HomeMy WebLinkAboutEsser, Luke - Professional Consulting ServicesAGREEMENT
BETWEEN
CITY OF YAKIMA, WASHINGTON
AND
FOR PROFESSIONAL SERVICES
k
THIS AGREEMENT, made and entered into on this i%--. day of 5ep%M ( , 2018, by and
between the City of Yakima, Washington, a municipal corporation with its principal office at 129 North
Second Street, Yakima, WA 98901, hereinafter referred to as "CITY", and L-✓,ke e552r
with its principal office at
•—/5 �` '�GiCe '' ewt L✓1 q: 00$ , hereinafter referred to as
"CONSULTANT"; said CONSULTANT is licensed and registered to do business in the State of
Washington, and will provide State Legislative and Administrative Advocacy Services, hereinafter referred
to as "SERVICES" on behalf of the City of Yakima.
WITNESSETH:
RECITALS
WHEREAS, CITY desires to retain the CONSULTANT to provide services described in this
Agreement and subsequent Amendments thereto; and
WHEREAS, CONSULTANT represents that it has available and offers to provide personnel with
knowledge and experience necessary to satisfactorily accomplish the work within the required time and that
it has no conflicts of interest prohibited by law from entering into this Agreement;
NOW, THEREFORE, CITY and CONSULTANT agree as follows:
SECTION 1 INCORPORATION OF RECITALS
1.1 The above recitals are incorporated into the operative provisions of the Agreement.
SECTION 2 SCOPE OF SERVICES
2.1 CONSULTANT agrees to perform those services described hereafter. Unless modified in writing
by both parties, duties of CONSULTANT shall not be construed to exceed those services
specifically set forth herein.
2.2 CONSULTANT shall use his/her best efforts to maintain continuity in personnel throughout the
term of this Agreement unless other personnel are approved by the CITY.
2.3 Basic Services: CONSULTANT agrees to perform those tasks described in Exhibit A, entitled
"Scope of Services" (hereafter WORK or PROJECT) which is attached hereto and made a part of
this Agreement as if fully set forth herein.
2.4 • Additional Services: CITY and CONSULTANT agree that not all WORK to be performed by
CONSULTANT can be defined in detail at the time this Agreement is executed, and that
additional WORK related to the Project and not covered in Exhibit A may be needed during
performance of this Agreement. CITY may, at any time by written order, direct the
CONSULTANT to revise portions of the WORK previously completed in a satisfactory manner,
delete portions of the WORK, or request that the CONSULTANT perform additional WORK
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beyond the scope of the WORK. Such changes hereinafter shall be referred to as "Additional
Services."
2.4.1 If such Additional Services cause an increase or decrease in the CONSULTANT'S cost
of, or time required for, performance of any services under this Agreement, a contract
price and/or completion time adjustment pursuant to this Agreement shall be made and
this Agreement shall be modified in writing accordingly.
2.4.2 Compensation for each such request for Additional Services shall be negotiated by the
CITY and the CONSULTANT, and if so authorized, shall be considered part of the
WORK. The CONSULTANT shall not perform any Additional Services until so
authorized by CITY and agreed to by the CONSULTANT in writing.
2.5 The CONSULTANT must assert any claim for adjustment in writing within thirty (30) days from
the date of the CONSULTANT's receipt of the written notification of change.
SECTION 3 TERM
3.1 TERM: The term of this Agreement shall commence upon execution hereof and shall continue for
twenty-four (24) months, with renewal, upon mutual agreement by the CITY and the CONSULTANT, by
the City Manager annually for a period of up to four (4) years total, unless terminated sooner by either
party in accordance with Section 16.
SECTION 4 CITY'S RESPONSIBILITIES
4.1 CITY -FURNISHED DATA: The CITY will provide to the CONSULTANT all technical data in
the CITY'S possession relating to the CONSULTANT'S performance of the WORK.
