HomeMy WebLinkAboutBrown Services, LLC - Safety ManagerPROFESSIONAL SERVICES CONTRACT
THIS PROFESSIONAL SERVICES CONTRACT is made and entered into by and
between the City of Yakima, a Washington municipal corporation (hereafter the "City"), and Brown
Services, LLC, (hereafter the "Contractor").
WHEREAS, the City of Yakima requires professional services for a City Safety Manager
for the City of Yakima;
WHEREAS, the Contractor represents that they have the expertise necessary and is
willing to perform the services required by the City in accordance with the terms and conditions
of this Contract;
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
agreements set forth herein, it is agreed by and between the City and Contractor as follows:
Section 1. Statement of Work
1.1
The scope of work for these Safety Professionals is to provide Safety Support, Third Party
Safety Oversight, audits, reports, training, and any other related Safety, appropriate and
expected of the duties of a Safety Professional. The scope does not include preparing
safety plans, policies or procedures, and as between the parties the City is solely
responsible for all such plans, policies or procedures. This scope of work is intended to
apply to and limit the duties described in Attachment A. .
1.2 All provisions of this Contract are intended to be complementary, and any Services
required by one and not mentioned in another shall be performed to the same extent as
though required by all. Details of the Services that are not necessary to carry out the
intent of this Contract, but that are not expressly required, shall be performed or furnished
by Contractor as part of the Services, without any increase in the compensation otherwise
payable under this Contract.
1.3 City will maintain the right to approve or refuse the resume or placement of any Contractor
employee, agent, or associate to a City project.
Section 2. Period of Performance
2.1 The period of performance under this Contract will be six (6) months, commencing upon
execution of both parties to this Contract. Additional extensions of one six (6) month term
and two one-year terms may be offered, at the option of the City, making the contract term
a maximum total of three (3) years. In the event the City elects to extend the Contract for
and additional six (6) month or one-year (1 -year) term, the City shall provide written notice
to the Contractor at least ninety (90) days prior to the end of the Contract period. The
City's option to extend the Contract for an additional six (6) month or one-year (1 -year)
term is subject to a mutually satisfactory agreement between the parties on the value of
the services during the additional six (6) month or one-year (1 -year) period.
Section 3. Compensation
Professional Services Contract Between
City of Yakima and Brown Services, LLC — Page 1
3.1 As full compensation for satisfactory performance of the Services, the City shall pay
Contractor for their services at the rate of Fifty Eight Dollars ($58.00) per hour for the first
forty hours worked per workweek in a standard Sunday through Saturday week. For hours
worked in excess of forty hours in a work week, Contractor shall be payed Seventy Eight
Dollars and Fifty cents ($78.50) per hour. Contractor is expected to work a normal forty
(40) hour workweek.
3.2 The Contractor shall bill the City on a bi-weekly basis for Contractor's services. The City
of Yakima shall pay each of Contractor's invoices within thirty (30) days after the City's
receipt and verification thereof; provided, however, that all such payments are expressly
conditioned upon Contractor providing services hereunder that are satisfactory to the City.
3.3 Any additional service(s) provided by the Contractor which are to be paid by the City must
have prior written approval of the City.
3.4 Onsite vehicles, (when requested by the City) appropriate for the site, will be billed at
$1,100/month, plus the cost of operation such as fuel, oil changes and maintenance
associated with the use of the vehicle while on site and will be verified via receipt. There
will also be a $900 delivery fee charged the first month to cover both delivery and pickup
of the vehicle. Vehicle expenses will be invoiced monthly
3.5 Reimbursable expenses paid to the Safety Professionals, such as per -diem, will be
determined on a "site -by -site" basis.
3.6 All out of pocket expenses incurred by Contractor, as requested by the City outside the
scope of this proposal, shall be billed back to the City at cost. All requests outside the
scope of this agreement (including unscheduled overtime) must be requested by a pre -
approved City of Yakima representative.
