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HomeMy WebLinkAbout1998-12-28 99-49 ORDERCOUNCIL ACTION Date, Deeemsa. 28, 1990 Item No. 9939 Ilea/Subject: Authodaiug Contract for Protessiontt Services- Waterfront Consultant- Hunter Interests foe Responsible Department: Community 5 Economic Development Cassursentary: The Council Order would authorize a contract for professional services with Hunter Interests Inc.to provide waterfront planning, design and development _R p"artmen Head Nmager`a Comments: cj-`, 1ivA bLtux a , pit ttu: xp,�—Q'Ai'�P etaasa c6ri.Ylbf-Xp' U V 77 City Manager Associated mfermtiejq Budget Approved: Finance Director Legal Approvals t- � olid[ iU latroduced For .I!�-Paeeage O First Reading ❑ Referral Page�Of_.L Assigned to CoumNm Aube December 28, 1998 //gy�pp CITY OF BANGOR (TITLEss1Y ) rlbgrs..._._Authorising Contract for Professional Services - Waterfront Contaminant - Hunter Interests Inc. By W My fiouaeil of W Caw of Basins: ORDERED, TBAT the City Manager is hereby authori d, on behalf ofthe City of Bangor, to execute contract her professional services with Hunter Interests Inc. to provide the waterfront planning and design services requested in the City's October 1998 Request for Proposals for Waterfront Planning and Design Services- Penobscot Riverfront Development Plan, and proposed by Hunter Interests Inc. in its November 26,1998 response to the City's Request for Proposals, under terms and conditions substantially similar to those contained in the "Contract for Professional Services" attached hereto, and in a final form approved by the City Solicitor or Assistant City Solicitor. IH CITY COUNCIL December 28, 1998 Motion to Amend by Substitution of Agreement Mede a Seconded Passed As Amended by Substitution of Agreement CI UbM 99-69 ORDER Title, Authotisfag Contract for Pro- fessiuwl Services - Waterfront Consul taut - Hunter Interests Sow. ............ I ......................... Cowcilsen AMENDNIENT TO CONTRACT FOR PROFESSIONAL SERVICES This AMENDMENT TO CONTRACT FOR PROFESSIONAL SERVICES amends the Contract forProf 'owl Services dated December g9,199%, by and between the CITY OF BANGOR a body politic in the Share ofMaine tereiwfta"CITTT, and H INTER INTERESTS, INC., a coryoaden with offices in Annapolis, Maryland (hereinafter "CONSULTANT); For consideration paid meet expressly acknowledged by the CITY and CONSULTANT, the parties herebyagfee to substitute paragraph 1, Services, oftbe Contract for Professional Serum (Agreemmt)wit to following; 1. Services CONSULTANT agrees to provide the personnel, supplies, equipment and labor necessary to perform Services as outlined in CONSULTANT'S Propoml atachN hereto es Exhibit A and made pan of this Agreemeat and the CTTV'9 Request For Proposals attazM1N hereto M Exhibit B and trade pan oft hA®earmt To to extent that any terms or provisions of this Agreement are inconsistent wit any tenter or provisions of Exhibit A or Exhibit B, Nis Agreement contact. N addition 0 the services ouhhu tl Is Exhibit A and Exhibit B, to CONSULTANT shell include in its prelir ary plans and guidelines he public in5astructrue and Facilities an evaluation of to potential for integrating inmrmodal transportation facilities and connections (including maria, rail, park and ride, and pedestrian) into the waterfront development. The terms and provisions of Exhibit A end Exhibit Bare not affected by this Amendment and remain in full force and effect. M WITNESS WHEREOF, to ponies hereto haveA ed dJsTO CONTRACT FOR PROFESSIONAL SERVICES to be executed this N.day of A&W 1999. ess CITY OF BANGOR By: Edward A. Barren Its: City Manager WR S S,M . By: Dowld Hunter Its: President 99-49 CONTRACT FOR PROFESSIONAL SERVICES This AGREEMENT made this_ day of 199_, by and between the CITY OF BANGOR, a body polific in the State of Mone (hereinafter the "CITY"), and HUNTER INTERESTS EJC. a corporation with offices in Annapolis. Maryland (hereinafter the "CONSULTANT"). WITNESSETH' WHEREAS, the CITY requires the performance of a waterfront strategic redevelopment study: and WHEREAS, the CITY reluestM a Request for Proposals from vatious firms and organization; that provide such services, and WHEREAS, the CONSULTANT submitted its Proposal dated November 24, 1998 (hereinafter the "CONSULTANT'S PROPOSAL" ); and WHEREAS, the CITY has determined that CONSULTANTS PROPOSAL best meets the requirements of the City of Bangor, NOW, THEREFORE, the parties do hereby agree as follows: 1. SERVICES CONSULTANT agrees to provide the personnel, supplies, equipment and labor necessary to perform Services as outlined in CONSULTANT's Proposal attached hereon as Exhibit A and made a part of this Agreement and the CITY's Request For Proposals attached hereto as Exhibit B and made a pan of this Agreanent To the a lent that any temps or provisions of this Agseemem are inconsistent with arty terms or provisions of Exhibit A or Exhibit B this Agreement controls. CONSULTANT accepts the relationship of frost and confidence established between hself and the CITY by this AGREEMENT and agrees to perform the services hereunder in an expeditious and economical counter consistent with the irawous ofthe CITY. 3, QUALITY OF SERVICH CONSULTANT shall perform its services with cue, skill, and diligence, in accordance with the applicable professional standards corremly recognize] by sech