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HomeMy WebLinkAbout5.401 Original Contract . . CONSULTING SERVICES AGREEMENT ECONOMIC AND ENGINEERING SERVICES, INC. ?~ <In t r!.-~ 5.1D Billing Address P.O. Box 1989 . Bellevue, WA 98009 (206) 451-8015 Correspondence Address P.O. Box 976 Olympia, WA 98507 (360) 352-5090 Work Order # 45550 This Consulting Services Agreement is made between Economic and Engineering Services, Inc., (hereinafter "EES") and City of Port AnQeles, whose place of business is located at 321 East 5th Street. PO Box 1150. Port Angeles. WA 98362 (hereinafter "CLIENT") for a Project generally described as Conduct an Annexation Plan Analysis. I. SCOPE OF ENGINEERING SERVICES EES will provide the following services under this Agreement: preparation of an annexation plan analysis as described in the Scope of Work (Attachment At The scope of services to be provided is more fully described on Attachment A to this Agreement. EES shall render its services in accordance with generally accepted professional practices. EES shall, to the best of its knowledge and belief, comply with applicable laws, ordinances, codes, rules, regulations, permits and other published requirements in effect on the date this Agreement is signed. Notwithstanding any other provision(s) herein, nothing in this Agreement shall be construed so as to raise the standard of care otherwise applicable to EES' services provided hereunder. II. COMPENSATION & REIMBURSEMENT OF COSTS Services provided and costs incurred (with the exception of travel, food and lodging expenses) by EES under this Agreement will be compensated as follows: a total budaet of $41.700 which will not be exceeded unless prior authorization is provided by the client. In the event services are to be provided by EES in whole or in part on an hourly basis, billings will be based upon billing rates in effect for each employee utilized by EES to perform its obligations under this Agreement. EES will submit monthly invoices to CLIENT for work completed and reasonable expenses incurred, to the date of the invoice. All invoices will be itemized to reflect the task performed, the employees performing each task, the billing rate for each employee and the hours worked. CLIENT shall have no right of set off against any billings of EES for disputed claims or services. CLIENT shall pay all out-of-pocket travel, food, lodging and incidental expenses incurred by EES that are reasonably associated with the provision of services under this Agreement. Out-of-pocket expenses to be reimbursed by CLIENT to EES will be verified by separate invoices and/or receipts. An additional charge of ..2& ~percent will be added to the out-of-pocket expenses for taxes (if any) and administrative costs. All invoices sent by EES to CLIENT shall be paid within thirty (30) days of receipt. All billings that remain unpaid after thirty (30) days shall bear interest until paid at the rate of twelve percent (12%) per annum or the maximum rate allowed by law, whichever is less. If CLIENT fails to pay any invoice within thirty (30) days and such failure continues ten (10) days after EES gives CLIENT notice of such failure, EES shall have the right to terminate this Agreement immediately without liability to CLIENT. The right to terminate under the terms of this section shall be in addition to all other legal, equitable, or contractual remedies available to EES. EES shall be entitled to a change in compensation and/or time for performance for any changes made in the scope of the services made by CLIENT, so long as such changes do not arise from the negligence of EES. The costs of any additional design services undertaken, together with any costs and additional compensation that may be due EES hereunder, shall be paid to EES monthly as provided in this section, and the Contract Estimate and Project Schedule shall be equitably adjusted to reflect the change. EES shall not be required to perform any work connected with a change unless and until the parties have agreed on the amount of time and/or compensation associated with the change. Page 1 of 5 " III. TERMS & CONDITIONS OF ENGINEERING SERVICES AGREEMENT 1. Timing of Work. EES shall commence work on or about June 1. 1996 2. Opinions of Cost, Financial Considerations, and Schedules. In providing financial analyses or opinions of cost, economic feasibility and scheduling for the Project, EES has no control over: costs or prices of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures; market conditions; time or quality of performance by third parties; quality, type, management, or direction of operating personnel; or other economic and operational factors that may materially affect the ultimate Project cost or schedule. Therefore, EES makes no warranty that the CLIENT's actual Project costs, financial conditions, economic feasibility or schedules will not vary from EES' opinions, analyses, projections or estimates. 