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HomeMy WebLinkAbout5.847 Original Contract AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE THE CITY OF PORT ANGELES AND Wi lIiam P. Ott PROJECT 02-15 5. g<l7 ~ 9fRK j ,P RELATING TO:Sth Street Bridge Replacements Disputes Resolution Board (ORB) THIS AGREEMENT is made and entered into this z.Co day of ...)V L ...., 2007, by and between THE CITY OF PORT ANGELES, a non-charter code city of the State of Washington, (hereinafter called the "CITY") and William Ott., a Construction Consultant, authorized to do business in the state of Washington (hereinafter called the "CONSULTANT"). WHEREAS, the CITY desires engineering, consulting, and planning assistance related to construction management; and WHEREAS, the CITY desires to engage the professional services and assistance of a qualified consulting firm to perform the scope of work as detailed in Exhibit A, and WHEREAS, the CONSULTANT represents that it is in full compliance with the statutes of the State of Washington for professional registration and/or other applicable requirements, and WHEREAS, the CONSULTANT represents that it has the background, experience', and ability , to perform the required work in accordance with the standards of the profession, and, WHEREAS, the CONSULTANT represents that it will provide qualified personnel,and \ '. ' appropriate facilities necessary to accomplish the work; " , NOW, THEREFORE, in consideration of the above representations and the terms, conditions, covenants, and agreements set forth below, the parties hereto agree as follows: I SCOPE OF WORK The scope of professional services to be performed and the results to be achieved by the CONSULTANT shall be as detailed in the attached Exhibit A and shall include all services and material necessary to accomplish the work. The CITY may review the CONSULTANT'S work product, and if it is not satisfactory, the CONSULTANT shall make such changes as may be required by the CITY. Such changes shall not constitute "Extra Work" as related in Section XII of this Agreement. The CONSULTANT agrees that all services performed under this Agreement shall be in accordance with the standards of the engineering profession and in compliance with applicable federal, state and local laws. The Scope of Work may be amended upon written approval of both parties. II DESIGNATION OF ORB MEMBERS Each party shall designate its selection for the ORB Board in writing. N:/projects/02-15 8th St Bndges/Construction CorrespondencelDRB/Servlces Agreement Rev #2.doc Page 1 of 5 'I III TIME OF PERFORMANCE The CONSULTANT may begin work upon execution of this Agreement by both parties and the duration of the Agreement shall extend through December 31,2008. IV PAYMENT The CITY shall pay the CONSULTANT as set forth in this section of the Agreement. Such payment shall be full compensation for work performed, services rendered, and all labor, materials, supplies, equipment and incidentals necessary to complete the work. A. Payment shall be on the basis of the CONSULTANT'S cost plus fixed fee as set forth in the attached Exhibit C. B. The CONSULTANT shall submit invoices to the CITY on a monthly basis. Invoices shall detail the work, hours, employee name, and hourly rate; shall itemize with receipts and invoices the non-salary direct costs; shall indicate the specific task or activity in the Scope of Work to which the costs are related; and shall indicate the cumulative total for each task. C. The CITY shall review the invoices and make payment for the percentage of the project that has been completed less the amounts previously paid. D. The CONSULTANT invoices are due and payable within 30 days of receipt. In the event of a disputed billing, only the disputed portion will be withheld from payment. E.- Final payment for the balance due to the CONSULTANT will be made after the completion of the work and acceptance by the CITY. , J F.~ Payment for "Extra,Work" performed under Section XII of this Agreement shall be as agreed to by the parties in writir:lg. j ,:" " V MAXIMUM COMPENSATION Unless otherwise agreed to in writing by both parties, the CONSULTANT'S total compensation and reimbursement under this Agreement, including labor, direct non-salary reimbursable costs and outside services, shall not exceed the maximum sum of $20,000. The budget for each task is as set forth in the attached Exhibit B. Budgets for task(s) may be modified upon mutual agreement between the two parties, but in any event, the total payment to CONSULTANT shall not exceed $20,000. VI INDEPENDENT CONTRACTOR STATUS The relation created by this Contract is that of owner-independent contractor. The Contractor is not an employee of the City and is not entitled to the benefits provided by the City to its