prolession and the terms W and conditions of this Agreement. CONSULTANT shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in performing its services. Upon delivery of a final report by CONSULTANT to CITY, the CTTY shell within fifteen (15) business days notify CONSULTANT in writing of any material errors or deficiencies or such report shall be deemed to be accepted by CITY. If CONSULTANT is notified within fiRcen (15) days of the defivery of the report of any material ertors or deficiencies, CONSULTANT shall without additional compensation correct or revise any such errors or deficiencies in its reports. CONSULTANT represents that it has, or will secure at its own expense, all personnel required in performing its services under this AGREEMENT. Such persomld shall not be offices or employees of the CITY, or have my contractual relationship with the CITY. The CONSULTANT further agrees that consistent with its status as an independent CONSULTANT, that its personnel will not hold themselves out to be, or claim to be, officers or employees of the CITY by reason of this AGREEMENT. The CONSULTANT further agrees that Donald Hunter, President of Hunter Interests, Inc. shall be the primary contact person and shall be present at all public presentations and discussions. The CONSULTANT farther agrees that one or more of the principals of the Waterfront Center shall be present at au public presentations or discussions of the tasks W which they are assigned. The CITY shall assign an authoti ed representative, who shall act as the CITY representative in all dealings with the CONSULTANT for the Project. CONSULTANTS performance hereunder shall be done in accordance with the terms and conditions of the Agreement. 6. CITY RESPONSMILTTY CITY agrees to Runtish or provide access to CONSULTANT any intermit on or material in its possession which is relevant to CONSULTANT'S performance hereunder and CITY's staff will cooperate with CONSULTANT. CONSULTANT will not, without the CITYs written consent, disclose, or perms disclosure, by any officer, employee, agent, or subcontractor of CONSULTANT, of a" information or material furnished or generated under this AGREEP(ENT. 7, PERFORMANCE CONSULTANT agrees to perform within four months of the execution of this contact barring no uMoreseea difficulties in accordance with CONSULTANT'S PROPOSAL. CITY agrees to cooperate in helping to implement arty, timeframe established. In the event of delay for reasons beyond its control and not its fault, CONSULTANT may request necessary adjustments to said timefisme. The CITY representative may approve any adjustments and said approval will not be unreasonably withheld. The CONSULTANT's schedule is, of course, dependent on the CITY's representatives and other parties availability for interviews and discussions, receipt of material requested, and review time for approval of the final report. CITY agrees to a seven day response time for requests for meetings, documerds, and for approval of the foal report. 8. COMPENSATION Tice CRY agrees to pay CONSULTANT for the Services and reimbursable expenses hereunder according to the Schedule of Professional Fees and Expenses contained in the E bit B in an amount not to exceed $150,000, consisting of an amount not to exceed $125,00 in professional fees for Phases I through IV, as presented in Exhibit A and estimated reimbursable expenses of $25,000, without prior written approval of CITY . It is expressly agreed that the CITY shall receive all statements or bills for services provided under this AGREEMENT, and shall and does guarantee full payment of the same to the CONSULTANT, provided that in no case shall the total payments for the Services required for this project exceed its established budget without the express written approval of the CITY. In addition, a retainer of $15,000 is payable prior to the CONSULTANT commencing work on this assignment which will be applied to the final professional fees incurred. Said statement or bills for services shell be send to the CITY monthly and shall contain an itemization of time by task and cost per task on an hourly basis. The CONSULTANT expects this engagement to be successfully completed. In the event however, that a decision not to proceed with any phase of the workplan occur prior to full complation ofthe scope of services sM forth in Exhibit A, the CONSULTANT's fees will be pro- rated based upon the percentage of the completion. 9. PAYMENT TERMS The CONSULTANT will submit invoices for payment at monthly intervals. Payment for services will be due upon receipt of invoice. An interest charge of two percent over the prevailing Nations Bank prime interest rete shall accrue on any balance not received 30 days following receipt of invoice. Failure of the CITY to pay, within 45 days from the data posted, any invoice shall grant the CONSULTANT the right, in addition to any and all other rights provided, to refuse to render services to CITY and such act or acts shall not be deemed a breach of this agreement. 