AGREEMENT between THE CITY OF FAIRFAX, VIRGINIA and {Name of Firm} for PROFESSIONAL CONSULTING SERVICES FOR SMALL AREA PLANS

THIS IS AN AGREEMENT made as of _____ {date} ______between The City of Fairfax, Virginia, a Virginia municipal corporation, (“CITY”) and {Name of Firm} (“CONSULTANT”). CITY intends to utilize CONSULTANT to individual assignments necessary to provide for a Project, or series of Projects together which shall comprise the “Program”.

CITY and CONSULTANT in consideration of their mutual covenants herein, agree as follows concerning professional services by CONSULTANT with respect to the Program and the payment for those services by CITY as set forth below. Execution of this Agreement by CONSULTANT and CITY constitutes CITY’s written authorization to CONSULTANT to provide Multi-phase Professional Services for each Project which will be described and defined in conjunction with the CITY’s Scope of Work and CONSULTANT’S Work Plan. This Agreement will become effective upon issuance of the first CITY Purchase Order. CONSULTANT shall commitment to be legally obligated for each assignment awarded by a CITY Purchase Order.

SECTION 1 – GENERAL

1.1 Standard of Performance.

CONSULTANT shall provide CITY professional services and related work in all aspects of the Program to which this Agreement applies as hereinafter provided and in concert with Standard of Care as defined in Section 1.4.7. CONSULTANT shall serve as CITY’s professional representative for each Project under the Program. CONSULTANT may employ such Sub- consultants as CONSULTANT deems necessary to assist in the performance or furnishing of professional services hereunder. CONSULTANT shall not require CITY to approve any Sub- consultant reasonably unacceptable to CITY.

CONSULTANT will provide key staff members and the Principal as stated in CONSULTANT’s Proposal entitled {Name & Title} with cover letter dated {date}. The Principal assigned to the CITY will be {Name & Title}. The Project Manager assigned to the CITY will be {Name & Title}. Any change in the assigned Principal and Project Manager, to include the individual replacement, must be approved by CITY as a written amendment to this Agreement.

1.2 Independent Contractor.

In the performance of the services under this agreement, CONSULTANT shall be an independent contractor, maintaining complete control of the CONSULTANT’s personnel, Sub-

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consultants and operations. As such, CONSULTANT shall pay all salaries, wages, expenses, social security taxes, federal and state unemployment taxes and any similar taxes relating to the performance of this Agreement. The CONSULTANT, its employees, and agents shall not, under any circumstances, be regarded as employees of the CITY.

1.3 Coordination with Other Documents.

Nomenclature and Standards of the City’s Comprehensive Plan, Zoning Ordinance, and Public Facilities Manual, or other documents required by the CITY shall be fully coordinated in the conduct of the work assigned.

1.4 Definitions.

Wherever used in this Agreement, unless otherwise defined herein, the following terms have the meanings indicated which are applicable to both the singular and plural thereof:

1.4.1. Agreement. Agreement means this Multi-phase Professional Services Agreement between CITY and CONSULTANT.

1.4.2. Basic Services. Basic Services means the services to be performed for or furnished to CITY by CONSULTANT generally described in Section 2 and as set forth in the CITY’s Scope of Work and the CONSULTANT’s Work Plan stipulated and defined in each separate Purchase Order or related Amendment.

1.4.3. CONSULTANT’s Sub-consultant. CONSULTANT’s Sub-consultant means a person or entity having a contract with CONSULTANT to provide Basic or Additional Services as CONSULTANT’s independent professional consultant engaged directly on the Project.

1.4.4. Program Manager. CONSULTANT’s employee assigned to the CITY and responsible for the conduct of the work, schedule and fee of each Project to be completed under this Agreement. The Program Manager is the primary contact between the CITY and CONSULTANT for each Project assigned.

1.4.5. Reimbursable Expenses. Reimbursable Expenses means the expenses incurred by CONSULTANT directly in connection with the performance or furnishing of Basic and Additional Services for each Project for which CITY shall pay CONSULTANT as indicated in Section 6.

1.4.6. Scope of Work. The individual description of work and end product, or products, provided by CITY defining the services to be accomplished in order to complete a particular Project. Each Project will have a separate Scope of Work.