3. Access to Facilities and Property. The CLIENT will make its facilities accessible to EES as required for EES' performance of its services and will provide labor and safety equipment as required by EES for such access. CLIENT will perform, at no cost to EES, such tests of equipment, machinery, pipelines and other components of the CLIENT's facilities as may be required in connection with EES' services, unless other arrangements are agreed upon in writing. CLIENT will be responsible for all acts of CLIENT's agents or personnel. 4. Advertisements, Permits, Access. Unless otherwise agreed to in the Scope of Services, the CLIENT will obtain, arrange and pay for all advertisements for bids, permits and licenses required by local, state, province or federal authorities, and land, easements, rights-of-way and access necessary for EES' services. 5. Relationship of Parties, No Third-Party Beneficiaries. EES is an independent contractor under this Agreem'ent. This Agreement gives no rights or benefits to anyone not named as a party to this Agreement, and there are no third party beneficiaries to this Agreement. 6. Subcontracts. EES may use the services of independent contractors to perform a portion of its obligations under this Agreement. Services performed by independent contractors will be billed to CLIENT by EES at actual cost plus_ten_ percent L10_%). EES will comply with CLIENT's directives in utilizing the services of owner-specified contractors and/or minority and women owned businesses on the Project. The liability of EES arising from the work of its subcontractors will be limited to proceeds available from its subcontractors' insurance(s) to the extent permitted bylaw. 7. Insurance. a. _ Insurance of EES. EES will maintain throughout the performance of this Agreement the following types and amounts of insurance: i. Worker's Compensation and Employer's Liability Insurance as required by applicable state or federal law. ii. Comprehensive Vehicle Liability Insurance covering personal injury and property damage claims arising from the use of motor vehicles with combined single limits of $1,000,000. iii. Commercial General Liability Insurance covering claims for personal injury and property damage with combined single limits of $1 ,000,000. iv. Professional Liability (Errors and Omissions, on a claims-made basis) Insurance with limits of $1,000,000. b. Insurance for Owner. CLIENT will provide (or require the construction contractor to provide, where applicable) Builders All-Risk insurance covering the full replacement value of all facilities and equipment associated with the Project and the provision of services by EES. Such policy will include coverage for defects in materials and workmanship and for errors in design. CLIENT will provide for a waiver of subrogation as to all CLIENT insurance (including the Builders All-Risk insurance referenced above) in favor of EES and require such waivers from all of its contractors and their subcontractors. Page 2 of 5 CLIENT shall name EES as an additional insured under all applicable insurance policies and will require contractors performing seNices on the project to similarly name EES as an additional insured. c. Interpretation.' Notwithstanding any other provision(s) in this Agreement, nothing shall be construed or enforced so as to void, negate or adversely affect any otherwise applicable insurance held by any party to this Agreement. 8. Mutual Indemnification. EES agrees to indemnify and hold harmless CLIENT and its employees from and against any and all loss, cost, damage, or expense of any kind and nature (including, without limitation, court costs, expenses, and reasonable attorneys' fees) arising out of injury to persons or damage to property (including, without limitation, property of CLIENT, EES, and their respective employees, agents, licensees, and representatives) in any manner caused by the negligent acts or omissions of EES in the performance of its work pursuant to or in connection with this Agreement to the extent of EES' proportionate negligence, if any. CLIENT agrees to indemnify and hold harmless EES and its employees from and against any and all loss, cost, damage, or expense of any kind and nature (including without limitation, court costs, expenses and reasonable attorneys' fees) arising out of injury to person(s) or damage to property (including, without limitation, property of CLIENT, EES, and their respective employees, agents, licensees and representatives) in any manner caused by the negligent acts or omissions of CLIENT or other(s) with whom CLIENT contracts ("CLIENT's agents") to perform work pursuant to or in connection with this Agreement, to the extent of CLIENT's or CLIENT's agents proportionate negligence, if any. As part of this indemnity agreement, CLIENT specifically agrees to assume potential liability for personal injury claims by its own employees that may arise during EES's performance under this agreement, and CLIENT hereby waives its immunity from such claims under RCW Title 51. 9. Interpretation. Releases from, indemnifications against, limitations on, and assumptions of liability and limitations on remedies 'expressed in this Agreement shall apply even in the event of breach of contract or warranty, fault, or tort including negligence, strict liability, statutory or any other cause of action (except for willful or reckless disregard of obligations) of the party released or indemnified, or whose liability is limited or assumed, or against whom remedies are limited. Party, as used herein, includes the named parties, their officers, employees, agents, subcontractors, and affiliates. 