1Ita141GI d:i.9all Za19Iloilo IIT, 1Avgi9 All reports, memoranda, and documents or other material to be developed by CONSULTANT and delivered to the CITY under this Agreement shall be the property of the CITY intended solely for their intemal use with the understanding that the Freedom of Information and Protection of Privacy Act may impact the distribution of reports and will not be relied upon for any other purposes, or by any other person or entity. The aforementioned materials will be promptly delivered to the CITY upon request. All data, internal reports, me noranda. and notes, calculation estimates and any other internal documents used to prepare the documents and memoranda submitted to the CITY shall be deemed the CONSULTANT "work papers", and as such the "work papers" will remain property of me CONSULTANT generating that material. CONSULTANT shag be responsible for the protection and/or replacement of any materiels provided to CONSULTANT by the CITY. Reasonable use of arty such documents by the CITY or the general public shall not be subject to a claim for infringement of my copyrights claimed by the CONSULTANT N such documents. Neither the CONSULTANr's presentation material nor the CONSULTANT's report, nor any reference to the CONSULTANT, may be included or quoted in any offering circular or registration statement prospectus, sales brochure, appraisal, loan or other agreement or documem. 11. CONFIDENTIALITY CONSULTANT will use Is diswetion where specific identification of any PROJECT of the CITY might be involved in obtaining research data and wil not disclose any confidential iN'omation. CONSULTANT, however, will retain working papers, related data and anslysla and copies ofthe reports. Cordidemial information shall not include inflomation that. a was previously known to CONSULTANT; b. is or becomes generally available without fault of CONSULTANT; c is rightfully disclosed to CONSULTANT by a thud party without restriction of confidentiality; d. is developed by CONSULTANT independent of this Agreement and without reference to any confidential information; e. is disclosed by CONSULTANT pursuant to a validly issued wort order, subpoena, or process, provided, however, that promptly upon receiving such order, subpoera, or process, CONSULTANT shall notify CITY so that it may have an opportunity to object. 12 INDEMNR4CATION VAIVER The CONSULTANT hereby expressly agrees that it will defend, indemnify and hold the CITY harmless from any and all claims for wages or taxes made or asserted by CONSULTANT's agents, servants or employees arising out of CONSULTANT's activities under this AGREEhlENT. The CONSULTANT shall indemnify, defend and hold harmless the CITY from and against all third party claims and actions, and all directly resulting reasonable expenses incidental to such claims or actions, incurred by the CITY, for damage to tangible property or bodily injuries or death to persons, to the extort directly and proximately caused by the negligence or willful 99-49 misconduct of the CONSULTANT in the performance of services herauder. For this propose N IILTANT hereby eirresslywaives any and all immunity it now have under Maine's Workers Compensation Act in resard to such claims made or asserted by CONSULTANT's a¢rnts servants oremploveea. The indemnification provided under this paragraph shell extend to and include any and all costs incurred by the CITY to answer, investigate, defend and settle all such claims, including but not limited to the CITYs costs for attomeys fees, expert and other witness fees, the cost of investigators, and payment in fug of any and all judgments rendered in favor of CONSULTANT's agents, servants or employees against the City in regard to claims made or asserted by such agents, servants or employees. CITY agrees to irrevocably waive and relimquisb any claim against CONSULTANT, its partners, principals and employees that it may at arty, time now or in rhe frrmre possess against CONSULTANT, it partners, principal and employed as a result of receipt ami use of CONSULTANT's report except to the extern that it is demounted by a court of competent jurisdiction than the CONSULTANT's conduct in issuing, or preparing to issuq its report was grossly negligent of fraudulent and [lust such conduct was the proximate cause of mry damage or injury for which the CONSULTANT is sought to be held liable. CITY agrees to indemnify CONSULTANT for any loss directly attributable to CITY's negligence. 13. INSURANCE CONSULTANT will procure and maintain Public Liability Insurance coverage and Automobile Insurance coverage in amounts not less than Three Hundred Thousand Dollars ($300,000) combined single limit for bodily injury, death, and property damage, and also Worker's Compensation Insurance coverage N the statutory amount. The CITY shall be named as an additional insured, to the extent its interest may appear, on all such policies of insurance CONSULTANT shag furnish and thereafter maintain certificates evidencing such coverage which certificates shell guarantee thirty (30) days notice to CITY of termination of insurance from insurance company or agent. 14. SUBCONTRACTOR None of the services covered by this AGRBEhfBNi shall be subcontracted without the prior written consent of the CITY which said consent shall not be unreasonably withheld. If specialists or subcontractors are reyuired to complete the services hereunder, CONSULTANT shall propose such utilization for review and approval of the CITY. CONSULTANT is and shall remain fully responsible for performance of ell services hereunder. 