Section 4. Performance by Contractor
4.1 Delegation of Professional Services. The services provided under this Contract shall be
performed by Contractor, and no person other than Contractor's employee, agent, or
associate shall be engaged on such work or services. Contractor shall not (by contract,
operation of law or otherwise) delegate or subcontract performance of any Services to any
other entity without the prior written consent of the City. Any such delegation or
subcontracting without the City's prior written consent shall be voidable at the City's option.
No delegation of subcontracting of performance of any of the Services, with or without the
City's prior written consent, shall relieve Contractor of Contractor's responsibility to
perform the Services in accordance with this Contract. Contractor shall be fully
responsible for the performance, acts and omissions of Contractor's employees, if any,
Contractor's subcontractors, and any other person who performs or furnishes any
Services (collectively, the "Support").
4.2 Contractor shall at all times be an independent contractor and not an agent or
representative of the City with regard to performance of the Services. Contractor shall not
represent that he is, nor hold himself out as, an agent or representative of the City. In no
Professional Services Contract Between
City of Yakima and Brown Services, LLC — Page 2
event shall Contractor be authorized to enter into any agreement or undertaking for or on
behalf of the City.
4.3 Contractor shall perform the Services in a timely manner and in accordance with the
standards of the profession. At the time of performance, Contractor shall be properly
licensed, equipped, organized, and financed to perform the Services in accordance with
this Contract. Subject to compliance with the requirements of this Contract, Contractor
shall perform the Services in accordance with his own methods.
4.4 All Contractor employees provided to City will strictly follow Brown Services drug policy
and drug testing policy. Should any specific drug testing requirements be requested by
the City, any associated costs will be billed back to the City at cost.
Section 5. Compliance with Laws
5.1 Contractor shall comply with all applicable laws, ordinances, rules, regulations, orders,
licenses, permits, and other requirements of any governmental authority (including, but
not limited to, such requirements as may be imposed upon the City and applicable to the
Services). Contractor shall furnish such documents as may be required to effect or
evidence such compliance. All laws, ordinances, rules and orders required to be
incorporated in agreements of this character are incorporated in this Contract by this
reference.
Section 6. Taxes and Assessments
6.1 Contractor shall be solely responsible for and shall pay all taxes, deductions, and
assessments that Contractor is required to pay, including but not limited to federal income
tax, FICA, social security tax, assessments for unemployment and industrial injury
insurance, and other deductions from income which may be required by law or assessed
against either party as a result of this Contract. In the event the City is assessed a tax or
assessment as a result of this Contract, Contractor shall pay the same before it becomes
due.
Section 7. Nondiscrimination Provision
7.1 During the performance of this Contract, Contractor shall not discriminate in violation of
any applicable federal, state and/or local law or regulation on the basis of race, age, color,
sex, religion, national origin, creed, marital status, disability, honorably discharged veteran
or military status, pregnancy, sexual orientation, political affiliation, or the presence of any
sensory, mental or physical handicap, 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 Contract.
Section 8. Inspection and Production of Records
8.1 The records relating to the Services shall, at all times, be subject to inspection by and with
the approval of the City, but the making of (or failure or delay in making) such inspection
Professional Services Contract Between
City of Yakima and Brown Services, LLC — Page 3
or approval shall not relieve Contractor of responsibility for performance of the Services in
accordance with this Contract, notwithstanding the City's knowledge of defective or non-
complying performance, its substantiality or the ease of its discovery. Contractor shall
provide the City sufficient, safe, and proper facilities and equipment for such inspection
and free access to such facilities. Contractor's records relating to the Services will be
provided to the City upon the City's request.
8.2 Contractor shall promptly furnish the City with such information and records which are
related to the Services of this Contract as may be requested by the City. Until the
expiration of three (3) years after final payment of the compensation payable under this
Contract, or for a longer period if required by law or by the Washington State Secretary of
State's record retention schedule, Contractor shall retain and provide the City access to
(and the City shall have the right to examine, audit and copy) all of Contractor's books,
documents, papers and records which are related to the Services performed by Contractor
under this Contract.
