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HomeMy WebLinkAbout001145 Original Contract 1City of Port Angeles Record #001145 PROFESSIONAL SERVICES CONTRACT between CITY OF PORT ANGELES and NAVIGANT CONSULTING, INC. This Contract is entered into by and between the City of Port Angeles, a municipal corporation of the State of Washington (hereinafter referred to as "City"), and Navigant Consulting, Inc. (hereinafter referred to as "Contractor"). In consideration of the covenants and promises set forth herein, the parties hereto agree as follows: Purpose and Scope of Services. The City requires the legal expertise and experience which Contractor is able to provide to resolve the City's dispute with TEK, Inc., regarding the Port Angeles' Phase 2 CSO project. The Contractor's work shall be as directed by the City Attorney. Without limiting the generality of the foregoing, the Contractor's work may include performing a review of TEK's accounts relating to the Phase 2 CSO project. In performing the review, the Contractor shall, at the minimum, obtain the information and perform the analyses and make the determinations specified on Exhibits A and B to this Agreement. The review will be performed with the intent that it will provide information and analyses that will inform the City regarding issues and strategies for mediation and settlement negotiations, preparation of the City's case for mediation and settlement negotiations, participation in mediation and settlement negotiations, and other tasks relating to the City's dispute with TEK. In performing services under this Contract, the Contractor shall perform in accordance with generally accepted practices for consulting services. 2. Confidentiality. All of the work of the Contractor under this Agreement is being done at the direction of the City Attorney in anticipation of mediation, arbitration, or litigation of disputed claims that are currently pending. All of the information collected, the analyses done, conclusions reached, and opinions developed by the Contractor is work product and is within the attorney-client privilege. The Contractor shall protect that privilege. On all matters relating to work performed under this Agreement, the Contractor shall communicate with the City Attorney and no others, unless specifically directed by the City Attorney. The Contractor shall not share or communicate with any other persons any of the information collected, the analyses done, conclusions reached, and opinions developed in the performance of this Agreement. 3. Duration of Contract. The parties intend that this Contract shall be effective from the date of the last signature affixed below, and shall terminate upon completion of the services to be provided by the Contractor. Either party, upon ten (10) days' notice to the other party, may terminate this Contract in whole or in part when either party deems it to be in their best interest. In such event, Contractor shall be compensated and the City shall be liable only for payment of services already rendered under this Contract prior to effective date of termination. 4. Compensation & Payment. a. Compensation. The Contractor shall be entitled to compensation based on hours actually devoted to performance of this Agreement, but not to exceed $20,000.00. The hourly rate for each person performing work under this Agreement is shown on Exhibit C to this Agreement. b. Payment. The Contractor shall submit invoices to the City monthly, with documentation supporting and detailing work performed on behalf of the City. The City shall review Contractor's invoices and pay the invoice within 30 days of receipt. Invoices not paid within thirty (30) days shall accrue interest at a rate of nine percent (9%) annum or three-quarters of a percent (0.751/6) per month. If any invoice remains unpaid for more than sixty (60) days, Contractor may, consistent with their ethical obligations, cease performing legal services for the City until satisfactory arrangements are made to pay Contractor. If the delinquency continues, the Contractor may withdraw from representing the City, pursue collection of the account, and recover the costs of collection, including reasonable attorneys' fees from the City. If the City objects to all or any portion of any invoice, it shall provide Contractor information regarding the basis for such objection and shall notify Contractor of the same within thirty (30) days from the date of receipt of said invoice and shall pay that portion of the invoice not in dispute. The parties shall immediately make every effort to settle the dispute and the disputed portion of the invoice. 