15. TERMINATION A. For Cause. If CONSULTANT or CITY this to falfig its material obligations under this AGREEk[ENT in a timely and proper manner, or violates any, of the material covenants of this AGREEh1ENT, CITY or CONSULTANT shag thereupon have the right w terminate this ACrREEMENf immediately by giving written notice to the other party of rumination. In such 99-69 evert, all documents, studies and reports prepared by or for CONSULTANT under this AGREEhfENT shall become the C=S property subject to the conditions of the CONSULTANT's work as presented in Exhibit A and CONSULTANf's right to retain its workpapers and CONSULTANT shall be entitled to receive compensation for work completed on such documents. Notwithstarding the foregoing, CONSULTANT shall not be relieved of liability to the CITY for any damages sustained by CITY by virtue of now branch of this AGREEhdENT by the CONSULTANT, and the CITY may withhold any payments to the CONSULTANT for the purpose of sit -off until such time as the exact amount of damages due ted CITY from the CONSULTANT are determined. B. For Convenience. The CITY may terminme this AGREEMENT many time by written nice to CONSULTANT, said notice to specify the effective date of said termination. CONSULTANT shall be compensated for all services performed hereunder as of the data of termination.. in. NOASSIGNLIENT CONSULTANT shall not assign, sublet, sell, transfer or otherwise dispose of its interest in this AGREEMENT without the prior written approval of the CITY which shall not be unreasonably withheld. This AGREEMENT shall be binding upon and inure to the benefit of the parties bereto, their successors and permitted assigns. 17. SEPARATE CONTRACTS The CITY may order into other Agreements in comiscion with issues relative to the waterfront redevelopment. CONSULTANT shall cooperate, and schedule and coordinate performance of the work with the work of any separate consultants or contractors; so as not to delay or interfere with their work, or with timely completion of that services to the extent aclumble.. 18. NONWAIVER Except as expressly provided in this AGREEWNT, the Mum or waiver, or successive failures or waivers on the pan of either party hereto, in the entoroemeat of mty Condition Covenant, or Section shall not render the same invalid, nor impair the right of either party hereto, their successors m permitted assigns, to enforce the same in the event of any subsequent breach thereof 19. NOTICES All notices required or permitted under this AGREEMENT shall be in writing and shall be doomed sufficiently served if sent by First Class Mail addressed as follows, or such other address as they may designate nt writing from time to time: TO CITY: To CONSULTANT: FAwaN A. Homan, City Manager Nnald Hester GtyofHangor Hmaer lmerrsu, lvc. 93 Harlow Snarl 121 Man Soma Bavga, Maim MA01 Nmgalis, Maryland 21401 20. DISPUTES Any disputes arising out of or in the course of this AGREEMENT which are not settled by mutual agreement of the parties most be settled by mediation or submitted to arbitration in accordance with the rules of the American Arbitration Association. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of Maine. 21. COMFLIANCEWITHLAW CONSULTANT shell comply with all applicable federal, site and local minutes, ordinances and regulations in its performance hereunder. CONSULTANT agrees to amend this AGREEMENT, ifneceseary, to comply with such taw or regulations. 22. EXTENT AND MODIFICATION OF AGREEMENT This AG�NT, with its Exhibits, represents the entire and integrated AGREEMENT between the CITY and CONSULTANT and supersedes and replaces all nems and conditions of any prior AChREESIENTS, arrangements, negotiations, or representatives, written or oral with respect to this AGREEMENT. This AGREEMENT may only be modified by written agreement of the parties. 25. CHANMS A. The CITY may, at any time, raluest CONSULTANT m make changes within the scope of an established project that may increase the budget for the CONSULTANTS fees The parties shall mutually agree on all changes in scope and fees by amending a written change order. CONSULTANT shall perform the change or extra work only after receipt of a change order (executed by both partiest to the purchase order for the CONSULTANTS services in connection with the project. B. The CITY will not be liable for any costs incurred by CONSULTANT from performance of a change of extra work prior to issuance of a change order to the purchase order unless expressly autharized in writing. 24, EXPENSES The CONSULTANT will be reimbursed for sexual out-of-pocket expenses incurred in wnjunction with the performance of service as provided in CONSULTANT'S PROPOSAL. All requests for expense reimbursements shall be documented. 25. COST RECORDS AND ACCOUNT NG FOR ADDITIONAL SERVICES CONSULTANT shall keep accounts, books and other records of all its billable charges incurred in performing services to the CITY and shall theorize and submit its billings to the CITY in such a mamer as the CITY may reasonably direct. If no such direction is given, CONSULTANT shall maintain books and accounts of chargeable costs in accordanw with generally accepted accounting practices consistently applied (cash basis), and in such a mourner as to permit verification of all entries made. For three years from final payment under this AGREEMENT, CONSULTANT shall preserve all such books and records, and shall upon five day's written notice make such records available to the CITY for purposes of verifying the costs chargeable under the AGREEMENT. 