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HomeMy WebLinkAboutPROFESSIONAL SERVICES AGREEMENT BETWEEN CONSOLIDATED GOVENMENT OF AUGUSTA, GA AND ELERT & ASSOCIATESTHIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement "), is made and entered into by and between the Consolidated Government of Augusta, Georgia ( "Augusta "), and Elert & Associates ( "Consultant "), with reference to the following: A. Augusta desires certain professional services in connection with the Richmond County Marshal's Office Security Assessment and System Design. B. Consultant responded to Augusta's RFP #12 -198 and was chosen as the most qualified respondent based on its submittal. NOW, THEREFORE, in consideration of the foregoing, the provisions contained herein and the mutual benefits to be derived here from, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant and Augusta agree as follows: 1. Services and Deliverables. 1.1 PROFESSIONAL SERVICES AGREEMENT Scope of Work., Communications. Consultant shall provide services to Augusta as set forth in Sections 4 and 5 of Consultant's Proposal, which is attached hereto as Exhibit A and is incorporated herein by reference. Attachment A of Consultant's Proposal is specifically preempted by this Agreement. 1.2 Standard of Performance. Consultant represents and warrants that it has the necessary knowledge, experience, abilities, skills and resources to perform its obligations under this Agreement, and agrees to perform its obligations under this Agreement in a professional manner, consistent with prevailing industry standards and practices. 1.3 Licenses and Permits: Compliance with Law. Consultant represents and warrants that it has all licenses and permits necessary to conduct its business and perform its obligations under this Agreement, and agrees to comply with all applicable federal, state and local statutes, regulations, codes, ordinances and policies in performing his obligations under this Agreement. 1.4 Independent Consultant Relationship. The parties intend that Consultant's relationship to Augusta in providing services hereunder shall be that of an independent Consultant. Nothing in this Agreement, nor any performance hereunder, is intended or shall be construed to create a partnership, joint venture or relationship of agency or employment between Augusta and Consultant. In providing services hereunder, Consultant shall represent itself to third parties as an independent Consultant to Augusta and shall not hold itself out as having any authority to obligate Augusta. 1 1.5 Confidentiality. Consultant shall treat all information disclosed by Augusta pursuant to this Agreement as confidential, and Consultant shall not disclose or use any such information except as required in connection with the performance of its obligations under this Agreement. Consultant agrees that its work product under this Agreement is for the confidential use and information of Augusta and that it will not disclose its work product in whole or in part to any persons whatsoever, other than to submit its written documentation to Augusta, and will only discuss the same with it or its authorized representatives. Upon completion of this Agreement term, all documents, reports, data and studies prepared by the Consultant pursuant thereto shall become the property of Augusta and be delivered thereto. 2. Assignment of Rights Regarding Deliverables; Records. 2.1 Assignment. Consultant does hereby assign, grant, and deliver to Augusta, and Augusta hereby accepts, the entire worldwide right, title, and interest of every kind and nature whatsoever in and to the deliverables under this Agreement, including but not limited to any related intellectual property rights. 2.2 Records. Consultant shall maintain throughout the term of this Agreement and for a period of six (6) years thereafter records that indicate the date, time, and nature of the services rendered. Consultant shall make available for inspection and /or audit by Augusta all records, books of account, memoranda, and other documents pertaining to Augusta at any reasonable time upon request. 2.3 Open Records. Consultant acknowledge that all records relating to this Agreement and the services to be provided under the contract may be a public record subject to Georgia's Open Records Act (O.C.G.A. § 50- 18 -70, et seq.). Consultant shall cooperate fully with Augusta in responding to such request and making all records, not exempt, available for inspection and copying as provided by law. 2.4 Statement Approval. Any publicly released statement or information related to this Agreement must be pre- approved by the Richmond County Marshal or his designee. 3. Fee; Expenses; Invoicing. 3.1 Fee; Expenses. In consideration of Consultant performing its obligations under this Agreement, Augusta will pay Consultant Thirty Thousand ($30,000) dollars to be invoiced at the completion of each phase as follows: 2 Project Initiation Phase Ten (10 %) percent; Data Collection, Assessment, and Reporting Phase Twenty (20 %) percent; Standards and Design Development Phase Twenty (20 %) percent; Bidding or Negotiation Phase Twenty (20 %) percent; Contract Administration Phase Thirty (30 %) percent. 