Professional Services Contract 1-8967.pdf

Revised 01/17

PROFESSIONAL SERVICES

CONTRACT

Between

CITY OF TOLEDO

One Government Center

640 Jackson Street Toledo, Ohio 43604 and

THIS CONTRACT IS MADE by and between the City of Toledo, an Ohio charter municipality (“Toledo”) and a (consultant) with a principal mailing address of each duly authorized.

NOW, THEREFORE, in consideration of the mutual promises, covenants, conditions and terms to be kept and performed, it is agreed by the parties as follows:

SECTION 1 GENERAL

The general purpose of this contract, as fully detailed in the below referenced documents, is to provide the following professional services:

All such work or services contained in this Contract are supplemented by the following, which are attached hereto and made a part hereof or incorporated by reference as if fully written out or attached to this Contract:

Notice to Bidders Acknowledgment and Acceptance of Conditions Project Specifications including all Addenda if applicable Consultant’s Bid/ Quote/ Proposal Ordinance #_______

SECTION 2 TERM

Unless otherwise specified, this Contract shall be effective as of the date the contract is signed by the Mayor, and shall either (note whichever is applicable): ( ) continue in effect until all obligations are performed in accordance with the Contract not to exceed one year, or shall expire in ( ____ years). If there is an option to renew it is as follows: a) _____ for one year;

b)_____on a month to month basis; c)______ for the number of years of the original term;

d)______not applicable; or e)________________other.

SECTION 3 TIME OF PERFORMANCE

Consultant shall commence performance of the work under this Agreement upon receipt of an executed copy of this Agreement and shall complete its work within the time specified by the Department in its request for proposals or, if no time is specified, within a reasonable period of time

SECTION 4 RESPONSIBILITIES OF THE CONSULTANT

A. Consultant shall be responsible for the professional quality, technical accuracy, timely completion, and the coordination of all services furnished by Consultant under this Agreement and shall perform such professional services as may be necessary to accomplish the work required to be performed under this Agreement, in accordance with this Agreement and any applicable federal, state or local regulations. Consultant shall, without additional compensation, correct or revise any errors, omissions, or other deficiencies in the services it performs.

B. Toledo’s approval of the services or materials furnished under this Agreement shall not in any way relieve Consultant of responsibility for the professional adequacy of its work.

Toledo's review, approval, acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.

C. Consultant shall be and shall remain liable, in accordance with applicable law, for all damages to Toledo caused by Consultant's negligent performance of any of the services furnished under this Agreement, except for errors, omissions or other deficiencies to the extent attributable to Toledo, Toledo-furnished data or any third party. Consultant shall not be responsible for any time delays in the project caused by circumstances beyond Consultant's control.

SECTION 5 REQUIREMENTS CONTRACT

If this contract is a requirements contract it provides that the Consultant will sell the City all of the professional services that are the subject of this contract that the City, in good faith, needs. If the quantity was not specified in the bid or RFP then the City will provide the Consultant with a reasonable estimate of the quantities to be purchased upon request. If the City’s needs go unreasonably beyond that which the parties have established as the anticipated quantity the Consultant may provide the goods or services or may decline if it is unable to do so. In that event the City may purchase the goods or services from another vendor.

SECTION 6 PAYMENT

A. Toledo shall pay Consultant for the services rendered under this Agreement in accordance with the Consultant’s price proposal submission or as negotiated price under this agreement.

B. Consultant may request monthly progress payments and Toledo will make them as soon as practicable upon submission of statements requesting payment by Consultant to Toledo. No payment request shall exceed the purchase order amount as the estimated value of the work under this Agreement. Consultant shall prepare the estimates of work performed and shall supplement them with such supporting data to include a tabulation of work-hours at the appropriate rates as Toledo may require. Time billed shall be limited to hours actually worked on the project.

C. Consultant shall submit separate invoices referencing the purchase order issued for the project. Invoice(s) shall be emailed to accountspayable@toledo.oh.gov or mailed to City of Toledo, Division of Accounts, 640 Jackson Street, Suite 2020, Toledo, Ohio 43604.