26. AUTHORCCYTOENTERINTOAGREEMENT Tice parties hereby represent and warrant that they have taken all necessary, procedural and legal steps as required under all state, local and federal laws and regulations Ter the purpose of authorizing the execution of this Agr�neM, and that the execution of this Agreement by Edward A. Barrett, City of Bangor City Manager, and Donald Hums, President of Hunter rmerest Inc., respectively, renders this Agreement a valid and binding document on their respective parts. IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed on the day and year first written above. CITY OF BANGOR By Witness Edward A Barrett City Manager HUNTER INTERESTS INC. By Witness Donald Hunter President [Int eap® MEMORANDUM To: Bangor City Council From: Norman S. Heitmann III, Asst. City Solicitor Ile: City of Bangor/ Hunter Interests Inc /waterfront strategic development study Date: December 23, 1998 Attached is a draft of the proposed Contract for professional Services between the City of Bangor and Hunter Interests Inc, Amoy was faxedthis dateto DorWd Hunter, president of Hunter Interests Inc. for his comments. It will be on the December 28, 1998 City Council agenda. The Contract provides that the Consultant shall comply with the terms of the City's RFP and the Consultant's Proposal. They will be attached as exhibits. It also requires that Mr. Hunter be the primary contact person and that he attend all public presentations and discussions. In addition, it provides that at least one of the principals of the Waterford Center attend any public presentation or discussion regarding the tasks to which they are assigned. liven the City's budget concerns, the Contract provides that the City shall receive monthly statements which shall include an itemization of time by task and costs per task on an hourly basis. When we reach billings of 5100,000, the City and the Consultant shall review the status of the work and the City has the right to decide whether any Rather work is necessary and, if not, terminate the Contract. Finally, it provides that the Consultant shall complete its work within four months. We hope to be able to start the first week of January and conclude b he and of April. I NSH pc: Edward A, Barrett, City Manager Rodney McKay, Director of Community and Economic Development D ° a aJ CONTRACT FOR PROFESSIONAL SERVICES This AGREEMENT made this _ day of 199 by and between the CITY OF BANGOR, a body politic in the State of Maine (hereinafter the "CITY"), and HUNTER INTERESTS INC. a corporation with offices in Annapolis, Maryland (hereinafter the "CONSULTANT'). WITNESSETH: WHEREAS, the CITY issued a Request for Proposals seeking a qualified waterfinnt planning and design consultant to assist the CITY in the preparation of a strategic redevelopment plan for its rlverfront area; and WHEREAS, in response to the Request for Proposals, the CONSULTANT submitted its Proposal dated November 24, 1998 (hereinafter the "CONSULTANDS PROPOSAL"); and WHEREAS, the CITY has determined that CONSULTANT'S PROPOSAL best meets the requirements of the City of Bangor, NOW, THEREFORE, the parties do hereby agree as follows: 1.ES RVICES CONSULTANT agrees to provide the Personnel, supplies, equipment and labor necessary to perform Services as outlined in CONSULTANTS Proposal attached hereto as Exhibit A and made a part of this Agreement and the CITY's Request For Proposals attached hereto as Exhibit B and made a part of this Agreement. To the extent that a" terms or provisions of this Agreement are inconsistent with any terms or provisions of Exhibit A or Exhibit B this Agreement controls. CONSULTANT areepts the relationship of trust and confidence established between itself and the CITY by this AGREEMENT and agrees to perform the services hereunder in an expeditious and economical manner consistent with the interests of the CITY. 3, QUALITY OF SERVICE CONSULTANT shall perform its services with care, skill, and diligence, in accordance with the applicable professional standards currently recognized by such profession and the terms and conditions of this Agreement. CONSULTANT shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in performing its services. Upon delivery of a ° 0°F final report by CONSULTANT to CITY, the CITY shall within fifteen (15) busins ss days notify CONSULTANT in writing of my material errors or deficiencies or such report shall be deemed to be accepted by CITY. If CONSULTANT is notified within fifteen (15) days of the delivery of the report of my material errors or deficiencies, CONSULTANT shall without additional compensation correct or revise any such errors or deficiencies in its reports. CONSULTANT represents that it has, or will secure at its own expense, all personnel required in perfuming its services under this AGREEhfENT. Such personnel shall not be officers or employees of the CITY, or have any contractual relationship with the CIN. The CONSULTANT further agrees that consistent with its status as an independent CONSULTANT, that its personnel will not hold themselves out to be, or claim to be, officers; or employees ofthe CITY by reason of this AGREEMENT. The CONSULTANT further agrees that Donald Hunter, President of Hunter Interests, Inc. shall be the primary contact person and shall be present at all public presentations and discussions. The CONSULTANT further agrees that one or more of the principals of the Waterfront Center shall be present at all public presentations or discussions of the tasks to which they are assigned. 