PROFESSIONAL SERVICES AGREEMENT
THIS Professional Services Agreement is made this ___ day of _____________, 2014, by and between the City of Lawrence, Kansas, a municipal corporation, and Iteris, Inc., a Delaware corporation.
RECITALS
A. The City of Lawrence, Kansas (“City”), a municipal corporation, in behalf of the Lawrence-Douglas County Metropolitan Planning Organization (“MPO”), is in need of certain professional services, specifically a Regional Intelligent Transportation Systems (ITS) Architecture Update.
B. Iteris, Inc. (“Consultant”), a Delaware corporation, has proficiency in ITS Architecture Updates.
C. The City, in behalf of the MPO, wishes to engage Consultant as an independent contractor to perform the needed services, which are described in detail in the document entitled “Scope of Services” (a copy of that document is affixed hereto as Attachment A).
D. The Consultant is willing and able to provide the services for which the City, in behalf of the MPO, wishes to engage it and agrees to perform those services in accordance with the terms and conditions of this Professional Services Agreement, as set forth below.
TERMS
NOW, THEREFORE, in light of the mutual promises and obligations contained herein, and in exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties agree as follows:
SECTION 1. Engagement. The City hereby engages Consultant as an independent contractor to perform the services hereinafter described and Consultant hereby accepts that engagement.
SECTION 2. Services.
(a) Scope of Services. Consultant shall perform those services (“Contract Services”) specifically described in the Scope of Services, which document is affixed hereto as Attachment A and is incorporated herein by reference. The parties may agree at any time to expand or modify the scope of the Contract Services. Such agreement shall be in writing and shall be attached to this Professional Services Agreement as an Addendum.
(b) Subcontracting Services. Consultant may not, without first obtaining written consent of the City, subcontract any of the Contract Services.
(c) Time of Performance. Time is an important element of this Agreement. Upon execution of this Professional Services Agreement, Consultant shall commence performance of the Contract Services in accordance with the Notice to Proceed.
(d) Expiration. The “Initial Term” of this Professional Services Agreement shall commence upon the execution of this document and shall expire at midnight on June 1, 2015. The provisions regarding indemnity and insurance shall survive the expiration of this Professional Services Agreement.
(e) Qualified Personnel. Consultant shall provide sufficient qualified personnel to perform the Contract Services. Additionally, Consultant agrees to provide qualified personnel to perform inspections, to prepare reports, and to perform other duties hereunder, as may reasonably be requested by the City.
(f) Performance. In performing the Contract Services, Consultant agrees to take all steps necessary for the full and effective performance of those tasks.
SECTION 3. Compensation and Reimbursement of Expenses.
(a) Compensation. Subject to the limitations established in Section 3(c), City shall pay Consultant its allowable costs, plus a Fixed Fee. Allowable costs shall be as defined herein, and include Direct Labor Cost, Direct Non-labor Cost, and Indirect Costs, as outlined below.
(i) Direct Labor Cost is the actual salary expense for Consultant’s personnel for the time they are productively engaged in work necessary to fulfill the terms of this Agreement.
(ii) Direct Non-labor Costs are those costs directly incurred in fulfilling the terms of this Agreement, including but not limited to material, travel, reproduction, telephone, supplies, and amounts paid to subcontractors by Consultant. If Consultant’s normal practice is to include some of these costs as indirect costs, then this Agreement shall be consistent with that practice and such costs shall be unallowable as Direct Non-labor Costs.
(iii) Indirect Costs are costs and expenses that cannot be identified to a direct cost objective and that are determined for this Agreement by application of Consultant’s Client-approved Indirect Cost Factor(s) to the appropriate base of direct costs.
(iv) The Fixed Fee is the dollar amount established to cover Consultant’s profit and business expenses not allocable to overhead. The Fixed Fee is negotiated based upon the size, complexity, duration, and degree of risk involved in the work. The negotiated Fixed Fee amount for this Agreement is stated in the Agreement Amount. The Fixed Fee payment will be prorated and paid regularly in proportion to the work performed as reflected by the periodic invoices. Any portion of the Fixed Fee payment not previously paid in the periodic payments will be paid in the final payment. Overruns in the cost of the work shall not warrant an increase in the Fixed Fee, but significant changes to the Contract Services may require adjustment of the Fixed Fee in the Agreement as evidenced by a written modification to this Agreement.