3.2 Hourly Rates: Subject to Section 7.3 herein, professional services provided the Client outside the terms of the Project will be invoiced as follows: Senior Consultant/Principal $150 Network/Multimedia Consultant Engineer $150 Telecommunications Consultant $135 Consultant/Project Manager $135 Staff Consultant $110 CAD $ 65 Administrative Support $ 45 Hourly rates do not include telephone, travel or other related expenses. When visits to Augusta's premise are necessary, minimum billing is for one hour unless the visit it to an out -of -town location, in which case, minimum billing is for four (4) hours. All hourly billing is based on 1/4 hourly increments. 3.3 Invoicing. Consultant shall submit invoices at the completion of each project phase. Payment of undisputed amounts shall be due and payable thirty (30) days after Augusta's receipt of the invoice. 3.4 Georgia Prompt Pay Act Not Applicable. The terms of this Agreement supersede any and all provisions of the Georgia Prompt Pay Act. 3.5 Defective Pricing. To the extent that the pricing provided by Consultant is erroneous and defective, the parties may, by agreement, correct pricing errors to reflect the intent of the parties. 3.6 Prohibition Against Contingent Fees. The Consultant warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business and that the Consultant has not received any non- Augusta fee related to this Agreement without the prior written consent of Augusta. For breach or violation of this warranty, Augusta shall have the right to annul this Agreement without liability or at its discretion to deduct from the Agreement 3 Price of consideration the full amount of such commission, percentage, brokerage or contingent fee. 4. Term; Termination; Survival. 4.1 Term. This Agreement shall have an initial term of one year commencing on the date this Agreement is executed by Augusta, unless sooner terminated pursuant to Section 4.2 below. 4.2 Termination. This Agreement may be terminated prior to the completion of Consultant's services (i) upon thirty (30) days written notice to the other party, or (ii) by either party upon a breach of this Agreement (including, but not limited to, Consultant's services being deemed unsatisfactory by Augusta) by the other party that remains uncured ten (10) days after receiving written notice of such breach from the terminating party. This Agreement may be terminated immediately if Consultant fails to maintain insurance or fails to comply with the Workers' Compensation Act and applicable rules as described in Section 6.1 herein. In the event of a termination of this Agreement pursuant to this Section 4.2, Augusta and Consultant will in good faith negotiate an appropriate reduction in the fees payable to Consultant pursuant to Section 3.1 above. 4.3 Liquidated Damages. Consultant agrees to pay as liquidated damages to Augusta the sum of $10 for each consecutive calendar day after expiration of the Agreement Term, except for authorized extensions of time by Augusta. This Section is independent of Section 4.2 regarding default by Consultant. The Parties agree that these provisions for liquidated damages are not intended to operate as penalties for breach of contract. The liquidated damages set forth herein are not intended to compensate Augusta for any damages other than inconvenience and loss of use or delay in services. The existence or recovery of such liquidated damages shall not preclude Augusta from recovering other damages in addition to the payments made here under which Augusta can document as being attributable to the documented Consultant failures. In addition to other costs that may be recouped, Augusta may include costs of personnel and assets used to coordinate, inspect, and re- inspect items within this Agreement, as well as attorney fees, if applicable. 4.4 Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Section 2.3 above and Section 5 below shall survive any expiration or termination of this Agreement, and each party shall remain obligated to the other party under all provisions of this Agreement that expressly or by their nature extend beyond and survive the expiration or termination of this Agreement. 4.5 Temporary Suspension or Delay of Performance of Contract. To the extent that it does not alter the scope of this Agreement, Augusta may unilaterally order a temporary stopping of the work, or delaying of the work to be performed by 4 4.6 Specified Excuses for Delay or Non - Performance. Consultant is not responsible for delay in performance caused by hurricanes, tornadoes, floods, and other severe and unexpected acts of nature. In any such event, the Agreement price and schedule shall be equitably adjusted. 5. Indemnification. 6. Insurance. Consultant under this Agreement. 