HomeMy WebLinkAbout2024, Economic Development Marketing & Strategy Update, Gold Shovel Agency
[Contract #EC-2024-2]
June 24, 2024
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CITY OF AUBURN
AGREEMENT FOR SERVICES
Economic Development Marketing and Strategy Update
THIS AGREEMENT made and entered into on this _______ of June 2024, by and
between the CITY OF AUBURN (“City”), a municipal corporation of the State of Washington, and
Golden Shovel Agency (“Provider”), whose address is 43 East Broadway, Little Falls, MN
56345.
In consideration of the conditions and the mutual promises and covenants contained in this
Agreement, the parties agree as follows:
1. Scope of Services
The Provider agrees to perform the tasks described in Exhibit A to this Agreement. The
Provider will be responsible for providing work products and services of a quality and
professional standard acceptable to the City. Without additional compensation, the Provider
will correct or revise any negligent errors, omissions or other deficiencies in any required
plans, designs, drawings, specifications, reports and/or other services, whether during or
after the Term of this Agreement. The City’s approval of Provider’s services will not in any
way relieve the Provider of responsibility for service accuracy and adequacy.
2. Additional Services
The Parties will amend this Agreement if additional services are required beyond those
specified in Exhibit A and/or included in the compensation amount for this Agreement. An
amendment must be written and agreed to by the Parties before Provider performs any
additional services, and it must specify the nature, scope, and payment terms for the
additional services. If the time period for completing additional services makes the advance
signing of an amendment impractical, the Provider agrees to perform only the additional
services requested in writing by an authorized City representative pending the signing of an
Amendment as set forth in this Section. The invoice procedure for any additional services
is described in Section 4 of this Agreement.
3. Provider’s Representations & Qualifications
The Provider represents and warrants that it has all the required licenses, certifications and
qualifications to perform the services in this Agreement. Provider represents that its
signatory to this Agreement has the requisite legal authority to bind Provider to the terms
and conditions of this Agreement.
4. Compensation
a. As compensation for the Provider’s performance of this Agreement, the City will
pay the Provider the fees and costs specified in Exhibit B. The City’s payments will
fully compensate Provider for work performed/services rendered and for all labor,
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materials, supplies, equipment, overhead, profit, and incidentals necessary for
Provider to complete the work.
b. The Provider will submit monthly invoices or statements to the City detailing the
time spent on Exhibit A tasks. Upon its acceptance of the invoice or statement,
the City will process it in its next billing/claim cycle, and will remit payment to the
Provider (subject to any conditions or provisions in this Agreement or an
Amendment). This Agreement’s number must appear on all submitted invoices.
Provider will submit copies of any documents supporting an invoice or statement
to the City upon request.
c. The not-to-exceed amount for this agreement is $50,000. The Provider will not
undertake any work or otherwise financially obligate the City in excess of this not-
to-exceed amount without the City’s advance written authorization.
d. City payments to the Provider after the current year are contingent on available
funds.
5. Time for Performance, Term, and Termination of Agreement
a. The Provider will begin no work under this Agreement until authorized by the City
in writing. The term of this Agreement commences on the date that the last party
signs it (as reflected on the signature page). Once commenced, Provider shall
complete the performance of all services in Exhibit A on or before December 31st,
2024, unless the Parties otherwise agree in writing.
b. Termination for cause. Either party may terminate this Agreement for cause with
written notice to the other party. A termination is “for cause” if a party substantially
fails to perform in accordance with the terms of this Agreement through no fault of
the other party. The notice will specify the termination reason(s) and its effective
date. If the City terminates this Agreement for cause, all City payments otherwise
due to Provider will be suspended and the City will have no further obligations to
Provider.
c. Termination for Convenience. The City may terminate this Agreement for
convenience upon at least 7 days’ written notice to the Provider. The notice shall
contain the termination effective date. If the termination is through no fault of the
Provider, the City will compensate Provider for services performed up to the
termination effective date in accordance with the Exhibit B compensation rate.