10. Limitation of Liability. Notwithstanding any other provision in this Agreement to the contrary, EES' liability hereunder shall be limited as follows: (a) for insured liabilities arising out of EES' negligence, to the amount of insurance then available to fund any settlement, award, or verdict; (b) for uninsured liabilities, to 50 percent (50%) of the fee earned by EES under this Agreement. In no event shall EES' liabilities exceed the aforementioned limits of liability. Each party's liability for d~mages provided under this Agreement shall be limited to liability for direct damages and shall in no event include liability for the other party's or their respective agents or employees remote, punitive, consequential or indirect damages for lost profits, loss of use, lost 'opportunity, financing, interest expense, business interruption or productivity or production loss, regardless of the breach of contract, breach of warranty, tort (including negligence), strict liability, or otherwise. CLIENT agrees to notify any contractor or subcontractor who may perform work in connection with or making use of any design, report, or study prepared by EES of such limitation of liability and require as a condition precedent to its performing the work a like limitation of liability provision as to injury or damage to persons or property, design defects, errors, omissions, or professional negligence. In addition, CLIENT shall, in any agreement between itself and others (including contractors and suppliers), require notice and a reasonable limitation upon delay and impact damages pursuant to, and consistent with, RCW 4.24.360. 11. Delays. EES will not be liable to CLIENT for delays in performance under this Agreement or for the direct or indirect cost resulting from delays that may result from labor strikes, riots, war, acts of governmental authorities, extraordinary weather conditions, natural catastrophes or other events or occurrences beyond control of EES. In the event CLIENT suspends or interrupts the seNices of EES for the convenience of CLIENT, an equitable adjustment in the project's schedule and in compensation to EES will be made. 12. Data, Documents and Records. EES shall be entitled to rely upon the accuracy and completeness of all data furnished by CLIENT to EES that is used by EES in the providing of seNices under this Agreement. EES Page 3 of 5 has the right to retain and use all data furnished to it and all plans, designs, specifications and other work product created by EES in providing services hereunder. CLIENT will examine studies, reports,. sketches, drawings, specifications, proposals and other documents submitted by EES and obtain advice of other professionals whenever CLIENT deems appropriate in a timely manner so as not to delay the work of EES. Record drawings, if required, will be prepared, in part, on the basis of information compiled and furnished by others and may not always represent the exact location, type of various components, or exact manner in which the Project was finally constructed. EES is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings, and CLIENT hereby agrees to release, defend, hold harmless and indemnify EES for the same. 13. Ownership and Use of Documents and Electronic Media Deliverables. All completed reports and other data or documents provided or prepared by EES in accordance with this Agreement are the property of CLIENT, and may be used by CLIENT. Ownership shall transfer to CLIENT only if EES has been paid in full for services under the terms of this Agreement. CLIENT shall release, defend, indemnify and hold harmless EES from all claims, costs, expenses, damage, or liability arising out of or resulting from the use or modification of any reports, data, documents, drawings, specifications, or other work product prepared by EES except use by CLIENT on those portions of the project for which such items were prepared. Any post-delivery changes to EES' electronic media or Computer-Aided Design (hereinafter cumulatively "CAD") deliverables by anyone other than EES shall be the responsibility of the CLIENT. CLIENT agrees to remove the title blocks off of EES' CAD files if CLIENT alters such files and further agrees to defend, indemnify and hold EES harmless from all claims, costs, expenses, damages or liabilities arising out of or resulting from use of any CAD deliverables that have been altered by CLIENT or anyone else to whom CLIENT may have provided such CAD deliverables. EES' record set of CAD files shall prevail in determining whether any alterations have been made to such files. Because data stored on electronic media can deteriorate undetected or can be modified without EES' knowledge, CLIENT agrees that EES will not be held liable for the completeness, correctness, readability, or compatibility of the electronic media after an acceptance period of thirty (30) days after delivery of the electronic files. EES stands by the accuracy of the sealed drawings that accompany the electronic submittal. During the thirty (30) day acceptance period, CLIENT may review and examine the electronic files; any errors detected during this time will be corrected by EES as part of the basic Agreement. Any changes requested after the acceptance period will be considered additional services to be performed on a time and materials basis, at EES' standard cost plus terms and conditions. 