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HomeMy WebLinkAbout5.375A Original ContractBilling Address P O. Box 1989 Bellevue, WA 98009 (206) 451 -8015 CONSULTING SERVICES AGREEMENT ECONOMIC AND ENGINEERING SERVICES, INC. Work Order #14702 This Consulting Services Agreement is made between Economic and Engineering Services, Inc., (hereinafter "EES and the City of Port Angeles, whose place of business is located at P 0 Box 1150, Port Angeles, WA 98362, (hereinafter "CLIENT for a Project generally described as representing CLIENT in BPA rate case and power sales contract negotiations. I. SCOPE OF CONSULTING SERVICES EES will provide the services described in the February 1, 1995, letter to WPAG managers 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 AND REIMBURSEMENT OF COSTS 1. Timing of Work. EES shall commence work on or about January 1, 1995. Correspondence Address P O. Box 1989 Bellevue, WA 98009 (206) 451 -8015 Services provided and costs incurred (with the exception of travel, food and lodging expenses) by EES under this Agreement will be compensated according to the provisions of February 1, 1995, letter to WPAG managers. 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 employees performing the requested tasks, the billing rate for each employee and the hours worked. 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 These expenses will be compensated for by CLIENT at their cost to EES. EES will keep receipts for such expenses in compliance with IRS requirements. These receipts will be available to CLIENT for inspection upon request. 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 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. III. TERMS CONDITIONS OF ENGINEERING SERVICES AGREEMENT 2. Opinions of Cost, Financial Considerations, and Schedules. In providing financial analyses or opinions of cost and economic feasibility, EES has no control over final costs or prices of labor and matenals, unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs, competitive bidding procedures, time or quality of performance by third parties; quality, type, management, or direction of operating personnel; or other operational factors that may materially affect the ultimate Project cost or schedule. Therefore, EES makes no warranty that actual project costs, economic feasibility or schedules will not vary from EES' opinions, analyses, projections or estimates 3. S: r A S _Nep 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, the CLIENT will obtain, arrange and pay for all advertisements for bids, permits and licenses required by local, state, province or federal authonties, and land, easements, nghts -of -way and access necessary for EES' services. Page 1 of 3 5. Relationship of Parties, No Third -Party Beneficiaries. EES is an independent contractor under this Agreement. This Agreement gives no nghts 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 with prior approval by CLIENT. EES will comply with CLIENT's directives in utilizing the services of owner specified contractors and /or minority and women owned businesses. The liability of EES ansing from the work of its subcontractors will be limited to proceeds available from its subcontractors' insurance(s) to the extent permitted by law 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. 11. Comprehensive Vehicle Liability Insurance covering personal injury and property damage claims arising from the use of motor vehicles with combined single limits of $1,000,000 111. 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. 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) ansing 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 anse during EES's performance under this agreement. 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 eamed by EES under this Agreement. In no event shall EES' liabilities exceed the aforementioned limits of liability Each party's liability for damages 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 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 authonties, extraordinary weather conditions, natural catastrophes or other events or occurrences beyond control of EES. In the event CLIENT suspends or interrupts the services 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 reply upon the accuracy and completeness of all data fumished by CLIENT to EES that is used by EES in the providing of services under this Agreement. EES 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. Page 2 of 3 S 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. 14. Resolution of Disputes, Attorneys' Fees. The law of the State of Washington shall govem 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 wntten 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. 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 pnor 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 provisions continuing in full force and effect as if the Agreement had been signed with the 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 attachments are incorporated in this agreement as if fully set forth herein: February 1, 1995, letter to WPAG managers plus all attachments 18. Notices All notices, requests, demands, and other communications hereunder shall be deemed given only if in wnting signed by an authorized representative of the sender and delivered by facsimile (with a hard copy mailed), or, when sent by a couner 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. P.O. Box 1989 Bellevue, Washington 98009 ATTN: Gary S. Saleba 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 parties. ECONOMIC AND ENGINEERIN RVICES, INC. By. Gary S Saleba Title: Senior Vice President Date February 1, 1995 CITY OF PORT ANGELES P.O. Box 1150 Port Angeles, Washington 98362 ATTN. Bob Titus CITY OF PORT ANGELES Title: ,j) /REC7o/Z. OF &7v LIGHT Date 4117/95 Page 3 of 3