5. Expenses Expenses incurred by the Contractor on behalf of the City in the course of performance of this Contract must be approved by the City in advance. Reimbursement for travel expenses will be limited to the terms and amounts the City pays for travel reimbursement to its employees. Expenses shall be itemized on invoices submitted by Contractor to the City. Invoices for the fees and expenses of third party professionals or service providers (such as consulting experts, local counsel and court reporters) will generally be billed directly to the City or forwarded to the City for direct payment, unless other arrangements are agreed upon. To the extent necessary and appropriate to the work assigned to the Contractor, City shall provide, at its expense, access to City files and documents necessary to accomplish the work assigned to the Contractor. 6. Relationship of Parties. The Contractor shall act as an independent contractor and not as an employee, agent, or officer of the City. The Contractor shall not be authorized to bind the City to any position, contract, or agreement. The Contractor shall assume full responsibility of all federal, state, and local taxes and contributions imposed or required, including, but not limited to, unemployment insurance, Social Security, and income tax withholding and shall not be entitled to the benefits provided by the City to its employees. 7. Assignment. Contractor shall not assign or delegate any of the work covered by this Contract without the express written consent of the City. The City shall not assign this Agreement or any portion thereof to any other person or entity without the express written consent of the Contractor. Nothing contained in this Contract shall be construed to create a right in any third party whomsoever, and nothing herein shall inure to the benefit of any third party. There are no third party beneficiaries of this Contract entitled to rely on any work performed or reports prepared by Contractor hereunder for any purpose. The City shall indemnify and hold Contractor harmless against any liability for any loss arising out of or relating to reliance by any third party on any work performed or reports issued hereunder. The Contractor will not direct, supervise, or lay out the health and safety measures of the City, Contractor, or any Subcontractor. 8. Hold Harmless and Indemnification. The Contractor shall defend, indemnify and hold harmless the City, and its respective officers, officials, employees, deputies, and agents from and against any and all third party claims, actions, suits, liability, loss, expenses, damages and judgments of any nature whatsoever, including costs and attorney fees in the defense thereof, for injury, sickness, disability or death to persons or damage to property or business, to the extent directly resulting from Contractor's and its respective employees, agents, volunteers, and/or subcontractors, gross negligence, willful misconduct or fraud in providing services under the terms of the contract. Provided, however, that the Contractor's obligation hereunder shall not extend to injury, sickness, disability or death or damage to property or business caused by or arising out of the sole negligence of the City, its officers, officials, employees, deputies, and/or agents. Provided further, that in the event of concurrent negligence of both parties, the Contractor's obligations hereunder shall apply only to the percentage of fault attributable to the Contractor, its employees, agents, volunteers, and/or subcontractors. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT LIABILITY ARISES FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, THE LIABILITY FOR EITHER PARTY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID OR PAYABLE TO CONTRACTOR UNDER THIS AGREEMENT. 9. Ownership of Data and Documents. Upon payment in full to Contractor of all fees due and owing hereunder, all writings, programs, data, public records or other materials prepared by the Contractor and/or its Contractors or subcontractors, in connection with the performance of this agreement shall be the sole and absolute property of the City and constitute "work made for hire" as that phrase is used in federal and/or state intellectual property laws. City shall have the right to the use of all data, recommendations, proposals, reports, design criteria, and similar information provided to it by Contractor ("Information" herein); provided, however, that the information shall not be used or relied upon by any party other than the City and for the purposes set forth herein; further, such use shall be limited to the particular site and project for which the Information is provided. 