25_013 Contract Sample.pdf

CONTRACT AGREEMENT

RFQ #25-013

PROFESSIONAL EMGINEERING SERVICES-SR141 / MEDLOCK BRIDGE ROAD

TRAIL-(CHATTAHOOCHEE RIVER TO BOBBY JONES DRIVE)

This Agreement made and entered into this __ day of _______, in the year 2____; by and between The City of Johns Creek, Georgia, having its principal place of business at 11360 Lakefield

Drive, Johns Creek, Georgia 30097 and Consultant Name (“Consultant”), located at Address, City, State Zip.

WHEREAS, the City hereby contracts with Consultant for the furnishing of professional services in connection with the Project, for the furnishing of such services more particularly described herein in consideration of these premises and of the mutual covenants herein set forth.

By executing this Agreement, the Consultant represents to City that it is professionally qualified to do this Project and is licensed to practice services by all public entities having jurisdiction over

“Consultant” and the Project; and

WHEREAS, the City of Johns Creek has caused Request for Qualifications (RFQ) #25-

013 to be issued soliciting proposals from qualified Consultant to furnish all items, labor services, materials and appurtenances called for by them in accordance with this proposal. Selected

Consultant is required to provide the services as called for in the specifications; and

WHEREAS the Consultant submitted a response to the RFQ #25-013; and

WHEREAS the Consultant’s submittal was deemed by the City of Johns Creek to be the most advantageous per the scope of services dated January 13, 2026.

NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows:

1.0 Definition

As used in this Agreement, the following terms shall have the meanings ascribed herein unless otherwise stated or reasonably required by the Agreement, and other forms of any defined words shall have a meaning parallel thereto.

• City: The City of Johns Creek.

• Consultant: The individual or corporation identified on page 1 to perform consulting services, specifications and contract documents. Consultant shall retain as necessary the services of those professions licensed by the Georgia State Board of Technical Professions.

• Contract Documents: Those documents so identified in the Agreement for the Project, including all associated documents. All terms defined in the General Conditions of the

Agreement for professional services of the Project shall have the same meaning when used in this Agreement unless otherwise specifically stated or in the case of a conflict in which case the definition used in this Agreement shall prevail in the interpretation of this

Agreement.

• Contract Sum: The total amount payable by City to Consultant for performance of the

Work in accordance with the Contract Documents.

• Contract Time: The number of days allotted in the Contract Documents for achieving

Substantial Completion of the Work.

• Professional Services: The services, labor, materials, supplies, work, administration, if applicable, and all other acts, duties, and services required of Consultant under this

Agreement together and any awarded project Task Order’s with such other services as City may require pursuant to the terms of this Agreement.

• Project Manager: The person employed by City and consultant designated to act as the representatives for each party for the Project.

• Scope of Services: That work as defined and identified with a time schedule in Exhibit A

(Scope of Services) attached hereto and incorporated herein.

• Responsible Charge: The full-time public employee of the City in responsible charge of this contract.

• Department: Refers to Georgia Department of Transportation

2.0 Key Personnel

The City of Johns Creek is entering into this Agreement and has relied upon Consultant’s providing the services of the Key Personnel, if any, identified as such in the body of the Agreement. No Key

Personnel may be replaced or transferred without the prior approval of the City’s authorized representative. Any Consultant personnel to whom the City objects shall be removed from City work immediately. The City maintains the right to approve in its sole discretion all personnel assigned to the work under this Agreement.

3.0 Compensation

3.1 Pricing: The Consultant will be paid for the goods and services sold pursuant to the Contract in accordance with the RFQ and final pricing documents as incorporated into the terms of the

Contract. Unless clearly stated otherwise in the Standard Contract, all prices are firm and fixed and are not subject to variation. Prices include, but are not limited to, freight, insurance, fuel surcharges, and customs duties. The prices quoted and listed on the attached Cost Proposal, a copy of which is attached hereto as Exhibit B (Cost Proposal) and incorporated herein, shall be firm throughout the term of this Contract. Additional phases may be added though contract modification.

3.2 Billings: If applicable, and unless the RFQ provides otherwise, the Consultant shall submit, on a regular basis, an invoice for goods and services supplied to the City under the Contract at the billing address specified in the Purchase Instrument or Contract. The invoice shall comply with all applicable rules concerning payment of such claims. The City shall pay all approved invoices in arrears and in accordance with applicable provisions of City law. Unless otherwise agreed in writing by the parties, the Consultant shall not be entitled to receive any other payment or compensation from the City for any goods or services provided by or on behalf of the Consultant under the Contract. The Consultant shall be solely responsible for paying all costs, expenses, and charges it incurs in connection with its performance under the Contract. Standard payment terms:

Net-30.