5. CITY REPRESENTATIVE The CITY shall assign an authorized Project Manager, who shall act as the CITY representative in all dealings with the CONSULTANT for the project. CONSULTANT'S performance hereunder shall be done in accordance with the terms and conditions of the Agreement. 6. CITY RESPONSIBILITY CITY agrees to furnish or provide access to CONSULTANT any information or material in its possession which is relevant to CONSULTANT'S performance hereunder and CITYS staff will cooperate with CONSULTANT. CONSULTANT will not without the CITYs written consent, disclose, or pennit disclosure, by any officer, employee, agent or subcontractor of CONSULTANT, of tory information or material furnished or generated under flus AGREEh@NT. T. PERFORMANCE CONSULTANT agrees to perfecto within four months of the execution of this contract boning no unforeseen difficulties in accordance with CONSULTANT'S PROPOSAL. CITY agrees to cooperate in helping to implement any timefiame established. In the event of delay for reasons beyond its control and not its fault CONSULTANT may request necessary adjustments ut�j to said timeframe. The CITY representative may approve any adjustments and said approval will not be unreasonably withheld. The CONSULTANT's schedule is, of worse, dependent on the CITY's representatives and other parties availability for interviews and discussions, receipt of material requested, and review time for approval of the final report. CITY agrees to a seven day response time for requests for meetings, documents, and for approval of the final report. 8. COMPENSATION The CITY agrees to pay CONSULTANT for the Services and reimbursable expenses hereunder according to the Schedule of Professional Fees and Expenses contained in the Exhibit B in an amount not to exceed $150,000, consisting of an amount not to exceed $125,00 in professional fees for Phases I through IV, as presented in Exhibit A and estimated reimburmbie expenses of $25,000, without prior written approval of CITY . It is expressly agreed that the CITY shall receive all statements or bills for services provided under this AGREEMENT, and shall and does guarantee full payment of the same to the CONSULTANT, provided that, in no case shall the total payments for the Services required for this project exceed its established budge without the express written approval of the CITY. Said statements or bills for services shall be seat to the CITY monthly and shall contain an itemization of time by task and cost per task on an hourly basis, In addition, a retainer of $15,000 is payable prior to the CONSULTANT commencing work on this assignment, which will be applied to the final professional fees incurred. Upon the billing of $1O ,000 pursuant to the temp of this Agreement. the CITY and the CONSULTANT shall review the status of the parties' performance pursuant to this Agreement. The CITY will at that Cane determine what further work will be required of the CONSULTANT. The CONSULTANT expects this engagement to be successfully completed. In the event, however, that a decision not to proceed with any phase of the workplan occurs prior to Poll completion ofthe scope of services set forth in Exhibit A, the CONSULTANT's fees will be pro- rated based upon the percentage of the completion. 9. PAYMENT TERMS The CONSULTANT will submit invoices for payment at monthly intervals. Payment for services will be due upon receipt of invoice. An interest charge of two percent over the prevailing Nations Bank prime interest rate shall accrue on any balance not received 30 days following receipt ofinvoice. Failure of the CITY to pay, within 45 days from the date posted, any invoice shall grant the CONSULTANT the right, in addition to any and all other rights provided, to refuse to tender services to CITY and such as or acts shall not be deemed a breach of this agreement. �D°4hLj 10. OWNERSHIP OF DOCUNMNTS All reports, memoranda, and documents or other material to be developed by CONSULTANT and delivered to the CITY under this Agreement shall be the property of the CITY intended solely for their internal use with the understanding that the Freedom of Infotmation and Protection of Privacy Act may impact the distribution of reports and will not be relied upon for any other purpose, or by any other person or¢miry. The aforementioned materials will be promptly delivered to the CITY upon request All data, internal reports, memoranda, and notes, calculation estimates and any other internal documents used to prepare the documents and memoranda submitted to the CITY shall be deemed the CONSULTANT "work papers", and as such the "work papers" will remain property of the CONSULTANT generating that material. CONSULTANT shall be responsible for the protection and/or replacement of any materials provided to CONSULTANT by the CITY. Reasonable use of any such documents by the CITY or the general public shall not be subject to a claim for infringement of any copyrights claimed by the CONSULTANT in such documents. Neither the CONSULTANT's presentation material nor the CONSULTANT's report, nor any reference to the CONSULTANT, may be included or quoted in any offering circular or registration statement, prospecros, sales brochure, appraisal, loan or other agreement or document. 