City Planning/Civil Engineering Consultant Template

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City Planning/Civil Engineering Consultant Template Powered By Docstoc
					This document sets forth a template for an agreement to be entered into between a
consultant and a company for the acquisition of consulting services related to civil
engineering and/or city planning. The draft form anticipates that the company has
already bid for and been accepted to perform work for a city or municipality. The draft
form contains numerous comments and optional language to ensure many common
issues between the parties are addressed.
THIS CONSULTING AGREEMENT ("Agreement") is made and entered into as of
the ___ day of _____, 20__, [Instruction: Insert date.] by and among _____
[Instruction: Insert company name.], a _____ [Instruction: Insert company
formation information.] ("Company"), and _____ [Instruction: Insert consultant’s
name.] ("Consultant").
WHEREAS, Consultant is recognized as _____ [Instruction: Insert area of expertise.];
WHEREAS, the Company desires to retain Consultant to provide services related to and
in support of efforts in which Consultant has expertise; and
WHEREAS, Consultant is in the business of providing such consulting services and
has agreed to provide the services in accordance with the terms and conditions set forth in
this agreement; and

WHEREAS, Company has been hired by the City of _____ [Instruction: Insert city
name and state.] (“City”) to _____ [Instruction: Insert project which Company has
been hired to complete.] (“Project”).
NOW, THEREFORE, in consideration of this Agreement and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
   1. Consultant shall furnish the Company with his best advice, information, judgment
      and knowledge with respect to the services related to and in support of efforts in
      which Consultant has expertise which is to be provided in accordance with this
      Agreement. Specifically, Consultant shall _____. [Comment: Insert specific
      duties Consultant shall have under Agreement.]
   2. Company shall retain Consultant as set forth in this Agreement with respect to
      _____ [Instruction: Insert what Consultant will do for Company.] in
      connection with the Project.
   3. The Consultant will _____ [Instruction: Insert broad details of what
      consultant will do.] Consultant, in its sole discretion, may retain the services of a
      qualified _____ [Instruction: Insert any additional services which Consultant
      may retain to perform services.] firm to assist with or to provide the required
      services. [Comment: Parties should state here who will pay for additional
      required services.]
   4. It is the understanding of the parties that Company has been retained by the City
      in connection with the Project as set forth above [Comment: If details of Project
      must be described in further detail, parties may wish to include same on a
      Schedule to the Agreement, which should be referenced here.] and, to the best
      of Company’s knowledge, has provided Consultant with the complete program
      and requirements with respect to the Project, including but not limited to the

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      budget for the project. Consultant hereby acknowledges his understanding of the
      nature and scope of work to be provided by Consultant.
   5. The Consultant shall work cooperatively with the Company and the City in
      performing all services under this Agreement. Consultant shall endeavor to
      perform all services within the budget provided by City.
   6. The term of this Agreement shall begin on _____ [Instruction: Insert
      commencement date.] and shall, subject to the provisions for termination set
      forth herein, continue until and terminate on _____ [Instruction: Insert
      termination date.]. Further, the proposed timeframe for completion of Project
      work is as follows: _____ [Instruction: Insert any applicable timeframe for specific
      work to be done by consultant.].
   7. Except as authorized by the Company or as otherwise set forth expressly herein,
      the Consultant shall not directly contact any agent of the City or any other
      consultant or contractor working on the Project.
   8. For all services that Consultant renders to the Company the Company will pay
      Consultant a retainer of $_____ per month, payable on the first day of the month.
      If this agreement terminates on a date other than the first of a month, a prorated
      share of the minimum fee will be due for the final month. Consultant agrees that
      during the term he/she will devote up to ____ (__) days per month to his/her
      Duties. The Company will periodically provide the Consultant with a schedule of
      the requested hours, responsibilities and deliverables for the applicable period of
      time. The duties will be scheduled on an as-needed basis. [Instruction: Insert
      applicable payment agreement, including any revision to the hours/days of
      services.] Late payments by Company shall be subject to late penalty fees of
      _____% [Instruction: Insert number.] per month from the due date until the
      amount is paid.
   9. The Consultant shall obtain and maintain at all times during the term of this
      Agreement, the following insurance coverages: _____ [Instruction: Insert
      applicable required insurance coverages.]
   10. [Optional: If expenses are to be paid, same should be carefully set forth in
       this paragraph. See the remainder of the paragraph for sample expense
       language.] Company also agrees to pay Consultant’s fees for _____.
       Company shall reimburse Consultant for all travel expenses, including but
       not limited to hotels, meals, etc., in connection this Agreement. Such
       reimbursement shall not be limited to the above, and may include special
       services and charges originated on Company’s behalf by Consultant,
       incurred in servicing Company’s account. [Instruction: City may require
       additional language be included here regarding additional authorizations,
       etc., that may be required.]
   11. In no event shall Consultant be liable to Company for Company’s lost profits, or
       to Company or the City for any special, incidental or consequential damages
       (even if Consultant has been advised of the possibility of such damages).
       Consultant's total liability under this Agreement for damages, costs and expenses,
       regardless of cause, shall not exceed the total amount of fees paid to Consultant

