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HomeMy WebLinkAbout5.973 Original ContractAGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF PORT ANGELES AND McKINSTRY ESSENTION RELATING TO: American Recovery and Reinvestment Act Grant Applications THIS AGREEMENT is made and entered into this day of , 2009, by and between THE CITY OF PORT ANGELES, a non - charter cod ity of the State of Washington, (hereinafter called the "CITY ") and McKinstry Essention, a Washington Corporation authorized to do business in the state of Washington (hereinafter called the "CONSULTANT "). 5:173 WHEREAS, the CITY desires professional services related to a American Recovery and Reinvestment Act Grant Applications for its electric utility; 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 profession and in compliance with applicable federal, state and local laws. The Scope of Work may be amended upon written approval of both parties. PW 0410_01 Professional Services Agreement Page 1 of 11 Revised [05/12/06] II OWNERSHIP OF DOCUMENTS Upon completion of the work, all documents, exhibits, photographic negatives, or other presentations of the work shall become the property of the CITY for use without restriction and without representation as to suitability for reuse by any other party unless specifically verified or adapted by the CONSULTANT. However, any alteration of the documents, by the City or by others acting through or on behalf of the City, will be at the City's sole risk. III DESIGNATION OF REPRESENTATIVES Each party shall designate its representatives in writing. The CONSULTANT'S representative shall be subject to the approval of the CITY. IV 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 July 31, 2010. The work shall be completed in accordance with the schedule set forth in the attached Exhibit C. V 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 flat rates as set forth in Exhibit B. B. The CONSULTANT shall submit invoices to the CITY on a monthly basis. 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. F. Payment for "Extra Work" performed under Section XII of this Agreement shall be as agreed to by the parties in writing. PW 0410_01 Professional Services Agreement Page 2 of 11 Revised [05/12/06] VI 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 $9,720.00. 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 $9,720.00. VII 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. VIII EMPLOYMENT Employees of the CONSULTANT, while engaged in the performance of any work or services under this Agreement, shall be considered employees of the CONSULTANT only and not of the CITY, and claims that may arise under the Workman's Compensation Act on behalf of said employees while so engaged, and any and all claims made by a third party as a consequence of any negligent act or omission on the part of the CONSULTANT'S employees while so engaged, on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONSULTANT. In performing this Agreement, the CONSULTANT shall not employ or contract with any CITY employee without the City's written consent. IX 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: 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. PW 0410_01 Professional Services Agreement Page 3 of 11 Revised [05/12/061 X 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. XI CHANGES IN WORK Other than changes directed by the CITY as set forth in Section I above, either party may request changes in the scope of work. Such changes shall not become part of this Agreement unless and until mutually agreed upon and incorporated herein by written amendments to this Agreement executed by both parties. XII EXTRA WORK The CITY may desire to have the CONSULTANT perform work or render services in connection with this project, in addition to the Scope of Work set forth in Exhibit A and minor revisions to satisfactorily completed work. Such work shall be considered as "Extra Work" and shall be addressed in a written supplement to this Agreement. The CITY shall not be responsible for paying for such extra work unless and until the written supplement is executed by both parties. XIII 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. XIV INDEMNIFICATION /HOLD HARMLESS CONSULTANT shall defend, indemnify and hold the CITY, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the negligent acts, errors or omissions of the CONSULTANT in performance of this Agreement, except for injuries and damages caused by the sole negligence of the CITY. PW 0410_01 Professional Services Agreement Page 4 of 11 Revised [05/12/06] The CITY agrees to indemnify the CONSULTANT from any claims, damages, losses, and costs, including, but not limited to, attorney's fees and litigation costs, arising out of claims by third parties for property damage and bodily injury, including death, caused solely by the negligence or willful misconduct of the CITY, CITY's employees, or agents in connection with the work performed under this Agreement. If the negligence or willful misconduct of both CONSULTANT and CITY (or a person identified above for whom each is liable) is a cause of such damage or injury, the loss, cost, or expense shall be shared between the CONSULTANT and the CITY in proportion to their relative degrees of negligence or willful misconduct and the right of indemnity shall apply for such proportion. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the CONSULTANT, the CITY, and the officers, officials, employees, and volunteers of either, the CONSULTANT'S liability hereunder shall be only to the extent of the CONSULTANT'S negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the CONSULTANT'S waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. However, the CONSULTANT expressly reserves its rights as a third person set forth in RCW 51.24.035. XV 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. 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 00 01 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, PW 0410_01 Professional Services Agreement Page 5 of 11 Revised [05/12/06] 3. Workers' Compensation coverage as required by the Industrial Insurances laws of the State of Washington; and 4. Professional Liability insurance appropriate to the Consultant's profession. 