8.3 All records relating to Contractor's services under this Contract must be made available
to the City, and the records relating to the services are City of Yakima records. They must
be produced to third parties if required pursuant to the Washington Public Records Act,
Chapter 42.56 RCW or by law. All records relating to Contractor's servir•.es under this
Contract must be retained by Contractor for the minimum period of time required pursuant
to the Washington State Secretary of State's record retention schedule.
Section 9. Property and Confidential Information
9.1 Contractor shall not, without the prior written consent of the City, disclose to third parties
any information received in connection with the Services unless:
(a) information is known to Contractor prior to receiving the same directly or indirectly in
connection with the Services;
(b) information is in the public domain at the time of disclosure by Contractor; or
(c) information is received by Contractor from a third party who does not have an
obligation to keep the same confidential.
Section 10. Indemnification and Hold Harmless
10.1 The Contractor agrees to protect, defend, indemnify, and hold harmless the City, its
elected officials, officers, employees, volunteers, and agents from any and all claims,
demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all
judgments, awards, costs and expenses (including reasonable attorneys' fees and
disbursements), resulting from negligent acts and/or omissions of the Contractor or its
employees, associates, or agents arising out of the performance of this Contract.
10.2 The City agrees to protect, defend, indemnify, and hold harmless the Contractor from any
and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other
proceedings and all judgments, awards, costs and expenses (including reasonable
attorneys' fees and disbursements), resulting from negligent acts and/or omissions of the
Professional Services Contract Between
City of Yakima and Brown Services, LLC — Page 4
City, its elected and appointed officials, officers, employees, its agents or subcontractors
arising out of the performance of this Contract.
10.3 The terms of this Section shall survive any expiration or termination of this Contract,
10.4 Nothing contained in this Section or this Contract shall be construed to create a liability or
a right of indemnification in any third party.
Section 11. Insurance
On or before the date this Agreement is executed, Contractor shall provide the City with a
certificate of insurance as proof of general liability insurance in the amount of Five Million
Dollars ($5,000,000) and professional liability in the amount of Five Million Dollars
($5,000,000) that clearly states who the provider is, the amount of coverage, the policy
number, and when the policy and provisions provided are in effect (any statement in the
certificate to the effect of "this certificate is issued as a matter of information only and
confers no right upon the certificate holder" shall be deleted). Said policy shall be in effect
for the duration of this Agreement. The policy shall name the City, its elected officials,
officers, agents, and employees as additional insured's, and shall contain a clause that
the insurer will not cancel or change the insurance without first giving the City thirty (30)
calendar days prior written notice (any language in the clause to the effect of "but failure
to mail such notice shall impose no obligation or liability of any kind upon the company"
shall be crossed out and initialed by the insurance agent). 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.
Section 12. Employee Buy -Out Option
12.1 Should City of Yakima, WA exercise its right to Direct -Hire a Brown Services Associate
that was presented to City of Yakima, WA within twelve (12) months of the execution of
the initial contract, the following buy-out methodology shall apply. At the exercising of the
option to direct hire, a thirty percent (30%) fee of the per hour charge remaining on the
balance of the first year's hourly total will be immediately due. (Example: A $68 per hour
bill rate would be converted to $20.40 for the remaining hours of the 12 -month period,).
This is contingent on the acceptance of the terms and conditions of employment are
agreeable to the Brown Services Advocate. The buy-out option may be exercised any time
after the first six (6) months of the Period of Performance.
Section 13. Changes
13.1 The City may, at any time by written notice thereof to Contractor, make changes in the
Services within the general scope of this Contract (including, but not limited to, additions
to or deletions from any Services, suspension of performance and changes and location
of performance).
13.2 If any change under paragraph 11.1 causes a significant increase or decrease in the cost
of the time required for performance of the Services, an equitable adjustment in the
compensation and schedules under this Contract shall be negotiated to reflect such
increase or decrease, and this Contract shall be modified in writing accordingly. Such
Professional Services Contract Between
City of Yakima and Brown Services, LLC — Page 5
equitable adjustment shall constitute full compensation to Contractor for such change. If
any change under paragraph 11.1 results in a decrease in the Services to be performed,
Contractor shall not be entitled to anticipated profit on Services not performed and the loss
of anticipated profit shall not reduce the decrease in compensation under this Contract
resulting from such exchange. Further, Contractor shall not be entitled to any reallocation
of cost, profit or overhead.