This compensation will fully satisfy the City’s obligations under this Agreement,
and will discharge the City from any further obligations and liabilities to the Provider
(including any Provider claims of anticipated profits or other consequential
damages resulting from the termination).
d. Upon receipt of any termination notice, the Provider will promptly discontinue all
services and deliver to the City all data, drawings, specifications, reports,
summaries, and such other information and materials the Provider has
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accumulated, prepared, or obtained in performing this Agreement (whether fully or
partially completed).
e. The rights and remedies in this Section do not exclude any other legal or equitable
rights or remedies available to the City.
6. Ownership and Use of Documents
The City will own all documents, reports, memoranda, diagrams, sketches, plans, surveys,
design calculations, working drawings and any other materials that the Provider creates or
prepares in performing this Agreement (the “Work Products”). The City may use these work
products for any lawful purpose. Provider acknowledges that this Agreement and the work
products are public records subject to RCW 42.56 unless exempt from public records
disclosure requirements. The Provider agrees to fully assist the City in identifying, locating,
and copying any records Provider possesses that the City determines in its sole discretion
are responsive to a Public Records request.
7. Records Inspection and Audit
All City payments are subject to adjustment for any amounts found upon audit or otherwise
to have been improperly invoiced. The City may inspect and audit any Provider records and
books of account pertaining to any work performed under this Agreement for up to 3 years
after the City’s final payment to Provider. If any litigation, claim, dispute, or audit is initiated
before this 3 year period expires, Provider shall retain all records and books of account for
any work performed under this Agreement until final resolution of any such litigation, claim,
dispute, or audit.
8. Continuation of Performance
If any dispute or conflict arises between the parties while this Agreement is in effect, the
Provider agrees to cooperate and continue in good faith toward successful completion of its
responsibilities under this Agreement notwithstanding such dispute or conflict.
9. Independent Contractor
The Provider will perform the services as an independent contractor, and will not be deemed
by virtue of this Agreement or the performance of it to be in a partnership, joint venture,
employment, or other relationship with the City. Nothing in this Agreement creates any
contract relationship between the City and the Provider’s employees, agents, or
subcontractors.
10. Administration of Agreement
This Agreement will be administered by Jenn Francis, on behalf of the Provider, and by
the City Mayor (or designee) on behalf of the City.
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11. Notices
Notices or communications permitted or required under this Agreement will be written and
delivered to the following addresses:
Notice to the City: Notice to Provider:
Jenn Francis
City of Auburn
25 West Main St
Auburn WA 98001-4998
Phone: 253.931.4011
Email: jfrancis@auburnwa.gov
Ron Kresha
Golden Shovel Agency
43 East Broadway
Little Falls, MN 56345
Phone: 320.761.6133
Email:rkresha@goldenshovelagency.com
Either party may change its above address by giving written notice to the other party.
Notices to non-parties will be delivered as designated by a party to this Agreement.
12. Insurance
a. The Provider will, at its sole expense, procure and maintain for the duration of this
Agreement and for 30 days thereafter insurance against claims for injuries to
persons or damage to property which may arise from or in connection with the
performance of this Agreement by the Provider, its agents, representatives, or
employees.
b. Provider’s maintenance of insurance as required by the Agreement will not be
construed to limit the liability of the Provider to the coverage provided by such
insurance, or otherwise limit the City’s recourse to any remedy available at law or
in equity.
c. The Service Provider will obtain insurance of the types described below:
(i) Automobile Liability insurance covering all owned, non-owned, hired and
leased vehicles. Coverage will be at least as broad as Insurance Services
Office (ISO) form CA 00 01 (provider may use a substitute form providing
equivalent liability coverage). Provider will maintain automobile insurance with
minimum combined single limit for bodily injury and property damage of
$1,000,000 per accident.