4.2 ACCESS TO FACILITIES AND PROPERTY: The CITY will make its facilities reasonably
accessible to CONSULTANT as required for CONSULTANT'S performance of its services and
will provide labor and equipment as reasonably required by CONSULTANT for such access.
4.3 TIMELY REVIEW: The CITY will examine the CONSULTANT'S studies, reports, proposals,
and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond
and financial advisors, and other consultants as CITY deems appropriate; and render in writing
decisions required of CITY in a timely manner. Such examinations and decisions, however, shall
not relieve the CONSULTANT of any contractual obligations nor of its duty to render
professional services meeting the standards of care for its profession.
4.4 CITY shall appoint a CITY'S Representative with respect to WORK to be performed under this
Agreement. CITY'S Representative shall have complete authority to transmit instructions and
receive information. CONSULTANT shall be entitled to reasonably rely on such instructions
made by the CITY'S Representative unless otherwise directed in writing by the CITY, but
CONSULTANT shall be responsible for bringing to the attention of the CITY'S Representative
any instructions which the CONSULTANT believes are inadequate, incomplete, or inaccurate
based upon the CONSULTANTS knowledge.
4.5 Any documents, services, and reports provided by the CITY to the CONSULTANT are available
solely as additional information to the CONSULTANT and will not relieve the CONSULTANT of
its duties and obligations under this Agreement or at law. The CONSULTANT shall be entitled to
reasonably rely upon the accuracy and the completeness of such documents, services and reports,
but shall be responsible for exercising customary professional care in using and reviewing such
documents, services, and reports and drawing conclusions there from.
SECTION 5 AUTHORIZATION, PROGRESS, AND COMPLETION
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5.1 :In signing this Agreement, CITY grants CONSULTANT specific authorization to proceed with
WORK described in Exhibit A. The time for completion is defined in Exhibit A, or as amended.
SECTION 6 COMPENSATION
6.1 COMPENSATION ON A TIME SPENT BASIS: For the services described in Exhibit A,
compensation shall be Two Thousand Five Hundred Dollars ($2,500) per month, plus
reimbursement for direct non -salary expenses.
6.1.1 DIRECT NON -SALARY EXPENSES: Direct Non -Salary Expenses are those costs
incurred on or directly for the PROJECT including, but not limited to, necessary
transportation costs, including current rates for CONSULTANT'S vehicles; meals and
lodging; laboratory tests and analyses; printing, binding and reproduction charges; all
costs associated with other outside nonprofessional services and facilities; special CITY -
requested and PROJECT -related insurance and performance warranty costs; and other
similar costs. Reimbursement for Direct Non -Salary Expenses will be on the basis of
actual charges plus ten percent (10%) and on the basis of current rates when furnished by
CONSULTANT.
6.1.1.1 Travel costs, including transportation, lodging, subsistence, and incidental
expenses incurred by employees of the CONSULTANT and each of the
Subconsultants in connection with PROJECT WORK; provided, as follows:
• That a maximum of U.S. INTERNAL REVENUE SERVICE allowed
cents per mile will be paid for the operation, maintenance, and
depreciation costs of company or individually owned vehicles for that
portion of time they are used for WORK. CONSULTANT, whenever
possible, will use the least expensive form of ground transportation.
• That reimbursement for meals inclusive of tips shall not exceed a
maximum of forty dollars ($40) per day per person. This rate may be
adjusted on a yearly basis.
• That accommodation shall be at a reasonably priced hotel/motel.
• That air travel shall be by coach class, and shall be used only when
absolutely necessary.
6.1.2 Telephone charges, computer charges, in-house reproduction charges, first class postage,
and FAX charges are not included in the direct expense costs, but are considered included
in the Schedule of Specific Hourly Billing Rates.
