PROFESSIONAL_SERVICES_AGREEMENT.pdf

{00113067.DOCX 1}

CONTRACT TO BE EXECUTED WILL BE IN A FORM SUBSTANTIALLY SIMILAR

TO THIS AND MODIFICATIONS, IF ANY, SHALL AT THE CITY’S SOLE

DISCRETION

PROFESSIONAL SERVICES AGREEMENT

BY AND BETWEEN

CITY OF BRIDGEPORT

AND

[COMPANY]

FOR

[PROJECT]

PROJECT NO. ____

THIS AGREEMENT, entered into this ______ day of ________________, 202_, by and between the CITY OF BRIDGEPORT (the “City”), a municipal corporation organized and existing under the laws of the State of Connecticut, acting herein by Joseph P. Ganim, its Mayor, duly authorized, and [COMPANY] (the “Consultant”), a corporation authorized and licensed to do business in the State of Connecticut, and having a principal place of business at [COMPANY ADDRESS], acting herein by [COMPANY REP]., its President, duly authorized. The City and Consultant hereinafter referred to collectively as the “Parties” and individually as the “Party.”

WITNESSETH THAT:

WHEREAS, the City issued a solicitation for proposals from qualified firms to provide multi-disciplinary engineering and/or planning consulting services for the development of ______________________________ (hereinafter, the “Project”); and

WHEREAS, the City selected the Consultant based on the Consultant’s representations that it is qualified and capable of performing the necessary services in a professional and timely manner, in order to meet the City’s needs and requirements; and

WHEREAS, the Consultant has agreed to perform the required professional services in accordance with the terms set forth herein, in a diligent, professional, and timely manner.

NOW, THEREFORE, the City and the Consultant, for the consideration and based on the terms and conditions of this Agreement, hereby agree as follows:

Article 1. Definitions.

Except as otherwise set forth in this Agreement, capitalized terms herein shall have the following meanings:

1.01. “Proposal” means the Consultant’s Proposal dated _______ together with Clarification thereto dated August ________, copies of which are attached hereto as Exhibits __ and ___;

{00113067.DOCX 1} Page 2

1.02. “RFP/Q” means the City’s Bid Solicitation dated _________ together with Addendum No.

1 thereto dated ________, copies of which are attached hereto as Exhibits __ and ___ respectively

1.03. “Services” means such the services set forth and detailed in Section 2 of City’s RFP/Q together with Section 2 of the Consultant’s Proposal.

Article 2. Engagement of the Consultant

2.01. Consultant's Representative. The City hereby engages the Consultant, and the Consultant hereby agrees to perform the Services as set forth herein. The principal in charge of the Services to be performed hereunder by the Consultant pursuant to this Agreement shall be [COMPANY REP], P.E., President, or such other qualified person designated by the Consultant in writing and approved by the City.

2.02. City’s Representative. The City’s [CITY REP], or his designated representative (hereinafter, the “Director”), will oversee the performance of the Project under this Agreement on behalf of the City.

2.03. Responsibilities of the Consultant

A. Generally. The City intends to secure the personal services of the Consultant’s duly authorized and competent employees, acceptable to the City. Failure of the Consultant for any reason to make such employees available to the extent necessary to perform the Services and complete the Project in compliance with this Agreement in a reasonably skillful, professional, and prompt manner shall be cause for termination of this Agreement. All persons engaged in the services required under this Agreement shall either themselves be properly authorized, licensed, and permitted under State law, including, but not limited to, under Title 21 of the Connecticut General Statutes.

B. Subcontracting. Except as disclosed in the Consultant’s Proposal, The Consultant shall not subcontract any of the Services to be performed by it under this Agreement without the express, prior written approval of the Director, which such approval may be withheld in the Director’s sole discretion. In the event that the City approves of the hiring of subcontractors or subconsultants to perform Services related to the Project, the Consultant shall cooperate as fully as possible with the City in the interests of the Project; shall be fully responsible to the City for the acts and omissions of Consultant’s subcontractors and subconsultants as it is for the acts and omissions of its direct employees; and shall require each Consultant subcontractor to agree in writing to observe and be bound by all obligations and conditions of this Agreement to which the Consultant is bound.