11. CONFIDENTIALITY CONSULTANT will use its discretion where specific identification of arty PROJECT of the CITY might be involved in obtaining research data aM will not disclose any confidential infomation. CONSULTANT, however, will team working papers, related data and analyse; and copies ofthe reports. Confidential information shall not include information that: a. was previously known to CONSULTANT; b. is or becomes generally available without fault of CONSULTANT; c. is rightfully disclosed to CONSULTANT by a third party without restriction of confidentiality; d. is developed by CONSULTANT independent of this Agreement and without reference to any confidential information; e. is disclosed by CONSULTANT pursuant to a validly issued wort order, subpoena, or process, provided, however, that promptly upon receiving such order, subpoena, or process, CONSULTANT shall notify CITY w that it may have an opportunity to object. 12. INDENTWIFICATION, WAIVER The CONSULTANT hereby expressly agrees the it will defend indemnify and hold the CITY harmless from any and all claims for wages or taxes made or asserted by CONSULTANTS agents, servants or employees arising out of CONSUL'TANTs activities under this AGREENIENT. The CONSULTANT shall indemnify, defend and hold harmless the CITY from and against 01 third party claims and actions, and all directly resulting reasonable expenses incidental to such ®RAF claims or actions, incurred by the CITY, for damage to tangible property or bodily injuries or death to persons, to the extent directly and proximately caused by the negligence or willful misconduct of the CONSULTANT in the performance of services hereunder. For this purpose CONSULTANT hereby expressly waives any and all immunity it may have under b4aine's Workers Compensation Act in d to such claims madeasserted by CONSULTANTS anents. servants or emplovees. The indemnification provided under this paragraph shall extend to and include any and all costs incurred by the CITY to answer, investigate, defend and settle all such claims, including but not limited to the CITY's costs for attorneys fees, expert and other witness fees, the cost of investigators, and payment in full of any and all judgments rendered in favor of CONSULTANT's agents, servants or employees against the City in regard to claim made or asserted by such agents, servants or employees. CITY agrees to irrevocably waive and relinquish any claim against CONSULTANT, its partners, principals and employees that it may at any time now or in the future possess against CONSULTANT, it partners, principal and employees as a result of receipt and use of CONSULTAN'f's report except to the extent that it is determined by a court of competent jurisdiction that the CONSULTANT's conduct in issuing, or preparing to issue, its report was grossly negligent of fraudulent and that such conduct was the proximate cause of any damage or injury for which the CONSULTANT is sought to be held liable. CITY agrees to indemnify CONSULTANT for any loss directly attributable to CITY's negligence. 13. INSURANCE CONSULTANT will procure and maintain Public Liability Insurance coverage and Automobile Insurance coverage in amounts not less than Three Hundred Thousand Dollars ($300,000) combined single limit for bodily injury, death, and property damage, end also Worker's Compensation Insurance coverage in the statutory amount. The CITY shall be named as an additional insured, to the extent its interest may appear, on all such policies of insurance. CONSULTANT shall furnish and thereafter maintain cmificates evidencing such coverage which certificates shall guarantee thiny (30) days notice to CITY of termination of insurance from insurance company or agent. 14. SUBCONTRACTORS Except as provided for in the CONSULTANT's proposal, none of the services covered by this AGREENIENT shall be subcontracted without the prior written comenl of the CITY which said consent shall not be unreasonably withheld. If specialists or subcontractors are required to complete the services hereunder, CONSULTANT shall propose such utilization for review and approval of the CITY. CONSULTANT is and shall remain fully responsible for performance of all services hereunder. pf'RA►Fl Id. TERMINATION A- For Cause. If CONSULTANT or CITY fails to fulfill its material obligations under this AGREEMENT in a timely and proper summer, or violates any of the material covenants of this AGREEMENT, CRY or CONSULTANT shall thereupon have the right to terminate this AGREEMENT immediately by giving written notice to the other party of temdnation In such event, all documents studies and reports prepared by or for CONSULTANT under this AGREEMENT shall become the CITY'S property subject to the conditions of the CONSULTANT's work as presented in Exhibit A and CONSULTANT's right to Main its workpapers and CONSULTANT shall be entitled to receive compensation for work completed on such documents. Notwithstanding the foregoing, CONSULTANT shall not be relieved of liability to the CITY for any damages sustained by CITY by venue of any breach of this AGREEMENT by the CONSULTANT, and the CITY may withhold any payments to the CONSULTANT for the purpose of set-off until such time as the exact amount of damages due the CITY from the CONSULTANT are detemdned- & For Convenience. The CITY may terminate this AGREEMENT at any time by written notice to CONSULTANT, said notice to specify the effective date of said termination. CONSULTANT shall be compensated for all services performed hereunder as of the date of termination. 