Loading...
HomeMy WebLinkAbout2020-03-17 - M2 Consulting, PLLC - General Agreements / General Service AgreementsPersonal Services Contract Between The City of East Wenatchee And M2 Consulting, PLLC For Personal Services for the Development of a City Pavement Management Program Personal Services for the Development of a City Pavement Management Program Page 1 of 9 1. Washington Law governs the interpretation of this Contract. This Contract shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Washington. 2. Parties. The Parties to this agreement ("Agreement") are the City of East Wenatchee ("City") and M2 Consulting, PLLC ("Consultant"). In consideration of the terms, conditions, covenants, and performance of the scope of work contained herein, as attached and made a part hereof, the City and Consultant mutually agree as follows: 3. Scope of work. Consultant shall provide the services specified below. These services shall be termed "work" herein. Consultant shall perform the following services that: a. See Exhibit A 4. Term of Contract. The effective date of this contract begins upon execution. This contract expires on October 31, 2020. The City may terminate this Contract without cause upon written notice. Work in progress will be paid, on a prorated basis to the date ordered to stop. 5. Compensation. a. Total Compensation. The City shall pay $6,000.00 for performing the work set forth in Exhibit A. b. Disputed work: If the City believes in good faith that some portion of work has not been completed satisfactorily; the City may request that Consultant correct the work before the City pays for such work. In such event, the City must reasonably explain to Consultant its concern over the work and the remedy that the City expects from Consultant. The City may withhold from any payment otherwise due an amount that the City in good faith is under dispute, or if the Consultant does not provide a sufficient remedy, the City may retain the amount equal to the cost to the City for otherwise correcting or remedying the work not properly completed. c. Method of Pam. Consultant shall submit a monthly invoice for compensation. The monthly invoice shall contain a detailed description of the work performed during the month, the number of hours spent performing such work, and any reimbursable costs and expenses incurred in connection with such work. d. Invoices. Consultant shall submit invoices to the following address: The City of East Wenatchee 271 Ninth St. NE East Wenatchee, WA 98802 Attention: Amber Schulz Personal Services for the Development of a City Pavement Management Program Page 2 of 9 6. Representations. Consultant represents and warrants that he/she/it has the requisite training, skill and experience necessary to provide work and is appropriately accredited and licensed by all applicable agencies and governmental entities. 7. Independent Contractor. The parties intend and understand that Consultant shall be an independent contractor. The parties further intend and understand that the City shall be neither liable for, nor obligated to pay: sick leave, vacation pay, social security or other tax that may arise as an incident of employment, or any other benefit of employment. Consultant shall pay all income and other taxes as due. Any industrial or other insurance purchased for the benefit of the Consultant shall not convert this Contract to any type of employment contract. The Parties recognize that Consultant may or will be performing professional work during the term for other parties and that the City is not the exclusive user of the work that Consultant will provide. 8. Property and Confidential Information. Consultant shall not, without the prior written consent of the City, disclose to third parties information that is not otherwise subject to public disclosure unless: a. The information is known to Consultant prior to receiving the same directly or indirectly in connection with the work; b. The information is in the public domain at the time of disclosure by Consultant; or C. The information is received by Consultant from a third party who does not have an obligation to keep the same confidential. 9. Indemnification. Consultant releases and shall indemnify and hold harmless the City, its elected officials, officers, employees, agents and volunteers for any and all claims, demands, losses, negligent acts or omissions, and liabilities (including costs and all attorney's fees) to or by any and all persons and entities, including without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Contract to the extent caused by the negligent acts, errors or omissions of Consultant, its partners, shareholders, agents, employees, or by the Consultant's breach of this Contract. To the maximum extent permitted by applicable law, this shall apply. However, this shall not require Consultant to indemnify the City against any liability for damages arising out of bodily injury or property damages caused by or resulting from negligence of the City. The City shall protect, defend and indemnify and save harmless the Consultant, its representatives and other employees all costs, claims, judgments or awards of damages arising out of the negligent acts or omissions of the City, its officers or employees. Further, in the case of concurrent negligence of Consultant on the one hand and the City on the other hand, each party shall be required to indemnify the other only to the extent of the negligence of the party. Personal Services for the Development of a City Pavement Management Program Page 3 of 9 Consultant releases and shall defend, indemnify and hold harmless the City from and against all claims, cost, liabilities, damages, expenses (including but not limited to reasonable attorney fees) and royalties based upon any actual or alleged infringement or misappropriate of any patent, copyright, trade secret, trademark, or other intellectual property right by any work. Further, if any work infringes or misappropriates any patent, copyright, trade secret, trademark or other intellectual property right, Consultant shall either (a) procure for the City the right to use such work; or (b) modify work so that it no longer infringes or misappropriates any such right. 