3.3 Delay of Payment Due to Consultant’s Failure: If the City in good faith determines that the

Consultant has failed to perform or deliver any service or product as required by the Contract, the

Consultant shall not be entitled to any compensation under the Contract until such service or product is performed or delivered. In this event, the City may withhold that portion of the

Consultant’s compensation which represents payment for services or products that were not performed or delivered. To the extent that the Consultant’s failure to perform or deliver in a timely manner causes the City to incur costs, the City may deduct the amount of such incurred costs from any amounts payable to Consultant. The City’s authority to deduct such incurred costs shall not in any way affect the City’s authority to terminate the Contract.

3.4 As established in Title 49 CFR 26.29, Consultant shall pay their sub-consultants for satisfactory performance of their contracts no later than thirty (30) calendar days from receipt of payment made to them by the City. Any delay or postponement of payment among the parties may take place only for a good cause. If the Consultant is found to be in noncompliance with these provisions, it shall constitute a material breach of contract and further payments of any work performed may be withheld by the City until corrective action is taken by the Consultant. If the corrective action is not taken, it may result in the termination of the Agreement.

3.5 Set-Off Against Sums Owed by the Consultant. In the event that the Consultant owes the City any sum under the terms of the Contract, pursuant to any judgment, or pursuant to any law, the City may set off the sum owed to the City against any sum owed by the City to the Consultant in the

City's sole discretion.

3.6 Additional Services: Consultant shall provide, with City’s concurrence, services in addition to those listed in Exhibit A (Scope of Services) when such services are authorized in writing by City.

Prior to commencing any additional services, Consultant must submit a proposal outlining the additional services, unit costs are to be provided and the fixed “Not to Exceed” lump sum fee therefore. City shall pay Consultant for such services in accordance with the fees based in Exhibit

B (Cost Proposal) attached hereto and incorporated herein. Such services may include, but are not limited to, making computations and determinations of special assessments, making special trips requested by City other that those required by Exhibit A (Scope of Services), preparing changes in plans ordered by City, providing services necessitated in the event the Professional Services shall be suspended or abandoned, if such suspension or abandonment is not the result of a breach of this

Agreement by the Consultant, and providing any other special services not otherwise covered by this Agreement which may be requested by City.

3.7 Special Services: Consultant may be called on to serve as a consultant or witness in any litigation, arbitration, legal, or administrative proceeding arising out of this Project. Consultant shall not be compensated by City if its appearance is to defend its own Professional Services. If

Consultant is requested, in writing, by City, to appear as a witness for the City and is entitled to be compensated under the provisions of this paragraph, it will be paid based upon the fee schedule, Exhibit B (Cost Proposal), attached hereto and or additional fees approved by City.

3.8 Progress Reports: A progress report must be submitted with each payment request indicating the event or service Completed. This report will serve as support for payment to Consultant and the basis for payment in the event project is suspended or abandoned.

3.9 Change in Scope: For substantial modifications in authorized Project scope, and/or specifications previously accepted by City, when requested by City and through no fault of

Consultant, the Consultant shall be compensated for time and expense based upon the fee schedule in Exhibit B (Cost Proposal) attached hereto and incorporated herein chargeable for this service;

provided, however, that any increase in Total Fee must be approved through a written Supplemental

Agreement. This Agreement may be amended to provide additions, deletions, and revisions in the

Professional Services or to modify the terms and conditions thereof by written Supplemental

Agreement.

3.10 Errors and Omissions: The City’s policy is to take all reasonable steps to preclude errors or omissions in the process of delivering requested services. Upon discovery of an alleged error or omission, City will take immediate action to minimize potential cost increases due to delay or other matters. This includes early communication with Consultant. The Consultant will be made aware of the circumstances and be put on notice as soon as possible that there may be a claim against them for errors or omissions. Consultant will be given an opportunity to help resolve potential errors and omissions. All known facts surrounding the alleged error or omission will be carefully and fully reviewed by City. Consultant shall correct or revise any errors or deficiencies in its designs, drawings, or specifications without additional compensation when due solely to

Consultant’s negligent acts, errors, or omissions. If not solely Consultant fault, then the parties will negotiate an equitable sharing of the fees associated with such changes and the fixed fee will be increased or decreased accordingly.

4.0 General Duties and Responsibilities

4.1 Responsibilities under the General Conditions of the Contract for Professional Services: In addition to the responsibilities herein set forth, Consultant agrees to be responsible for those matters identified in the General Conditions as being responsibilities of the Consultant. The General

Conditions shall be in a form mutually agreeable between the City and Consultant and shall be consistent with the intent and requirements of the Task Order Agreement.