Article 3. Scope of Services

3.01. Scope. The Consultant shall perform the Services in accordance with the terms of this Agreement.

A. Notice to Proceed. The Consultant shall not commence performance of any such

{00113067.DOCX 1} Page 3

Services, nor shall it incur any charges in connection therewith, until such time as it receives written authorization from the Director to do so. Upon receipt of such notice to proceed, the Consultant shall immediately commence its performance and diligently perform same in order to complete the Project in accordance with a schedule approved by the City.

B. Scope of Work Modifications. The City may, from time to time, request changes in the Services to be performed by the Consultant hereunder. Any such change, including any increase or decrease in the Services to be performed and the corresponding amount of compensation to be paid therefor, shall be mutually agreed upon by and between the City and the Consultant, and shall be incorporated in a written amendment to this Agreement signed by both Parties.

3.02. Consultant’s Warranties and Representations

A. Professional Competency. The Consultant shall perform its Services under this Agreement in accordance with the generally prevailing standards of care and practices of its profession. The Consultant assumes full and complete responsibility for the accuracy of all deliverables produced by the Consultant or its subcontractors. It shall so indicate this by having the signature and the Connecticut Professional Consultant's Seal of each Consultant used to perform Services hereunder affixed on the title sheet(s) of all plans and/or documents.

B. Compliance with Laws. In performing the Services required under this Agreement, all documents submitted by the Consultant in connection with the Project shall strictly conform to all applicable provisions of Federal, State, and local laws and regulations, specifically including those requirements implemented and enforced by governing bodies having authority over the Project. Without limiting the generality of the foregoing, this Agreement is subject to and the Contractor shall at all times comply with Chapter 62 of the City of Bridgeport Charter, the Living Wage Ordinance. The City shall have all rights and remedies provided therein.

C. Availability and Diligence. In performing the Services, the Consultant shall meet with staff representatives of the Department as often as reasonably necessary and shall also be available upon request to meet and consult with members and staff of various departments of the City, and with other persons or entities, including representatives of the utility companies, and Federal and/or State officials.

D. Deliverables. Unless otherwise specified in the Agreement, all written materials required to be submitted under this Agreement shall be submitted in one (1) copy. With respect to full-size plans and drawings, the Consultant shall submit one (1) signed and sealed black line print thereof sealed and with the original Consultant’s signature. In addition, the Consultant shall provide all documents, both written and drawings, in electronic format.

E. Ownership of Work Product. All of the materials prepared by the Consultant under this Agreement, including any partially completed documents, shall be sole and exclusive property of the City and shall promptly be provided to City in hard copy and digital format upon City’s request. This provision shall survive the expiration or termination of this Agreement. The Consultant shall label all drawings and documents accordingly. The Consultant, only upon prior

{00113067.DOCX 1} Page 4 written approval by the City which may be withheld by the City in it sole discretion, may publish materials prepared under this Agreement.

F. Records Retention. The Consultant agrees that it shall preserve all of its records and accounts concerning the performance and implementation of this Agreement for a period of eight (8) years after final payment is made under this Agreement. If any litigation, claim, or audit, directly or indirectly pertaining to the Project or the Consultant’s Services in connection therewith, is started before the expiration of the eight (8) year period, the records shall be retained until all litigations, claims or audit findings involving the records have been finally resolved.

G. Authority. Consultant represents that it has, and has exercised, the required corporate power and authority and has complied with all applicable legal requirements necessary to adopt, execute and deliver this Agreement and to assume the responsibilities and obligations created hereunder on behalf of the Consultant; and that this Agreement is duly executed and delivered by a duly authorized representative, in accordance with such duly authorized representative's powers to bind the Consultant hereunder, and constitutes a valid and binding obligation enforceable in accordance with its terms, conditions, and provisions.

3.03. Additional Services. Additional Services set forth in the Consultant’s Proposal, if any, or any other additional services beyond those described in Section 3.01 of this Agreement shall be performed by the Consultant only with the prior written authorization of the Director and pursuant to a written Amendment to this Agreement signed by the Parties hereto. The City shall not be liable to the Consultant for the cost of any Additional Services if such Additional Services are performed outside of or without a signed Amendment.