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      by Company under this Agreement. Company shall indemnify Consultant against
      all claims, liabilities and costs, including reasonable attorney fees, of defending
      any third party claim or suit, other than for infringement of intellectual property
      rights, arising out of or in connection with Company’s performance under this
      Agreement. Consultant shall promptly notify Company in writing of such claim
      or suit and Company shall have the right to fully control the defense and any
      settlement of the claim or suit.
   12. [Optional language: This Agreement shall terminate in the event Consultant
       voluntarily ceases performing his/her duties and such cessation continues for
       a period of more than thirty (30) days after notice from Company, if
       Consultant becomes physically or mentally unable to perform his/her duties.
       In such event, the termination date shall be deemed to be the date on which
       such services ceased to be performed.]
   13. In the event of a breach hereunder and a failure to cure such breach within thirty
       (30) days of written notice of such breach, this Agreement may be terminated by
       either party upon written notice.
   14. The provisions of this Agreement are severable, and if any one or more provisions
       may be determined to be illegal or otherwise unenforceable, in whole or in part,
       the remaining provisions, and any partially enforceable provision to the extent
       enforceable in any jurisdiction, shall nevertheless be binding and enforceable.
   15. The rights and obligations of the Company under this Agreement shall inure to
       the benefit of and shall be binding upon the successors and assigns of the
       Company. The rights, obligations and duties of Consultant hereunder may not be
       assigned or delegated without the Company's prior written consent except that
       Consultant may assign its interest to a company formed by Consultant for the
       purpose of providing such services.
   16. [Optional language, if Project includes construction work.]The Consultant shall
       exercise the generally accepted standard of care in complying with current
       applicable local and State laws, statutes, ordinances, rules, regulations, building
       and construction codes, including locally adopted amendments to the codes, and
       with generally accepted design and engineering standards. When no local or
       State codes apply, the current edition of the International Building, Plumbing
       and Mechanical Codes, National Electrical Code, applicable State and Federal
       safety and health laws, including but not limited to fire protection laws and
       standards in effect on the date this contract is executed shall apply. The
       Consultant shall confirm the applicable codes and determine the authority(ies)
       having jurisdiction prior to beginning the work. Where the requirements of
       similar applicable codes are in conflict the most stringent code requirement for
       the particular situation shall govern.
   17. Unless otherwise provided in this Agreement, the Consultant and the Consultant’s
       sub-consultants, if any, shall have no responsibility for the discovery, handling,
       removal or disposal of or exposure of persons to hazardous materials or toxic
       substances in any form at the Project site. During any phase or portion of this
       contract, if the Consultant discovers or suspects previously unidentified hazardous
       materials, he shall notify the Company in writing immediately.

© Copyright 2012 Docstoc Inc.                                                                4
   18. The Consultant is responsible to the Company for any services designed, approved,
       certified or accepted by its sub-consultants, agents and employees.
   19. The Consultant will prepare all documents, reports, drawings and specifications, and
       other project related work in accordance with the generally accepted standard of care,
       and acknowledges and agrees that review or approval by the Company and/or City in
       no manner whatsoever relieves the Consultant of responsibility for preparing them in
       accordance therewith.
   20. The Consultant shall submit two sets of documents to the Company for use by the
       Company’s and/or City's insurance carrier and all fire underwriting agencies that
       have an interest in the Project. If insurance requirements materially affect the
       construction cost of the Project, the Consultant shall notify the Company
       immediately, who shall provide the final instructions or adjustments to the project
       budget or scope.
   21. [Optional: Parties may wish to detail who shall be responsible to obtain any
       necessary permits.]
   22. The Company and Consultant are independent contractors. Both parties
       acknowledge and agree that Consultant's engagement hereunder is not exclusive
       and that either party may provide to, or retain from others similar services to those
       provided hereunder by Consultant, provided that it does so in a manner that does
       not otherwise breach this Agreement. Neither party is, nor shall claim to be, a
       legal agent, representative, partner or employee of the other, and neither shall
       have the right or authority to contract in the name of the other nor shall it assume
       or create any obligations, debts, accounts or liabilities for the other. Further,
       Consultant is not a legal agent, representative, partner or employee of the City,
       nor shall Consultant have the right or authority to contract in the name of the City
       nor assume or create any obligations, debts, accounts or liabilities for the City.
   23. The Consultant represents and warrants to the Company that he/she is under no
       contractual or other restrictions or obligations which are inconsistent with the
       execution of this Agreement, or which will interfere with the performance of
       his/her duties or provision of services hereunder. Consultant represents and
       warrants that the execution and performance of this Agreement will not violate
       any policies or procedures of any other person or entity for which he/she performs
       services concurrently with those performed herein.
   24. Pursuant to this Agreement, Consultant shall have no right to receive any
       Company or City employee benefits including, but not limited to, health and
       accident insurance, life insurance, sick leave and/or vacation.
   25. The Consultant acknowledges and agrees that it shall be solely responsible to pay
       any and all incomes taxes on any moneys earned from Company while
       performing services contemplated under this Agreement. The Consultant further
       acknowledges that the Company will not at any time withhold any taxes from the
       Company’s payments to the Consultant under this Agreement for the purposes of
       income tax or any other applicable taxes.
   26. [Comment: This language is optional, but also should be carefully reviewed if
       used to ensure the drafter language is correct as applied to the particular