14. Resolution of Disputes, Attorneys' Fees. The law of the State of Washington shall govern the interpretation of and the resolution of disputes under this Agreement. If any claim, at law or otherwise, is made by either party to this Agreement, the prevailing party shall be entitled to its costs and reasonable attorneys' fees. 15. Termination of Agreement. Either EES or CLIENT may terminate this Agreement upon thirty (30) days written notice to the other sent to the addresses listed herein. In the event CLIENT terminates this agreement, CLIENT specifically agrees to pay EES for all services rendered through the termination date. In addition, CLIENT specifically agrees to reimburse EES for its lost profits and all costs reasonably incurred by EES to start and terminate its performance of services under this agreement, even if costs to terminate performance are incurred after the termination date. 16. Integration, Modification and Severability. This Agreement, including all Addenda, shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. This is the entire agreement between the parties, there are no other agreements or representations not set forth herein, and this Agreement incorporates and supersedes all prior negotiations, agreements, and representations. This Agreement may not be modified except in writing signed by an authorized representative of each party. If any provision of this Agreement is deemed by law to be void, invalid or inoperative for any reason, or any phrase or clause within such provision is deemed by law to be void, invalid or inoperative, that phrase, clause or provision shall be deemed modified to the extent necessary to make it valid and operative, or, if it cannot be so modified, then such phrase, clause or provision shall be deemed severed from this Agreement with the remaining phrases, clauses and pr?visions continuing in full force and effect as if the Agreement had been signed with the Page40f5 void, invalid or inoperative portions so modified or eliminated. In addition, a phrase, clause or provision shall be substituted which is consistent with the intent of this Agreement and the severed phrase, clause or provision. 17. Incorporated Documents. The following exhibits and attachments are incorporated in this agreement as if fully set forth herein: Attachment A. Scope of Work. 18. Notices. All notices, requests, demands, and other communications hereunder shall be deemed given only if in writing signed by an authorized representative of the sender and delivered by facsimile (with a hard copy mailed), or, when sent by a courier or express service guaranteeing overnight delivery to the receiving party. Notices to EES shall be delivered to: Notices to CLIENT shall be delivered to: ECONOMIC AND ENGINEERING SERVICES, INC. PO Box 976 Olympia WA 98507 ATTN: John M. Maxwell CLIENT City of Port Angeles 321 E. Fifth, P. O. Box 1150 Port Angeles, WA 98362 ATTN: Jack Pi ttis 19. Headings, Assignment and Waiver. The headings in this Agreement are inserted for convenience only and shall not constitute a part hereof. Neither party to this Agreement shall assign its duties and obligations hereunder without the prior written consent of the other party. A waiver by any party of any provision or a breach of this Agreement must be provided in writing and shall not be construed as a waiver of any other provision or any succeeding breach of the same or any other provisions herein. 20. Execution of Agreement. The parties agree that the language in this Agreement pertaining to Indemnification, Limitations of Liability and Insurance are clear and unambiguous and were mutually negotiated by the pa' . B: Date: ~((( /C(~ I ~ ' E>U--.>~~ Title: ~~o^') Date: qHL If?, Iqqll} Title: Page 5 of 5 45550\scope.doc June 11, 1996 Attachment A Scope of Work for City of Port Angeles Annexation Strategies The sensitivity of this project will center around the transfer of responsibilities, infrastructure, and scheduling of such transfers among the City of Port Angeles (City), Clallam County (County), the Clallam County Public Utility District (PUD), and Clallam County Fire District No.2 (Fire District No.2). Inherent in the success of a complicated analysis such as this, is development of a "win-win" approach and procedure. Three key elements of this study will focus upon: infrastructure impacts of annexation, fiscal requirements and levels of service necessary to satisfy the needs of citizens within this area, and, institutional responsibilities established through appropriate interlocal agreements. This proposal is broken into three phases of activities, each with an identified objective approach, and product. This will involve coordination