1.4.7. Standard of Care. Standard of Care is that level or quality of service ordinarily provided by other competent professional practitioners of good standing in that field of Architecture, Engineering, Planning, Landscape Architecture, or other professional practices as required to perform the scope of services in the Request for Proposals contemporaneously providing similar services in the Metropolitan Washington, D.C. region and under similar circumstances.

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1.4.8. Team Charter. The Program goals and objectives, if applicable, produced by the CONSULTANT in collaboration with the CITY establishing roles and responsibilities of individuals and organizations; project milestones, decision-making protocols; project expectations; Organization Charts, and other matters as identified.

1.4.9. Total Project Costs. Total Project Costs means the sum of the Construction Cost, allowances for contingencies, the total costs of professional and related services provided by CONSULTANT and (on the basis of information furnished by CITY) allowances for other items, such as administrative and legal costs, charges of all other professionals and consultants, the cost of land and rights-of-way, compensation for or damages to properties, interest and financing charges and other services to be provided by others to CITY.

1.4.10. Work Plan. The individual description of work, schedule and fee developed by CONSULTANT and approved by the CITY defining the services and steps to be accomplished in order to complete a particular Project. Each Project will have a separate Work Plan.

SECTION 2 - BASIC SERVICES OF CONSULTANT

In concert with this Section, the CONSULTANT responding to the CITY’s Scope of Work, will provide a written proposal, in the form of a Work Plan including level of effort (person-hours), fee and schedule for each Project requested by the CITY. Upon CITY approval of the Work Plan a written Purchase Order will be provided to CONSULTANT authorizing the Work. This shall constitute the Basic Services.

SECTION 3 - ADDITIONAL SERVICES OF CONSULTANT

3.1. Additional Services Requiring Authorization in Advance.

If authorized in writing by CITY, CONSULTANT shall furnish or obtain from others Additional Services of the types listed in paragraphs 3.1.1 through 3.1.8, inclusive. These services are not included as part of Basic Services except to the extent otherwise provided in each Work Plan under Section 2.

3.1.1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances; preparation or review of environmental assessments and impact statements; and assistance in obtaining approvals of authorities having jurisdiction over an anticipated environmental impact.

3.1.2. Services resulting from significant changes in the scope, extent or character of the Work Plan, or, if appropriate, its requirements including, but not limited to, changes in study area, complexity, CITY’s schedule, and revising previously accepted Reports or Studies when such revisions are required by changes in laws, rules, regulations, ordinances, codes or orders enacted subsequent to the preparation of such Reports or Studies, or are due to any other causes beyond CONSULTANT’s control.

3.1.3. Providing renderings or scaled models for CITY’s use.

3.1.4. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance and overhead expenses; cash flow and financial

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evaluations, rate schedules and appraisals; assistance in obtaining financing.

3.1.5. Furnishing services of Sub-consultants for other than Basic Services.

3.1.6. Provide field surveys for design purposes and property, boundary, easement, right- of-way, topographic and utility surveys or data, including relevant reference points over and above that stipulated in Basic Services and property surveys or related professional services needed for the transfer of interests in real property; and other special field surveys.

3.1.7. Other additional services performed or furnished by CONSULTANT in connection with each Project, including services, which are to be furnished by CITY under Section 4, and services, not otherwise provided for in the Work Plan.

3.1.8. Expansion of services for up to three additional study areas as intended in the Request for Proposals.

SECTION 4 - CITY’S RESPONSIBILITIES

Except as otherwise provided in each Work Plan, CITY shall provide the following in a timely manner so as not to delay the services of CONSULTANT.

4.1. A person designated in writing to act as CITY’s Program Manager with respect to the services of each particular Project. Such person will transmit instructions, receive information, interpret and define CITY’s policies and decisions with respect to CONSULTANT’s services.

4.2. All criteria and information as to CITY’s requirements for each Work Plan, including study goals and CITY design standards.

4.3. Access to available information pertinent to each Project including previous Reports, Studies, existing geographic information systems (GIS) data, proposed or approved development project information, proposed or approved CITY infrastructure project information, and any other data relative to the scope of services for the study areas.

4.4. Examine alternate solutions, studies, reports, sketches, proposals and other documents presented by CONSULTANT and render decisions pertaining thereto in a timely manner.