(ii) Commercial General Liability insurance will be at least as broad as ISO
occurrence form CG 00 01 and will cover liability arising from premises,
operations, stop-gap independent contractors, products-completed operations,
personal injury and advertising injury, and liability assumed under an insured
contract. The City will be named as an additional insured under the Provider’s
Commercial General Liability insurance policy with respect to the work
performed for the City using an additional insured endorsement at least as
broad as ISO Additional Insured endorsement CG 20 26. Commercial General
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Liability insurance will be written with limits no less than $2,000,000 each
occurrence, $2,000,000 general aggregate.
(iii) Worker’s Compensation coverage as required by the Industrial Insurance
laws of the State of Washington.
(iv) Professional Liability insurance appropriate to the Provider’s profession
with limits no less than $2,000,000 per claim and $2,000,000 policy aggregate
limit.
d. For Automobile Liability and Commercial General Liability insurance, the policies
are to contain, or be endorsed to contain that Provider’s insurance coverage will
be primary insurance as respects the City. Any insurance, self-insurance, or self-
insurance pool coverage maintained by the City will be excess of the Provider’s
insurance and will not contribute with it.
e. Insurance is to be placed with an authorized insurer in Washington State. The
insurer must have a current A.M. Best rating of not less than A:VII.
f. The Provider will furnish the City with original certificates of insurance and a copy
of the amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of this
Agreement before commencement of the work.
g. The City reserves the right to require that complete, certified copies of all required
insurance policies and/or evidence of all subcontractors’ coverage be submitted to
the City at any time. The City may withhold payment if the Provider does not fully
comply with this request.
h. If the Provider maintains higher insurance limits than the minimums shown above,
the City will be insured for the full available limits of Commercial General and
Excess or Umbrella liability maintained by the Provider, irrespective of whether
such limits maintained by the Provider are greater than those required by this
Agreement or whether any certificate of insurance furnished to the City evidences
limits of liability lower than those maintained by the Provider.
i. The provider will provide the City with written notice of any policy cancellation
within two business days of their receipt of such notice. Failure by the Provider to
maintain the insurance as required will constitute a material breach of this
agreement, upon which the City may, after giving five (5) business days’ notice to
the Provider to correct the breach, immediately terminate the agreement or, at its
discretion, procure or renew such insurance and pay any and all premiums in
connection therewith, with any sums so expended to be repaid to the City on
demand, or at the City’s sole discretion, offset against funds due the Provider from
the City.
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13. Indemnification/Hold Harmless
a. Except for injuries and damages caused by the sole negligence of the City, the
Provider will defend, indemnify and hold the City and its officers, officials,
employees, and volunteers harmless from any and all claims, injuries, damages,
losses, or suits of every kind, including attorney fees and litigation expenses,
arising out of or resulting from the acts, errors, or omissions of the Provider, its
employees, agents, representatives, or subcontractors, including employees,
agents, or representatives of its subcontractors, made in the performance of this
Agreement, or arising out of worker’s compensation, unemployment
compensation, or unemployment disability compensation claims.
b. However, should a court of competent jurisdiction determine that this Agreement
is subject to RCW 4.24.115, then, 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 the Provider and the City, its officers, officials,
employees, and volunteers, the Provider's liability, including the duty and cost to
defend, hereunder shall be only to the extent of the Provider’s negligence.
c. If is further specifically and expressly understood that this indemnification
constitutes the Provider’s waiver of immunity under Industrial Insurance, Title 51
RCW, solely for the purposes of this indemnification. This waiver has been
mutually negotiated by the parties. The provisions of this section will survive the
expiration or termination of this Agreement.
d. The provisions of this section were separately and mutually negotiated by the
parties.
14. Assignment
Neither party to this Agreement may partially or wholly assign any right or obligation in it
without the other party’s prior written consent. No assignment or transfer of any interest
under this Agreement will release the assignor from any liability or obligation under this
Agreement, or cause any such liability or obligation to be reduced to a secondary liability or
obligation.
