10-2135 Continuing Professional Utilities Services Consultant Agreement

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CONTRACTUAL SERVICES Page 8 of 20 Except for issues arising from Agreement indemnification provisions, the City shall have the right to retain out of any payment due the Consultant under this Agreement an amount sufficient to satisfy any amount due and owing to the City by the Consultant on any other Agreement between the Consultant and the City. The City may withhold payment on any invoice in the event that the Consultant is in default under any provision of this Agreement or any other Agreement between the Consultant and the City as of the time of processing the invoice or as of the time payment is made available on the invoice. This right to withhold shall continue until such time as the default has been cured, and, upon cure, the City shall have the right to retain an amount equal to the damages suffered as a result of the default. J. It is mutually agreed and understood that the following provision shall be applicable to this Agreement if the compensation, as indicated in Paragraph 4.A. hereof, to be paid to the Consultant, whether by lump sum orcost-plus-a-fixed-fee, shall exceed $60,000: The Consultant hereby certifies, covenants and warrants that wage rates and other factual unit costs provided the City to support the compensation provided in Paragraph 4.A. hereof are accurate, complete and current as of the date of this Agreement. It is further agreed that said Agreement price provided in Paragraph 4.A, hereof shall be adjusted to exclude any significant sums where the City shall determine the Agreement price was increased due to inaccurate, incomplete or non-current wage rates and other factual unit costs. All such Agreement adjustments shall be made within one year following the end of the Agreement. For the purpose of this Agreement, the end of the Agreement shall be deemed to be the date of final billing or acceptance of the work by the City, whichever is later, subject to the provisions of Paragraph 2.A. hereof. 5. INDEMNITY AND INSURANCE: A. To the fullest extent permitted by law, Consultant shall indemnify, hold harmless and defend the City, its agents, servants, and employees, or any of them, from and against all claims, damages, losses, and expenses including, but not limited to, attorneys' fees and other legal costs such as those for paralegal, investigative, and legal support services, and the actual cost incurred for expert witness testimony, arising out of or resulting from the performance of services required under this Agreement, and specifically including, but not limited to, copyright violations, to the extent that same is caused in whole or part by the error, omission, negligent act, failure to act, conduct, malfeasance, misfeasance or misconduct of