employees. The Contractor, as an independent contractor, has the authority to control and direct the performance of the details of the services to be provided. The Contractor shall assume full responsibility for payment of all Federal, State, and local taxes or contributions imposed or required, including, but not limited to, unemployment insurance, Social Security, and income tax. VII NONDISCRIMINATION The CONSULTANT shall conduct its business in a manner, which assures fair, equal and non- discriminatory treatment of all persons, without respect to race, creed or national origin, or other legally protected classification and, in particular: N /projects/02-15 8th St. Bridges/Construction Correspondence/DRB/Servlces Agreement Rev #2.doc Page 2 of 5 A. Minimum Scope of Insurance Consultant shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 0001 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage; and, 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, and personal injury and advertising injury. The City shall be named as an insured under the Consultant's Commercial General Liability insurance policy with respect to the work performed for the City; and, B. Minimum Amounts of Insurance Consultant shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $500,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than , $500,000 each occurrence. < C. Other,lnsurance Provisions (", " . The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance: '/ 1. The Consultant's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant's insurance and shall not contribute with it. 2. The Consultant's insurance shall be endorsed to state that coverage shall not be cancelled, suspended or materially changed by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. Any payment of deductible or self-insured retention shall be the sole responsibility of the CONSULTANT. 4. The CONSULTANT'S insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, N:/projects/02-15 8th St Bridges/Construction Correspondence/DRB/Servlces Agreement Rev #2 doc Page 4 of 5 ~ r A. The CONSULTANT shall maintain open hiring and employment practices and will welcome applications for employment in all positions, from qualified individuals who are members of minorities protected by federal equal opportunity/affirmative action requirements; and, B. The CONSULTANT shall comply with all requirements of applicable federal, state or local laws or regulations issued pursuant thereto, relating to the establishment of non discriminatory requirements in hiring and employment practices and assuring the service of all persons without discrimination as to any person's race, color, religion, sex, Vietnam era veteran status, disabled veteran condition, physical or mental handicap, or national origin. VIII SUBCONTRACTS A. The CONSULTANT shall not sublet or assign any of the work covered by this Agreement without the written consent of the CITY. B. In all solicitation either by competitive bidding or negotiation made by the CONSULTANT for work to be performed pursuant to a subcontract, including procurement of materials and equipment, each potential subconsultant or supplier shall be notified by the CONSULTANT of Consultant's obligations under this Agreement, including the nondiscrimination requirements. IX CHANGES IN WORK Other than changes directed by the CITY as set forth in Section I above, eitherparty'.may request changes in the scope' of work. Such changes shall not become part of.'this' Agreement unless and until mutually agreed upon aDd incorporated herein by written amendments to this Agreement executed by both parties. ,. ,,' X TERMINATION OF AGREEMENT -. , A. The CITY may terminate this Agreement at any time upon not less than ten (10) days written notice to the CONSULTANT. Written notice will be by certified mail sent to the consultant's designated representative at the address provided by the CONSULTANT. B. In the event this Agreement is terminated prior to the completion of the work, a final payment shall be made to the CONSULTANT, which, when added to any payments previously made, shall compensate the CONSULTANT for the percentage of work completed. C. In the event this Agreement is terminated prior to completion of the work, documents that are the property of the CITY pursuant to Section II above, shall be delivered to and received by the CITY prior to transmittal of final payment to the CONSULTANT. XI INSURANCE The CONSULTANT shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the CONSULTANT, its agents, representatives, employees or subcontractors. No Limitation. CONSULTANT'S maintenance of insurance as required by the agreement shall not be construed to limit the liability of the CONSULTANT to the coverage provided by such insurance, or otherwise limit