and input from the City, County, PUD, Fire District No.2, and other appropriate State or local agencies. As an overview, please note that the first phase is intended to provide a comparison of the shift in potential revenues and expenses associated with annexing the study area. Phase 2 efforts focus on developing the specific annexation strategy. This phase will produce a comprehensive annexation strategy defining specific action items and identifying infrastructure and fiscal impacts associated with the activities. The implementation phase of the project (Phase 3) will develop interlocal agreements between the affected jurisdictions, and outline a public involvement and notification process to facilitate public understanding and acceptance of the annexation activities. Each of the three phases for the project approach are outlined below in more detail. 1.0 Phase 1- Feasibility and Analysis and Revenue/Expense Projections Objective The objective is to evaluate the overall potential shift in revenue and expenses associated with the provision of City services within Urban Growth Area (UGA) properties proposed for annexation by the City. Scope of Work 1 45550\scope.doc June 11, 1996 Approach o Establish the appropriate study area and UGA boundary limits along the Highway 101 corridor. Establish land use constraints within the potential annexation area. o Review all available Growth Management Act (GMA) policies, documents, and procedures, either currently developed or in draft stages, which may affect this project. o Determine land use, population assignments, and available digital mapping which are consistent with the GMA local policy and plans. o Determine reasonable growth projections before and after annexation may occur (i.e., 6-year, 10-year, 20-year). o Review budget documents for current conditions, as well as the past five years, along all departmental lines (i.e., police protection, fire protection, power, public works, parks and recreation, planning, finance and prosecuting attomey, etc.). o Identify and review all available key documents possessed by other local affected jurisdictions regarding infrastructure, improvements, fiscal information, and service policies (i.e., comprehensive plans, capital improvement plans, service goals and objectives, staffing requirements, budget and financial statements pertinent to the area, etc.). o Identify outstanding debt or non-amortized improvements and investments made in the proposed annexation area by affected local jurisdictions. o Confirm anticipated City services to annexed areas. o Establish revenues generated by City/County residents and land area from all viable funding sources on a per capita and per acre basis. o Identify the necessary infrastructure, staffing, level of effort, and expenses associated with the provision of all services to land areas on a per-capita and per acre basis. o Identify anticipated expenses in order to buy-out, upgrade, or replace existing infrastructure using conventional pricing structures for mergers, acquisitions, and condemnations. o Estimate shift in projected revenues and tax base from newly annexed areas. o Using GIS format, compare projections of revenue and expenses on a per capita and per acre basis. Scope of Work 2 45550\scope.doc June 11, 1996 D Develop budget and financial statement projections using economic forecast assumptions in order to project the fiscal impact of annexation. D Identify all affected jurisdictions by the potential annexation activities. D Evaluate and compile list of potential inter-local agreements, affected jurisdictions, and key issues. D Identify utility extension options and examine feasibility as a tool to encourage annexation. (Thurston Regional Council - City of Lacey and Olympia) D Evaluate cost to landowners of annexation and the means to reduce these costs. Responsibilities City/County D Identify specific study area. D Define land use, total acreage, and population projections for the existing City boundaries and the study area. D Provide historical and current fiscal information. D Work closely with Economic and Engineering Services, Inc. (EES) to provide interpretation and input on key policy issues. D Provide available digital mapping on GIS platform of annexation area attributes. D Provide digital files regarding all available or appropriate budget, fiscal, land use, and population projection information for the analysis D Assist in brainstorming and interpreting comparisons of annexation area impacts. EES D Review and evaluate all data cited above. D Conduct review and analysis using information provided for budget and fiscal impact analysis for annexation impact areas. D Meet routinely with City/County staff to review results and brainstorm impact scenarios. D Prepare illustrations of analytical results. Scope of Work 3 45550\scope.doc June 11, 1996 Product Phase 1 activities will result in a report, to evaluate the shift in revenue and costs anticipated by annexing all the land identified in the study area boundary. The report will provide a list of potential interlocal agreements which will need to be executed eventually for annexation purposes. Phase 