15. Nondiscrimination
The Provider may not engage in any unfair practice identified in RCW 49.60.180 and/or 42
U.S.C. §2000e-2 in the performance of any services or activities under this Agreement
(either directly or through contractual, hiring, or other arrangements).
16. Amendment, Modification and Waiver
No amendment, modification, or waiver of any condition, provision, or term of this
Agreement will be valid or effective unless written and signed by the party to be bound (or
the party’s authorized representative), specifying the nature and extent of such amendment,
modification or waiver. Any waiver, approval or acceptance, or payment by any party will
not affect or impair that party’s rights arising from any default by the other party.
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17. Parties in Interest
This Agreement will bind (and its benefits and obligations will inure to) the parties and their
respective successors and assigns. This section will not permit any transfer or assignment
otherwise prohibited by this Agreement. This Agreement is for the exclusive benefit of the
parties, and it does not create a contractual relationship with or exist for the benefit of any
third party (including contractors, sub-contractors and sureties).
18. Force Majeure
Delays in performing this Agreement will be excused to the extent caused by acts outside
a party’s control, such as fires, cyber/ransomware attacks, earthquakes, floods,
explosions, actions of the elements, riots, mob violence, strikes, pandemics, labor strikes
or lockouts, and state or federal government emergency orders.
19. Applicable Law
This Agreement and the rights of the parties under it will be governed by the laws,
regulations, and ordinances of the City, King County, and the State of Washington. Venue
for actions involving this agreement will be in the county where the property or project is
located, or in King County if not site specific. An applicable statute of limitation will commence
no later than the Provider’s substantial completion of the services in this Agreement.
20. Captions, Headings and Titles
All captions, headings or titles in the paragraphs or sections of this Agreement are inserted
for convenience of reference only and will not act to limit the scope of their particular
paragraph or section. Where appropriate, the singular will include the plural (and vice
versa), and masculine, feminine and neuter expressions will be interchangeable. This
Agreement has been drafted by mutual agreement of the parties, and it will be interpreted
and/or constructed without regard to its drafter.
21. Severable Provisions
Each provision of this Agreement is intended to be severable. The illegality or invalidity of
any provision in this Agreement will not affect the validity of the Agreement’s remaining
provisions.
22. Entire Agreement
This Agreement (together with any subsequent amendments or addendums) contains the
entire understanding of the parties regarding its subject matter, and it supersedes all prior
oral or written representations, agreements and understandings between the parties. No
other oral or written understandings regarding this Agreement shall bind any party.
23. Non-Availability of Funds
Every City obligation under this Agreement is contingent on the availability of appropriated
or allocated City funds. If funds required for the City’s performance are not allocated and
available, the City may terminate this Agreement at the end of the available funding period
and without the required Section 5 seven days’ notice. The City will not be liable if it
exercises this provision, and will not be obligated or liable for any future payments or
damages as a result of termination under this Section.
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24. Counterparts
This Agreement may be executed in multiple counterparts, with each counterpart being one
and the same Agreement, and the Agreement will become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
effective the day and year first set forth above.
CITY OF AUBURN GOLDEN SHOVEL AGECNY
_____________________________
Nancy Backus, Mayor Signature
Name:
Title:
Date: ________________________________
Approved as to form:
_____________________________
Douglas Ruth, Acting City Attorney Signature
Name:
Title:
Date: ________________________________
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Ron Kresha
7/2/2024
CFO
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EXHIBIT A
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Deliverables
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EXHIBIT B
Compensation
Total compensation for the Contractor’s services will not exceed $50,000.00 for the term of this
Agreement. Payment will be provided by the City as follows:
1. Compensation payments will be divided monthly from August 2024 through December 2024.
After the Consultant submits to the City a quarterly invoice or statement of time spent on
tasks included in the scope of work, the City will remit payment not to exceed the following
monthly amounts:
August: $10,000.00
September: $10,000.00
October: $10,000.00
November: $10,000.00
December: $10,000.00
2. Invoices will be submitted by the 5th of each month, and should include which activities took
place by reference to the number and task in Exhibit A.
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