the CITY'S recourse to any remedy available at law or in equity. N /projects/02-15 8th St Bridges/Construction Correspondence/ORB/Services Agreement Rev. #2.doc Page 3 of 5 ,w evidencing the insurance requirements of the Consultant before commencement of the work. XII APPLICABLE LAW This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington, and in the event of dispute the venue of any litigation brought hereunder shall be Clallam County. XIII EXHIBITS AND SIGNATURES This Agreement, including its exhibits, constitutes the entire Agreement, supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. The following exhibits are hereby made a part of this Agreement: Exhibit A - Scope of Work Exhibit B - Budget for Each Task Exhibit C - Consultant Labor Costs and Non-salary Reimbursable Costs IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY OF PORT ANGELES N-~.~. Acting City Manager #:~VE~~O ~; WILLIAM E. BLOO~IT~TORNEY . 'oj. ,,' CONSULTANT ATTEST: ~~ b..~~J~" BECKY J. PT , CITY CLERK TITLE: N /projects/02-15 8th St Bndges/Constructlon Correspondence/DRB/Services Agreement Rev. #2.doc Page 5 of 5 --. ,-~ ,-\ . Exhibit ((A" Disputes Review Board CITY of Port Angeles (CITY) Member Scope of Work The work of this AGREEMENT shall consist of serving as a member of a Disputes Review Board for the Eighth Street Bridge Replacements Project. The Disputes Review Board is an advisory body that is created for the project. The BOARD's function will be to provide an independent view of disputes between the CONTRACTOR and the CITY in order to prevent construction delays and possible litigation. The intent ofthe BOARD is to fairly and impartially consider disputes placed before it and provide written comments about these disputes to both the CITY and the CONTRACTOR. As a first order of work, the CITY Member shall meet with the CONTRACTOR Member to select a third member ofthe BOARD. The goal is to obtain a third board member who will complement the first two by furnishing a needed expertise, which will facilitate the BOARD's operation. The Scope of Work ofthe CITY Member of the BOARD includes, but is not limited to, the following items of work: BOARD Consideration of Disputes or Claims: Upon request by either the CITY or the CONTRACTOR to review a dispute, the BOARD shall convene to review and consider the issue. Both the CITY and the CONTRACTOR shall be given the opportunity to present their '\ evidence at these meetings. The time and location of BOARD meetings shall be determined by the CITY, CONTRACTOR and the BOARD. It is expressly understood that the BOARD members are to act impartially and independently in the consideration of facts and conditions surrounding any written appeal presented by the CITY or the CONTRACTOR and that the recommendations concerning any such appeal are advisory. Procedures: Prior to any hearing involving a contract dispute, the BOARD will meet with the CITY and the CONTRACTOR to establish the rules and procedures that will govern the BOARD's participation in the Project as set forth in the Special Provisions of the construction contract. In establishing the rules and procedures, the parties may consider the Suggested Administrative Procedures included in this Exhibit. These Guidelines express in general terms the concept for the operation of a board and are intended to supplement the Special Provisions of the construction contract to the extent that no conflict with such provisions is created. The BOARD may establish any internal rules and procedures not covered in the Agreement with the CITY and the CONTRACTOR. The BOARD's recommendations resulting from its consideration of a dispute shall be based on the construction contract provisions and the facts and circumstances involved in the dispute. Furnishing Documents: The CITY shall furnish to the BOARD three copies ofthe contract and other documents, which are or may become pertinent to the activities ofthe BOARD. The CONTRACTOR shall furnish to the BOARD three sets of documents, which are or may become pertinent to the activities of the BOARD, except documents furnished by the CITY. Exhibit A Page 1 of5 \ ..' Construction Site Visits: The BOARD members shall visit the project site to keep abreast of construction activities and to develop a familiarity ofthe work in progress. The frequency, exact time, and duration ofthese visits shall be as mutually agreed between the CITY, the CONTRACTOR, and the BOARD. City Responsibility The CITY shall furnish the following services and items: A. Contract-Related Documents: The CITY shall furnish the BOARD three copies ofthe contract documents, including change orders, written instructions issued by the CITY to the CONTRACTOR, or other documents pertinent to the performance ofthe contract, and therefore, necessary