(b) Reimbursement for Expenses. Subject to the limitations established at Section 3(c) and in addition to the City’s payment of Compensation as established at Section 3(a), the City agrees to reimburse Consultant for all out-of-pocket expenses and related administrative expenses incurred by Consultant in connection with the performance of the Contract Services established by this Professional Services Agreement, including but not limited to long-distance telephone calls, postage, messengers, mileage for transportation, and the costs of computer time.
(c) Maximum Compensation and Reimbursement. Unless otherwise agreed upon by the parties in writing, the maximum total amount payable to Consultant (i) as compensation for Contract Services and any Subcontracting Services under Section 3(a) and (ii) as reimbursement for expenses under Section 3(b) shall not exceed the sum of Seventy-four Thousand Eight Hundred Three Dollars and Forty-one Cents ($74,803.41). Unless otherwise agreed by the parties in writing, Consultant shall not be requested to provide Contract Services or to incur related expenses to the extent that the cost of such Contract Services or related expenses would exceed $74,803.41. Maximum Compensation and Reimbursement for Expenses shall be based on the amounts listed on the "DERIVATION OF COST PROPOSAL," which document is affixed hereto as Attachment B and is incorporated herein by reference as if set forth in full.
(d) Payment Terms Consultant shall send invoices to the City, not more frequently than once per month, setting forth the Contract Services performed and the amount of Compensation under Section 3(a) and Reimbursement for Expenses under Section 3(b) due under this Professional Services Agreement. To be eligible for reimbursement, all expenses shall be listed individually and shall be accompanied by receipts or other applicable documentation establishing that Consultant has incurred those expenses in the course of performing under this Professional Services Agreement.
(e) Prompt Payment Clause (26.29). The City requires Consultant to ensure prompt and full payment of any retainage from the Consultant to the sub-consultant within thirty days after the sub-consultant’s work is satisfactorily completed. The City shall make payment to Consultant no later than thirty (30) calendar days upon receipt of invoices for approved, contract work. Furthermore, within ten (10) calendar days after receiving payment from the City for approved subcontract work, Consultant shall pay subcontractors for their work.
SECTION 4. Termination of Professional Services Agreement. The City may terminate this Agreement at any time, for convenience or for cause, with prior written consent of KDOT, upon ten (10) days written Notice to the other party. In the event that the City terminates the Agreement for convenience, then it shall pay Consultant for Contract Services satisfactorily performed by Consultant and for all associated expenses incurred therewith prior to the termination. Under no circumstance, in the event of termination of this Professional Services Agreement, will the Consultant be entitled to recover anticipated profits or consequential damages. The provisions regarding indemnity and insurance shall survive any termination of this Professional Services Agreement.
SECTION 5. Reports and Documents.
(a) Property and Possession. All reports, studies, analyses, memoranda, and related data and material, as may be developed during the performance of the Contract Services, shall be submitted to and shall be the exclusive property of the City, which shall have the right to use the same for any purpose without further compensation or liability to Consultant. Consultant may use its own proprietary software for the purposes of generating the data required by this Professional Services Agreement. The parties agree that the City shall retain all rights to the data generated, but that the Consultant shall retain all rights to the proprietary software.
(b) Status of Documents upon Expiration or Termination. If this Professional Service Agreement expires or is terminated for any reason, including cause, all finished or unfinished documents prepared as part of the Contract Services shall immediately be transmitted to the City by Consultant, with the exception of the Consultant’s proprietary software, as noted in Section 5(a).
(c) Confidentiality. Consultant shall not release to any person except the City and its authorized agents any reports or related materials prepared for the City by the Consultant as the Contract Services and maintained confidentially by the City. This Professional Services Agreement, however, does not preclude Consultant from providing any service (whether or not similar in nature to the Contract Services hereunder) in behalf of other clients in the City of Lawrence, Kansas, or elsewhere. All reports and documents prepared, assembled, or compiled by Consultant pursuant to the terms of this Professional Services Agreement are to be considered confidential and Consultant agrees that it will not, without prior written consent of the City, submit or make the same available to any individual, agency, public body, or organization other than the City and its authorized agents, except as may otherwise herein by provided.
SECTION 6. Compliance with Equal Opportunity Laws, Regulations, and Rules
(a) Consultant agrees that it shall comply with all provisions of the Kansas Acts Against Discrimination of 1953 (“KAAD”), codified as amended at K.S.A. 44-1001 et seq., and the Kansas Age Discrimination in Employment Act of 1983 (“KADEA”), codified as amended at K.S.A. 44-1111 et seq. and shall not discriminate against any person, in the course of performing under this Professional Services Agreement, because of that person’s race, religion, sex, disability, national origin, ancestry, sexual orientation, familial status, or age.