4.2 Personnel: Consultant shall assign only qualified personnel to perform any service concerning the Project. At the time of execution of this Agreement, the parties agree that Sarah Blackburn will perform as the Project Manager on this project. This person shall be the primary contact for the

Consultant. So long as the individual named above remains actively employed or retained by

Consultant, he/she shall perform the function of project manager on this project. Changes to any

Key Personnel identified in the RFQ shall be approved by the City.

4.3 Subcontracting of Service: Consultant shall not subcontract or assign any of the Professional

Services to be performed under this Agreement without the written consent and approval of City regarding the Professional Services to be subcontracted or assigned and the consulting firm or person proposed to accomplish the subcontracted/assigned portion of the Project. Unless otherwise stated in the written consent to an assignment, no assignment will release or discharge the assignor from any obligation under this Agreement. Any person or firm proposed for subcontracting

Professional Services under this Agreement shall maintain throughout the duration of the

Agreement, insurance as provided in Section 11.1 herein, and shall additionally maintain

Professional Liability insurance in a minimum amount of $2,000,000 and provide the City with certification thereof unless waived by the City. Any subcontract must contain all applicable provisions of this Contract and must otherwise comply with applicable provisions of 23 CFR172.9.

4.4 Endorsement: Consultant shall sign and affix licensing seal to all final plans, specifications, estimates and data and shall cause all sub-consultants to sign and seal their final documents where required by law. Any review or approval by City of any documents prepared by Consultant and/or its consultants including but not limited to the plans and specifications, shall be solely for the purpose of determining whether such documents are consistent with City’s program and intent and shall not be construed as approval of same by City. No review of such documents shall relieve

Consultant of its responsibility for the accuracy, adequacy, fitness, suitability, and coordination of its work product.

4.5 Inspection of Documents: Consultant shall maintain all project records for inspection by City during the contract term and for three (3) years from the date of final payment and shall notify the

City prior to their disposal. All documents shall be retained for auditing, inspection and copying at City’s GDOT’s or FHWA’s the U.S. Department of Transportation’s Inspector General, the

Comptroller General of the United States, request or any other authorized representative of the

Federal Government. Failure to retain records in accordance with the Contract is a material breach of contract. Further, in case of an audit and Consultant has failed to retain records as required herein, it shall be presumed that the documents would not have supported Consultant’s position. If any litigation, claim, or audit arising out of, in connection with, or related to this Contract is initiated before the expiration of the three (3) year period, the cost records and accounts shall be retained at a minimum for two (2) years after the time in which such litigation, claim or audit involving the records is completed. Records shall be made available upon request to City at all times during the term of this Contract. Copies of these documents and records will be furnished to City upon request and may be audited by City representatives. Failure to retain such records shall result in Consultant being required to pay any resulting damages that City otherwise would be required to pay.

4.6 Disadvantaged Business Enterprise Information: A Disadvantaged Business Enterprise (DBE) is defined pursuant to the 49 Code of the Federal Regulations Part 26. A DBE goal has been established within the RFQ for this project. This goal is not to be considered as a fixed quota, set aside or preference. The DBE goal can be met by prime consultants, subcontractors, subconsultants, or other vendor supplied services included in this Agreement. By execution of the

Agreement the Consultant certifies that it has made a good faith effort to meet or exceed the DBE goal. Further, the Parties agree to the proposed DBE participation indicated in the RFQ. In the event that the DBE goal is not met, the Consultant may request a waiver from the Equal Opportunity

Office of the Georgia Department of Transportation (GDOT). Justification or good faith effort must accompany the request for the waiver. Both the City and GDOT will monitor the Consultant’s submittals for their agreed upon DBE participation. With each invoice submitted, the Consultant shall submit a DBE report in the format directed by the assigned project manager for GDOT.

Failure to submit such a report with the request for payment will result in the invoice being returned to the Consultant with no penalty to the City or GDOT.

4.7 Qualifications and Professional Standards: In performance of services, the Consultant shall use that degree of care and skill ordinarily exercised by other similar professionals in the field under similar conditions and like circumstances. The Consultant shall employ only persons qualified and duly registered as applicable in the appropriate category in responsible charge of supervision and design of the work and further shall employ only qualified and duly registered surveyors in responsible charge of any survey work. The Consultant shall use the members of its professional staff presented to the City at the time of Agreement negotiations unless changes to the Consultant’s staff are approved in writing by the City. The Consultant shall endorse all work performed under this Agreement. As applicable, such endorsements shall be made by a person duly registered in the appropriate category by the Georgia State Board of Registration for Professional Engineers and

Land Surveyors, being in the full employ of the Consultant and responsible for the work prescribed by this Agreement. All final plans, documents, reports, studies, and other data prepared by the

Consultant shall bear the professional’s seal and signature in accordance with the Official Code of

Georgia that governs and administers rules promulgated by and guidelines published by the Georgia

Department of Transportation which are in effect at the time of execution of this Agreement. In the event that changes in the statutes or rules create a conflict with the requirements of the published guidelines, requirements of the statute and/or rules shall take precedence. The City reserves the right to waive Georgia Department of Transportation guidelines that do not conflict with AASHTO or best practices.