6.2 Unless specifically authorized in writing by the CITY, the total annual budgetary cost for this
PROJECT shall not exceed Thirty Thousand Dollars ($30,000), plus reimbursement for direct
non -salary expenses. The CONSULTANT will make reasonable efforts to complete the WORK
within the budget and will keep CITY informed of progress toward that end so that the budget or
WORK effort can be adjusted if found necessary. The CONSULTANT is not obligated to incur
costs beyond the indicated budget, as may be adjusted, nor is the CITY obligated to pay the
CONSULTANT beyond these limits. When any budget has been increased, the
CONSULTANT'S excess costs expended prior to such increase will be allowable to the same
extent as if such costs had been incurred after the approved increase, and provided that the City
was informed in writing at the time such costs were incurred.
6.3 The CONSULTANT shall submit to the City's Representative an invoice each month for payment
for services completed through the accounting cut-off day of the previous month. Such invoices
shall be for services and WORK performed and costs incurred prior to the date of the invoice and
not covered by previously submitted invoices. The CONSULTANT shall submit with each
invoice a summary of time expended on the PROJECT for the current billing period, and any other
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supporting materials determined by the City necessary to substantiate the costs incurred. CITY
will use its best efforts to pay such invoices within thirty (30) days of receipt and upon approval of
the WORK done and amount billed. CITY will notify the CONSULTANT promptly if any
problems are noted with the invoice. CITY may question any item in an invoice, noting to
CONSULTANT the questionable item(s) and withholding payment for such item(s). The
CONSULTANT may resubmit such item(s) in a subsequent invoice together with additional
supporting information required.
6.4 Payment terms are net 30 after receipt of approved invoice(s).
SECTION 7 RESPONSIBILITY OF CONSULTANT
7.1 INDEMNIFICATION:
(a) CONSULTANT agrees to defend, indemnify, and hold harmless the CITY, its
elected officials, agents, officers, employees, agents and volunteers (hereinafter
"parties protected") from (1) claims, demands, liens, lawsuits, administrative and
other proceedings,(including reasonable costs and attorneys fees) and (2) judgments,
awards, losses, liabilities, damages, penalties, fines, costs and expenses of any kind
claimed by third parties arising out of, or related to any death, injury, damage or
destruction to any person or any property to the extent caused by any negligent act,
action, default, error or omission or willful misconduct arising out of the
CONSULTANT's performance under this Agreement. In the event that any lien is
placed upon the City's property or any of the City's officers, employees or agents as
a result of the negligence or willful misconduct of the CONSULTANT, the
CONSULTANT shall at once cause the same to be dissolved and discharged by
giving bond or otherwise.
(b) CITY agrees to indemnify and hold the CONSULTANT harmless from loss, cost, or
expense of any kind claimed by third parties, including without limitation such loss, cost,
or expense resulting from injuries to persons or damages to property, caused solely by the
negligence or willful misconduct of the CITY, its employees, or agents in connection
with the service.
(c) If the negligence or willful misconduct of both the CONSULTANT and the CITY (or a
person identified above for whom each is liable) is a cause of such third party claim, 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 will apply for such proportion.
(d) Nothing contained in this Section or this Agreement shall be construed to create a
liability or a right of indemnification in any third party.
7.2 In any and all claims by an employee of the CONSULTANT, any subcontractor, anyone directly
or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the
indemnification obligations under this Agreement shall not be limited in any way by any
limitation on the amount or types of damages, compensation, or benefits payable by or for the
CONSULTANT or a subcontractor under workers' or workmens' compensation acts, disability
benefit acts, or other employee benefit acts.
CONSULTANT'S INITIALS 4' CITY'S INITIALS
SECTION 8 AUDIT AND ACCESS TO RECORDS
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8.1 The CONSULTANT, including its subconsultants, shall maintain books, records, documents and
other evidence directly pertinent to performance of the WORK under this Agreement in
accordance with generally accepted accounting principles and practices consistently applied. The
CITY, or the CITY'S duly authorized representative, shall have access to such books, records,
documents, and other evidence for inspection, audit, and copying for a period of three years after
completion of the WORK. The CITY shall also have access to such books, records, and
documents during the performance of the WORK, if deemed necessary by the CITY, to verify the
CONSULTANT'S WORK and invoices.