13.3 Notwithstanding any dispute or delay in arriving at a mutually acceptable equitable
adjustment under paragraph 11.2, Contractor shall immediately proceed with performance
of the Services as changed pursuant to paragraph 11.1. If Contractor intends to assert a
claim for equitable adjustment under paragraph 11.2, Contractor must, within thirty (30)
days after Contractor's receipt of any notice under paragraph 11.1 that does not set forth
an acceptable adjustment, submit to the City a written statement of the basis and nature
of the adjustment claimed. Contractor shall not be entitled to any adjustment unless such
written statement is submitted by Contractor to the City within the applicable period.
Section 14. Termination
14.1 The City may, by giving the Contractor thirty (30) calendar days written notice of
termination, terminate this Contract as to all or any portion of the Services not then
performed, whether or not Contractor is in breach or default, and with or without cause.
Upon receipt of any such notice of termination, Contractor shall, except as otherwise
directed by the City, immediately stop performance of the Services to the extent specified
in such notice. Contractor shall have the same termination rights as the City in Section 12.
14.2 If the City purports to terminate or cancel all or any part of this Contract for Contractor's
breach or default when Contractor is not in breach or default which would permit such
termination or cancellation, such termination or cancellation shall be deemed to have been
a termination by the City pursuant to paragraph 12.1 and the rights of the parties shall be
determined accordingly.
Section 15. Miscellaneous
15.1 Assignment. This Contract, or any interest herein, or claim hereunder, shall not be
assigned or transferred in whole or in part by Contractor to any other person or entity
without the prior written consent of the City. In the event that such prior written consent
to an assignment is granted, then the assignee shall assume all duties, obligations, and
liabilities of Contractor stated herein.
15.2 No Conflict of Interest. Contractor represents that they and/or their employees, if any, do
not have any interest and shall not hereafter acquire any interest, direct or indirect, which
would conflict in any manner or degree with the performance of this Contract. Contractor
further covenants that he will not hire anyone or any entity having such a conflict of interest
during the performance of this Contract.
15.3 No Insurance. It is understood that the City does not maintain liability insurance for
Contractor and/or its employees.
Professional Services Contract Between
City of Yakima and Brown Services, LLC — Page 6
15.4 Severabilitv. If any portion of this Contract is changed per mutual agreement or any
portion is held invalid, the remainder of the Contract shall remain in full force and effect.
15.5 Integration. This written document constitutes the entire agreement between the City and
Contractor. There are no other oral or written Contracts between the parties as to the
subjects covered herein. No changes or additions to this Contract shall be valid or binding
upon either party unless such change or addition be in writing and executed by both
parties.
15.6 Notices. Unless stated otherwise herein, all notices and demands shall be in writing and
sent or hand delivered to the parties to their addresses as follows:
TO CITY: City Manager
City of Yakima
City Hall — First Floor
129 North Second Street
Yakima, WA 98901
AND TO:
TO CONTRACTOR: Brown Services, LLC
9076 Ohio River Road
Wheelersburg, Ohio 45694
HR Director
City of Yakima
City of Yakima
129 North Second Street
Yakima, WA 98901
or to such other addresses as the parties may hereafter designate in writing. Notices
and/or demands shall be sent by registered or certified mail, postage prepaid, or hand
delivered. Such notices shall be deemed effective when hand delivered at the addresses
specified above, or three (3) days after the date of mailing to the addresses specified
above.
15.7 Governing Law. This Contract shall be govemed by and construed in accordance with the
laws of the State of Washington.
15.8 Venue. The venue for any action to enforce or interpret this Contract shall lie in the
Superior Court of Washington for Yakima County, Washington.
CITY OF YAKIMA
By
Cliff ore, C y anager
Date: ICl/
ATT
By
City
Y
C4 Clerk
CITY CONTRACT NO°. 0 i 1:0 ?
RESOLUTION NO: (014
Professional Services Contract Between
City of Yakima and Brown Services, LLC — Page 7