(b) In all solicitations or advertisements for employees, Consultant shall include the phrase “equal opportunity employer,” or a similar phrase to be approved by the Kansas Human Rights Commission (“KHRC”).
(c) If Consultant fails to comply with the manner in which Consultant reports to the KHRC in accordance with the provisions of K.S.A. 44-1031 and any amendment thereto, Consultant shall be deemed to have breached the present Professional Services Agreement and the City shall, in accordance with Section 4, have the right to cancel, terminate, or suspend the terms of this Professional Services Agreement, either in whole or in part.
(d) If Consultant is found guilty or liable for any violation of the KAAD or the KADEA by way of a final decision or order of the KHRC, then Consultant shall be deemed to have breached the present Professional Services Agreement and the City shall, in accordance with Section 4, have the right to cancel, terminate, or suspend the terms of this Professional Services Agreement, either in whole or in part.
(e) In any subcontract, to which the City consents in accordance with Section 2(b) of this Professional Services Agreement, Consultant agrees to include the language of Sections 6(a) through 6(d) and agrees to make such language applicable to any subcontractor hereunder.
(f) Consultant also agrees to comply with the American with Disabilities Act of 1990 (“ADA”), codified as amended at 42 U.S.C. § 12101 et seq., as well as all other federal, state, and local laws, ordinances, rules, and regulations applicable to this project and to furnish any and all certification that may be required by federal, state, or local governmental agencies in connection therewith. Consultant agreed to comply with all KDOT terms and conditions attached and identified as Special Attachment No. 1.
SECTION 7. Insurance.
(a) General. Consultant shall secure and maintain, throughout the duration of this Professional Services Agreement, Insurance (on an occurrence basis unless otherwise agreed in writing) of such types and in at least such amounts as required herein. Consultant shall provide certificates of insurance and renewals thereof on forms approved by the City. The City shall be notified by receipt of written notice from the insurer at least thirty days prior to material modifications or cancellation of any policy listed on the certificate.
(b) Notice of Claim. Consultant, upon receiving notice of any claim in connection with its performance of Contract Services under this Professional Services Agreement, shall promptly notify the City, providing full details thereof, including an estimate of the amount of loss or liability.
(c) Reduction of Policy Limits. Consultant shall monitor and promptly notify the City of any reduction in limits of protection afforded under any policy listed in the Certificate (or otherwise required by this Professional Services Agreement) if the Consultant’s limits of protection have been impaired or reduced to such extent that the limits fall below the minimum amounts required hereunder. In that event, Consultant shall promptly reinstate the original limits of liability required hereunder and shall furnish evidence thereof to the City.
(d) Insurance Required. Consultant agrees to secure and maintain the following insurance:
(i) Public Liability and Property Damage. Consultant shall maintain insurance protecting against any and all claims and demands arising from injury to person or persons not in the employment of Consultant, and against any and all claims and demands resulting from damage to any property due to any act or omission of the Consultant, its agents or employees, in the operation of the work or the execution of this contract. Such insurance shall remain in effect on portions of the work which have been completed and which may or may not be occupied or utilized by the City prior to the completion and acceptance of all the work included in this Agreement. Minimum limits for Public Liability and Property Damage insurance required are as follows:
(A) Public Liability:
(1) Each Occurrence $500,000
(2) Aggregate $1,000,000
(B) Property Damage:
(1) One Accident $500,000
(2) All Accident $1,000,000
(ii) Contractual Liability Insurance. Consultant shall purchase and maintain contractual liability and property damage insurance which will protect the City against any and all claims that might arise as a result of the operation of the Consultant or its subcontractor or subcontractors, in fulfilling this Professional Services Agreement.
(iii) Employer’s Liability and Worker’s Compensation. The Consultant shall secure and maintain employer’s liability and worker’s compensation insurance in an amount that is in conformity and compliance with the statutory requirements and the laws of the State of Kansas. In case any class of employees is not protected under the Worker’s Compensation statute, Consultant shall provide and shall cause each subcontractor to provide, adequate employer’s liability coverage that will protect them against any claims resulting from injuries to and death of workers engaged in work under this Professional Services Agreement.
(iv) Contractor’s Contingent or Protective Liability and Property Damage. In case part of this Professional Service Agreement is subcontracted, the Consultant shall secure contingent or protective liability and property damage insurance to protect it from any and all claims arising from the operations of its subcontractors in the execution of work included in this contract. The coverage in each case shall be acceptable to the City and the City shall be named in such policies as an additional insured.