5.0 City’s Responsibilities

5.1 Communication: City shall provide to Consultant applicable Program Criteria; examine and timely respond to Consultant submissions; and give written notice to Consultant, who shall respond promptly, whenever City observes or otherwise becomes aware of any defect in the Professional

Services.

5.2 Access: City will provide access for Consultant to enter public and private property necessary to the completion of the Project.

5.3 Duties: City shall furnish and perform the various duties and services in all phases of the Project which are outlined and designated in Exhibit A (Scope of Services) attached hereto and incorporated herein, as City’s responsibility.

5.4 Program Criteria: City shall provide full information, including a program which shall set forth

City’s objectives, requirements, schedule, constraints, budget with reasonable contingencies, and other necessary design criteria.

5.5 Project Manager: City shall designate a Project Manager to represent City in coordinating this project with Consultant, with authority to transmit instructions and define policies and decisions of

City.

5.6 Responsible Charge: City shall designate a Responsible Charge to ensure that the work delivered under this contract is complete, accurate, and consistent with the terms, conditions, and specifications of this contract. The City’s Responsible Charge for this contract is Kimberly Greer, City Manager or her designee.

6.0 Duration of Contract

6.1 Contract Term: The Contract between the City and the Consultant shall begin and end on the dates specified, unless terminated earlier in accordance with the applicable terms and conditions.

Pursuant to O.C.G.A. Section 36-60-13, this Contract shall not be deemed to create a debt of the

City for the payment of any sum beyond the fiscal year of execution or, in the event of a renewal, beyond the fiscal year of such renewal.

The term of this Contract shall commence upon execution and shall terminate Two (2) years thereafter, or shorter time as may be indicated on the bid document and all Professional Services provided during said term shall be filled at the contract price.

6.2 Contract Renewal: The City shall have the option, in its sole discretion, to renew the Contract for three (3) additional renewals on a year-to-year basis by giving the Consultant written notice of the renewal decision at least sixty (60) days prior to the expiration of the initial term or renewal term and requesting Consultant’s written consent for renewal of the Contract. Renewal will depend upon the best interest of the City, funding, and Consultant’s performance. Consultant will be notified of any renewal in writing. Upon the City’s election, in its sole discretion, to renew any part of this Contract, Consultant shall remain obligated to perform in strict accordance with this

Contract unless otherwise agreed by the City and the Consultant.

6.3 Contract Extension: In the event that this Standard Contract shall terminate or be likely to terminate prior to completion of the project, the City may, with the written consent of Consultant, extend this Contract for such period as may be necessary to afford the City a continuous supply of the identified goods and ancillary services.

If not set forth in the RFQ and/or Consultant’s submittal, the City will determine the basic period of performance for the completion of any of Consultant’s actions contemplated within the scope of this Agreement and notify Consultant of the same via written notice. If no specific period for the completion of Consultant’s required actions pursuant to this Agreement is set out in writing, such time period shall be a reasonable period of time based upon the nature of the activity. If the completion of this Contract is delayed by actions of the City, then and in such event the time of completion of this Contract shall be extended for such additional time within which to complete the performance of the Contract as is required by such delay. This Contract may be extended by mutual consent of both the City and the Consultant for reasons of additional time, additional services and/or additional areas of work.

7.0 Independent Contractor

7.1 The Consultant shall be an Independent Contractor: The Consultant is not an employee, agent or representative of the City of Johns Creek. The successful Consultant shall obtain and maintain, at the Consultant’s expense, all permits, licenses, or approvals that may be necessary for the performance of the services. The Consultant shall furnish copies of all such permits, licenses, or approvals to the City Project Manager within ten (10) day after issuance.

7.2 Inasmuch as the City of Johns Creek and the Consultant are independent of one another, neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parties hereto. The Consultant agrees not to represent itself as the City’s agent for any purpose to any party or to allow any employee of the Consultant to do so, unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose stated in such authorization. The

Consultant shall assume full liability for any contracts or agreements the Consultant enters into on behalf of the City of Johns Creek without the express knowledge and prior written consent of the

City.