© Copyright 2012 Docstoc Inc.                                                                5
      situation of the parties.] The Company acknowledges that this Agreement
      was prepared by counsel for the Consultant and that it may contain terms
      and conditions onerous to Company. The Company expressly acknowledges
      that Consultant has given it adequate time to review this agreement and to
      seek and obtain independent legal advice, and represents to Consultant that
      it has in fact sought and obtained independent legal advice and is satisfied
      with the terms and conditions of this Agreement. Any terms herein which
      may be determined to be ambiguous shall not be construed against the
      Consultant. Rather, the parties shall be deemed to have equal bargaining
      power and such terms shall be deemed to have been negotiated by and
      between the parties.
   27. Any notices or other communications required or permitted under this Agreement
       shall be in writing and shall be deemed to have been duly given and delivered
       when delivered in person, two (2) days after being mailed postage prepaid by
       certified or registered mail with return receipt requested, or when delivered by
       overnight delivery service or by facsimile to the recipient at the following address
       or facsimile number, or to such other address or facsimile number as to which the
       other party subsequently shall have been notified in writing by such recipient:
          If to the Company:
                  [Instruction: Insert Company notice information here.]
          If to the Consultant:
                  [Instruction: Insert Consultant notice information here.]
   28. Either party's failure to enforce any provision or provisions of this Agreement
       shall not in any way be construed as a waiver of any such provision or provisions
       as to prior or future violations thereof or of any other provision of this Agreement,
       nor prevent that party thereafter from enforcing each and every other provision of
       this Agreement. The rights granted the parties herein are cumulative and the
       waiver by a party of any single remedy shall not constitute a waiver of such
       party's right to assert all other legal remedies available to him or it under the
   29. This Agreement will be governed by and interpreted in accordance with the
       substantive laws of the State of _____ [Instruction: Insert state.] without
       reference to conflicts of law. [Comment: Parties may wish to consider
       including alternative dispute resolution provisions.]

   30. The various captions and section headings contained in this Agreement are
       inserted only as a matter of convenience and in no way define, limit or extend the
       scope or intent of any of the provisions of this Agreement.

   31. The pronouns used herein shall include, where appropriate, either gender or both,
       singular and plural.
   32. The terms of this Agreement are confidential and no press release or other written
       or oral disclosure of any nature regarding the terms of this Agreement shall be

© Copyright 2012 Docstoc Inc.                                                             6
      made by either party without the other party’s prior written approval; however,
      approval for such disclosure shall be deemed given to the extent such disclosure is
      required to comply with governmental rules or a valid court order.
   33. With respect to its subject matter, this Agreement constitutes the entire
       understanding of the parties superseding all prior agreements, understandings,
       negotiations and discussions between them whether written or oral, and there are
       no other understandings, representations, warranties or commitments with respect
   34. This Agreement may be signed in one or more counterparts, each of which when
       exchanged will be deemed to be an original, binding upon the parties as if a single
       document had been signed by all, and all of which when taken together will
       constitute the same agreement. Any true and correct copy of this Agreement
       made by customary, reliable means (e.g., photocopy or facsimile) shall be treated
       as an original.
   35. No modification to this Agreement, nor any waiver of any rights, will be effective
       unless assented to in writing by the party to be charged.
   36. The person(s) executing this agreement hereby represent and warrant that each
       respectively has the authority to execute this agreement on behalf of the party for
       which he is executing.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first written above.


[Instruction: Insert Company signature block]

[Comment: Please be advised, depending upon the type of consultant entering into
this agreement, the scope of work and project phase, additional language may be
required to fully set forth the parties’ agreement.]

© Copyright 2012 Docstoc Inc.                                                                7

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Description: This document sets forth a template for an agreement to be entered into between a consultant and a company for the acquisition of consulting services related to civil engineering and/or city planning. The draft form anticipates that the company has already bid for and been accepted to perform work for a city or municipality. The draft form contains numerous comments and optional language to ensure many common issues between the parties are addressed.