4.5. Data prepared by or services of others outside of Project(s) that benefit in the completion of each Project Scope of Work.

4.6. Arrange for access to and make provisions, within CITY’s ability and rights, for CONSULTANT to enter upon public and private property as necessary for CONSULTANT to perform services under this Agreement.

4.7. Advise CONSULTANT of the identity and scope of services of independent consultants employed by CITY to perform or furnish services in regard to each Project. If CITY designates a person or entity other than, or in addition to, CONSULTANT to represent CITY,

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CITY shall define the duties, responsibilities and limitations of authority of such other party and the relation thereof to the duties, responsibilities and authority of CONSULTANT.

SECTION 5 - TIMES FOR RENDERING SERVICES

All work under this Agreement shall be assigned to accommodate the Project or Projects defined in the Request for Proposals unless both parties agree in writing to an extension in order to allow for continuation of professional services.

5.1. CONSULTANT’s services and compensation under this Agreement will be agreed to in advance of the orderly and continuous progress of each Project assigned. Unless specific periods of time or specific dates for providing services are specified in the Project, CONSULTANT’s obligation to render services hereunder will extend to complete the Project

5.2. If in any Project, specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided and if such periods of time or dates are materially changed or extended through no fault of CONSULTANT, the compensation ceiling provided for in affected Project or projects shall be subject to equitable adjustment in the schedule only. If CITY has requested changes in the scope, extent or character of the Work Plan, the time of performance of CONSULTANT’s services shall be adjusted in writing as an amendment to each Purchase Order affected.

SECTION 6 - PAYMENTS TO CONSULTANT FOR SERVICES AND REIMBURSABLE EXPENSES

6.1. Methods of Payment for Services and Expenses of CONSULTANT.

6.1.1. For Basic Services. CITY shall pay CONSULTANT for Basic Services performed or furnished as follows:

6.1.1.1. General. An amount equal to CONSULTANT's Direct Labor Cost times a factor of ____for all services performed by principals and employees engaged directly on the Project assigned.

6.1.1.2. CONSULTANT's Sub-Consultants. For services of Sub-Consultants engaged to perform or furnish Basic Services, the amount billed to CONSULTANT therefore times a factor of 1.05. Sub-Consultants shall not utilize Direct Labor Costs times a factor greater than CONSULTANT’s approved factor without the CITY's consent.

6.1.1.5. Estimated Compensation for Basic Services. CONSULTANT's estimate of the amount that will become payable for Basic Services will be based on each Work Plan. Each amount for Basic Services under this Agreement will be based on a not-to-exceed estimate. Notwithstanding the fact that the estimated amount for Basic Services is exceeded, CONSULTANT shall receive compensation for all Basic Services furnished or performed under this Agreement, calculated as set forth in paragraphs 6.1.1.1. through 6.1.1.2. inclusive.

6.1.1.6 Notice of Relationship of Payments to Estimated Compensation for Basic Services. If it becomes apparent to CONSULTANT at any time before Basic Services to be

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performed or furnished under each Project have been about eighty percent completed that the total amount of compensation to be paid to CONSULTANT on account of Basic Services will exceed CONSULTANT's estimated amount, CONSULTANT shall give CITY written notice thereof. Promptly thereafter CITY and CONSULTANT shall review the matter of compensation for such Basic Services, and either CITY shall agree to additional compensation, or CITY and CONSULTANT shall agree to a reduction in the remaining services to be rendered by CONSULTANT under this Agreement so that total compensation for such Basic Services will not exceed said estimated amount. The CONSULTANT shall only be paid for services rendered if CONSULTANT exceeds the estimated amount when CITY and CONSULTANT have agreed in advance to an increase in the compensation due to CONSULTANT or a reduction in the remaining services, as approved in the form of a Purchase Order Amendment. In cases where the work has progressed inefficiently, the CITY has the right to ask for completion of the work without additional compensation.

6.1.2. For Additional Services. CITY shall pay CONSULTANT for Additional Services as follows:

6.1.2.1. General. For prior approved services of CONSULTANT's principals and employees engaged directly on the Project performed or furnished pursuant to paragraph 3.1 an amount equal to CONSULTANT's Direct Labor Cost times a factor of .