8.0 Conflict of Interest

8.1 Consultant represents that it has no existing financial interest and will not acquire any such interest, direct or indirect, which could conflict in any manner or degree with the performance of services required under this Agreement and that no person having any such interest shall be subcontracted in connection with this Agreement or employed by Consultant. Consultant shall not conduct or solicit any non-City business while on City property or time.

8.2 Consultant will also take all necessary steps to avoid the appearance of a conflict of interest and shall have a duty to disclose to the City prior to entering into this Agreement any and all circumstances existing at such time which pose a potential conflict of interest.

8.3 Consultant is absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office of the City.

8.4 Consultant warrants that it has not directly or indirectly offered or given, and will not directly or indirectly offer to give, to any employee, agent, or representative of the City any cash or non-cash gratuity or payment with view toward securing any business from the City or influencing such person with respect to the conditions, or performance of any Agreements with or orders from the

City, including without limitation this Agreement. Any breach of this warranty shall be a material breach of each and every Agreement between the City and Consultant.

8.5 As a condition of this Agreement, Consultant agrees to comply with the City of Johns Creek

Code of Ethics as set forth with NIGP and 23 CFR 1.33.

8.6 Should a conflict of interest issue arise, Consultant agrees to fully cooperate in any inquiry and to provide the City with all documents or other information reasonably necessary to enable the City to determine whether or not a conflict of interest existed or exists.

8.7 Failure to comply with the provisions of this section shall constitute grounds for immediate termination of this Agreement, in addition to whatever other remedies the City may have.

8.8 Anti-Lobbying/Disclosure: Federal Acquisition Regulation (FAR) prohibits the expenditure of Federal-Aid Highway Program funds to pay any person for influencing or attempting to influence a federal agency or Congress in connection with the award of any Federal-Aid Highway

Program funded contract, grant, loan, or cooperative agreement. Consultant is required to sign a statement certifying that to the best of its knowledge and belief that no Federal-Aid Highway

Program funds have been paid or will be paid, by or on behalf of its firm for the purpose of lobbying

(2 CFR 200.450). If Consultant should report lobbying activities, the Consultant is required to submit Anti-Lobbying/Disclosure Forms. The above regulations also apply to any sub-consultants whose contracts exceed $100,000.00.

9.0 Indemnification

9.1 The Consultant agrees to indemnify and hold harmless the City, its public officials, officers, employees, and agents from and against liabilities, damages, costs and expenses (including reasonable attorney’s fees) to the extent caused by or resulting from the negligence, recklessness, or intentionally wrongful conduct of the Consultant, its agents, sub-consultants, sub-contractors, or employees in the performance of this Contract.

This provision shall not affect the Consultant’s obligation under workers’ compensation or coverage or the Consultant’s insurance specifically relating to workers’ compensation, nor shall this apply to any requirement herein that the Consultant purchase a project specific insurance policy, including an owner's or contractor's protective insurance, builder's risk insurance, installation coverage, project management protective liability insurance, an owner controlled insurance policy, or a contractor controlled insurance policy.

Notwithstanding the foregoing indemnification clause, the City may join in the defense of any claims raised against it in the sole discretion of the City. Additionally, if any claim is raised against the City, said claim(s) cannot be settled or compromised without the City’s written consent, which shall not be unreasonably withheld.

10.0 Intellectual Property and Ownership of Documents

All documents, materials, and deliverables developed or created by consultant under this Contract are considered as property of the City for perpetuity. Consultant and the City agree that any papers, interim reports, forms, and other material which are a part of work under this Contract are to be deemed a “work made for hire,’ as such term is defined in the copyright laws of the United States.

As a “work made for hire,” all copyright interests in said works will vest in the City upon creation of the copyrightable work. If any papers, interim reports, forms, or other material which are a part of work under this Agreement are deemed by law not to be a “work made for hire,” any copyright interests of the Consultant are hereby assigned completely and solely to the City. Publication rights to any works produced under this Agreement are reserved by the City.

Any documents and materials which include, but not limited to, drawings, tracings, specifications, maps, survey notes, reports, photographs and computer programs provided to the Consultant by the

City is solely for the purpose of completing the Contract and for no other purposes and shall be delivered to City prior to contract closeout. City-developed matters including manuals, electronic information, programs, and associated materials remain the property of the City. Consultant shall not assert any ownership rights to these materials and shall not patent or copyright any of these materials. The unauthorized release or use of any of this information is prohibited without written approval from the City. Evidence of any unauthorized release or use of the information during or after the contracted services are complete may result in contract termination in addition to other remedies, and Consultant may be disqualified from submitting on any future proposals or contracts.

