HomeMy WebLinkAboutFoley, Tom, Lt. - Investigative Services AGREEMENT
BETWEEN
CITY OF YAKIMA, WASHINGTON
AND
LT. TOM FOLEY (RET.)
FOR INVESTIGATIVE SERVICES
THIS AGREEMENT is made and entered into 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 Lt. Tom Foley (Ret.), an individual and private contractor, with his principal address at 450
Hexon Rd. Selah, WA, 98942, hereinafter referred to as "CONTRACTOR ". CONTRACTOR will provide
professional investigative services under this Agreement hereinafter referred to as "SERVICES" on behalf of the
City of Yakima.
WITNESSETH:
RECITALS
WHEREAS, CITY desires to retain the CONTRACTOR to provide services described in this Agreement;
and
WHEREAS, CONTRACTOR represents that he is available and offers to provide knowledge and
experience necessary to satisfactorily accomplish the work within the required time and that he has no conflicts of
interest prohibiting him 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 these operative provisions of the Agreement.
SECTION 2 SCOPE OF SERVICES
2.1 CONTRACTOR agrees to perform those services described hereafter. Unless modified in writing by both
parties, duties of CONTRACTOR shall consist of assisting the CITY's legal team in preparation for the
Geoff Gronewald arbitration. Such assistance includes, but is not limited to, research, preparation of
investigative reports and related duties as assigned from time to time. The parties acknowledge and agree
that CONTRACTOR has performed such duties for the period March 4, 2015 through June 8, 2015. In the
event the Gronewald arbitration is not settled and CITY determines that CONTRACTOR'S services are
needed to assist CITY's legal team in preparation for further proceedings in the Gronewald case, the terms
and conditions of this Agreement shall apply.
2.2 CONTRACTOR shall personally provide the services set forth herein throughout the term of this
Agreement unless other or additional personnel are specifically approved by the CITY.
2.3 Basic Services: The duties and tasks set forth in Section 2.1 above shall be deemed the Basic Services.
2.4 Additional Services: CITY and CONTRACTOR agree that not all WORK to be performed by
CONTRACTOR can be defined in detail at the time this Agreement is executed, and that additional WORK
related to the Project may be needed during performance of this Agreement. CITY may, at any time, by
written order, direct the CONTRACTOR to revise portions of the WORK previously completed in a
satisfactory manner, delete portions of the WORK, or request that the CONTRACTOR perform additional
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WORK 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 CONTRACTOR'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. Such written modification shall be deemed an amendment of this
Agreement and appended as an exhibit to this Agreement, which exhibit shall be deemed
incorporated into this Agreement by this reference.
2.4.2 Compensation for each such request for Additional Services have been negotiated by the CITY
and the CONTRACTOR and shall be provided at the same hourly rate as shall apply to the
performance contracted for herein, and if so authorized, shall be considered part of the WORK.
The CONTRACTOR shall not perform any Additional Services until so authorized by CITY and
agreed to by the CONTRACTOR in writing.
2.5 The CONTRACTOR must assert any claim for adjustment in writing within thirty (30) days from the date
of the CONTRACTOR'S receipt of the written notification of change.
SECTION 3 CITY'S RESPONSIBILITIES
3.1 CITY- FURNISI -IED DATA: The CITY will provide to the CONTRACTOR all technical data in the
CITY'S possession relating to the CONTRACTOR'S services on the WORK.
3.2 ACCESS TO FACILITIES AND PROPERTY: The CITY will make its facilities reasonably accessible to
CONTRACTOR as required for CONTRACTOR'S performance of its services.
3.3 TIMELY REVIEW: The CITY will examine the CONTRACTOR'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
CONTRACTOR of any contractual obligations nor of its duty to render professional services meeting the
standards of care for its profession.
3.4 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.
CONTRACTOR shall be entitled to reasonably rely on such instructions made by the CITY'S
Representative unless otherwise directed in writing by the CITY, but CONTRACTOR shall be responsible
for bringing to the attention of the CITY'S Representative any instructions which the CONTRACTOR
believes are inadequate, incomplete, or inaccurate based upon the CONTRACTOR'S knowledge.
