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HomeMy WebLinkAboutPW1993-0161 - Original - Hough Beck & Baird Inc. - Green River Wetlands & Shoreline Preservation Program - Consultant Services - 03/23/1993 CONSULTANT SERVICES CONTRACT & BAIRD INC. BETWEEN THE CITY OF KENT AND HOUGH BECK THIS AGREEMENT is made this 23rd day of march , 1993, by and between the City of Kent, a Washington municipal corporation (hereinafter the "City") , and Hough Beck & Baird Inc. organized under the laws of the State of Washington, located and doing business at 1000 Lenora Street, Suite 516, Seattle, WA 98121 (hereinafter the "Consultant") . Recitals 1.The City is presently engaged in the Green River Wetlands & Shoreline Preservation Program and desires that the Consultant perform services necessary to provide consultation and advice to the City on the preparation of a report for the Preservation Program 2 .The Consultant agrees to perform the services more specifically described in the Scope of Work, dated March 5 , 1993 , including any addenda thereto as of the effective date of this agreement, attached hereto as Exhibit A which is incorporated herein by this reference as if fully set forth. NOW, THEREFORE, in consideration of the mutual promises set forth herein, it is agreed by and between the parties as follows: I. Description of Work Consultant shall perform all work as described in Exhibit A. II. Payment A.The City shall pay the Consultant an amount based on time and materials, an amount not to exceed Seventeen thousand seven hundred-- ten dollars and no cents ($17,710.00) for the services described in Section I herein. This is the maximum amount to be paid under this Agreement for Tasks 1 - 15 in Exhibit A, and shall not be exceeded without the prior written authorization of the City in the form of a negotiated and executed supplemental agreement. PROVIDED, HOWEVER, the City reserves the right to direct the Consultant's compensated services under the time frame set forth in Section IV herein before reaching the maximum amount. B.The Consultant shall submit monthly payment invoices to the City after such services have been performed, and a final bill upon completion of all the services described in this Agreement. The City shall pay the full amount of an invoice within forty-five (45) days of receipt. If the City objects to all or any portion of any invoice, it shall so notify the Consultant of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the parties shall immediately make every effort to settle the disputed portion. C.In the event the Scope of Work is modified or changed so that more or less work or time is required by the Consultant, and such modification is reached by mutual agreement of the parties to this contract, the payment for services and maximum contract amount shall be adjusted accordingly upon agreement of the parties. III.Relationship of Parties The parties intend that an independent contractor-employer relationship will be created by this Agreement. As Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee, representative or sub-contractor of Consultant shall be or shall be deemed to be the employee, agent, representative or sub-contractor of the City. In the performance of the work, Consultant is an independent contractor with the ability to control and direct the performance and details of the 2 i work, the City being interested only in the results obtained under this Agreement. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-contractor of the Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub-contractors during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent contractors to perform the same or similar work that Consultant performs hereunder. IV. Duration of Work The City and Consultant agree that work will begin on the tasks described in Exhibit A immediately upon execution of this Agreement. The parties agree that the work described in Exhibit A is to be completed within 180 calendar days of the execution of this Agreement; provided however, that additional time shall be granted by the City for excusable delays or extra work, as described in Section VI . (C) below. V. Phase of Work The Consultant shall perform the work authorized under this Agreement at its offices in Seattle , Washington. Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices at 400 West Gowe, Kent, Washington, or at locations mutually agreed to by the parties. VI. Termination A.Termination of Agreement If the City receives reimbursement by any state, federal, local or other source for work described in Section I herein, and that 3 funding is withdrawn, reduced or limited in any way after the execution date of this Agreement and prior to the completion of the work hereunder, the City may summarily terminate this Agreement. Termination shall be effective ten calendar days after Consultant's receipt of the written notice by certified mail . B.Termination for Failure to Provide Services Bargained For. The Consultant agrees that Hough Beck & Baird Inc. was hired by the City based on the Consultant' s representation that employees identified in the proposal will be available to perform the services described in Section I for the duration of this Agreement. If any of the employees identified in the proposal are unavailable to perform the services bargained for, for any reason, the City of Kent reserves the right to terminate this contract or renegotiate the amount of consideration. The consultant must immediatley notify the City, in writing, if any employee identified in the proposal is unavailable to perform the services described in Section I of this Agreement. Nothing in the foregoing language will alter the Consultant's independent-contractor status. C. Termination for Failure to Prosecute Work or to Complete Work Satisfactorily If the Consultant refuses or fails to prosecute the work with such diligence as will ensure its completion within the time frames specified herein, or as modified or extended as provided in this Agreement, or to complete such work in a manner satisfactory to the City, then the City may, by written notice to the Consultant, give notice of its intention to terminate the Consultant's right to proceed with the work. On such notice, the Consultant shall have 4 ten (10) calendar days to cure, to the satisfaction of the City or its representative, or the City shall send the Consultant a written termination letter which shall be effective upon the Consultant' s receipt of the written notice by certified mail. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise, and Consultant shall be liable to the City for any additional costs incurred by it in the completion of the Scope of Work referenced as Exhibit A and as modified or amended prior to termination. "Additional Costs" shall mean all reasonable costs incurred by the City beyond the maximum contract price specified in II (A) , above. D. Excusable Delays The right of Consultant to proceed shall not be terminated nor shall Consultant be charged with liquidated damages for any delays in the completion of the work due to: 1) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency; 2) any acts of the City, its consultants, or other public agencies causing such delay; and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity; and (4) negotiated and executed supplemental agreements between the City and Consultant for Consultant to perform extra work defined as tasks not included in the Scope of Work referenced as Exhibit A. PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10) calendar days in writing of the cause of the delay. If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a period of time commensurate with the period of excusable delay. 5 i E.Rights Upon Termination In the event of termination, the City shall pay for all services performed by the Consultant to the effective date of termination, as described on a final invoice submitted to the City. After termination, the City may take possession of all records and data within the Consultant's possession pertaining to this project which may be used by the City without restriction. Any such use not related to the project which Consultant was contracted to perform shall be without liability or legal exposure to the Consultant. VII.Discrimination In the hiring of employees for the performance of work under this Agreement or any sub-contract hereunder, the Consultant, its sub- contractors, or any person acting on behalf of such Consultant or sub-contractor shall not, by reason of race, religion, color, sex, national origin, or the presence of any sensory, mental, or physical handicap, discriminate against any person who is qualified and available to perform the work to which the employment relates. VIII.Indemnification Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. The City's inspection or acceptance of any of Consultant's work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4. 24 . 115, then, in the event of 6 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 and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. IX. 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, sub-consultants or sub-contractors. Before beginning work on the project described in this Agreement, the Consultant shall provide a Certificate of Insurance evidencing: 1. Automobile Liability insurance with limits no less than $1, 000, 000 combined single limit per accident for bodily injury and property damage; and 2. Commercial General Liability insurance written on an occurrence basis with limits no less than $1, 000, 000 combined single limit per occurrence and $2 , 000, 000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability; and 3 . Professional Liability insurance with limits no less than $1, 000, 000 limit per occurrence. 7 Any payment of deductible or self insured retention shall be the sole responsibility of the Consultant. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects to the work performed by or on behalf of the Consultant and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies. The Consultant's Commercial General Liability 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. The Consultant's insurance shall be primary insurance as respects the City and the City shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. X. Exchange of Information The City warrants the accuracy of any information supplied by it to Consultant for the purpose of completion of the work under this Agreement. The parties agree that the Consultant will notify the City of any inaccuracies in the information provided by the City as may be discovered in the process of performing the work, and that the City is entitled to rely upon any information supplied by the Consultant which results as a product of this Agreement. XI. Ownership of Records and Documents Original documents, drawings, designs and reports developed under this Agreement shall belong to and become the property of the City. All written information submitted by the City to the Consultant in 8 connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business. If such information is publicly available is already in Consultant's possession or known to it, or is rightfully obtained by the Consultant from third parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. All data, documents and files created by Consultant under this Agreement may be stored at Consultant's office in Seattle , Washington. Consultant shall make such date, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in the City' s offices. Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost. XII. Recyclable Materials Pursuant to City of Kent Ordinance No. 3066, The City of Kent requires its contractors and consultants to use recycled and recyclable products whenever practicable. A price preference may be available for any designated recycled product. XIII.Entire Agreement The written provisions and terms of this Agreement, together with Exhibit A attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner whatsoever, this Agreement or the Agreement documents. The entire agreement between the parties with respect to the subject matter hereunder is contained in this Agreement and any Exhibits attached 9 hereto, which may or may not have been executed prior to the execution of this Agreement. All of the above documents are hereby made a part of this Agreement and form the Agreement document as fully as if the same were set forth herein. XIV.City's Right of Inspection Even though Consultant is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory completion thereof. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are now effective or in the future become applicable to Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. XV. Consultant to Maintain Records to Support Independent Contractor Status On the effective date of this Agreement (or shortly thereafter) , Consultant shall: A. File a schedule of expenses with the Internal Revenue Service for the type of business Consultant conducts; B. Establish an account with the Washington State Department of Revenue and other necessary state agencies for the payment of all state taxes normally paid by employers, register to receive a unified business identifier number from the State of Washington; and; C. Maintain a separate set of books and records that reflect all items of income and expenses of Consultant's business, all as described in the Revised Code of Washington (RCW) Section 51. 08. 195, as required to show that the services performed by Consultant under this Agreement shall not give rise to an employer- 10 employee relationship between the parties which is subject to RCW Title 51, Industrial Insurance. XVI.Work Performed at Consultant's Risk Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XVII.Modification No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and Consultant. XVIII.Assignment Any assignment of this Agreement by the Consultant without the written consent of the City shall be void. If the City shall give its consent to any assignment, this paragraph shall continue in full force and effect and no further assignment shall be made without the City's consent. XIV.Written Notice All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the agreement, unless notified to the contrary. Any written notice hereunder shall become effective upon the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this 11 Agreement or such other address as may be hereafter specified in writing. XX. Governing Law This Agreement shall be governed by the laws of the State of Washington. XXI.Non-Waiver of Breach The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be and remain in full force and effect. XXII.Resolution of Disputes Should any dispute, misunderstanding, or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the City, and the City shall determine the term or provision's true intent or meaning. The City shall also decide all questions which may arise between the parties relative to the actual services provided or to the sufficiency of the performance hereunder. If any dispute arises between the City and Consultant under any of the provisions of this Agreement which cannot be resolved by the City's determination in a reasonable time, or if Consultant does not agree with the City's decision on the disputed matter, jurisdiction and venue of any resulting litigation shall be filed in King County Superior Court, King County, Washington. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Each party shall be solely 12 responsible for its costs, expenses and attorney's fees incurred in any litigation arising out of the enforcement of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. THE CITY OF KENT U&n;L000 BY. I UWJ�� BY• Its Principal it for of Public Works BY• Ma r Notices to be sent to: Mr. Don Wickstrom, P.E. Director of Public Works City of Kent 220 Fourth Avenue South Kent, Washington 98032 13 APPROVED AS TO FORM: Ken City Attorney ATTEST: a—(f Kent City Cle A17 14 EXHIBIT A March 5, 1993 City of Kent Green River & Shoreline Wetlands Preservation Program Scope of Services / Tasks TASK ONE The City's planning staff has completed task one of the DOE/City Contract, which consists of tasks 1 .1 : Compiling regulatory and non-regulatory protection programs; 1.2: Review of existing plans within the City; 1.3: gather and evaluate data from existing wetlands inventory. HUB will need to review the City's findings from task one and assist the City in presenting the work program and scope of services to the Planning Committee. TASK TWO Meet with City Staff to develop the citizen group workshop agenda for the establishment of goals and objectives. HB&B anticipates combining these citizen interest groups into one meeting to establish goals and objectives in order to maintain the contract time schedule. HB&B anticipates the City will identify the Citizen Groups and handle contacting them and coordinating the workshop time and location. HB&B will support the City in proposing graphics for the workshop flyer/agenda and materials to be used during the workshop. HB&B will attend a joint meeting with the interested City Departments and interested adjacent jurisdictions to review goals and objectives. Develop draft goals and objectives. Review draft with City. Present draft goals and objectives to the Planning Committee. City of Kent March 5, 1993 Page Two TASK THREE Prepare an implementation strategy. HB&B will assist the City to identify methods of obtaining cost estimates for site acquisition, maintenance and enhancement. HB&B will assist in identifying funding sources for acquisition and special interest groups for stewardships for long term management. Funding may include a variety of options; grants, loans, taxes, land exchanges and possibly surplus sales. HB&B will help develop site selection criteria. This criteria needs to reflect the goals and objectives for type, value and function of wetlands. HB&B will help formulate site acquisition strategy using the goals, objectives and selection criteria. The site acquisition strategy will define a process for acquisition. HB&B with the technical assistance of City Staff will generally outline management and monitoring procedures, ie.; who should manage and monitor the wetland system; what steps should be involved in the monitoring process especially if it includes public access which may require additional monitoring. HB&B will assist in defining the role of education and public involvement in the wetland preservation process and future acquisition. Once this implementation strategy is accomplished, HB&B will assist with two final workshops; one with the interested Citizen groups; and one jointly with the interested City Departments and adjacent jurisdictions. Upon acceptance of the implementation strategy, HB&B will prepare the final draft of the Wetlands Preservation Program for a Public Hearing. HB&B will provide the City with camera-ready art work for reproduction of the report. The attached spreadsheet identifies proposed fees associated with our scope of services. The fees do not include the printing of the Draft and Final Reports. 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