3.04. Reduction of Services. The Consultant agrees that, should the scope of the Services be reduced, such reduction will be reflected in a commensurate reduction of the amount of compensation paid to the Consultant hereunder.

Article 4. City’s Responsibilities

4.01. City Information. The City shall provide the Consultant with all information in its possession regarding requirements for the Project; shall use commercially reasonable efforts to obtain such other information as may be requested by the Consultant to perform the Services required under this Agreement; and shall assist the Consultant in obtaining any other information necessary for the Project. However, the City shall not be responsible for and shall not warrant the accuracy or content of any of the information or data which it assists the Consultant in obtaining and which was not otherwise within the City’s possession. The Consultant shall be responsible at its own expense to make all reasonable and necessary field inspections and to perform such other tasks needed to verify all information provided or obtained by the City and shall make no claim against the City for any alleged damages arising out of the information or data provided or obtained by the City.

Article 5. Time Provisions

{00113067.DOCX 1} Page 5

5.01. Term. This Agreement shall commence upon its execution and shall remain in full force and effect unless earlier terminated, until the completion of the Services by the Consultant and acceptance of the same by the City. The Services shall be completed no later than _________________________ months following the issuance of the Notice to Proceed by the Director with the complete of each Project Task in accordance with the schedule set forth in the Consultant’s Clarification described in Section 1.01 of this Agreement.

5.02. Extension of Time. The City may, by a signed written statement, extend the time for performance of the Services hereunder beyond the period stipulated above when the Consultant has been delayed for reasons beyond its control.

Article 6. Compensation

6.01. Compensation. The City shall compensate the Consultant for the satisfactory performance of the Services described in Section 3.01 of this Agreement in accordance with the Consultant’s Proposal Response Form set forth in the Consultant’s Proposal, a copy of which is separately attached hereto as Exhibit ___. The total amount of fees payable under this Agreement, inclusive of reimbursable expenses, shall not exceed [MAX COMPENSATION]. The maximum amount will not be increased unless there is a substantial change in the scope or character of the work to be performed by the Consultant which would justify a revision of this figure and such change is set out in a signed, written amendment to this Agreement.

6.02. Reimbursable Costs. Reimbursable costs directly related to the Consultant’s Services shall only be paid by the City if incurred with the specific, prior written approval of the Director for each expense.

Article 7. Method of Compensation

7.01. Invoicing. The City shall pay the Consultant in monthly intervals on the basis of an itemized invoice, certified by a principal of the Consultant, setting forth the Services performed and the percentage of completion with respect to each individual Task. The City may, prior to making any payment under this Section, require the Consultant to submit such additional information as is reasonable.

7.02. Final Invoice. After completion of all components of the Project, the Consultant shall submit an invoice for one hundred percent (100%) completion of Services under this Agreement.

Compensation previously paid shall be adjusted to reflect additions or deductions based upon the final accounting of all invoices for work performed in accordance with the provisions of this Agreement. Payment of such adjustments shall not be deemed to require an amendment to this Agreement, with the one exception that the maximum payment specified in Section 6.01 shall not be exceeded without an amendment to this Agreement. Acceptance by the Consultant of final payment for the Services performed under this Agreement shall constitute a full and complete release of the City, its officers, and agents, of all claims, demands, and liabilities to the Consultant related to this Agreement.

Article 8. Insurance

{00113067.DOCX 1} Page 6

8.01. Insurance Requirements. The Consultant agrees to obtain at its own cost and expense all insurance required by the Insurance Rider, a copy of which is attached hereto and made a part of this Agreement as Exhibit ___. Before commencing the Services, the Consultant shall furnish to the City a certificate of insurance, and shall thereafter provide renewal certificates, as appropriate, evidencing such coverage written by a company or companies acceptable to the City. Each insurance policy, with the exception of Workers Compensation and Professional Liability insurance policies, shall be endorsed to name the City of Bridgeport as an additional insured party on a primary and noncontributory basis and shall provide that the insurance company providing coverage shall notify the City by certified mail at least thirty (30) days prior to the effective termination of the policy or policies providing coverage. No change in the coverage provided hereunder shall be made without the prior written approval of the Director.