6.1.2.2. CONSULTANT's Sub-Consultants. For prior approved services of Sub- Consultants, the amount billed to CONSULTANT therefore times a factor of 1.05.

6.1.3. For Reimbursable Expenses. CITY shall pay CONSULTANT for Reimbursable Expenses such as reproduction, travel, telephone, mail, and other costs incurred directly for the Project. The amount payable for Reimbursable Expenses will be the charge actually incurred by CONSULTANT up to the Not-to-Exceed budget established in the Work Plan unless mutually modified. It is the responsibility of the CONSULTANT to arrange travel in advance so as to secure fair and reasonable costs.

6.1.4. Direct Labor Cost. Direct Labor Cost means salaries and wages (basic, premium and incentive) paid to personnel, but does not include indirect payroll related costs or fringe benefits.

6.1.5. Other Provisions Concerning Payments - Preparation of Invoices. Invoices for Basic and Additional Services and Reimbursable Expenses will be prepared in accordance with CONSULTANT’s standard invoicing practices and will be submitted to CITY monthly for each Purchase Order. The invoice should include the Purchase Order Number, date of services, a listing of staff categories that performed the work, and the monthly report summarizing activities completed and activities under delay. The amount billed for Basic and Additional Services for each Project shall not exceed the fee ceiling as stipulated in the approved CITY Purchase Order and related amendments thereto.

6.2.1. Unpaid Invoices. If CITY fails to make any payment due CONSULTANT for services and expenses within 45 days after receipt of CONSULTANT’s invoice therefore, the amounts due CONSULTANT will be increased at the rate of 1.0 percent per month (or the maximum rate of interest permitted by law, if less) from said 45th day; and, in the event of a disputed or contested billing, only that portion so contested may be withheld from payment, and

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the undisputed portion will be paid.

6.2.2. Payments upon Termination by CITY for Cause, Convenience, or Non-funding. In the event of termination by CITY, payments due CONSULTANT in accordance with this Agreement for all such services performed or furnished by CONSULTANT, and Sub-Consultants, through the completion of such activities and services will constitute total payment for such work. CONSULTANT will be reimbursed for all previously authorized Additional Services and Reimbursable Expenses actually incurred.

6.2.3. Termination by CONSULTANT for Cause. In the event of termination by CONSULTANT for cause under paragraph 8.1.1, CONSULTANT shall be entitled to receive full compensation as set forth in paragraph 6.2.2.

6.2.4. Records of CONSULTANT’s Costs. Records of CONSULTANT’s costs pertinent to CONSULTANT’s compensation under this Agreement will be kept in accordance with generally accepted accounting practices for the Commonwealth of Virginia. Copies will be made available to CITY at cost upon request of the CITY.

6.2.5. Payments to Sub-Consultants. CONSULTANT shall take one of the two following actions seven days after receipt of amounts paid by the CITY for work performed by Sub-Consultants under this Agreement:

6.2.5.1. Pay Sub-Consultant for the proportionate share of the total payment received; or

6.2.5.2. Notify the CITY and Sub-Consultant, in writing, of the CONSULTANT’s intention to withhold all or part of the Sub-Consultant’s payment with the reason for nonpayment.

6.2.5.3. The CONSULTANT’s agreement with Sub-Consultants shall contain a payment clause requiring (i) individual Sub-Consultants to provide their social security numbers, and (ii) proprietorships, partnerships, and corporations to provide their federal employer identification numbers; and an interest clause that obligates the CONSULTANT to pay interest to the Sub- Consultant on all amounts owed by CONSULTANT of payment from the CITY for work performed by the Sub-Consultant under this Agreement, except for amounts withheld as allowed in paragraph 6.2.5.2. above.

6.2.5.4. Records of Sub-Consultant’s Costs. CONSULTANT further agrees to include in any subcontract for more than $10,000 entered into as a result of each Task Order, a provision to the effect that the Sub-Consultant agrees to the same provisions as paragraph 6.2.5.

SECTION 7 - OPINIONS OF COST

CONSULTANT’s opinions of Total Project Costs provided for herein are to be made on the basis of CONSULTANT’s experience and qualifications and represent CONSULTANT’s best judgment as an experienced and qualified professional CONSULTANT generally familiar with similar projects. It is understood that CONSULTANT cannot and does not guarantee that actual costs will not vary from opinions of Total Project Costs prepared by CONSULTANT.