SECTION 7 CHANGE ORDERS

A. If Toledo seeks to make any change in the scope of work, including but not limited to changes in the specifications, deliverables or details, it shall request the same from Consultant via written change order. Any increases or decreases in the Consultant’s costs, or the time required for the performance of any part of the work under this Contract, shall be clearly articulated and the Contract will be deemed modified as of the change order, which shall be signed by both parties.

B. If Consultant needs to seek a change order from the City the same shall be submitted in writing for review. Any approved increase or decrease in costs or change in the time for performance will be indicated and the Contract will be deemed modified as of the change order, which shall be signed by both parties.

SECTION 8 REUSE OF DOCUMENTS

All software specifically purchased and charged to the Project, plans and specifications, maps, drawings, digital data specifications, plots, reports, database scheme, database dictionary, and any other products, materials relating to the Project or prepared in connection with the Project, are the exclusive property of Toledo and shall be delivered to Toledo in accordance with the Project schedule or upon termination of the Project. The Consultant shall not assert or establish any right or claim under design patent or copyright laws to any of the materials created or produced specifically for, and in conjunction with the Project. The Consultant shall not utilize the data, software, plots, reports or other material related to the Project on other similar projects, for other customers, or for any type of commercial, marketing or promotional purpose without the prior written consent of Toledo. The Consultant shall retain ownership of Consultant’s standard details and specifications used on the Project. Toledo shall not utilize Consultant’s standard details and specifications used on the project without the prior written consent of Consultant.

SECTION 9 TERMINATION

A. Either party may terminate this Contract, in whole or part, in writing, if the other party substantially fails to fulfill its obligations under this Contract through no fault of the terminating party. However, no such termination may be effected unless the other party is given (1) not less than ten (10) calendar days written notice of intent to terminate and (2) an opportunity for consultation with the terminating party before termination.

B. Toledo may terminate this Contract, in whole or part, in writing, for its convenience, after issuing thirty (30) days written notice to the Consultant.

C. If Toledo terminates for default, an equitable adjustment in the price provided for in this Contract shall be made, but: (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to Consultant at the time of termination may be adjusted to the extent of any additional costs Toledo incurs because of Consultant's default. If Consultant terminates for default or if Toledo terminates for convenience, the equitable adjustment shall provide for payment to Consultant of reasonable expenses incurred before the termination, in addition to termination settlement costs Consultant reasonably incurs relating to commitments that had become firm before the termination.

D. Upon receipt of a termination action under paragraphs A or B of this section, Consultant shall: (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2) deliver or otherwise make available to Toledo all completed or partially completed supplies and manufacturing materials that the Consultant has specifically produced or acquired for the terminated portion of the Contract.

E. Upon termination under paragraphs A or B of this section, Toledo may take over the work and prosecute the same to completion by agreement with another party or otherwise. Any work Toledo takes over for completion will be completed at Toledo's risk, and Toledo will hold harmless Consultant from all claims and damages arising out of improper use of Consultant's work.

SECTION 10 AUDIT AND EXAMINATION OF ACCOUNTS

Consultant shall maintain books, records, documents and other evidence directly pertinent to performance on work under this Agreement in accordance with generally accepted accounting principles. Toledo shall have access to such books, records, documents and other evidence for the purpose of inspection, audit and copying.

SECTION 11 ASSIGNMENT; COMPLIANCE WITH LAW

Neither party may assign or transfer rights and obligations under this Agreement without the written consent of the other party. Each party agrees that it will perform its obligations in accordance with all applicable laws, rules and regulations now or hereinafter in effect.