8.02. Insurance Costs. All insurance shall be taken out and maintained at no cost or expense to the City and the Consultant shall be responsible for the full amount of any deductible.

8.03. Failure to Maintain Insurance. Failure of the Consultant to maintain insurance coverage in accordance with the terms of the Agreement shall constitute a violation of the Agreement and shall subject the Consultant to liquidated damages in the amount of ten percent (10%) of the total contract price, subject to the continued commercial availability of such insurance.

Article 9. Indemnification

9.01. The Consultant expressly agrees that it shall at all times indemnify, defend and save harmless the City and its respective officers, agents, and employees, from and against any and all demands; claims; damages; losses; litigation; reasonable financial costs and expenses; and compensation related to personal injuries (including death), any damage to property, real or personal, and any other loss, expense or aggrievement directly or indirectly arising from related to or connected with the breach of this Agreement or the negligent, wanton or willful acts or omissions of the Consultant, its employees, agents, subcontractors, material suppliers, or anyone directly or indirectly employed by any of them in the performance of this Agreement. The Consultant shall and does hereby assume and agree to pay for the defense of all such aforementioned claims, demands, suits, proceedings, and litigation. The provisions of this paragraph shall survive the expiration or early termination of this Agreement; shall be separate and independent of any other provision or requirement of this Agreement; and shall not be limited by reason of any insurance coverage provided hereunder. The City may withhold from any payment due or to become due to the Consultant an amount sufficient in its judgment to protect and indemnify the City, its officers, agents, servants, and employees from and against any and all such claims and liabilities described above.

The Consultant’s duties under this section shall remain in effect and binding in accordance with the terms and conditions of this Agreement and any extension thereof, without being lessened or compromised in any way, even where the Consultant, or its employees, agents, subcontractors, material suppliers, or anyone directly or indirectly employed by any of them, are alleged or found to have merely contributed in part to the actions or omissions giving rise to the claims and/or where

{00113067.DOCX 1} Page 7 the City is alleged or is found to have contributed to the actions or omissions giving rise to the claims.

Nothing in this provision, or elsewhere in this Agreement, shall be deemed to relieve the Consultant of its duty to defend the City or any other indemnitee, as specified in this Contract, pending a determination of the respective liabilities of the Consultant, the City, or such other indemnitee, by legal proceeding or agreement.

In furtherance to but not in limitation of the indemnity provisions in this Agreement, Consultant hereby expressly and specifically agrees that its obligation to indemnify, defend and save harmless the City as provided in this Agreement shall not in any way be affected or diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability or recovery under workers' compensation laws.

Article 10. Termination, Damages, and Remedies

10.01. Termination for Convenience. The City may at any time and for any reason terminate this Agreement for convenience by written notice specifying the termination date, which shall be not less than thirty (30) days from the date such notice is given. In the event of such termination, Services shall be paid for in such amount as shall compensate the Consultant for the portion of the Services satisfactorily performed prior to termination. Such compensation shall not, however, include unabsorbed home office overhead or lost profits. The Consultant’s compensation upon termination for convenience shall be fixed by the City after consultation with the Consultant and shall be subject to audit by the City's Comptroller. Termination under this section shall not give rise to any claim against the City for damages or for compensation in addition to that provided hereunder.

10.02. Termination for Cause. In the event the Director determines that there has been a material breach by the Consultant of any of the terms of the Agreement, or that the Consultant refuses or has failed to perform the required Services or any part thereof in a timely, professional, and diligent manner as will ensure its completion in accordance with the requirements hereof, the City has the right, power and authority to terminate this Agreement for cause upon providing the Consultant five (5) days written notice. By the terms of this Agreement, the City may, but is not obligated to, provide the Consultant with a reasonable opportunity to cure the breach before the termination becomes effective. In the event the City terminates the Agreement for cause, the Consultant shall be obligated to pay the City for any losses, damages, costs, and expenses sustained or incurred thereby.

10.03. Mitigation of Damages. For the purpose of completing the Project, the City may, for itself or for any of its Consultants, take possession of and use or cause to be used any and all documents, plans and specifications or other items that may have been used or drawn up in connection with the performance of this Agreement. This right is in addition to any other right or remedy the City may otherwise have.