11.0 Insurance

11.1 The Consultant shall, at its own cost and expense, obtain and maintain worker’s compensation and commercial general liability insurance coverage covering the period of this Agreement. Such insurance is to be obtained from a responsible insurance company legally licensed and authorized to transact business in the State of Georgia. The minimum limit for Worker’s Compensation

Insurance shall be the statutory limit for such insurance. The minimum limits for commercial general liability insurance, which must include personal liability coverage will be $1,000,000 per person, $2,000,000 per occurrence for bodily injury, and $500,000 per occurrence for property damage.

11.2 Consultant shall provide certificates of insurance evidencing the coverage requested herein before the execution of this agreement, and at any time during the term of this Agreement. Upon the request of the City, Consultant shall provide proof sufficient to the satisfaction of the City that such insurance continues in force and effect.

12.0 Termination

12.1 Immediate Termination: Pursuant to O.C.G.A. Section 36-60-13, this Contract will terminate immediately and absolutely if the City determines that adequate funds are not appropriated or granted or funds are de-appropriated such that the City cannot fulfill its obligations under the

Contract, which determination is at the City's sole discretion and shall be conclusive. Further, the

City may terminate the Contract for any one or more of the following reasons effective immediately without advance notice:

a) In the event the Consultant is required to be certified or licensed as a condition precedent to providing goods and services, the revocation or loss of such license or certification may result in immediate termination of the Contract effective as of the date on which the license or certification is no longer in effect;

b) The City determines that the actions, or failure to act, of the Consultant, its agents, employees, or sub-consultants have caused, or reasonably could cause, life, health, or safety to be jeopardized;

c) The Consultant fails to comply with confidentiality laws or provisions.

d) The Consultant furnished any statement, representation, or certification in connection with the Contract or the bidding process which is materially false, deceptive, incorrect, or incomplete; and/or

e) The Consultant is found to have engaged in one or more of the “Conflict of Interest” activities outlined in Section 8.0.

12.2. Termination for Cause. The occurrence of any one or more of the following events shall constitute cause for the City to declare the Consultant in default of its obligations under the

Contract:

a) The Consultant fails to deliver or has delivered nonconforming goods or services or fails to perform, to the City’s satisfaction, any material requirement of the Contract or is in violation of a material provision of the Contract, including, but without limitation, the express warranties made by the Consultant;

b) The City determines that satisfactory performance of the Contract is substantially endangered or that a default is likely to occur;

c) The Consultant fails to make substantial and timely progress toward performance of the

Contract;

d) The Consultant becomes subject to any bankruptcy or insolvency proceeding under federal or state law to the extent allowed by applicable federal or state law including bankruptcy laws; the Consultant terminates or suspends its business; or the City reasonably believes that the Consultant has become insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state law;

e) The Consultant has failed to comply with applicable federal, state and, local laws, rules, ordinances, regulations and orders when performing within the scope of the Contract;

f) The Consultant has engaged in conduct that has or may expose the City to liability, as determined in the City’s sole discretion; or

g) The Consultant has infringed any patent, trademark, copyright, trade dress, or any other intellectual property rights of the State, the City, or a third party.

12.3 Notice of Default. If there is a default event caused by the Consultant, the City shall provide written notice to the Consultant requesting that the breach or noncompliance be remedied within the period of time specified in the City’s written notice to the Consultant. If the breach or noncompliance is not remedied by the date of the written notice, the City may:

a) Immediately terminate the Contract without additional written notice; and/or

b) Procure substitute goods or services from another source and charge the difference between the Contract and the substitute contract to the defaulting Consultant; and/or,

c) Enforce the terms and conditions of the Contract and seek any legal or equitable remedies.

12.4 Termination for Convenience. The City may terminate this Agreement for convenience at any time upon thirty (30) day written notice to the Consultant. In the event of a termination for convenience, Consultant shall take immediate steps to terminate work as quickly and effectively as possible and shall terminate all commitments to third-parties unless otherwise instructed by the

City. Provided that no damages are due to the City for Consultant’s failure to perform in accordance with this Agreement, the City shall pay Consultant for work performed to date in accordance with

Section herein. The City shall have no further liability to Consultant for such termination.

12.5 Payment Limitation in Event of Termination. In the event of termination of the Contract for any reason by the City, the City shall pay only those amounts, if any, due and owing to the

Consultant for goods and services actually rendered up to and including the date of termination of the Contract and for which the City is obligated to pay pursuant to the Contract or Purchase

Instrument. Payment will be made only upon submission of invoices and proper proof of the

Consultant’s claim. This provision in no way limits the remedies available to the City under the

Contract in the event of termination. The City shall not be liable for any costs incurred by the

Consultant in its performance of the Contract, including, but not limited to, startup costs, overhead, or other costs associated with the performance of the Contract.