SECTION 12 REMEDIES

A. All claims, counterclaims, disputes and other matters in question between Toledo and the Consultant arising out of or relating to this Contract or its breach will be decided in a court of competent jurisdiction in Lucas County, Ohio. This Contract shall be deemed to be executed in the City of Toledo, Lucas County, State of Ohio and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with the laws of the State of Ohio, as applicable to contracts entered into and to be performed entirely within Ohio. Any litigation arising between Toledo and Consultant arising under or regarding this Contract shall occur, if in the state courts, in the Lucas County court having jurisdiction thereof, or if in the federal courts, in the United States District Court for the Northern District of Ohio, Western Division.

A. Consultant, for itself and its related entities, agents, employees, subcontractors and the agents and employees of said subcontractors, agrees to and shall indemnify, hold harmless and defend Toledo, its successors, assigns, officers, employees, agents and appointed and elected officials, for any claim, cost, loss, damage or obligation whatsoever in nature (including reasonable attorneys fees and expenses) arising out of or through in any way from Consultant’s breach of any of the conditions of this Contract; excluding, however, claims arising from Toledo’s negligence, omission or willful misconduct and for which immunity is not provided by the Ohio revised Code for such negligence, omission or willful misconduct. This exception shall not extend to acts, omissions, or intentional torts occurring as a result of or in response to any emergency. The indemnification obligation shall not be limited in any way by the insurance requirements but shall be in addition to those requirements.

B. In any and all claims against Toledo, its officers, officials, agents or employees by any employee of the Consultant, any subcontractor, agent and anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the Consultant hereby expressly waives the immunity provided to Consultant by Article II, Section 35 of the Ohio Constitution and Ohio Revised Code Sections 4123.74 and 4123.741, so that this indemnification obligation may be enforced by Toledo against Consultant in those instances.

C. If the Consultant subcontracts any part of the work required under this Contract, subject to Toledo written approval of each such subcontract(s), it shall require its subcontractor to indemnify Toledo in accordance with this section. Consultant shall provide to Toledo in writing information about each subcontractor as Toledo shall request from time to time.

SECTION 14 EQUAL EMPLOYMENT OPPORTUNITY

Consultant agrees that it will not discriminate against any customer, employee or applicant for employment because of race, ancestry, religion, color, sex, age, national origin or disability.

SECTION 13 INDEMNIFICATION

The Contract shall not be construed as creating an employer-employee relationship, a partnership or a joint venture. The Consultant’s services shall be those of an independent Consultant. The Consultant agrees and understands that the Contract does not grant any rights or privileges established for employees of the City. Moreover, Consultant shall execute any and all City and State forms that exist to confirm that no Public Employee Retirement Services (“PERS”) will be or should be deducted from Payment.

SECTION 16 ENTIRE AGREEMENT

This Contract, including any subsequent amendments, contains all representations and the entire understanding of the agreement between the parties. No changes to this Contract shall be valid unless made by a written amendment executed and approved by the parties. Time is of the essence of this Contract. The invalidity or unenforceability of any provision of this Contract shall not affect the validity or enforceability of any other provision of this Contract.

SECTION 17 CONFLICTS

In the event of a conflict between the terms and conditions in the foregoing sections of this Contract and the terms and conditions in any of the Consultant’s Bid/Quote/Proposal or other Consultant documents attached or incorporated by reference to this Contract, the foregoing terms and conditions shall control unless Toledo specifically waives such terms and conditions in writing.

SECTION 18 AUTHORITY TO ACT

The signatory or signatories hereto on behalf of the Consultant warrant(s) and represent(s) that they and have the power and authority to enter into this Agreement and to consummate the transactions contemplated hereby on behalf of the Consultant and have been duly authorized to execute this Agreement.

IN WITNESS WHEREOF, Toledo and the Consultant have caused this Contract to be executed as of the date of the Mayor’s signature listed below.

CONSULTANT:

(Corporation Name) (Phone Number)

(Print Name) (Signature) (Title)

SECTION 15 INDEPENDENT CONSULTANT

(Date) (Email Address)

CITY OF TOLEDO:

(Date)

APPROVED AS TO CONTENT:

(Mayor or Deputy Mayor’s Signature)

APPROVED AS TO FORM:

(Law Department) (Director)

(Department)