10.04. Termination Damages. In the event of a termination for cause, all costs, expenses, losses, {00113067.DOCX 1} Page 8 damages, and any and all other charges incurred by the City under this Agreement shall be charged to the Consultant and deducted and/or paid by the City out of any monies due or payable or to become due or payable under this Agreement to the Consultant. If any such costs exceed the sum due or to become due to the Consultant, then, upon demand, the Consultant shall pay the excess amount to the City. In computing the amounts chargeable to the Consultant, the City shall not be held to a basis of the lowest prices for which the completion of the Services or any part thereof, but it shall charge to the Consultant, and the Consultant shall be liable for all sums actually paid and expenses actually incurred in affecting prompt completion of the Project hereunder. The City’s rights described herein are in addition to any other rights and remedies provided by law.

Termination under this section shall not give rise to any claim against the City for damages or compensation in addition to that provided hereunder.

10.05. City’s Remedies for Default. The City may withhold payment of any amount otherwise due and payable to the Consultant hereunder when the City has reasonable grounds for believing that:

(A) The Consultant will be unable to perform the Services required under this Agreement fully, professionally, and satisfactorily within the time fixed for performance; or (B) A meritorious claim exists or will exist against the Consultant or the City arising out of the negligent, willful or wanton acts, errors or omissions of the Consultant, its agents, servants or employees, or the Consultant’s breach of any provision of this Agreement (“Default”). Any amount so withheld may be retained by the City for such period as it may deem advisable to protect the City against any loss and may, after written notice to the Consultant, be applied in satisfaction of any claim herein described. This provision is intended solely for the benefit of the City, and no person shall have any right against the City or claim against the City by reason of the City’s failure or refusal to withhold monies. No interest shall be payable by the City on any amounts withheld under this provision. This provision is not intended to limit or in any way prejudice any other right of the City.

Article 11. General Provisions

11.01. Suspension of Services. The City may at any time, and for any reason, direct the suspension of the Services contemplated under this Agreement. Such direction shall be in writing and shall specify the period during which the Services shall be suspended. The Services shall be resumed on the dates specified in such direction, or upon such other date as the City may thereafter specify in writing. The period during which such Services are suspended shall be deemed added to the time for performance. In the event that the City directs the suspension of the Services hereunder for a period of time in excess of one (1) year, through no fault of the Consultant, the parties may negotiate an adjustment in the fees payable hereunder due to a rise in the cost of performance.

Suspension of Services under this Article shall not give rise to any claim against the City.

11.02. Claims Against the City. Consultant shall not assert any claim arising out of any act or omission by any agent, officer, or employee of the City in the execution or performance of this Agreement, against any such agent, officer, or employee individually. Such claims may be made against the City.

11.03. Conflicts of Interest. No member of the governing body of the City, and no other officer, employee, or agent of the City shall have any personal interest, direct or indirect, in this Agreement, except as permitted by the Code of Ethics of the City of Bridgeport. The Consultant

{00113067.DOCX 1} Page 9 covenants that no person having any such interest shall be employed in the performance of this Agreement.

11.04. Choice of Law/Jurisdiction. This Agreement shall be construed exclusively in accordance with the laws of the State of Connecticut, and any action or suit at law in connection herewith shall be brought exclusively in the Superior Court of the State of Connecticut, Judicial District Fairfield at Bridgeport.

11.05. Compliance with Laws. The Consultant shall comply with all applicable laws, ordinances, and codes of any governmental body having jurisdiction over any matter related to this Agreement or the Services to be performed hereunder and shall commit no trespass on any private property in performing any of the Services required by this Agreement.

11.06. Non-Discrimination. During the performance of this Agreement, the Consultant agrees not to discriminate nor to permit any discrimination against any employee or applicant for employment because of race, color, religion, age, sex, gender identity or expression, marital status, national origin, sexual orientation, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability including, but not limited to blindness, unless it is proven that the disability or characteristic prevents proper performance of the work involved.

