CONSULTANT AGREEMENT

THIS AGREEMENT is made and entered into this ____ day of	, 20	by and between the City of Overland Park, Kansas,	(hereinafter, the "City") and	(hereinafter, the "Consultant").

WITNESSETH:

WHEREAS, the City desires to obtain consulting services in support of a project described as follows:

(hereinafter, the “Project”); and

WHEREAS, the City has requested that the Consultant submit an engagement letter to outline services Consultant is proposing to provide; and

WHEREAS, the City and the Consultant desire to enter into an agreement setting forth the terms and conditions of their understanding as regards the services.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:

SECTION 1.	SCOPE OF SERVICES

The Consultant agrees to provide consulting services as set forth in Exhibit A attached hereto and incorporated herein by reference, (hereinafter the “Services”).

SECTION 2.	SUPPLEMENTAL AGREEMENTS

This Agreement may be amended to provide for additions, deletions and revisions in the Services or to modify the terms and conditions thereof by a written Supplemental Agreement. The Agreement price and Agreement time may only be changed by a written Supplemental Agreement approved by the City. If notice of any change in Services affecting the general scope of the Consultant Agreement or provisions of this Agreement, including but not limited to, Agreement price or Agreement time, is a requirement of any insurance policy held by Consultant as a requirement of this Agreement, the giving of such notice shall be the Consultant’s responsibility.

SECTION 3.	STATUS

Consultant is an independent contractor and as such is not an agent or employee of the City.

SECTION 4.	COMPENSATION

A.	Total Fee: City agrees to pay Consultant an amount not to exceed	dollars ($	), including reimbursable expenses. The fee is based on the performance of the Services, and shall be billed using rates and reimbursable expenses as set forth in Exhibit A. All work shall be completed on or before	. If any additional Services beyond the Services outlined in Exhibit A are deemed to be necessary, the compensation for said Services shall be agreed upon in writing by both parties.

B.	Manner of Payment: Invoices for fees will be submitted every four weeks and are to be paid within 30 days of receipt.

SECTION 5.	TERMINATION

Nothing in this Agreement shall prevent, limit, or otherwise interfere with the right of the City to terminate this Agreement in whole or in part, with or without cause, subject to written notice Consultant. If the City terminates the Agreement prior to completion of Services, City shall compensate Consultant for all Services satisfactorily completed to date of its receipt of the termination notice. Compensation shall not include anticipatory profit or consequential damages, neither of which will be allowed.

SECTION 6.	SUBCONTRACTING OF SERVICES

Consultant shall not subcontract any of the Services to be performed under this Agreement without first obtaining the written approval of City regarding the Services to be subcontracted and the person or firm proposed to accomplish the subcontracted portion of the Services.

SECTION 7.	OWNERSHIP OF REPORT

The final report and all documents prepared in connection with the Services shall be the property of the City upon completion of the Services. Consultant will have no responsibility to update its report for events and circumstances’ occurring after the report is accepted as final and complete by the City.

SECTION 8.	INSURANCE

A.	General: Consultant shall secure and maintain, throughout the duration of this contract, insurance (on an occurrence basis unless otherwise agreed to) of such types and in at least such amounts as required herein. Consultant shall provide certificates of insurance and renewals on City provided forms or on forms approved by the City. The City shall be notified by receipt of written notice from the insurer at least thirty (30) days prior to material modification or cancellation of any policy listed on the Certificate.

B.	Notice of Claim Reduction of Policy Limits: Consultant, upon receipt of notice of any claim in connection with the contract, shall promptly notify the City, providing full details thereof, including an estimate of the amount of loss or liability.

Consultant shall monitor and promptly notify the City of any reduction in limits of protection afforded under any policy listed in the Certificate (or otherwise required by the contract) if the Consultant’s limits of protection shall have been impaired or reduced to such extent that the limits fall below the minimum amounts required herein. Consultant shall promptly reinstate the original limits of liability required hereunder and shall furnish evidence thereof to the City.

C.	General Liability

General Aggregate:	$500,000
Products / Completed Operations Aggregate:	$500,000
Personal & Advertising Injury:	$500,000
Each Occurrence:	$500,000

Policy must include the following:

Broad Form Contractual / Contractually Assumed Liability

Independent Contractors

Name City of Overland Park as “Additional Insured”.

D.	Automobile Liability: Policy shall protect the Consultant against claims for bodily injury and/or property damage arising from the ownership or use of all owned, hired and/or non-owned vehicles and must include protection for either:

Any Auto, OR

All Owned Autos (if any); Hired Autos; and Non-Owned Autos.

Limits

Each Accident, Combined Single Limits, Bodily Injury, and Property Damage: $500,000

Name City of Overland Park as “Additional Insured”.

E.	Worker’s Compensation and Employer’s Liability: This insurance shall protect the Consultant against all claims under applicable state workers’ compensation laws. The Consultant shall also be protected against claims for injury, disease or death of employees which, for any reason may not fall within the provisions of a workers’ compensation law. The policy limits shall not be less than the following:

Workers’ Compensation:	Statutory

Employer’s Liability:

Bodily Injury by Accident	$100,000 each accident

Bodily Injury by Disease	$500,000 policy limit

Bodily Injury by Disease	$100,000 each employee

If Consultant has no employees, a waiver form provided by the City must be executed (see attached).

F.	Professional Liability: The Consultant shall maintain throughout the duration of this Agreement Professional Liability Insurance in an amount not less than Five Hundred Thousand Dollars ($500,000) and shall provide the City with certification thereof.

G.	Industry Ratings: The City will only accept coverage from an insurance carrier who offers proof that it:

Is licensed to do business in the State of Kansas;

Carries a Best’s policyholder rating of A- or better; and

Carries at least a Class VIII financial rating; or

Is a company mutually agreed upon by the City and Consultant.

H.	Subcontractor’s Insurance: If a part of this Contract is to be sublet, Consultant shall either:

Cover all subcontractors under its insurance policies; or

Require each subcontractor not so covered to secure insurance which will protect against applicable hazards or risks of loss as and in the minimum amounts designated herein.

SECTION 9.	INDEMNITY

A.	Definition: For purposes of indemnification requirements, the term "Loss" shall have the meaning set forth as follows:

"Loss" means any and all Loss, damage, liability or expense, of any nature whatsoever, whether incurred as a judgment, settlement, penalty, fine or otherwise (including attorney's fees and the cost of defense), in connection with any action, proceeding, demand or claim for injury, including death, to any person or persons or damages to or Loss of, or Loss of the use of, property of any person, firm or corporation, including the parties hereto, which arise out of or are connected with, or are claimed to arise out of or be connected with, the performance of this contract whether arising before or after the completion of the work required hereunder.

B.	Indemnity: For purposes of this Agreement, Consultant hereby agrees to indemnify, defend and hold harmless the City, its agents and/or employees from any and all Loss where Loss is caused or incurred or alleged to be caused or incurred in whole or in part as a result of the negligence or other actionable fault of the Consultant, its affiliates, subsidiaries, employees, agents and subcontractors/assignees and their respective servants, agents and employees.

It is agreed as a specific element of consideration of this Agreement that this indemnity shall apply notwithstanding the joint, concurring or contributory or comparative fault or negligence of the City or any third party and, further notwithstanding any theory of law including, but not limited to, a characterization of the City's or any third party's joint, concurring or contributory or comparative fault or negligence as either passive or active in nature; provided, however, that the Consultant's obligation hereunder shall not include amounts attributable to the fault or negligence of the City or any third party for whom the Consultant is not responsible.

In the case of any claims against the City, its employees or agents indemnified under this Agreement, by an employee of the Consultant, its affiliates, subsidiaries, or assignees, the indemnification obligation contained in this Agreement shall not be limited by any limitation on amount or type of damages, compensation or benefits payable by or for the Consultant, its affiliates, subsidiaries, or assignees, under workers' compensation acts, disability benefit acts, or other employee benefit acts.