16. NO ASSIGNMENT CONSULTANT shall not assign, sublet, sell, transfer or otherwise dispose of its interest in this AGREEMENT without the prior written approval of the CITY which shall not be unreasonably withheld. This AGREEMENT shall be binding upon and more to the benefit of the parties hereto, their successors and permitted assigns. V. SEPARATE CONTRACTS The CITY may enter into other Agreements in connection with issues relative to the waterfront redevelopment CONSULTANT shall cooperate, and schedule and coordinate performance of the work with the work of any separate consultants or contractors so as not to delay or interfere with their work or with timely completion of their services to the extent achievable. 19. NONWAIIIER Except as expressly provided in this AGREEMENT, the failure or waiver, or successive failures or waivers on the part of either party hereto, in the enforcement of any Condifioq Covenant, or Section shall not render the same invalid, nor impair the right of either party hereto, DRAFT their successors or permitted assigns, to enforce the same in the event of any subsequent breach thereof 19. NOTICES All notices required or permitted under this AGREEMENT shall be in writing and shall be deemed sufficiently served if sent by First Class Mad addressed as follows, or such other address as they may designate in writing from time to time: To CITY: To CONSULTANT: Eduard A Escort City Manager Donald Hunter ON of Bangor Hunter lnmrens, Inc. 71 Harlow Smon 121 Main Stood Bangor, Maine 04401 Annapolis, Maryland 21401 20. DISPUTES Any disputes arising out of or in the course oftlus AGREEMENT which are not soiled by mutual agreement of the parties must be settled by mediation or submitted to arbitration in accordance with the rules of the American Arbitration Association. This AGREENENT shall be governed by and construed in accordance with the laws of the State of Maine. 21. COMPLIANCEWITNLAW CONSULTANT shall comply with all applicable federal, nate and local statutes, ordinances and regulations in its performance hereunder. CONSULTANT agrees to amend this AGREEMIEW, if necessary, to comply with such law or regulations. 22. EXTENT AND MODIFICATION OF AGREEMIbW This AGREEM]EW, with its Exhibits, represents the entire and integrated AGREEMEW between the CITY and CONSULTANT and supersedes and replaces all toms and conditions of any prior AGREEMENTS, arrangements, negotiations, or representatives, written or oral with respect to this AGREEAv T. This AGREEMff may only be modified by written agreement of the parties. 23. CF GES A The CITY may, at any time request CONSULTANT to make changes within the scope of an established project that may increase the budget for the CONSULTAW'S fees. The parties shall mutually agree on all changes in scope and fees by ex cuing a written change order. CONSULTANT shall perform the change or a ara work only after receipt of a change order (executed by both parties) to the purchase order for the CONSULTANT'S services in connection with the project. DRAF B. The CITY will not be liable for any costs incurred by CONSULTANT Rom Performance of a change or extra work prior to issuance of a change order to the purchase order unless expressly authorized in writing. 24. EXPENSES The CONSULTANT will be reimbursed for actual outaf-pocket expenses incurred in conjunction with the performance of service as provided in CONSULTANT'S PROPOSAL. All requests for expense reimbursements shall be documented. 25. COST RECORDS AND ACCOUNTING FOR ADDITIONAL SERVICES CONSULTANT shall keep accounts, books and other records of all its billable charges incurred in performing services to the CITY and shall itemize and submit its billings to the CITY in won a mariner as the CITY may reasonably direct. If no such direction is given, CONSULTANT dull maintain books and accounts of chargeable costs in accordance with generally accepted accounting practices consistently applied cash basis), and in such a mmmer as to permit verification of all entries made. For three years Rom final payment under Ws AGREEMENT, CONSULTANT shall preserve all such books and records, and shall upon five day's written notice make such records available to the CITY for purposes of verifying the costs chargeable under the AGBEEIv1ENT. �l#.'TlliiLlP.><iiV i1C4PYiY:il.iYi7.CHTYgStq�Yi The patties hereby represent and warrant that they have taken all necessity, procedural and legal steps as required under all state, load and federal laws and regulations for the purpose of authorizing the execution of this Agreement, and that the execution of this Agreement by Edward A. Barrer, City of Bangor City Manager, and Donald Hunter, President of Hunter Interest Inc., respectively, renders this Agreement a valid and binding document on their respective parts. M WITNESS WHEREOF, the parties hereto have caused this AGREEWNT to be executed on the day and year first written above. CITY OF BANGOR By Witness Edward A Barren City h4anager HUNTER INTERESTS INC. By Witness Donald Hunter President