5.1 Indemnification. Consultant shall indemnify, hold harmless, protect and defend Augusta and its Commissioners, elected officials, trustees, officers, employees, agents, and representatives (the "Indemnified Parties ") for, from and against any and all demands, claims, suits, damages, losses, liabilities, costs and expenses, including, but not limited to, court costs and attorneys' fees (the "Indemnified Matters "), of any nature whatsoever (including, but not limited to, damage to or loss of property, bodily injury or death), directly or indirectly arising out of or in connection with the performance of Consultant's obligations under this Agreement. Consultant's indemnification obligations under this Section 5.1 shall apply whether the Indemnified Matters are due in part to the concurrent fault or negligence of the Indemnified Parties or others, but shall not extend to such concurrent fault or negligence. Consultant's defense obligations under this Section 5.1 shall be with attorneys approved by Augusta, which approval shall not be unreasonably withheld. 6.1 Consultant shall, at all times that this Agreement is in effect, cause to be maintained in force and effect an insurance policy(s) that will ensure and indemnify Augusta against liability or financial loss resulting from injuries occurring to persons or property or occurring as a result of any negligent error, act, or omission of the Consultant in performance of the work during the term of this Agreement. Consultant shall provide, at all times that this Agreement is in effect, insurance with limits of not less than: A. Workmen's Compensation Insurance in accordance with the laws of the state(s) where one of more employees are employed; B. Public Liability Insurance in an amount of not less than One Million ($1,000,000) Dollars for injuries, including those resulting in death to any one person, and in an amount of not less than One Million ($1,000,000) Dollars on account of any one occurrence; C. Property Damage Insurance in an amount of not less than One Million ($1,000,000) Dollars from damages on account of an occurrence, with an aggregate limit of One Million ($1,000,000) Dollars; D. Professional Liability Insurance in an amount of not less than One Million ($1,000,000) Dollars or an amount that correlates to the aggregate fee on the project should it exceed $1,000,000. 5 7. Miscellaneous. Augusta shall be named as an additional insured with respect to Consultant's liabilities hereunder in insurance coverages identified in items B and C. Each policy shall be written by a responsible company, to be approved by Augusta, and shall be noncancellable except on thirty (30) days written notice to Augusta. A copy of each policy or certificate of insurance shall be filed with Augusta at the time of the execution of this Agreement. 7.1 Power and Authority; Due Authorization; No Conflict; Enforceability. Each party represents and warrants to the other party that (i) such party has the power and authority to execute, deliver and perform its obligations under this Agreement, (ii) the execution, delivery and performance of this Agreement have been duly authorized by such party and do not and shall not conflict with any agreement or instrument to which it is bound, and (iii) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms. 7.2 Entire Agreement; Severability; Further Assurances. This Agreement, including any exhibits attached hereto, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, understandings and negotiations, with respect to the subject matter hereof. In the event any provision of this Agreement is determined to be invalid or unenforceable, it is the desire and intention of the parties that such invalidity or unenforceability not invalidate or render unenforceable the remainder of the Agreement and that such provision be reformed and construed in such a manner that it will, to the maximum extent practicable, be deemed valid and enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly. Each party shall execute and deliver such further documents and take such further actions as may be required or reasonably requested by the other party to effectuate the purposes of this Agreement. 7.3 No Assignment; No Amendment; No Waiver. This Agreement (i) may not be assigned or transferred, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party, and (ii) may not be amended or modified, by course of conduct or otherwise, except in a writing duly executed by each of the parties. Consultant acknowledges that this contract and any changes to it by amendment, modification, change order or other similar document may have required or may require the legislative authorization of the Board of Commissioners and approval of the Mayor. Under Georgia law, Consultant is deemed to possess knowledge concerning Augusta's ability to assume contractual obligations and the consequences of Consultant's provision of goods or services to Augusta under an unauthorized contract, amendment, modification, change order or other similar document, including the possibility that the Consultant may be precluded from recovering payment for such unauthorized goods or services. Accordingly, Consultant agrees that if it provides 6 goods or services to Augusta under a contract that has not received proper legislative authorization or if the Consultant provides goods or services to Augusta in excess of the any contractually authorized goods or services, as required by Augusta's Charter and Code, Augusta may withhold payment for any unauthorized goods or services provided by Consultant. Consultant assumes all risk of non - payment for the provision of any unauthorized goods or services to Augusta, and it waives all claims to payment or to other remedies for the provision of any unauthorized goods or services to Augusta, however characterized, including, without limitation, all remedies at law or equity. Any waiver of any provision of this Agreement shall be in writing duly executed by the waiving party. The failure or delay by either party to seek redress for any breach or default under this Agreement, or to insist upon the strict performance of any provision of this Agreement, shall not constitute a waiver thereof or of any other provision of this Agreement, and such party shall have all remedies provided herein and at law and in equity with respect to such act and any subsequent act constituting the same. 7.4 Notice. Any notices required under this Agreement shall be made in writing, postage prepaid to the following addresses, and shall be deemed given upon hand deliver, verified delivery by telecopy (followed by copy sent by United States mail), or three (3) days after deposit in the United Stated Mail: Augusta: Deputy Jeff Barrett Richmond County Marshal's Office 530 Greene Street, Room 701 Augusta, Georgia 30901 Courtesy copy to: General Counsel Augusta Law Department 520 Greene Street Augusta, Georgia 30901 Consultant: Brad Ehlert, CTS -D Project Executive Elert & Associates 140 Third Street South Stillwater, Minnesota 55082 7.5 Right to Inspect Premises. Augusta may, at reasonable times, inspect the part of the plant, place of business, or work site of Consultant or any subcontractor of Consultant or subunit thereof which is pertinent to the performance of any contract awarded or to be awarded by Augusta. 7.6 Local Small Business Program. In accordance with Chapter 10B of the AUGUSTA, GA. CODE, Contractor expressly agrees to collect and maintain all records necessary to for Augusta, Georgia to evaluate the effectiveness of its 7 Local Small Business Opportunity Program and to make such records available to Augusta, Georgia. The requirements of the Local Small Business Opportunity Program can be found at www.augustaga.gov. In accordance with AUGUSTA, GA. CODE § 1- 10- 129(d)(7), for all contracts where a local small business goal has been established, the contractor is required to provide local small business utilization reports. Contractor shall report to Augusta, Georgia the total dollars paid to each local small business on each contract, and shall provide such payment affidavits, regarding payment to subcontractors as may be requested by Augusta, Georgia. Such documents shall be in the format specified by the Director of minority and small business opportunities, and shall be submitted at such times as required by Augusta, Georgia. Failure to provide such reports within the time period specified by Augusta, Georgia shall entitle Augusta, Georgia to exercise any of the remedies set forth, including but not limited to, withholding payment from the contractor and/or collecting liquidated damages. 7.7 Governing Law; Jurisdiction and Venue; Attorneys' Fees. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Georgia (without regard to the conflicts or choice of law principles thereof). The parties irrevocably consent to the jurisdiction of the State of Georgia, and agree that the Superior Court of Richmond County, Georgia, shall be an appropriate and convenient place of venue to resolve any dispute with respect to this Agreement. In the event either party commences any proceeding against the other party with respect to this Agreement, the parties agree that neither party shall be entitled to recover attorneys' fees except as otherwise specifically provided for by law. 7.8 Construction of Agreement. The parties acknowledge and agree that both parties substantially participated in negotiating the provisions of this Agreement; and, therefore, the parties agree that this Agreement shall not be construed more favorably toward one party than the other party as a result of one party primarily drafting the Agreement. The section and other headings in this Agreement are for convenience of reference only and shall not be construed, expressly or by implication, so as to affect the meaning or interpretation of any of the provisions hereof. This Section and other headings in this Agreement are for convenience of reference only and shall not affect, expressly or by implication, the meaning or interpretation of any of the provisions hereof. 7.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 8 IN WITNESS WHEREOF, Consultant and Augusta have duly executed and delivered this Agreement. CONSULTANT D- 3 By: Gary yElert Its: President Elert & Associates AUGUS Dek Copenhaver \M r Attest: 9 ate -�B� - Date - //— /-5 Date