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 $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance 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, evidencing the insurance requirements of the Consultant before commencement of the work. PW 0410_01 Professional Services Agreement Page 6 of 11 Revised [05/12/06] XVI 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. XVII 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: IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY OF PORT ANGELES APPROVED AS TO FORM: WILLIAM E. BLOOR, CITY ATTORNEY Exhibit A - Scope of Work Exhibit B — Budget Costs for Each Task Exhibit C - Schedule for the Work 7, 7'" -- -7 KENT MYERS,'Y MANAGER CONSULTANT TITLE:Thvtilly ct !-U'. o J4. PW 0410_01 Professional Services Agreement Page 7 of 11 Revised [05/12/06] ATTEST: BECKY J. PT N, CITY CLERK Background Scope of Work EXHIBIT A — SCOPE OF WORK The American Recovery and Reinvestment Act of 2009 (ARRA), Public Law 111 -5, appropriates grants to units of local government under initiatives such as the Energy Efficiency and Conservation Block Grant Program, the State Energy Program, and others. The City of Port Angeles (City) wishes to submit two applications as applicable to the program, and requires consulting services to assist in preparing the City's proposal under the ARRA. The CONSULTANT'S primary task is to assist the City in preparing two complete grant applications. Task 1 shall be submitted to the State Department of Community, Trade and Economic Development (CTED) under its Energy Efficiency and Conservation Block Grant Program. Task 2 is for a Street Light Upgrades project, and the specific source of ARRA grant funding will be determined jointly by the City and CONSULTANT. Specific work components include: 1) Meetings and Project Coordination, with in- person meetings and conference calls as needed. 2) Document Preparation, which shall include developing a proposal outline and required writing assignments, research, the development of the technical file and the budget file, as well as final document assembly and review. The proposals shall be well- written, using error -free language (i.e., grammar, punctuation, etc.). The volume shall provide a persuasive proposal highlighting local needs and interests, in a clear and concise fashion that accurately and interestingly represents the City's interests in the applicable ARRA Programs. PW 0410_01 Professional Services Agreement Page 8 of 11 Revised [05/12/06] Proposed Approach Task 1: City Hall Complex Energy Conservation Improvements Project The City Hall Complex Energy Conservation Improvements project is an on -going effort, with a $300,000 project budget; any grant funds would be used to supplant currently budgeted conservation funds. The CONTRACTOR shall: 1. Work with the City of Port Angeles directly to identify all related energy conservation funding opportunities. 2. Compile all information from the Directed Engineering Study (DES) efforts now being undertaken for its relevancy to the proposed Energy Efficiency and Conservation Block Grant Program application. 3. Understand and complete the proposal under the Intent to Bid Applications and Forms for the Energy Efficiency and Conservation Block Grant Program. 4. Assist the City as necessary in the filing of the Energy Efficiency and Conservation Block Grant Program Application, which is due on 1 September 2009. The target facility to be studied is the City Hall complex (City Hall, Vern Burton gymnasium and Police Department), which is located at 321 East Fifth Street in Port Angeles. Task 2: Street Light Upgrades Project. The City is desirous of the CONSULTANT identifying an ARRA grant that could be used as a funding source for its Street Light Upgrades project, which is programmed for completion in 2011. There are approximately 1,400 "Cobra- head" street lights that are at the end of their service life. The grant presents an opportunity to replace obsolete fixtures and may have no impact to the general fund for street lighting energy charges. If the CONSULTANT identifies an applicable funding announcement, the proposed approach shall follow that delineated above in Task 1. PW 0410_01 Professional Services Agreement Page 9 of 11 Revised [05/12/06] Exhibit B — Budget Costs for Each Task CONSULTANT charges for its services on a time and material basis, and the City will reimburse the CONSULTANT for its professional services and expenses at a cost not to exceed $9,720. Any out -of- pocket project - related costs will also be billed to the City at their cost to CONSULTANT. All associated information, including deliverables, will become the property of the City. Based upon the aforementioned project approach and billing rates, the estimated budget for Project completion is as follows: Budget for ARRA Proposals Preparation Task Description Budget 1 2 City Hall Complex Energy Conservation Improvements Project Street Light Upgrades Project Total Budget PW 0410_01 Professional Services Agreement Page 10 of 11 Revised [05/12/06] $ 4,860 4.860 $ 9,720 Payment for Task 1 shall be made upon final proposal completion, which is subject to the CONSULTANT meeting the August 27, 2009 deadline referenced below. Payment for Task 2 shall be made upon final proposal submittal, which is subject to the CONSULTANT meeting the general deadlines referenced below. Exhibit C - Schedule for the Work CONSULTANT shall be prepared to begin Task 1 of this project upon receiving notice to proceed from the City staff no later than August 4, 2009. Final Detailed Proposal Outline and Task Assignments City Components to CONSULTANT Draft Proposal Completed for City Review Final Proposal and Forms Completed and Provided to City Proposal Submitted to CTED by City PW 0410_01 Professional Services Agreement Page 11 of 11 Revised [05/12/06] August 11, 2009 August 14, 2009 August 20, 2009 August 27, 2009 August 31, 2009 As a specific funding source for Task 2 has not yet been identified, CONSULTANT shall be prepared to begin that Task upon receiving notice to proceed from the City staff, which shall include the CONSULTANT advising the City regarding the due date for any necessary Letter of Intent, and a work schedule using the same elements outlined above.