12.6 The Consultant’s Termination Duties. Upon receipt of notice of termination or upon request of the City, the Consultant shall:

a) Cease work under the Contract and take all necessary or appropriate steps to limit disbursements and minimize costs, and furnish a report within thirty (30) days of the date of notice of termination, describing the status of all work under the Contract, including, without limitation, results accomplished, conclusions resulting therefrom, and any other matters the City may require;

b) Immediately cease using and return to the City, any personal property or materials, whether tangible or intangible, provided by the City to the Consultant;

c) Comply with the City’s instructions for the timely transfer of any active files and work product produced by the Consultant under the Contract;

d) Cooperate in good faith with the City, its employees, agents, and Consultant during the transition period between the notification of termination and the substitution of any replacement Consultant; and

e) Immediately return to the City any payments made by the City for goods and services that were not delivered or rendered by the Consultant.

12.7 Right to Proceed: In the event the Contract is terminated, the City has the right to proceed with work under the Contract. The City shall have the option of completing the work with its own forces or entering into an agreement with another party to complete services outlined in the

Contract.

13.0 Dispute Resolution

City and Consultant agree that disputes relative to the project should first be addressed by negotiations between the parties. If direct negotiations fail to resolve the dispute, the party initiating the claim that is the basis for the dispute shall be free to take such steps as it deems necessary to protect its interests; provided, however, that notwithstanding any such dispute, Consultant shall proceed with the Professional Services as per this Agreement as if no dispute existed, and the City shall continue to make payment for Consultant’s completed services.

14.0 Future Use of Documents

Consultant will provide City a copy of all completed or partially completed documents in reproducible form, including but not limited to prints and reproductions. Provided that Consultant is paid for its services, either by termination or completion of services, then City may subsequently use documents prepared in connection with this Project without any additional compensation or agreement of Consultant, however, such use, without written verification or adaptation by

Consultant for the specific purpose, intended by City shall be at City’s sole risk and without liability or legal exposure to Consultant whatsoever. If City does reuse these documents on another project, it shall retain Consultant or another licensed and insured professional consultant to review, adapt, and seal such documents. Submission of or distribution of documents to meet statutory or regulatory requirements is not to be considered as contrary to any of Consultant’s right to the documents.

15.0 Confidential Information

15.1 Access to Confidential Data. The Consultant’s employees, agents, and sub-consultants may have access to confidential data and/or privileged documents maintained by the City to the extent necessary to carry out the Consultant's responsibilities under the Contract. "Confidential data" means any information that is protected from disclosure pursuant to state and federal law and includes, but is not limited to, accident summary information, certain accident reports, diagnostic evaluations, bridge inspection reports, and any other documentation or information that corresponds with said evaluations or reports, and any other information protected by 23 U.S.C.

§409. "Privileged document" means any document pertaining to any file or project maintained by the City that is privileged and protected from disclosure, pursuant to appropriate state and federal law, including any document containing attorney-client communications between any City employee or representative and legal counsel. Confidential data and privileged documents collectively are referred to herein as “confidential information.” The Consultant shall presume that all information received pursuant to the Contract is confidential information unless otherwise designated by the City. If it is reasonably likely the Consultant will have access to the City’s confidential information, then:

• The Consultant shall provide to the City a written description of the Consultant's policies and procedures to safeguard confidential information;

• Policies of confidentiality shall address, as appropriate, information conveyed in verbal, written, and electronic formats;

• The Consultant must designate one individual who shall remain the responsible authority in charge of all data collected, used, or disseminated by the Consultant in connection with the performance of the Contract; and

• The Consultant shall provide adequate supervision and training to its agents, employees and sub-consultants to ensure compliance with the terms of the Contract. The confidential information shall remain the property of the City at all times. Some services performed for the City may require the Consultant to sign a nondisclosure agreement. Consultant understands and agrees that refusal or failure to sign such a nondisclosure agreement, if required, may result in termination of the Contract.

15.2 No Dissemination of Confidential Information. No confidential information collected, maintained, or used in the course of performance of the Contract shall be disseminated except as authorized by law and with the written consent of the City, either during the period of the Contract or thereafter. Any data supplied to or created by the Consultant shall be considered the property of the City. The Consultant must return any and all data collected, maintained, created, or used in the course of the performance of the Contract, in whatever form it is maintained, promptly at the request of the City.

15.3 Subpoena. In the event that a subpoena or other legal process is served upon the Consultant for records containing confidential information, the Consultant shall promptly notify the City and cooperate with the City in any lawful effort to protect the confidential information.