3.5 Any documents, services, and reports provided by the CITY to the CONTRACTOR are available solely as
additional information to the CONTRACTOR and will not relieve the CONTRACTOR of its duties and
obligations under this Agreement or at law. The CONTRACTOR 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 4 AUTHORIZATION, PROGRESS, AND COMPLETION
4.1 CITY shall give CONTRACTOR specific authorization to proceed with any task included within the Scope
of Work pursuant to Section 2.1 above, or assigned as Additional Work pursuant to Section 2.4. The time
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for completion of assigned tasks will be determined by agreement of the parties. In the event the parties are
unable to agree, the CITY shall have final authority to determine timeline for completion.
SECTION 5 COMPENSATION
5.1 COMPENSATION ON A TIME SPENT BASIS AT SPECIFIC HOURLY RATES: For the services
described in Section 2, compensation shall be $51.50 per hour on a time spent basis, plus reimbursement
for direct non -salary expenses. "Compensable hours of work" shall be limited to hours of work performed
by CONTRACTOR on tasks pre- assigned by CITY or authorized by CITY in writing.
5.1.1 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 CONTRACTOR'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 CONTRACTOR.
5.1.2 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.
5.2 The CONTRACTOR shall submit to the City's Representative an invoice 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 CONTRACTOR shall submit with each invoice a detailed summary of time
expended on the PROJECT for the current billing period, and any other 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 CONTRACTOR promptly if any problems are noted with the invoice. CITY may question any
item in an invoice, noting to CONTRACTOR the questionable item(s) and withholding payment for such
item(s). The CONTRACTOR may resubmit such item(s) in a subsequent invoice together with additional
supporting information required. The parties specifically acknowledge and agree that the work performed
by CONTRACTOR during the period from March 4, 2015 through June 8, 2015, and payment by CITY for
such work previously received by CONTRACTOR, constitutes full payment for all CONTRACTOR's
services performed during such period pursuant to this Agreement.
5.4 Payment terms are net 30 after receipt of approved invoice(s).
SECTION 6 RESPONSIBILITY OF CONSULTANT
6.1 INDEMNIFICATION:
(a) CONTRACTOR 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 CONTRACTOR'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 CONTRACTOR, the CONTRACTOR shall at once cause the same to be dissolved and
discharged by giving bond or otherwise.
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(b) CITY agrees to indemnify and hold the CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR 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.
SECTION 7 AUDIT AND ACCESS TO RECORDS
7.1 The CONTRACTOR 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 CONTRACTOR'S WORK and invoices.
7.2 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.
7.3 The CONTRACTOR agrees to the disclosure of all information and reports resulting from access to records
pursuant to this section provided that the CONTRACTOR 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
CONTRACTOR.
7.4 The CONTRACTOR shall ensure that the foregoing paragraphs are included in each subcontract for
WORK.
7.5 Any charges of the CONTRACTOR paid by the CITY which are found by an audit to be inadequately
substantiated shall be reimbursed to the CITY.
SECTION 8 INSURANCE
8.1 The City reserves the right to require insurance in accord with standard requirements for similar services
performed on behalf of the City if and when deemed necessary by the City, but makes no such requirement
at this time. State - required insurance obligations of a professional services contractor are the responsibility
of the contractor to provide.
SECTION 9 SUBCONTRACTS
9.1 CONTRACTOR shall be entitled, to the extent determined appropriate by CONTRACTOR and upon
written approval by the City, to subcontract any portion of the WORK to be performed under this
Agreement.
SECTION 10 ASSIGNMENT
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10.1 This Agreement is binding on the heirs, successors and assigns of the parties hereto. This Agreement may
not be assigned by CITY or CONTRACTOR 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 11 INTEGRATION
11.1 This Agreement represents the entire understanding of CITY and CONTRACTOR 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 12 JURISDICTION AND VENUE
12.1 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 in a court of competent jurisdiction in Yakima County,
State of Washington.