to the BOARD's work. B. Coordination and Services: The CITY's project engineer for the contract will, in the cooperation with the CONTRACTOR, coordinate the operations of the BOARD. The CITY through the project engineer will arrange or provide conference facilities at or near the contract site and provide secretarial and copying services. Exhibit A Page 2 of5 . '-... Exhibit ((A" Disputes Review Board Suggested Administrative Procedures Objective The principal objective of the BOARD is to assist in the resolution of disputes, which would otherwise be likely submitted to litigation processes. Ifthis objective is achieved, such disputes can be resolved promptly, with minimum expense, and with minimum disruption to the administration and performance of the work. It is not intended for the CITY or the CONTRACTOR to default on their normal responsibility to amicably and fairly settle their differences by indiscriminately assigning them to the BOARD. It is intended that the mere existence of the BOARD will encourage the CITY and the CONTRACTOR to resolve potential disputes without resorting to this appeal procedure. But when a dispute which is serious enough to warrant the BOARD's review does develop, the machinery for prompt and efficient action will already be in place. Responsibility of the BOARD Render findings and recommendations on disputes between the CITY and the CONTRACTOR arising from the construction contract. Primarily, the BOARD will consider claims and disputes involving interpretation of the Plans and Specifications, delays, acceleration of the work, scheduling, classification of extra work, changed conditions, design changes, and the like. During its regular visits to the job site, the BOARD will encourage the settlement of differences at the job level. The BOARD will refrain from officially giving any advice or consultative services to either party. The individual members will act in a completely independent manner and will have no consultative or business connections with either party. During the routine meetings ofthe BOARD as well as during formal hearings, BOARD members should refrain from expressing opinions on the merits of statements on matters under dispute or potential dispute. Opinions of BOARD members expressed in private sessions should be kept strictly confidential. Normally, the BOARD member selected by the first two will act as Chairman for all activities. However, this post may be delegated to another member from time-to-time. Regular Construction Progress Meetings All regular meeting will be held at or near the job site. The frequency of regular meetings will be set by agreement of the BOARD, the CITY and the CONTRACTOR, consistent with the construction activities and the matters under consideration and dispute. Each meeting will consist of a round table discussion and a field inspection of the work being performed on that contract. The round table discussion will be conducted by a member of the CITY's Staff and will be attended by selected personnel from the CITY and the CONTRACTOR. The agenda will generally be as follows: . Meeting opened by Chairman ofthe BOARD. Exhibit A Page 3 of5 . . ,- . Remarks by the CITY's representative. . A description by the CONTRACTOR of work accomplished since the last meeting, the current status of the work, schedule-wise, and a forecast for the coming period. . And outline, by the CONTRACTOR, of potential problems and a description. . An outline, by the CITY's Project Engineer, of the status of the work as the Project Engineer views it. . A brief description, by the CONTRACTOR or the CITY, of potential claims or disputes, which have surfaced since the last meeting. . A summary, by the CONTRACTOR, the CITY or the BOARD, of the status of past disputes and claims. The CITY will prepare minutes of all regular meetings and circulate them for revision and approval by all concerned. The field inspection will cover all active segments of the work, the BOARD being accompanied by both CITY and CONTRACTOR personnel. Handling of Written Appeals When the BOARD receives a written appeal, it shall, first, reach agreement with the parties on a time to conduct the hearings. The decision shall be tempered by the desires and needs ofthe CITY and the CONTRACTOR. If the matter is not urgent, it may be scheduled for the time of the next regular visitation to the project. For an urgent matter, the BOARD should meet at its earliest convenience. The BOARD may also request that written documentation concerning the dispute be sent to each individual member for study before the hearing begins. A party furnishing any written documentation to the BOARD must furnish copies of such information to the other party before the hearing begins. Normally, the hearings would be conducted