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SECTION 8 - GENERAL CONSIDERATIONS

8.1. Termination.

The obligation to provide further services under this Agreement may be terminated:

8.1.1. For Cause, by either party after 30 days’ written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof, and a failure to cure within 30 days’ notice. In the case of failure to deliver services in accordance with the terms and conditions of this Agreement, the CITY, after due written notice, may procure the services from other sources and hold the CONSULTANT responsible for any resulting additional costs up to the amount paid CONSULTANT by the CITY. This remedy shall be in addition to other remedies which the CITY may have.

8.1.2. For Convenience, by CITY, upon 30 days advance written notice to the CONSULTANT; but if any work or services are in progress, but not completed as of the date of termination, then Task Order(s) may be extended upon written authorization of the CITY until said work or services are completed and accepted. In the event this Agreement is terminated or canceled without the required 30 days advance written notice, then the CITY shall negotiate reasonable termination costs.

8.1.3. For Non-funding, by CITY in the event that the CITY shall cease to appropriate funds for the purposes of the Agreement, effective upon the receipt of notice by CONSULTANT. The CITY shall negotiate reasonable termination costs, if applicable.

8.2. Reuse of Documents.

Documents including field data, Reports, Studies, maps, Drawings and Specifications provided or furnished by CONSULTANT or Sub-Consultants pursuant to this Agreement are instruments of service in respect of the Program, and CONSULTANT and Sub-Consultants may make and retain copies for future use as appropriate, and at the discretion of CONSULTANT and Sub- Consultants, whether or not the Project is completed. CITY shall retain an ownership and property interest therein (including the right of reuse and may make and retain copies for information and reference in connection with the use of the work and services).

8.3. Insurance.

CONSULTANT shall procure and maintain insurance as specified in Exhibit B.

8.4. Controlling Law.

8.4.1. This Agreement is to be governed and interpreted by the laws of the Commonwealth of Virginia.

8.4.2. Both parties shall give prompt written notice of any fact or circumstance which could reasonably lead to a claim of any kind, or which will impact the ability of that party to perform all of its obligations under this Agreement.

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8.4.3. For each Purchase Order over $10,000, the CONSULTANT and CONSULTANT’S Sub- consultants agree to provide a drug-free workplace for their employees in accord with applicable Commonwealth and federal laws.

All disputes arising under this Agreement shall be the subject of negotiations between the parties in an attempt to resolve such disputes. Any disputes which cannot be resolved to the satisfaction of all parties shall be the subject of non-binding mediation conducted under the auspices of the McCammon Mediation Group or such other, similar mediation service as shall be agreed upon between the parties. Such mediation is a condition precedent to the institution of litigation. All such disputes arising directly or indirectly out of the performance of this Agreement which are not resolved by such mediation shall be resolved by litigation in the Circuit Court of Fairfax County, Virginia, or the United States District Court for the Eastern District of Virginia, which courts the parties agree shall have exclusive jurisdiction and venue to resolve any such disputes.

SECTION 9 - EXHIBITS AND SPECIAL PROVISIONS

9.1. This Agreement is subject to the provisions of the following Exhibits which are attached to and made a part of the Agreement:

9.1.1. Exhibit A, “City of Fairfax General Terms and Conditions”.

9.1.2. Exhibit B, “City of Fairfax Insurance Requirements”.

9.1.3. Numbered Purchase Orders and related Work Plans as developed during the Agreement period.

9.2 This Agreement (consisting of pages 1 to 9, inclusive and the Exhibits identified above) constitutes the entire Agreement between CITY and CONSULTANT and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified or cancelled by a duly executed written instrument.

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IN WITNESS WHEREOF, the parties hereto execute this Agreement.

CONSULTANT: CITY:

{State Name of Firm} The City of Fairfax

______By: {Name}, {title} By: Robert A. Stalzer, FAICP, ICMA-CM

Title: {Title} Title: City Manager

Address for giving notices:

{Number and Street} 10455 Armstrong St. P.O. Box {no.} Fairfax, VA 22030 {State City and State, ZIP}

APPROVED AS TO FORM:

______Brian J. Lubkeman, Esq. City Attorney

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