15.4 Reporting of Unauthorized Disclosure. The Consultant shall immediately report to the City any unauthorized disclosure of confidential information.

15.5 Survives Termination. The Consultant’s confidentiality obligation under the Contract shall survive termination of the Contract.

16.0 Inclusion of Documents

Consultant’s response submitted in response thereto, including any best and final offer, are incorporated in this Agreement by reference and form an integral part of this agreement. In the event of a conflict in language between this Agreement and the foregoing documents incorporated herein, the provisions and requirements set forth in this Agreement shall govern. In the event of a conflict between the language of the RFQ, as amended, and the Consultant’s submittal, the language in the former shall govern.

This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.

17.0 Compliance with All Laws and Licenses

The Consultant agrees that all work done as part of this Agreement will comply fully with all administrative and other requirements established by applicable federal, state, and local laws, rules and regulations, and assumes responsibility for full compliance with all such laws, rules and regulations. The Consultant understands that the following items specifically apply to this

Agreement, but do not exclude any other applicable federal or state laws or requirements, and that it will comply with and require its sub-consultants to comply with:

17.1 Georgia Security and Immigration Compliance Act

• The parties certify that Consultant has executed an affidavit verifying that Consultant has registered and participates in the federal work authorization program to verify information of all new employees, per O.C.G.A. 13-10-90, et seq., and Georgia Department of Labor

Regulations Rule 300-10-1-02. The appropriate affidavit is attached hereto as Exhibit C

(Required Forms and Documents) and incorporated herein by reference and made a part of this contract.

• The Consultant further certifies that any sub-consultant employed by Consultant for the performance of this agreement has executed an appropriate sub-consultant affidavit verifying its registration and participation in the federal work authorization program and compliance with O.C.G.A. 13-10-90, et seq., and Georgia Department of Labor

Regulations Rule 300-10-1-02, and that all such affidavits are incorporated into and made a part of every contract between the Consultant and each sub-consultant.

• Consultant’s compliance with O.C.G.A. 13-10-90, et seq., and Georgia Department of

Labor Regulations Rule 300-10-1-02 is a material condition of this agreement and

Consultant’s failure to comply with said provisions shall constitute a material breach of this agreement.

17.2 Regulations for COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, as amended, and 23 Code of Federal Regulations (CFR) 200 et seq. NOTICE TO CONSULTANTS

COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 FOR FEDERAL-AID

CONTRACTS.

• During the performance of this Agreement, the Consultant, for itself, its assignees and successors in interest (hereinafter referred to as the “Consultant”), agrees as follows:

1) Compliance with Regulations: The Consultant will comply with the

Regulations of the Department of Transportation relative to nondiscrimination in federally-assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the

“Regulations”), which are herein incorporated by reference and made a part of the Agreement.

2) Non-discrimination: The Consultant, with regard to the work performed by it during the Agreement shall not discriminate on the grounds of race, color, sex, or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the

Regulations.

3) Sanctions for Non-compliance: In the event of the Consultant’s noncompliance with the nondiscrimination provisions of this Agreement, the

Department, and/or the City shall impose such sanctions as it or the Federal

Highway Administration may determine to be appropriate, including, but not limited to:

a. Withholding of payments to the Consultant under the Agreement until the Consultant complies, and/or

b. Cancellation, termination or suspension of the Agreement, in whole or in part.

4) Solicitations for Subcontracts, Including Procurement of Materials and

Equipment: In all solicitations, either by competitive bidding or negotiations made by the Consultant for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential sub-consultant or supplier shall be notified by the Consultant of the Consultant’s obligations under this Agreement and the Regulations relative to nondiscrimination on the ground of race, color, sex, or national origin.

5) Information and Reports: The Consultant will provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City, the Department, or the

Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a Consultant is in the exclusive possession of another who fails or refuses to furnish this information, the Consultant shall so certify to the City, the

Department, and/or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information.

6) Incorporation of Provisions: The Consultant will include the provisions of

Article 402 B and C (1-5) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The Consultant shall take such action with respect to any sub-consultant or procurement as the Department, the City, or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event a Consultant becomes involved in, or is threatened with, litigation with a sub-consultant or supplier as a result of such direction, the Consultant may request the City to enter into such litigation to protect the interests of the

City, and, in addition, the Consultant may request the United States and/or the

State of Georgia to enter into such litigation to protect their interests.

17.3 During the performance of this contract, the Consultant, for itself, its assignees, and successors in interest (hereinafter referred to as the "Consultant") agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:

• Title VI of the Civil Rights Act…