2- Annexation Strategy Objective The objective of Phase 2 is to prepare a comprehensive strategy for the annexation of the study area. Scheduled development of Phase 2 will identify a phased sequence of annexation activities. Approach D Confirm proper contacts and protocol for communication among EES and local jurisdictions affected by annexation activities. D Identify the objectives and concerns of affected local jurisdictions by proposed annexation activities. D Identify key policy conditions for suitable acceptance by local jurisdictions of annexation activities. D Query local representatives from the Chamber of Commerce, Home Builders Association, Economic Development Council, etc., to obtain input regarding concerns and preferences for annexation of the study area. D Clearly define policies regarding the provision of service or utilities to customers outside City limits either annexing or not. D Review the condition of annexation transfer agreements, particularly as they relate to ramping revenue/expense transfers between jurisdictions (i.e., Gig Harbor, Lacey, Puyallup, etc.). D Establish strategy for transfer of staffing, infrastructure, and management responsibilities. D Evaluate level of effort, personnel, and labor unIOn Issues surrounding annexation. D Discuss viable options with affected local jurisdictions regarding suitable conditions as in agreements cited above. Scope of Work 4 45550\scope.doc June 11, 1996 D Identify utility extension options that encourage annexation. Develop alternative city policies that provide for utility extension agreements prior to annexation in order to reduce landowner and city ratepayer costs when the area would be annexed. D Develop annexation and utility extension policies and strategies which minimize costs to existing landowners, city ratepayers, developers, the County, and private utility providers. Responsibilities City/County D Continue to cooperate with EES in providing expense information, maps, and other pertinent data necessary to update the revenue/expense comparison. D Provide policies regarding infrastructure extension, utilities, and other services. D Facilitate meetings with local jurisdictions and be an active participant, as appropriate. D Participate in brainstorming and identifying key annexation issues. EES D Conduct review and evaluation of documentation provided by local affected jurisdictions. D Identify specific scheduled events for annexation. D Review specific conditions of annexation transfer agreements as those existing for Gig Harbor, Lacey, and Puyallup. D Prepare an annexation strategy which is jointly reviewed by City and County and is consistent with Chapter 35.13 RCW Annexation of Incorporated Areas, as well as consistent with local GMA polices, and County-wide planning policies. Product The product will be a written strategy report with accompanying illustrations. It is anticipated this report will undergo review by both the City, County, PUD, Fire District No.2, and other affected local jurisdictions to be identified. Public presentations and meetings discussing the annexation plan will occur during Phase 3. Scope of Work 5 45550\scope.doc June 11, 1996 Phase 3- Implementation Objective Prepare appropriate interlocal agreements. Develop and conduct public involvement activities necessary to conduct pre-annexation activities. Implement the annexation strategy plan. Approach o Prepare draft interlocal agreements between local jurisdictions regarding phased annexation, including agreements regarding utility extension prior to annexation. o Identify public awareness/involvement strategy and activities necessary to notify the public of the annexation plan. o Identify key local interest groups for public notification. o Conduct public meetings, hearings, media releases to adequately publish results of the annexation strategy pertinent to the annexation plan. o Adhere to procedures required by RCW 35.13 to implement annexation. o Ensure appropriate language and policy changes are consistent with GMA documents. Responsibilities City/County o Assist in facilitating meetings and dialogue regarding interlocal agreement d't' \ con 1 IOns. o Assist in developing public awareness of strategy and a list of key stakeholders. o Provide legal and policy analysis of all draft documents. o Provide clarification regarding responsibilities between City/County and EES to prepare public information media. EES o Develop a draft interlocal agreement regarding annexation. o Facilitate an interlocal agreement among the City, County, PUD, and Fire District No.2. Scope of Work 6 . , 45550\scope.doc June 11, 1996 o Participate in developing and conducting public information activities regarding the annexation plan. Product The conclusion of the project will result in interlocal agreements being crafted between locally affected jurisdictions. It is anticipated that the key conditions of acceptance between all differing jurisdictions will be addressed in a "model" agreement. In addition, public information brochures, leaflets, flyers, and media documents will be prepared during Phase 3 for use in public awareness activities. Scope of Work 7