11.07. Entire Agreement. This Agreement and its Exhibits constitute the entire understanding and agreement of the parties respecting the subject hereof and supersede any and all agreements, negotiations, commitments, and writings reached by the parties prior to the execution of this Agreement, whether oral or written. No change or modification of this Agreement shall be valid unless it is in writing and signed by both parties hereto. In case of conflict between the terms of this Agreement and the terms or requirements of documents mentioned herein, the stipulations contained in this Agreement shall govern.

11.08. Provisions Required by Law Deemed Inserted. Each and every provision and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein and the Agreement shall be read and enforced as though such provisions and clauses were included herein.

If, through mistake or otherwise, any such provision is not inserted or is not correctly inserted, then, upon the written consent of the parties, this Agreement shall forthwith be physically amended to make such insertion.

11.09. Assignment. The City and the Consultant each binds itself and its successors and assigns to the other Party and to such Party's successors and assigns with respect to all covenants of this Agreement. The Consultant shall not assign or transfer any interest in this Agreement without the prior written approval of the City.

11.10. Partial Invalidity. If any provision of this Agreement is held invalid, the balance of the provisions of this Agreement shall not be affected thereby if the balance of the provisions of this Agreement would then continue to conform to the requirements of applicable laws.

11.11. No Conflicts or Kickbacks. The Consultant warrants that it has no interest in the Project which is the subject matter of this Agreement and will not acquire any interest, direct or indirect, {00113067.DOCX 1} Page 10 that would conflict in any manner or degree with the performance of the Services and duties hereunder. The Consultant further warrants that, in the performance of this Agreement, no person having any such interest shall be employed by it.

The Consultant represents and warrants that it has not employed or retained any person, other than a bona fide full time salaried employee working solely for the Consultant to solicit or secure this Agreement, and that it has not paid or agreed to pay any person (other than payments of fixed salary to a bona fide full time salaried employee working solely for the Consultant) any fee, commission, percentage, gift or other consideration, contingent upon or resulting from the award or making of this Agreement. The Consultant represents that no person or persons not named in the Consultant’s qualification and proposal, have any financial or personal interest in the Consultant’s performance hereunder.

For the breach or violation of this provision, without limiting any other rights or remedies to which the City may be entitled or any civil or criminal penalty to which any violator may be liable, the City shall have the right, in its discretion, to terminate this Agreement without liability, and to deduct from the payments to be made pursuant to this Agreement, or otherwise to recover the full amount of such fee, commission, percentage, gift or consideration.

11.12. Notices. All notices of any nature referred to in this Agreement shall be in writing and sent by certified mail, return receipt requested, postage prepaid, to the respective addresses set forth below or to such other addresses as the respective parties hereto may designate in writing:

To the City: [CITY CONTACT]

[ADDRESS]

With a copy to: Office of the City Attorney City of Bridgeport 999 Broad St, Bridgeport, CT 06604

To the Consultant: [COMPANY REP] President

[COMPANY]

[ADDRESS]

11.13. Employment Practices. The City's hiring practices strive to comply with all applicable federal regulations regarding employment eligibility and employment practices. Thus, all individuals and entities seeking to do work for the City are expected to comply with all applicable laws, governmental requirements, and regulations, including the regulations of the United States Department of Justice pertaining to employment eligibility and employment practices. The City

{00113067.DOCX 1} Page 11 reserves the right at its discretion, but does not assume the obligation to require proof of valid citizenship or, in the alternative, proof of a valid green card for each person employed in the performance of Services for the City. By reserving this right the City does not assume any obligation or responsibility to enforce or ensure compliance with the applicable laws and/or regulations. By signing this Agreement, the Consultant hereby certifies to the City of Bridgeport that it is in compliance with all applicable regulations and laws governing employment practices.

11.14. Electronic Signature. This Agreement may be executed and delivered via facsimile or electronic mail by either of the parties and the receiving Party may rely on the receipt of such document so executed and delivered via facsimile or electronically as if the original had been received.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

CITY OF BRIDGEPORT

By:______________________________

Duly Authorized

Date Signed:___________________

COMPANY

By:______________________________

[COMPANY REP]

Its President

Duly Authorized

Date Signed:____________________

APPROVED AS TO FORM:

Office of the City Attorney

By: __________________________

Date Signed: ___________________