SECTION 13 EQUAL EMPLOYMENT and NONDISCRIMINATION
13.1 During the performance of this Agreement, CONTRACTOR 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. CONTRACTOR agrees to comply with the applicable
provisions of State and Federal Equal Employment Opportunity and Nondiscrimination statutes and
regulations.
SECTION 14 SUSPENSION OF WORK
14.1 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.
CONTRACTOR may suspend, in writing by certified mail, all or a portion of the WORK under this
Agreement if unforeseen circumstances beyond CONTRACTOR'S control are interfering with normal
progress of the WORK. CONTRACTOR may suspend WORK on the 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 renegotiation, and both parties are
granted the option to terminate WORK on the suspended portion of Project in accordance with SECTION
15.
SECTION 15 TERMINATION OF WORK
15.1 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
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considered issued within seventy-two (72) hours of mailing by certified mail to the place of business of
either party as set forth in this Agreement.
15.2 In addition to termination under subsection 15.1 of this Section, CITY may terminate this Agreement for its
convenience, in whole or in part, provided the CONTRACTOR 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.
15.3 If CITY terminates for default on the part of the CONTRACTOR, (1) no amount shall be allowed for
anticipated profit on unperformed services or other WORK, and (2) any payment due to the
CONTRACTOR at the time of termination may be adjusted to the extent of any additional costs or
damages CITY has incurred, or is likely to incur, because of the CONTRACTOR'S breach. In such event,
CITY shall consider 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 employing another firm to
complete it. Under no circumstances shall payments made under this provision exceed the "not to exceed"
contract cost set forth in Section 5.2. In the event of default, the CONTRACTOR agrees to pay CITY 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 withheld payments.
15.4 If the CONTRACTOR 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 up to
the date of termination for WORK satisfactorily completed, in addition to termination settlement costs the
CONTRACTOR reasonably incurs relating to commitments which had become firm before the termination,
unless CITY determines to assume said commitments.
15.5 Upon receipt of a termination notice under subsections 15.1 or 15.2 above, the CONTRACTOR 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 CONTRACTOR may have
accumulated or prepared in performing this Agreement, whether completed or in progress, with the
CONTRACTOR retaining copies of the same.
15.6 Upon termination under any subparagraph above, CITY reserves the right to prosecute the WORK to
completion utilizing other qualified firms or individuals; provided, the CONTRACTOR shall have no
responsibility to prosecute further WORK thereon.
15.7 If, after termination for failure of the CONTRACTOR to fulfill contractual obligations, it is determined that
the CONTRACTOR 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 15.4 of this Section.
15.8 If, because of death, unavailability or any other occurrence, it becomes impossible for CONTRACTOR to
render his services to the PROJECT, the CONTRACTOR 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 15.3 of this Section.
SECTION 16 DISPUTE RESOLUTION
16.1 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 not successful then any dispute relating to this Agreement
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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 17 NOTICE
17.1 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
Tony O'Rourke, City Manager
129 North 2" Street
Yakima, WA 98901
CONTRACTOR: Tom Foley
450 Hexon Rd.
Selah, WA 98942
SECTION 18 EFFECTIVE DATE
18.1 This Agreement shall be effective as and from March 4, 2015, and the work performed by CONTRACTOR
between March 4, 2015 and June 8, 2015, and payment by CITY therefor, is hereby ratified and approved,
and deemed to be work performed pursuant to the terms and conditions of this Agreement. Additional
work associated with the services provided for herein that may become necessary with respect to the further
development of this investi . ation shall be performed in accordance with the provisions set forth herein.
1N WITNESS WHEREO', the parties h:reto have caused this agreement to be executed by their respective
authorized officers or re. esentatives as o he day and year first above written.
CITY OF I
A MA TOM F4 LEY
Cl
: 4411ti _ y .. 1 !' _.
Ton O'Rourlle, ‘ Manager Signature
111
Date: kill ��
1 `i Date: —1 _ 2 0 1
ATTEST:
ban 3:-
Sonya Claa ee, City Clerk y r"
CITY CONTRAC i N0: ^ /
RESOLUTION NO:
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