10. W 'ver. No officer, employee, agent or otherwise of the City has the power, right, or authority to waive any of the conditions or provisions of this contract. No waiver of any breach of this contract shall be held to be a waiver of any other or subsequent breach. All remedies afforded to in this contract or at law shall be taken and construed as cumulative, that is, in addition to every other remedy provided herein or by law. Failure of the City to enforce at any time any of the provisions of this contract or to require at any time performance of any provision of the contract herein shall in no way be construed to be a waiver of such provision, or in any way affect the validity of this contract or any part thereof, or the right of the City to hereinafter enforce each and every such provision IN WITNESS WHEREOF, the parties hereto have executed this Contract to be effective as of the date and year of the Iast signature affixed below. CITY OF P T ANGELES: By: Dan McKeen, City Manager Date: 10 INA ATTEST: Je nifer feneklasen, City Clerk NAVIGANT CQ , SULTING, INC.: By:____ �11V` Title: Date: `� v Exhibit A City of Port Angeles - CSO Phase 2 Project TEK Construction Proposed Services Scope Navigant Consulting will request documentation and attempt to obtain electronic job cost transaction data and other cost records in advance of a site visit (see proposed document request). A proposed work scope is as follows: • Obtain the original estimate for the project, determine the originally estimated project margin; • Determine the contract value and amounts paid to date; • Obtain the job cost summary report, and compare original budgets and revised (with change orders) budgets to recorded costs by cost code to determine project cost overruns and underruns by work scope, • Obtain the job cost transaction detail, and test a sample of the project costs to source documentation; • Obtain key source documentation, such as subcontract agreements, project management timecards, and other documentation that would be useful in evaluating outstanding claims; • Calculate daily general conditions costs; • Determine the overall project gain or loss, and how this compares to the originally estimated project margin; and • Write a brief memorandum with supporting schedules and source documentation to summarize findings. Exhibit B City of Port Angeles - CSO Phase 2 Project TEK Construction Draft Supplemental Document and File Request Navigant Consulting requests the following information from TEK: 1. Electronic (Excel) and hard copy files of the following reports for the complete project period: A. Job Cost Transaction Detail Report — listing each transaction by phase (or cost code) and expense category. The report should include the date of the transaction, vendor names, equipment descriptions, employee names, invoice numbers (for applicable entries), employee class, labor hours by labor type, and recorded amounts (including both wage and burden amounts for the applicable labor entries), transaction descriptions, and any other pertinent fields. B. Job Cost Summary Report — comparing budget amounts to the recorded amounts by cost code and expense category. The report should include separate amounts for the original budget, the approved Change Orders, and the revised budget. All adjustments to the original budget should be provided. C. Labor Distribution Reports — to the extent the abovementioned Job Cost Detail Report includes only summary information regarding labor entries, Navigant Consulting requests distribution reports. The above-mentioned report includes all labor hours identified as regular hours, overtime hours or double time hours, and includes labor costs broken out between direct labor, taxes and insurance, fringes and reimbursements. D. Change Order Log which breaks each change order into expense categories (including labor hours) E. Accounts Receivable Report for that provides a register of submitted invoices, payment amounts, and payment dates. 2. A copy of the original estimate and all worksheets supporting the calculations. 3. A copy of the original contract, showing the original contract amount. 4. A copy of the most recent approved change order, showing the current contract value. 5. A copy of the most recent pay application or pay estimate. 6. Depreciation schedules and other documentation to support the company owned equipment costs. 7. Access to subcontract agreements, invoices, change orders and correspondence; supply agreements and material invoices; timecards and wage rate and labor burden information. 8. Project management timecards, salary and labor burden information. 9. Other items may be requested as Navigant Consulting proceeds with its work. Exhibit C — Fee Schedule Megan Wells — $375 Associate Director — $325 Senior Consultant — $240. ROUTE SLIP SUBJECT• CSO Phase II — Navigant-G�ontract ORIGINATOR: 14 Craig Fulton DATE: 3 OCT 2016 ORIGINATOR TO: ACTION REQUESTED: INITIAL: DATE: 1. Olson Verify Funding `o� VW 2. Greenwood Sign Approve N/A 11) 4111 3. McKeen Approve Reviewer Comments: , .. 4. Veneklasen Attest 01441i& 5. Fulton 6. 7. 8. 9. ORIGINATOR Navigant professional services contract to provide financial review on CSO COMMENTS: Phase II (NTE $20K). Navigant to provide review and analysis of TEK finances in preparation for final negotiations and/or mediation / claim. Current claim amount by TEK is $1,075,669. Navigant provided similar financial review services on the Landfill Bluff final settlement. CITY COUNCIL N/A STATUS ACCOUNTING 463-7489-594-6510 Reviewer Comments: