Full Text
PROFESSIONAL SERVICES AGREEMENT AUDIT PREPARATION SERVICES THIS AGREEMENT is made by and between: CITY OF MISSOULA, 435 Ryman, Missoula, MT 59802 (“CITY”); and Nicole Noonan, CPA, 435 Little Mill Creek Road, St. Regis, Montana 59866 (Telephone [PHONE REDACTED]) hereinafter designated as the (“CONTRACTOR”). WHEREAS, the CITY has an immediate need for CONTRACTOR to provide consultant services to assist in preparation of the FY 2009 financial statement audit. WHEREAS, the CITY has authority to contract for such services; and, WHEREAS, CONTRACTOR is engaged in an independently established profession, renders services in the course of such profession and will continue to be free from control or direction over the performance of its services; and WHEREAS, the CONTRACTOR represents that she is qualified to perform such services and is willing to furnish such services to the CITY; WHEREAS, CONTRACTOR is licensed to do business in the State of Montana and the undersigned is willing to furnish such services to the CITY; NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein, or attached and incorporated herein, the Parties hereto agree that the above recitals are true and are incorporated herein and as follows: 1. Scope of Work. CONTRACTOR agrees to provide consulting services to assist the City Finance Director in the preparation of financial statements and schedules necessary in preparation for the FY 2009 audit of the City of Missoula. 2. Compensation. CITY agrees to pay for the services described according to the terms and conditions set forth in the Scope of Work. CITY shall make payment within 30 days of receipt of CONTRACTOR’s invoice. Services shall be billed to the CITY at a rate of $65 per hour, not to exceed $32,500. ---PAGE BREAK--- 3. Additional Work. No claims for extra, additional, or changes in the services will be made by CONTRACTOR without written agreement with CITY prior to the performance of such services. 4. Proprietary Information. Both parties agree to use reasonable care not to disclose proprietary information to any third party, and will not use information developed during this project for the benefit of others except as may be authorized in writing. All documents, records, or other papers acquired by CONTRACTOR during this project shall remain the property of CITY. All work products will indicate City of Missoula as ownership and for contact information. CONTRACTOR may include information as contracted services information. 5. Release of Information. CONTRACTOR will not release information to any third party without prior written approval from the CITY’S contact person. 6. Termination. Either party may terminate this Agreement at any time by giving ten (10) days written notice to the other party at the above address. Should either party terminate this Agreement payment to CONTRACTOR shall be made on the basis of services performed to date of termination. 7. Default and Remedies. The parties agree each term and condition contained herein is material and of the essence. This Agreement may be terminated by either party immediately should the other party fail to perform in accordance with any term or condition of this Agreement after it fails to cure within ten days written notice. 8. Additional CONTRACTOR Duties. The CONTRACTOR'S duties and responsibilities include the following: a. To furnish all labor, materials, equipment, supplies and incidentals necessary to conduct and complete the CONTRACTOR’S portion of the project as defined in the Scope of Work. b. Prepare and present such information as may be pertinent and necessary, in order for the CITY to pass critical judgment on the features of the work. c. Perform work in accordance with generally accepted standards currently in use with similar type projects. ---PAGE BREAK--- d. Perform professional services in connection with the Scope of Work at a standard of similarly situated professionals in the United States. e. Allow the CITY the right of review and examine the CONTRACTOR'S work and records pertaining to this Project at all times. f. CONTRACTOR shall name Nicole Noonan, as contact person who shall receive and examine the documents supplied by the CITY, act as Project liaison between the CITY and the CONTRACTOR and respond to requests from the CITY in writing to prevent unreasonable delay in the progress of the project. 9. Additional CITY Duties. The CITY duties are set forth as follows: a. Review with the CONTRACTOR all pertinent information as to the CITY’S requirements for the project. b. CITY shall name BRENTT RAMHARTER, FINANCE DIRECTOR, as contact person who shall receive and examine the documents supplied by the CONTRACTOR, evaluate the adequacy and results of the services performed by the CONTRACTOR, accept responsibility for the results of such services, act as Project liaison between the CITY and the CONTRACTOR, and respond to requests from the CONTRACTOR in writing to prevent unreasonable delay in the progress of the project. c. Give prompt written notice to the CONTRACTOR whenever the CITY observes or otherwise becomes aware of a defect in the project or other events which may substantially affect the CONTRACTOR'S performance of services under this Agreement. 