATION

To the fullest extent permitted by law, the Consultant shall indemnify, defend and hold harmless each of the “Indemnitees” (as defined below) from and against any and all “Charges” (as defined below) paid or incurred as a result of any claims, demands, lawsuits, actions, or proceedings: (i) alleging violation, misappropriation or infringement of any copyright, trademark, patent, trade

Name of Project: 18 secret or other proprietary rights with respect to the Services or any products or deliverables provided to the City pursuant to this Contract (“Infringement Claims”); (ii) seeking payment for labor or materials purchased or supplied by the Consultant or its subcontractors in connection with this Contract; (iii) arising from the Consultant’s failure to perform its obligations under this Contract, or from any act of negligence or willful misconduct by the Consultant or any of its agents, employees or subcontractors relating to this Contract, including but not limited to any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal, tangible or intangible;

or (iv) arising from any claim that the Consultant or an employee or subcontractor of the Consultant is an employee of the City, including but not limited to claims relating to worker’s compensation, failure to withhold taxes and the like. For purposes of this Section: (a) the term “Indemnitees” means the City, any federal agency that funds all or part of this Contract, and each of the City’s and such federal agency’s officers, officials, employees, agents and independent contractors (excluding the Consultant); and (b) the term “Charges” means any and all losses, damages, costs, expenses (including reasonable attorneys’ fees), obligations, duties, fines, penalties, royalties, interest charges and other liabilities (including settlement amounts).

If an Infringement Claim occurs, the Consultant shall either: (i) procure for the City the right to continue using the affected product or service; or (ii) repair or replace the infringing product or service so that it becomes non-infringing, provided that the performance of the overall product(s) and service(s) provided…