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HomeMy WebLinkAboutCAG1992-0025 - Original - R.J. Gillisse & Associates - Commute Trip Reduction Program Consultation - 04/22/1992 AGREEMENT FOR TRAFFIC ENGINEERING PROFESSIONAL SERVICES BETWEEN THE CITY OF KENT AND R.J. GILLISSE & ASSOCIATES THIS AGREEMENT is made this 22nd day of April, 1992 , by and between the City of Kent, a Washington municipal corporation (hereinafter the "City") , and R.J. Gillisse & Associates, a sole proprietorship organized under the laws of the State of Washington, located and doing business at 23501 112th Avenue S.E. #A-104, Kent, WA 98031 (hereinafter the "Consultant") . Recitals 1. The City is presently engaged in the development of a Commute Trip Reduction Program required by the State of Washington (RCW 70.94 . 521-551) , and desires that the Consultant perform services necessary to prepare plans, policies and procedures for the City' s obligations and responsibilities under this legislation. 2 . The Consultant agrees to perform such services, as such services are more specifically described in the Scope of Work Labeled Exhibit A, attached to this Agreement and 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, relevant to the preparation of plans, policies, and procedures for the City' s adoption of an ordinance and implementation of procedures required under the Commute Trip Reduction Legislation (RCW 70.94 . 521-551) . 1 II. Payment A. The City shall pay the Consultant the sum of Thirty Dollars ($30. 00) per hour for time worked under this Agreement, with the total fee not to exceed Seven Thousand Five Hundred Dollars ($7, 500. 00) , for the services described in Section I herein. This is the maximum amount to be paid under this Agreement, 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. 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 subcontractor of Consultant shall be or shall be deemed to be the employee, agent, 2 representative, or subcontractor 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 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 subcontractors of the Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and subcontractors 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 in no event shall completion be delayed beyond June 15, 1992 . V. Phase of Work The Consultant shall perform the work authorized under this Agreement at the offices of the City, 220 4th Avenue S. ,Kent, 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. VI. Termination A. Termination of Agreement If the City receives reimbursement by any state, federal, or other source for work described in Section I herein, 3 and that 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 upon the Consultant' s receipt of the written notice. B. 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 ten (10) 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 deposit in the United States mail to the Consultant's address as stated below. 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 cost incurred by it in the completion of the work. C. 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 4 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 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. PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10) 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. D. 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. VII. Discrimination In the hiring of employees for the performance of work under this Agreement or any subcontract hereunder, the Consultant, its subcontractors, or any person acting on behalf of such Consultant or subcontractor 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. 5 VIII. Indemnification Consultant hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, officials, employees, agents and representatives from any and all claims, costs, judgments, awards or liabilities to any person, including claims by Consultant's own employees to which Consultant might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of Consultant, its agents, servants, officers, or employees in performing this Agreement are the proximate cause. Inspection or acceptance by the City of any work performed by the Consultant at the time of completion shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Consultant and the City, its officers, officials, employees, agents, or representatives, Consultant' s liability hereunder shall only be to the extent of Consultant's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes Consultant' s waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. IX. Insurance Consultant shall procure and maintain for the duration of this Agreement, comprehensive general liability and automotive liability 6 insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its employees, agents, or subcontractors. The costs of such insurance shall be borne by Consultant. Consultant shall maintain limits on such insurance in the amount of $1, 000, 000 combined single limit per occurrence/accident for bodily injury, personal injury, and property damage. The City, its officers, officials, employees, agents, volunteers and representatives are to be covered as insureds as respects liability arising out of activities performed by or on behalf of the Consultant on automobiles owned, leased, hired, or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials employees, agents, volunteers, or representatives. Consultant' s insurance coverage shall be primary as respects the City, its officers, officials, employees, agents, and volunteers. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City. The deductibles and/or self-insured retentions shall not apply to the Consultant' s liability to the City and shall be the sole responsibility of the Consultant. Any insurance maintained by the City shall be in excess of the Consultant's insurance and shall not contribute with it. Consultant agrees to provide the City with certificates of insurance evidencing the required coverage before Consultant begins work on the project described in this Agreement. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 7 The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 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 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. The original data, documents and files created by Consultant under this Agreement shall be stored in the City's offices. Duplicate copies of this information may be kept by the Consultant. XII. Entire Agreement The written provisions and terms of this Agreement, together with Exhibit A attached hereto, shall supersede all prior verbal 8 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 hereto, and all RFP-related documents, 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. XIII. City's Right of Supervision and 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 and supervision to secure the satisfactory completion thereof. The Consultant agrees to comply with all federal, state, and municipal laws, rules, and regulations that are applicable to Consultant's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. XIV. Consultant to Maintain Records to Support Independent Contractor Status Consultant agrees that on the effective date of the Agreement (or shortly thereafter) : A. A schedule of expenses has been or will be filed with the Internal Revenue Service for the type of business Consultant conducts; 9 B. An account with the Washington State Department of Revenue and other necessary state agencies has been established for the payment of all state taxes normally paid by employers, and that Consultant has registered for and received a unified business identifier number from the State of Washington; and C. A separate set of books and records are being maintained by Consultant 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, and required to show that the services performed by Consultant under this Agreement shall not give rise to an employer-employee relationship between the parties which is subject to RCW Title 51, Industrial Insurance. XV. Work Performed at Consultants 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 protections 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. XVI. 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. XVII. Assignment Any assignment of this Agreement by the Consultant without the written consent of the City shall be void. 10 XVIII. Written Notice All communications regarding this Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Any written notice hereunder shall become effective as of 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 Agreement or such other address as may be hereafter specified in writing. XIX. Governing Law This Agreement shall be governed by the laws of the State of Washington. XX. 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. XXI. 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. 11 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 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. The prevailing party shall be reimbursed by the other party for its costs, expenses and reasonable attorney' s fees incurred in any litigation arising out of the enforcement of this Agreement. 12 IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. R.J. G LISSE AND ASSO IATES THE CITY OF KENT BY• BY: -���.f� � � •� '� � - I rincipal Director of Public Works Notices to be sent to: Mr. Richard J. Gillisse Mr. Don Wickstrom, P.E. R.J. Gillisse & Associates Director of Public Works 23501 112th Avenue S.E. A-104 The City of Kent Kent, WA 98031 220 Fourth Avenue South Kent, Washington 98032 APPROVED AS TO FORM: t Cite Attorney ATTEST: a Kent City Clerk 13 if APPENDIX A COMMUTE TRIP REDUCTION SERVICES FOR THE CITY OF KENT SCOPE OF WORK: Under the direction of the Department of Public Works, the Consultant will develop the plans, policies and procedures necessary for the City of Kent's use in administering the Commute Trip Reduction (CTR) Law (RCW 70,94.521-551). The work shall include: 1) Coordinating with the State CTR Task Force in assuring the City's interests are represented in the development of the Model Ordinance and CTR Guidelines. 2) Represent the City's interest in working with the King County CTR Coordinating Committee in developing county wide administrative procedures for implementation of the law. 3) Evaluating various administrative options available to the City for administering the law for employers within the City limits and recommending a course of action. 4) Facilitate the drafting of an interlocal agreement with King County for distribution of State funding available for start up activities and administering the law. 5) Represent the City in educating and informing the business community on the requirements and actions necessary under the law. 6) Provide data necessary for the City to define the CTR Zones and base year data needed in administering the law. 7) Develop and implement a program for the City's use in providing a CTR program to City employees. 8) Assist in the preparation of a draft ordinance for presentation to the City Council. 9) Represent the City's interest in working with other local jurisdictions in the formation of a consortium for joint administration of the law. 10) Develop a database of employers subject to the law within the city limits of Kent. 11) Assist in the study of the cities parking ordinances as required by the law.