at the job site. However, any location, which would be more convenient and still provide all required facilities and access to the necessary documentation, would be satisfactory. Private sessions ofthe BOARD may also be held at a location other than the job site. For hearing on disputes, the third member or one of the other members designated by the third member of the BOARD will act as Chairman. The CITY and the CONTRACTOR shall have a representative at all hearings. The Claimant will discuss the dispute followed by the other party. Each party will then be allowed one ore more rebuttals until all aspects are thoroughly covered. Each time a person testifies, the BOARD members may ask questions, seek clarification, or request further data. The BOARD may request from either party documents or information that would assist the BOARD in making its findings and recommendations, including, but not limited to, documents used by the CONTRACTOR in preparing the bid for this project. A refusal by a party to provide information requested by the BOARD may be considered by the BOARD in making its findings and recommendations. In large or complex issues, one or more additional hearings may be necessary in order to consider all the evidence presented by both parties. Exhibit A Page 4 of5 ~ ,~., During opening hearings, no BOARD member should express an opinion concerning the merit of any facet of the dispute. By the same token, all BOARD deliberations should be conducted in private, with all interim individual views kept strictly confidential. After the hearings are concluded, the BOARD shall meet in private and reach a conclusion supported by two or more members. Its findings and recommendations, together with its reasons shall then be submitted as a written report to both parties. The recommendations shall be based on the pertinent contract provisions and facts and circumstances involved in the dispute. The BOARD should make every effort to reach a unanimous decision. If this proves impossible, the dissenting member may prepare a minority report. Although both parties should place weight upon the BOARD'S recommendation, they are not binding. Either party may appeal a recommendation to the BOARD for reconsideration. However, if the BOARD's recommendations do not resolve the dispute, all records, and written recommendations, including any minority reports, may be admissible as evidence in any subsequent litigation. Miscellaneous It is not desirable to adopt hard and fast rules for the functioning of the BOARD. The entire procedure should be kept flexible so that it can adapt to changing situations. The BOARD should initiate, with the other parties, concurrence, new rules or modifications to old ones whenever this is deemed necessary. Exhibit A Page 5 of5 Exhibit B Disputes review Board Owners Member Budget for Each Task Anticipated regularly scheduled DRB Meetings: August 2007 November 2007 February 2008 May 2008 August 2008 November 2008 Task Quantity Rate Amount Relrular Meetin2s Develop Contract & Scope of work 8 hrs $150/hr $1200 Review Documents 8 hrs $150/hr $1200 Regular DRB Meeting including travel time 6 days $1500/day $9000 Travel Expenses & Reimbursable 6 days 236.75/day $1420 SUBTOTAL $12,820 On-site Hearings or special meetings 1 days $1500 $1500 Off-site Deliberations and write-up of 30 Hrs $150/hr $4500 Recommendations Travel Expenses & Reimbursable 1 days $236.75/day $237 TOTAL $19057 Itemized Reimbursables ITEM Quantity Unit Rate Amount Mileage 1760 Miles $0.485 $853.60 Ferry Fare 8 Trips $30 $240.00 Meals & Hotel 8 Trips $100 $800.00 $1893.60 .~//4- City of Port Angeles 8th Street Bridge Disputes Review Board EXHffiIT B Page 1 of 1 EXHIBIT C William P Ort Construction Consultants 129 E Lake Sammamish ShIn. NE Sammamish, WA. 98074 425-890-3533 cell 425-868-7415 phone / fax williamott129@Yahoo.com email May 17,2007 Rod Finkle, PE Director of Construction Services Exeltech 2590 Willamette Drive NE; Suite 101 Lacey, WA 98516 RE: Rates Disputes Review Board Dear Rod, For the duration ofthis project my rate is $150 per hour which includes direct salary, overhead, and fee. My maximum daily charge is $1500 and includes travel time and meeting time. This rate is representative of the rates that I charge my preferred clients for this type of work. In addition to the above rates the following direct out -of-pocket expenses will be invoiced without markup: Travel Expenses (mileage or air) Lodging and meals Ferries Fees or tolls All Travel costs will comply with the Washington State Department of Transportation Accounting Manual 13-82, Chapter 10, Travel. Sincerely, ~ William P. Ott Federal Employer Identification # 542428296 UBI # 601 312 980 City of Port Angeles 8th Street Bridge Disputes Review Board EXHIBIT C Page lof 1