10. Work Product. All work product, including records, files, documents, plans, removable computer disks or material which may be produced or modified by Consultant while performing work shall belong to the City. At the termination of this Contract, Consultant shall deliver copies of files containing the written record of Consultant's work. Until at least 12 months following final payment, Consultant shall provide the City prompt access to (and the City shall have the right to examine, audit and copy) all of Consultant's books, documents, papers and records related to the work. 11. Evaluation and Monitoring. Consultant shall control and direct the performance of the work of Consultant pursuant to this Contract, subject to oversight by the City. The Mayor, or his designee, will oversee Consultant's work. The City reserves the right to inspect, review and approve the work of Consultant to assure that it has been completed as specified, before payment. Consultant shall cooperate with and freely participate in any monitoring or evaluation activities conducted by the City that are pertinent to the intent of this Agreement. 12. Insurance. Consultant shall provide Professional Liability insurance which shall provide coverage for any negligent professional acts, errors or omissions for which Consultant is legally responsible, with limits of not less than $1,000,000.00 each occurrence. Consultant shall furnish a certificate of insurance to the CITY at the time of execution of this agreement. 13. Non -Discrimination. During the performance of this contract, Consultant, for itself, its assigns and successors in interest agree as follows: a. Compliance with Regulations. Consultant shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the United States Department of Transportation ("USDOT"), Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time. b. Nondiscrimination. With regard to the work performed by Consultant, Consultant shall not discriminate on the grounds of race, color, sex, or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations. Personal Services for the Development of a City Pavement Management Program Page 4 of 9 14. General Provisions. a. Full Agreement. This Contract and all attachments form all of the covenants, promises, agreements and conditions, between the parties. All attachments and addendum are incorporated herein by this reference, and shall be a part of this contract instrument. In the event of discrepancy between the documents, addendum and attachments shall prevail over the Contract. This entire contract including all attachments specifies the working relationship between the City and Consultant and specific obligations of both parties. b. Full Force and Effect. If any provision of this Contract is declared invalid, the remaining provisions shall remain in full force and effect. C. Survivability. The obligation of Consultant under all provisions of this Agreement, which may reasonably be interpreted or construed as surviving the completion, termination, or cancellation of this Contract, shall survive the completion, termination, or cancellation of this Contract. d. Executory Contract. This Contract will be considered valid once signed by both parties. e. No Waiver. If the City fails to or delays in declaring a breach or default, the City does not waive its right to declare a breach or default. If the City fails to declare one breach or default, it is not waiving its right to declare another breach or default. f. Authority. Each individual executing this Contract on behalf of the City and Consultant represents and warrants that such individuals are duly authorized to execute and deliver this Contract on behalf of Consultant or the City. g. Performance. Time is of the essence of this Contract in each and all of its provisions in which performance is a factor. h. Remedies Cumulative. Any remedies provided for under the terms of this Contract are not intended to be exclusive, but shall be cumulative with all other remedies available at the City at law or in equity. i. Titles. The titles to the paragraphs of this Contract are solely for the convenience of the parties and are not an aid in the interpretation of the instrument. Contractor Obligation. Except as otherwise specifically provided in this Agreement, Consultant shall furnish all that may be required to provide the scope of work as described in the contract and incorporated documents, including any personnel, labor and supervision, technical, professional and other work, equipment and supplies. Details of the any supplies, equipment, or installation or Personal Services for the Development of a City Pavement Management Program Page 5 of 9 same, that are necessary to carry out the intent of this Contract, but that are not expressly stated, shall be performed or furnished by Consultant as part of the Contract, without any increase in the compensation otherwise payable under this Contract. k. Binding Effect. The