8.2 Audits conducted pursuant to this section shall be in accordance with generally accepted auditing
standards and established procedures and guidelines of the reviewing or auditing agency.
8.3 The CONSULTANT agrees to the disclosure of all information and reports resulting from access
to records pursuant to this section provided that the CONSULTANT is afforded the opportunity
for an audit exit conference and an opportunity to comment and submit any supporting
documentation on the pertinent portions of the draft audit report and that the final audit report will
include written comments, if any, of the CONSULTANT.
8.4 The CONSULTANT shall ensure that the foregoing paragraphs are included in each subcontract
for WORK.
8.5 Any charges of the CONSULTANT paid by the CITY which are found by an audit to be
inadequately substantiated shall be reimbursed to the CITY.
SECTION 9 INSURANCE
9.1 At all times during performance of the Services, CONSULTANT shall secure and maintain in
effect insurance to protect the City and the CONSULTANT from and against all claims, damages,
losses, and expenses arising out of or resulting from the performance of this Contract.
CONSULTANT shall provide and maintain in force insurance in limits no less than that stated
below, as applicable. The City reserves the rights to require higher limits should it deem it
necessary in the best interest of the public.
9.1.1. Automobile Liability Insurance.
a. If CONSULTANT owns any vehicles, before this Contract is fully executed by
the parties, OIC shall provide the City with a certificate of insurance as proof of
automobile liability insurance and umbrella liability insurance with a total minimum
liability limit of Five -Hundred -Thousand Dollars ($500,000.00) per occurrence
combined single limit bodily injury and property damage. Automobile liability will
apply to "Any Auto" and be shown on the certificate.
b. The required certificate of insurance shall clearly state who the provider is, the
coverage amount, the policy number, and when the policy and provisions provided are
in effect. Said policy shall be in effect for the duration of this Contract. The policy
shall name the City, its elected officials, officers, agents, employees, and volunteers as
additional insureds. CONSULTANT will not cancel or change the insurance without
first giving the City thirty (30) calendar days prior written notice. The insurance shall
be with an insurance company or companies rated A -VII or higher in Best's Guide and
admitted in the State of Washington.
9.1.2. Statutory workers' compensation and employer's liability insurance as required by state
law.
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SECTION 10 SUBCONTRACTS
10.1 CONSULTANT shall be entitled, with the City's written authorization and to the extent
determined appropriate by CONSULTANT, to subcontract any portion of the WORK to be
performed under this Agreement.
SECTION 11 ASSIGNMENT
11.1 This Agreement is binding on the heirs, successors and assigns of the parties hereto. This
Agreement may not be assigned by CITY or CONSULTANT without prior written consent of the
other, which consent will not be unreasonably withheld. It is expressly intended and agreed that no
third party beneficiaries are created by this Agreement, and that the rights and remedies provided
herein shall inure only to the benefit of the parties to this Agreement.
SECTION 12 INTEGRATION
12.1 This Agreement represents the entire understanding of CITY and CONSULTANT as to those
matters contained herein. No prior oral or written understanding shall be of any force or effect
with respect to those matters covered herein. This Agreement may not be modified or altered
except in writing signed by both parties.
SECTION 13 JURISDICTION AND VENUE
13.1 This Agreement shall be administered and interpreted under the laws of the State of Washington.
Jurisdiction of litigation arising from this Agreement shall be in Washington State. If any part of
this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and
void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full
force and effect. Venue for all disputes arising under this Agreement shall be Yakima County,
State of Washington.