10. Laws and Regulations. CONTRACTOR shall comply with all applicable state, federal and local laws and regulations, including, but not limited to, the applicable, Montana laws: a. Montana Labor Preference. CONTRACTOR shall give preference to the employment of bona fide Montana residents in the performance of the work. Section 18-2-403(1), MCA. b. Equal Opportunity. Pursuant to Sections 49-2-303 and 49-3-207, MCA no part of this contract may be performed in a manner which discriminates against any person on the basis of race, color, religion, creed, political ideas, sex, age marital status, physical or mental disability, or national origin by person performing the contract. Any hiring must be on the basis of merit and qualifications ---PAGE BREAK--- directly related to the requirements of the particular position being filled. c. Safety. CONTRACTOR on behalf of itself and CITY assumes sole responsibility for initiating, maintaining and supervising all safety precautions and programs for all employees, contractors and sub-subcontractors in connection with the performance of this Agreement. CONTRACTOR shall ensure that its employees, consultants and sub-contractors are adequately and appropriately trained pursuant to the Montana Safety Culture Act, Title 39, Chapter 71, Part 15 of the Montana Code Annotated. CONTRACTOR shall also comply with the safety rules, codes, and provisions for occupational safety under Title 50, Chapter 71 of the Montana Code Annotated. d. New Laws and Regulations. If during the term of this Agreement new laws or regulations become applicable, CONTRACTOR shall also comply with them without notice from CITY. 11. Waiver and Indemnification. CONTRACTOR waives any and all claims and recourse against CITY or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of or in any way connected with or incident to the performance of this Agreement except claims arising from the intentional acts or concurrent or sole negligence of CITY or its officers, agents or employees. CONTRACTOR will indemnify, hold harmless, and defend the CITY and its agents, principals, and employees from and against any and all claims, demands, damages, costs, expenses, losses, liability (including liability where activity is inherently or intrinsically dangerous), judgments, defense expenses, and attorney’s fees rising out of or resulting from CONTRACTOR'S wrongful acts, errors, omissions, or negligence, or from Contractor’s failure to comply with the requirements of this Agreement or with all federal, state and local law applicable to the performance of this Agreement. In the event of an action filed against CITY resulting from CONTRACTOR'S performance under this Agreement, CITY may elect to represent itself and incur all costs and expenses of suit. These obligations shall survive termination of this Agreement. 12. Independent Contractor. CONTRACTOR and its consultants and subcontractors shall at all times be considered independent contractors. Notwithstanding its obligation to fulfill the Scope of Work herein, CONTRACTOR and its consultants and subcontractors ---PAGE BREAK--- have been and will continue to be free from control or discretion over the their performance under this Agreement and in fact. CITY will not be responsible for withholding any state or federal taxes or social security, nor will the City extend any of the benefits to the CONTRACTOR that it extends to employees. The CONTRACTOR is required to maintain necessary records and withholding. As an independent contractor, CONTRACTOR must provide Workers Compensation for all employees in the amount required by Montana law. A Certificate of Insurance showing compliance with Montana Workers Compensation law (or exemption therefrom) must be supplied to CITY within ten (10) days of executing this Agreement. 13. Attorney's Fees. If it is necessary for either party to bring an action to enforce the terms, covenants, or conditions of this Agreement, the prevailing party shall be entitled to reasonable attorney fees to be set by the appropriate court, including fees of the Missoula City Attorney. 14. Venue. An action to enforce this Agreement shall be brought in the District Court of the fourth Judicial District, Missoula County Montana. 15. Notice. All notices and certifications made pursuant to this agreement shall be delivered to the addresses above by certified mail or personal delivery in care of the person set forth in Section 8 or 9 of this Agreement. A party shall give the other notice of any change in address. 16. Interpretation. a. This Agreement shall be governed and interpreted according to the laws of the State of Montana. b. Section headings are for convenience only and are not intended to define or limit any provisions of this Agreement. c. The provisions of this Agreement are independent and severable, and the invalidity, partial invalidity, or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provision. d. Both parties having been given an opportunity to have this Agreement reviewed by others, the Rule of Construction providing that the Agreement shall be construed against the drafter will not be used in the interpretation of this Agreement. ---PAGE BREAK--- 17. Time is of the Essence. The time of complying with this Agreement is of the essence and a violation is a material breach. This contract will begin upon signature by both parties and conclude on December 31, 2009. 18. Non-Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision. 19. Entire Agreement. This document represents the entire and integrated Agreement between the CITY and CONTRACTOR and supersedes all prior negotiations, agreements or representations, either written or oral. This Agreement may be amended only by written instrument signed by both CITY and CONTRACTOR. 20. Non-Assignment. CITY and CONTRACTOR, respectively, bind themselves, their successors, assigns and legal representatives to the other party with respect to all covenants, terms, or conditions of this Agreement. Neither CITY nor CONTRACTOR shall assign this Agreement without the written consent of the other. 21. Execution of Agreement. Once the parties have entered into this agreement, the Missoula City Clerk will keep the original Agreement. An exact unaltered copy of the original Agreement has the same force and effect as the original. END OF AGREEMENT-EXCEPT FOR SIGNATURE PAGE ---PAGE BREAK--- IN WITNESS WHEREOF the parties have signed this Agreement for Services consisting of 6 total pages. CONTRACTOR Title: Date CITY Mayor, John Engen Date Finance Director, Brentt Ramharter Date City Clerk, Marty Rehbein Date