provisions, covenants, and conditions in this Contract apply to bind the parties, their legal heirs, representatives, successors, and assigns No Gifts and Gratuities. Consultant may not offer, nor may City employees accept gifts, gratuities, loans, trips, favors, special discounts, work, or anything of economic value in conjunction with the City business practices. Consultant and the City employees must strictly adhere to the statutes and ordinances for ethics in contracting and purchasing, including the City Ethics Code, RCW 42.23 (Code of Ethics for Municipal Officers) and RCW 42.52 (Ethics in Public Service). This is applicable to any business practice, whether a contract condition, bid practice, or at any activity related to the City business. M. Conflict of Interest. Consultant represents that he does not have a business interest or close family relationship with any City officer or employee who was, is, or will be involved in the Consultant selection, negotiation, drafting, signing, administration or evaluation of the Consultant's performance. In addition, Consultant acknowledges that he will adhere to the City's policies regarding conflict of interest, the City Ethics Code, and the RCW as named previous. n. Compliance with Laws. Consultant, at his/her/its sole cost and expense, shall perform and comply with all applicable laws of the United States and the State of Washington; and all applicable laws, ordinances, rules, regulations, orders, and other requirements, in effect, of any governmental entity (including but not limited to such requirements as may be imposed upon the City and applicable to the Contract). Consultant shall furnish documents as may be required to effect or evidence such compliance. o. Personal Liability. The parties agree that in no event shall any official, officer, employee, or agent of the City be in any way liable or responsible for any covenant or Contract herein contained whether express or implied, nor for any statement of representation made herein or in any connection with this Contract. 15. Modification. This Agreement constitutes the entire agreement between the parties. Except with the written consent of both parties, neither party may alter or modify this Agreement. 16. Termination of Agreement. Either party may terminate this Agreement at any time by providing written notice of such termination, specifying the effective date thereof at least thirty days prior to such date. In such event the City shall pay Consultant all amounts due for all work previously authorized and performed prior to the date of termination. In the event of termination, Consultant agrees to cooperate reasonably with any service provider thereafter Personal Services for the Development of a City Pavement Management Program Page 6 of 9 retained by the City in making available information developed as the result of work previously performed by the Consultant. If no notice of termination is given, all relationships and obligations created by this Agreement, shall terminate at the conclusion of the Agreement period set out in Paragraph 3. 17. Venue. The venue for any legal dispute regarding this Agreement shall be Douglas County Superior Court. 18. Dispute Resolution. The parties mutually intend to establish procedures to facilitate the informal and inexpensive resolution of all disputes arising under this Agreement, by mutual cooperation and without resort to litigation. Accordingly, all disputes involving this transaction, or between the parties hereto with respect to the subject matter hereof, shall be resolved in a final and binding manner in accordance with the following procedures. Whether or not mediation/arbitration is under way, any party may have full access to the courts to compel compliance with the provisions of this Article and to enforce or confirm an arbitration award. a. Negotiation. The parties shall first attempt to negotiate a mutually -satisfactory resolution to the dispute as follows: i. The complaining party shall notify (in the manner required in this Agreement) the other parties of the alleged dispute, controversy, claim or breach of contract (hereinafter "Dispute') by explaining in writing the nature of the Dispute, and referring to the relevant paragraphs of this Agreement upon which it bases its position regarding the Dispute. The complaining party shall also set forth in such notice a proposed solution to the Dispute; ii. The parties receiving such notice shall respond by notice individually to the complaining party within twenty (20) days of the effective date of the complaining party's notice, with an explanation of its defensive position, if any, including references to the relevant paragraphs of the Agreement and a response to the proposed solution; and iii. Within twenty days following notice of this defensive response, the parties shall meet and discuss options for resolving the Dispute; the complaining party must initiate the scheduling of this resolution meeting. In the event a party fails to cooperate in scheduling the resolution meeting, then the complaining party may elect to skip the negotiation and mediation procedures and immediately proceed with arbitration. b. Mediation. If the parties are unable to satisfactorily resolve the Dispute through such negotiation, mediation must be held within thirty days of an unsuccessful resolution meeting. The mediation will be governed by and under the then - applicable rules of JAMS/Endispute ("JAMS") in Chelan County. The complaining party must contact JAMS to schedule the mediation. The parties may agree on a mediator