SECTION 14 EQUAL EMPLOYMENT and NONDISCRIMINATION
14.1 During the performance of this Agreement, CONSULTANT and CONSULTANT's
subconsultants shall not discriminate in violation of any applicable federal, state and/or local law
or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status,
disability, honorably discharged veteran or military status, pregnancy, sexual orientation, and any
other classification protected under federal, state, or local law. This provision shall include but not
be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising,
layoff or termination, rates of pay or other forms of compensation, selection for training, and the
provision of services under this Agreement. CONSULTANT agrees to comply with the
applicable provisions of State and Federal Equal Employment Opportunity and Nondiscrimination
statutes and regulations.
SECTION 15 SUSPENSION OF WORK
15.1 CITY may suspend, in writing by certified mail, all or a portion of the WORK under this
Agreement if unforeseen circumstances beyond CITY'S control are interfering with normal progress of
the WORK. CONSULTANT may suspend, in writing by certified mail, all or a portion of the WORK
under this Agreement if unforeseen circumstances beyond CONSULTANT's control are interfering
with normal progress of the WORK. CONSULTANT may suspend WORK on PROJECT in the event
CITY does not pay invoices when due, except where otherwise provided by this Agreement. The time
for completion of the WORK shall be extended by the number of days WORK is suspended. If the
period of suspension exceeds ninety (90) days, the terms of this Agreement are subject to
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renegotiation, and both parties are granted the option to terminate WORK on the suspended portion in
accordance with SECTION 15.
SECTION 16 TERMINATION OF WORK
16.1 Either party may terminate this Agreement, in whole or in part, if the other party materially
breaches its obligations under this Agreement and is in default through no fault of the terminating
party. However, no such termination may be effected unless the other party is given: (1) not less
than fifteen (15) calendar days written notice delivered by certified mail, return receipt requested,
of intent to terminate; and (2) an opportunity for consultation and for cure with the terminating
party before termination. Notice shall be considered issued within seventy-two (72) hours of
mailing by certified mail to the place of business of either party asset forth in this Agreement.
16.2 In addition to termination under subsection 16.1 of this Section, CITY may terminate this
Agreement for its convenience, in whole or in part, provided the CONSULTANT is given: (1) not
less than fifteen (15) calendar days written notice delivered by certified mail, return receipt
requested, of intent to terminate; and (2) an opportunity for consultation with CITY before
termination.
16.3 If CITY terminates for default on the part of the CONSULTANT, an adjustment in the contract
price pursuant to the Agreement shall be made, but (1) no amount shall be allowed for anticipated
profit on unperformed services or other WORK, and (2) any payment due to the CONSULTANT
at the time of termination may be adjusted to the extent of any additional costs or damages CITY
has incurred, oris, likely to incur, because of the CONSULTANT'S breach. In such event, CITY
shall'corisider the amount of WORK originally required which was satisfactorily completed to
:date of, termination` whether that WORK is in a form or of a type which is usable and suitable to
CITY at the date of termination and the cost to CITY of completing the WORK itself or of
firm*Yo complete it. Under no circumstances shall payments made under this
exceed.thelcontract price. In the event of default, the CONSULTANT agrees to pay
for any and all damages, costs, and expenses whether directly, indirectly, or consequentially
caused by said default. This provision shall not preclude CITY from filing claims and/or
commencing litigation to secure compensation for damages incurred beyond that covered by
contract retainage or other withheld payments.
'6:4 " :If the CONSULTANT terminates for default on the part of CITY or if CITY terminates for
:convenience, the adjustment pursuant to the Agreement shall include payment for services
satisfactorily performed to the date of termination, in addition to termination settlement costs the
.•''CONSULTANT reasonably incurs relating to commitments which had become firm before the
termination, unless CITY determines to assume said commitments.
Upon receipt of a termination notice under subsections 16.1 or 16.2 above, the CONSULTANT
shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2)
deliver or otherwise make ,available to CITY all originals of data, drawings, specifications,
calculations, reports, estimates, summaries, and such other information, documents, and materials
as the CONSULTANT or its'subconsultants may have accumulated or prepared in performing this
Agreement, whether completed or in progress, with the CONSULTANT retaining copies of the
same.