SECTION 10.	DISPUTE RESOLUTION

City and Consultant agree that disputes relative to the project should first be addressed by negotiations between the parties. If direct negotiations fail to resolve the dispute, the party initiating the claim that is the basis for the dispute shall be free to take such steps as it deems necessary to protect its interests; provided, however, that notwithstanding any such dispute Consultant shall proceed with the work as per this Agreement as if no dispute existed; and provided further that no dispute will be submitted to arbitration without the City's express written consent.

SECTION 11.	AFFIRMATIVE ACTION/OTHER LAWS

A.	Equal Employment Opportunity: During the performance of this contract, the Consultant agrees as follows:

1.	The Consultant shall comply with the Kansas Act against discrimination and shall not discriminate against any employee because of race, religion, color, sex or national origin and will abide by the provisions of the Age Discrimination in Employment Act of 1967, as amended. The Consultant will take affirmative action to ensure that applicants are employed and that applicants are treated during employment without regard to their race, religion, color, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment advertisement; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the requirements of these nondiscrimination provisions.

2.	The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex or national origin and shall include the phrase "equal opportunity employer" or a similar phrase approved by the Kansas Human Rights Commission (“Commission”) on Civil Rights.

3.	If the Consultant fails to comply with the manner in which the Consultant reports to the Commission in accordance with the provisions of K.S.A. 44-1031 and amendments thereto, the Consultant shall be deemed to have breached the present Agreement and it may be canceled, terminated or suspended, in whole or in part, by the City.

4.	If the Consultant is found to have violated the Kansas Act against discrimination under a final decision or order of the Commission, the Consultant shall be deemed to have breached the Contract, and it may be canceled, terminated or suspended, in whole or in part, by the City.

5.	The Consultant will include all of Subsections 1 through 4 in every subcontract or purchase order, so that such provisions will be binding upon each subcontractor or vendor.

B.	Other Laws: The Consultant agrees to abide by all other federal, state or local laws, ordinances and regulations applicable to this Project and to furnish any certification required by any federal, state or local governmental agency in connection with same.

SECTION 12.	GENERAL PROVISIONS

A.	This Agreement contains the complete agreement between the parties and shall, as of the effective date hereof, supersede all other agreements between the parties. The parties stipulate that neither of them has made any representation with respect to the subject matter of this Agreement except such representations as are specifically set forth in this document and each of the parties acknowledges that it has relied on its own judgment in entering into this Agreement.

B.	Any modification of this Agreement or additional obligation assumed by either party in connection herewith shall be binding only if evidenced in writing signed by each party or an authorized representative of each party.

C.	If any provision, or any portion thereof, contained in this Agreement is held to be unconstitutional, invalid, or unenforceable, the remainder of this Agreement, or portion thereof, shall be deemed severable, shall not be affected, and shall remain in full force and effect.

D.	It is the intention of the parties that this Agreement and the performance hereunder, and all suits and special proceedings under this Agreement, be construed in accordance with and under and pursuant to the laws of the State of Kansas and that, in any action, special proceeding or other proceeding that may be brought arising out of, in connection with, or by reason of this contract, the laws of the State of Kansas shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which any action or special proceeding may be instituted.

E.	The titles to sections of this Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of the provisions of this Agreement.

SECTION 13.	EXECUTION OF AGREEMENT

The parties hereto have caused this Agreement to be executed on the day and year first above written.

Consultant

______________________________________

appropriate signatory & title

CITY OF OVERLAND PARK, KANSAS

appropriate City personal

City Manager

ATTEST:

Marian Cook

City Clerk

APPROVED AS TO FORM:

Tammy M. Owens

Senior Assistant City Attorney

1	Rev. 10/15/10

Consultant Agreement

Jackie Clark

2010-07-29

City of Overland Park