from the JAMS panel. If they are unable to agree, the parties Personal Services for the Development of a City Pavement Management Program Page 7 of 9 shall request JAMS to provide a list of three available mediators, and each side shall strike one; the remaining individual shall serve as the mediator. In the event a party fails to cooperate in this mediation process in a timely manner, then the complaining party may elect to skip the mediation procedure and immediately proceed with arbitration. C. Binding Arbitration. If the dispute is not timely settled by mediation as set forth above, then the parties agree to submit the dispute immediately to JAMS for final and binding arbitration as follows: A single arbitrator shall be used. The parties may agree on an arbitrator from the JAMS panel. The complaining party may initiate arbitration by providing notice of intent to arbitrate to all parties and to JAMS: The notice must contain a description of the Dispute, the amount involved, and the remedy sought. If the parties are unable to agree on an arbitrator, the parties shall request JAMS to provide a list of three available panel members and each party may strike one; the remaining individual shall serve as the arbitrator. If the parties agree, the individual that served as the mediator may serve as the arbitrator. ii. If and when such a demand for arbitration is made by any party, the parties agree to promptly conduct the arbitration in accordance with JAMS Rules and Procedures. iii. The parties agree that arbitration must be initiated within one (1) year after the latter of (i) the occurrence of the claimed breach, or (ii) the discovery thereof by the complaining parry; and that the failure to initiate dispute resolution in accordance with this Section within that one-year period shall constitute an absolute bar to the institution of any adjudicatory proceedings with respect thereto, unless the parties agree otherwise in writing to extend such period of time. iv. Provided, however, that such arbitration shall not apply so as to delay or prevent any judicial or arbitrator's injunctive or other equitable relief hereunder, which shall be effective immediately, subject to the requisite final and binding arbitration with respect thereto which shall be handled concurrently or after such relief is granted. The arbitrator shall not have the power to award exemplary or punitive damages. V. The arbitrator shall have exclusive authority to enter a decision adjudicating the Dispute, or granting other affirmative relief, including an award for damages, other affirmative relief, specific performance and injunctive relief; provided that a party may petition the court for enforcement of confirmation of any award if necessary. Personal Services for the Development of a City Pavement Management Program Page 8 of 9 vi. Any decision or award entered by the arbitrator may be entered on an ex- parte basis. 19. Attorney's Fees. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the substantially prevailing party shall be entitled to recover reasonable attorney's fees and other costs incurred in that action, arbitration or proceeding. 20. Severability. If a competent court of law determines any section or portion of this Agreement to be unlawful, such determination shall not affect the remaining terms and conditions of the Agreement. 21. Non -waiver. Waiver of any default or breach of this agreement shall not be deemed to be a waiver of any other prior or subsequent default or breach and shall not be construed to be a modification of the terms of this agreement unless stated to be such through written agreement of the signatories hereto. CITY OF EAST WENTCHEE: Signature: Jerrilea Crawford, Mayor Date: 3 ! 1Z l ZUZo ATTEST: By: M2 CONSULTING, PLLC: Signature: Mi S. Reister, Principal Date: March 2, 2020 Personal Services for the Development of a City Pavement Management Program Page 9 of 9 EXHIBIT A CONSULTING January4, 2020 PLLC 2020 Pavement Management Program City of East Wenatchee Scope of Work (provided by M2 Consulting, PLLC): Work shall consist of research, review, and development of a pavement management program document, detailing strategic pavement preservation and performance measures, best practices, and financial forecasts/estimates associated with implementation. The document shall be provided in electronic format, consisting of (but not limited to) Microsoft© Word, Excel, PowerPoint documents as well as Portable Document Formats (PDFs). Copies of any original electronic files used to create PDF documents shall be transmitted to the City for future use. The pavement management program document will be a living, adaptable strategy document for the City's sole use and modification upon delivery of the same by M2 Consulting, PLLC. To be provided by the City: The City will provide (in electronic format) all pertinent pavement ratings, roadway inventory data (length, width, pavement history, and access to the City's StreetSaver data), pavement project histories and budgets (as available, preferably via StreetSaver) and all other pavement/roadway-related data necessary for the development of an accurate and adaptable pavement management program document as requested by M2 Consulting, PLLC. The City shall provide M2 Consulting, PLLC with any electronic/digital storage media (2GB min) of the City's choice, that the City elects to own pursuant to the Contract, upon which to store electronic documents associated with this work. Fee Schedule Consulting Staff Hourly Rate Hours Total M.S. Reister (Principal) $100.00 60.0 $6,000.00