16.6 Upon termination under any subparagraph above, CITY reserves the right to prosecute the WORK
to completion utilizing other qualified firms or individuals; provided, the CONSULTANT shall
have no responsibility to prosecute further WORK thereon.
16.7 If, after termination for failure of the CONSULTANT to fulfill contractual obligations, it is
determined that the CONSULTANT has not so failed, the termination shall be deemed to have
been effected for the convenience of CITY. In such event, the adjustment pursuant to the
Agreement shall be determined as set forth in subparagraph 16.4 of this Section.
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16.8 If, because of death, unavailability or any other occurrence, it becomes impossible for any key
personnel employed by the CONSULTANT in PROJECT WORK or for any corporate officer of
the CONSULTANT to render his services to the PROJECT, the CONSULTANT shall not be
relieved of its obligations to complete performance under this Agreement without the concurrence
and written approval of CITY. If CITY agrees to termination of this Agreement under this
provision, payment shall be made as set forth in subparagraph 16.3 of this Section.
SECTION 17 DISPUTE RESOLUTION
17.1 In the event that any dispute shall arise as to the interpretation of this agreement, or in the event of
a notice of default as to whether such default does constitute a breach of the contract, and if the
parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation
as a means to resolve the dispute. If the afore mentioned methods are either not successful then
any dispute relating to this Agreement shall be decided in the courts of Yakima County, in
accordance with the laws of Washington. If both parties consent in writing, other available means
of dispute resolution may be implemented.
SECTION 18 NOTICE
18.1 Any notice required to be given under the terms of this Agreement shall be directed to the party at
the address set forth below. Notice shall be considered issued and effective upon receipt thereof
by the addressee -party, or seventy-two (72) hours after mailing by certified mail to the place of
business set forth below, whichever is earlier.
CITY: City of Yakima
Cliff Moore, City Manager
129 North 2°d Street
Yakima, WA 98901
CONSULTANT: Name J_4 E s €ir
Company Name
Street address 401—lcC
City/state/zip code e, e
J
State of Washington
County of RU-
Sign�d o Ke_ attested before me on k)`.4 S -Ig
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Notary Public in and for the State of Wa.
My appointment expires --n a a
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executedbrtF3eir Au ��� 1 Z
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respective authorized officers or representatives as of the day and year first above written. i// y),',,,„<'-28.21•
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CITY OF YAKIMA
Printed Name:
Title: City Manager
Printed Name:
JdrA
Title: fitly vi d/ 1”'
Date: li,�.-� fir-. 90 -g"t) (� Date: /q 1g
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Attest
City Contract No. 217/1 / i-3
Resolution No. h/4' —R 201 a -
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EXHIBIT A
SCOPE OF SERVICES
The Scope of Services shall include, but may not be limited to:
A. Represent the City interactions with the Governor's Office and
Administration, State Agencies, the State legislature, legislative representatives
and staff person, boards, commissions, and legislative bodies as described in the
Introduction.
B. Research and provide written and oral information to City Council as
specified by the City Manager on matters which include, but are not
limited to:
1) Existing and proposed State laws and regulations that affect City's
interests;
2) Reports on and testimony from legislative hearings;
3) The development and progress of State issues affecting the City's
interests;
4) State agency and department regulations guidelines, directives, and
other instruments of administrative policy;
5) Grants and other funding opportunities for proposed City projects;
and
6) Technical reports and memoranda affecting City operations and
fiscal conditions.
7) Specific knowledge on economic development, infrastructure, and
land use, including funding sources and regulatory requirements.
C. Services required of the Representative shall be personally provided by the
principals of the Representative as identified in the Proposal, which shall
be specified in the Professional Services Agreement between the
Consultant or Consultant firm and the City.
D. Representative shall provide all equipment and personnel needed to fulfill
the requirements for representing the City.
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