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
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City Manager
Associated mfermtiejq
Budget Approved:
Finance Director
Legal Approvals
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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
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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.
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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,
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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.
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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.
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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