(v) Automobile Public Liability and Property Damage. Consultant shall maintain automobile public liability insurance in the amount of not less than $500,000 for injury to one person and $1,000,000 for one accident; and automobile property damage insurance in the amount of not less than $1,000,000 for one accident to protect them from any and all claims arising from the use of the following in the execution of work included in this contract:
(A) Consultant’s own automobiles and trucks
(B) Hired automobiles and trucks
(C) Automobiles and trucks not owned by Consultant.
Such insurance shall cover the use of automobiles and trucks both on and off the site of the project.
(e) Insurance Ratings. For the purposes of this Professional Services, Agreement, the City will only accept coverage from an insurance carrier that offers proof:
(i) (A) that it is licensed to do business in the State of Kansas;
(B) that it carries a Best’s policyholder rating of A- or better; and
(C) that it carries at least a Class VIII financial rating. OR
(ii) that it is a company mutually agreed upon by the City and Consultant.
(f) Certificate of Insurance Forms. The parties agree that certification of insurance coverage under this Professional Services Agreement shall be on the City’s standard Certificate of Insurance Form or on other forms acceptable to the City.
SECTION 8. Indemnification. Consultant agrees to defend, indemnify, and otherwise hold harmless the City, its commissioners, officers, employees, and agents from claims, actions, damages, costs, liabilities, settlements, judgments, expenses, or lawsuits, including reasonable attorneys’ fees, but only to the extent that such are caused by Consultant’s non-performance under this Professional Services Agreement or by Consultant’s negligence in performing any action necessary for the performance under this Professional Services Agreement. (For the purposes of this Section, Consultant means Consultant or any person acting in behalf of Consultant or for whom Consultant is responsible). Neither party shall be liable to the other party for incidental, indirect, special, or consequential damages.
SECTION 9. Quality Assurance. Consultant agrees that it shall perform its work and services under this Professional Services Agreement in accordance with recognized professional standards prevalent in the field of Regional Intelligent Transportation Systems (ITS) Architecture Updates. Further, Consultant agrees that it shall perform its work and service under this Professional Services Agreement with professional expertise, skills, and knowledge of proficient industry procedures and techniques in all relevant subject matters. Consultant agrees that, accordingly, it shall be capable of performing the necessary consulting and other services required by the City and possesses the ready comprehension of the required subject matter and the expertise to provide citizen participation and transportation planning for the City. Consultant's liability to the City for any non-conforming Services shall be to re-perform the non-conforming or defective Services, written notice of which must be given within a reasonable time by the City to Consultant. Consultant's obligation for re-performance of non-conforming Services, as described in the preceding sentence, shall extend for a term commencing at the substantial completion of such Services under a Work Authorization and ending one year later.
SECTION 10. Entire Agreement.
(a) This Professional Services Agreement, including Attachments A-B, and Appendices A–E, represent the entire and integrated agreement between the City and Consultant and supersedes all prior negotiations, representations, or agreements between the parties, whether written or oral. This Professional Services Agreement may be amended only by a written instrument signed by both the City and the Consultant. Written and signed amendments shall automatically become a part of this Professional Services Agreement and shall supersede any inconsistent provision herein; provided, however, that any apparent inconsistency shall be resolved, if possible, by construing the provisions as mutually complementary and supplementary.
(b) No oral orders, objections, claims, or notices by any party to the other shall affect or modify any of the terms or obligations set forth in this Professional Services Agreement; and none of its provisions shall be deemed waived or modified by reason of any act whatsoever, other than by a definitely agreed waiver, modification, or amendment made in writing and signed by both parties. No evidence of notice, waiver modification, or amendment, other than evidence of such in writing, shall be introduced as evidence at any proceeding, either legal or administrative.
SECTION 11. Assignment. This Professional Services Agreement is non-assignable by the Consultant and any subcontractor of Consultant approved by the City in accordance with Section 2(b).
SECTION 12. Notices. All notices, demands, or other communications, which may be or are required to be given by any party to any other party under this Professional Services Agreement, shall be in writing and shall be hand-delivered, mailed by first class mail, registered or certified mail, return receipt requested, postage prepaid, or sent by overnight express mail, postage prepaid, return receipt requested, to the following:
(a) If to Consultant:
Iteris, Inc.
1700 Carnegie Avenue, Suite 100
Santa Ana, CA 92705
Attn: Dan Gilliam, Vice President Contracts
(b) If to the City:
City of Lawrence, Kansas
6 East 6th Street
P. O. Box 708
Lawrence, Kansas 66044
Attn: David L. Corliss, City Manager
Copy to: Todd Girdler, Senior Transportation Planner
SECTION 13. Authorizations. Each person executing this Professional Services Agreement in behalf of the City and Consultant hereby represents and warrants that he or she has the authority to bind his or her respective party hereto and that all acts requisite to confer authorization to enter into this Professional Services Agreement have been taken and completed.
SECTION 14. Independent Contractor. In no event, while performing under this Professional Services Agreement, shall Consultant be deemed to be acting as an employee of the City; rather, Consultant shall be deemed to be an independent contractor. Nothing expressed herein or implied herein shall be construed as creating between Consultant and the City the relationships of employer and employee, principal and agent, a partnership, or a joint venture.
SECTION 15. Kansas Cash-Basis Law. This Professional Services Agreement must comply with the applicable provisions of the Kansas Cash-Basis Law of 1933, codified as amended at K.S.A. 10-1101 et seq. The City, in its own behalf or in behalf of the MPO, is obligated only to make payments under this Professional Services Agreement as may be lawfully made from funds budgeted and appropriated for the purposes set forth in this Professional Services Agreement during the City’s current budget year. In the event that the City does not so budget and appropriate funds, the parties acknowledge and agree that they shall be relieved of all obligations under this Professional Services Agreement without penalty. To the extent that the City does so budget and appropriate funds for the purposes set forth in this Agreement, the obligations of the parties shall remain as provided herein.
SECTION 16. Conflict of Interest. Consultant is currently unaware of any conflict of interest with any party affected by this Professional Services Agreement and agrees that, if any conflict or potential conflict of interest should arise in the future, it will give notice to the City immediately.
SECTION 17. Legal Action. The parties agree that the appropriate venues for any legal actions arising out of this Professional Services Agreement are the District Court of Douglas County, Kansas, or, if federal jurisdiction exists, the United States District Court for the District of Kansas.
SECTION 18. Force Majeure. Neither party shall be deemed to be at default under this Professional Services Agreement to the extent that any delay in performance results from any cause beyond its reasonable control and without its intentional act or negligence.
SECTION 19. Captions. The Captions of this Professional Services Agreement are for convenience only and are not meant by the parties to define, limit, or enlarge the scope of this Professional Services Agreement or its terms.
SECTION 20. Recitals. The recitals set forth at the beginning of this Professional Services Agreement are adopted and incorporated herein by reference as if set forth in full and shall be effective as if repeated verbatim.
SECTION 21. Attachments. All attachments to this Professional Services Agreement are incorporated herein by reference and shall be considered to be a part of this Agreement as if set forth herein in full.
SECTION 22. Governing Law. This Professional Services Agreement, the rights and obligations of the parties, and any claim or dispute arising hereunder shall be construed in accordance with the laws of the State of Kansas.
SECTION 23. Severability. In the event that any provision of this Professional Services Agreement shall be held invalid and unenforceable, the remaining portions of this contract shall remain valid and binding upon the parties.
SIGNATURE PAGES FOLLOW
IN WITNESS WHEREOF, the undersigned have caused this Professional Services Agreement to be executed as of the date noted above.
CITY: City of Lawrence, Kansas, a municipal corporation
________________________________
DAVID L. CORLISS
City Manager
ACKNOWLEDGMENT
THE STATE OF KANSAS )
) ss:
THE COUNTY OF DOUGLAS )
BE IT REMEMBERED, that on this ____ day of ___________, 2014, before me the undersigned, a notary public in and for the County and State aforesaid, came David L. Corliss, as City Manager of the City of Lawrence, Kansas, who is personally known to me to be the same person who executed this instrument in writing, and said person fully acknowledged this instrument to be the act and deed of the aforementioned entity.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last written above.
________________________________
Notary Public
My Appointment Expires:
CONSULTANT: Iteris, Inc. a Delaware Corporation
________________________________
________________________________
ACKNOWLEDGMENT
THE STATE OF ______________ )
) ss:
THE COUNTY OF ____________ )
BE IT REMEMBERED, that on this ____ day of ____________, 2014, before me the undersigned, a notary public in and for the County and State aforesaid, came _______________________, as ________________of Iteris, Inc. who is personally known to me to be the same person who executed this instrument in writing, and said person fully acknowledged this instrument to be the act and deed of the aforementioned entity.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last written above.
________________________________
Notary Public
My Appointment Expires: