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HomeMy WebLinkAbout2024-0072 - - Berry Dunn - Berry DunnPROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF AUBURN AND BERRY, DUNN, MCNEIL & PARKER, LLC dba BERRYDUNN This PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into between the City of Auburn, a city of the State of Washington, with an office located at 25 W. Main Street, Auburn, WA 98001 (hereinafter the “CITY”), and Berry, Dunn, McNeil & Parker, LLC dba BerryDunn, with an office located at 2211 Congress Street, Portland, ME 04102 (hereinafter the “CONSULTANT”). The CITY and CONSULTANT are sometimes referred to in this Agreement as the “parties” and each, individually, as a “party.” The CONSULTANT hereby agrees with the CITY, for the consideration named herein, to perform the services stipulated in this Agreement. 1. CONSULTANT’S SERVICES A. The CONSULTANT, on behalf of the CITY, will perform and carry out in a professional manner the components essential to provide Implementation Project Management Services. B. The Scope of Work will be defined by the CONSULTANT’S Proposal Letter dated September 24, 2024, attached hereto as Exhibit A and incorporated herein by reference. C. The CITY will pay CONSULTANT for its services pursuant to the Proposed Work Effort and Fees section of CONSULTANT’S Proposal Letter, Exhibit A, page 6. 2. THE CITY WILL PROVIDE A. Access to pertinent information and available data requested by the CONSULTANT. B. Any assumptions that are necessary to the work to be performed by CONSULTANT. C. Attendance and participation at all scheduled meetings and work sessions. D. Timely review of draft and preliminary materials submitted by the CONSULTANT. 3. DOCUMENTS All documents and services provided by the CONSULTANT pursuant to this Agreement are instruments of service with respect to this project. Upon receipt of payment for these services, the CONSULTANT’S documents and material developed by the CONSULTANT under this Agreement are the property of the CITY. The CITY has the right to re-use these documents and computer software on extensions of the project or for other projects; provided that such re-use will be at the CITY’S sole risk and without liability or legal exposure to the CONSULTANT. Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 2 4. NONDISCLOSURE OF PROPRIETARY INFORMATION The CONSULTANT will consider all information provided by the CITY and all reports, studies, and other documents resulting from the CONSULTANT’S performance of these services to be proprietary unless such information is available from public sources. The CONSULTANT will not publish or disclose proprietary information for any purpose other than the performance of the services under this Agreement without the prior written authorization of the CITY or in response to legal process. The CONSULTANT will maintain all originals in the CONSULTANT’S files for a period of not less than three (3) years from the date CONSULTANT completes these services and will provide the CITY access to and the right to examine and copy information contained in the files pertaining to the services. In the event of legal process, the rights of access, examination, and copying hereunder will continue until the conclusion of any litigation, appeals, claims, arbitration, or other legal process. 5. CHANGES AND ADDITIONS CONSULTANT will notify the CITY in writing of any recommended or necessary modifications or additions to the Scope of Work contemplated under this Agreement. Compensation for all changes or additions in the Scope of Work must be negotiated and approved by the parties in writing. 6. ADDITIONAL SERVICES The CITY may request additional services associated with this project that are outside of the Scope of Work contemplated under this Agreement. If CONSULTANT agrees to any such request, compensation for these additional services will be based on CONSULTANT’S current billing rates plus reasonable travel expenses. The parties will approve the scope, number of hours, and fee schedule for such services in writing before CONSULTANT begins any additional work. 7. NOTICE A. Any notice, demand, or request required by or made pursuant to this Agreement must be in writing and will be deemed properly made if personally delivered or deposited in the United States mail, postage prepaid, to the representative specified below, and/or sent to the email address(es) that the parties have routinely used to communicate with each other during the term of this Agreement. Provided, however, that any notice of suspension or termination pursuant to Section10 of this Agreement must be sent by United States certified mail, postage prepaid, return receipt requested and will not become effective until the date of receipt. Nothing in this paragraph is intended to restrict the transmission of routine communications between the parties’ representatives. B. The name and mailing address of CITY’S Representative for purposes of this notice provision, unless and until another person is designated in writing, is Jamie Thomas, Finance Director, City of Auburn, 25 W. Main Street, Auburn, WA 98001. C. The name and mailing address of CONSULTANT’S Representative for purposes of this notice provision, unless and until another person is designated in writing, is Seth Hedstrom, Principal, Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 3 Berry, Dunn, McNeil & Parker, LLC, 2211 Congress Street, Portland, ME 04102. 8. MANNER OF PAYMENT A. The CONSULTANT will furnish the CITY with timely progress invoices each month for services rendered to date for each project phase. The terms of payment will be net thirty (30) days. B. The CONSULTANT may assess late payment charges at the rate of one and one-half percent (1.5%) per month for any past due payments. C. If any invoice is the subject of a legitimate dispute between the parties, no late payment charges will apply to any amounts not paid by the CITY because of said dispute; and CITY will pay all amounts not reasonably deemed to be included in the dispute. 9. FORCE MAJEURE CONSULTANT will use commercially reasonable efforts to complete all services contemplated under this Agreement. However, neither party will be liable to the other party for any failure to perform, or delay in performance of, any obligation under this Agreement to the extent such failure or delay has been wholly or principally caused by acts or events beyond the parties’ reasonable control rendering performance illegal or impossible. As used in this section, “force majeure” means any cause beyond the reasonable control of a party including, but not limited to, an act of God, nature, act of aggression, fire, strike, flood, riot, war, delay of transportation, terrorism, pandemics or other widespread outbreaks of infectious diseases, or the inability, due to the aforesaid causes, to obtain necessary labor, material, or facilities. 10. TERMINATION OR SUSPENSION OF CONTRACT A. Termination for cause. Either party may terminate this Agreement upon written notice to the other party in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement through no fault of the terminating party; provided, however, that the terminating party has first given the other party written notice of the reason for such termination and the other party has failed to cure or rectify the issue or matter within fifteen (15) days of receipt of such notice. B. In the event the CITY terminates the CONSULTANT’S services as permitted under Section 10.A of this Agreement, the CITY will pay the CONSULTANT for all services performed to the effective date of termination. The CONSULTANT will be entitled to receive only the fair value of services rendered and direct out of pocket expenses incurred hereunder prior to the effective date of such termination. Upon restart of a project previously terminated, equitable adjustment may be made to compensation for remobilization of the project. C. Termination for convenience. The CITY may terminate this Agreement upon not less than seven (7) days written notice, which shall contain the effective date of termination, to the CONSULTANT. If this Agreement is terminated through no fault of the CONSULTANT, the CONSULTANT will be compensated for services performed prior to termination in accordance with the rate of compensation provided for in this Agreement. Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 4 11. ASSIGNMENT Neither party will assign or transfer their rights or obligations in this Agreement without the written consent of the other party, and such consent will not be unreasonably withheld. 12. INSURANCE The CONSULTANT will, at its sole expense, procure and maintain for the duration of this Agreement and 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 CONSULTANT, its agents, representatives, or employees. CONSULTANT’s maintenance of insurance as required by the Agreement will not be construed to limit the liability of the CONSULTANT to the coverage provided by such insurance, or otherwise limit the CITY’s recourse to any remedy available at law or in equity. The CONSULTANT will obtain insurance of the types described below: a. 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 (CONSULTANT may use a substitute form providing equivalent liability coverage). CONSULTANT will maintain automobile insurance with minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. b. 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 CONSULTANT’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 Liability insurance will be written with limits no less than $2,000,000 each occurrence, $2,000,000 general aggregate. c. Worker’s Compensation coverage as required by the Industrial Insurance laws of the State of Washington. d. Professional Liability insurance appropriate to the CONSULTANT’s profession with limits no less than $2,000,000 per claim and $2,000,000 policy aggregate limit. For Automobile Liability and Commercial General Liability insurance, the policies are to contain, or be endorsed to contain that CONSULTANT’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 CONSULTANT’s insurance and will not contribute with it The CONSULTANT 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. Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 5 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 CONSULTANT does not fully comply with this request. If the CONSULTANT 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 CONSULTANT, irrespective of whether such limits maintained by the CONSULTANT 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 CONSULTANT. The CONSULTANT will provide the CITY with written notice of any policy cancellation within two business days of their receipt of such notice. Failure by the CONSULTANT 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 CONSULTANT 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 CONSULTANT from the CITY. 13. INDEMNIFICATION / HOLD HARMLESS Except for injuries and damages caused by the sole negligence of the CITY, the CONSULTANT 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, to the extent they arise out of or result from the acts, errors, or omissions of the CONSULTANT, 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. 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 Consultant and the Public Entity, its officers, officials, employees, and volunteers, the CONSULTANT’S liability, including the duty and cost to defend, hereunder shall be only to the extent of the CONSULTANT’S negligence. It is further specifically and expressly understood that this indemnification constitutes the CONSULTANT’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. 13. ETHICS IN PUBLIC CONTRACTING The CONSULTANT certifies that its proposal was made without collusion or fraud and that CONSULTANT has not offered or received any kickbacks or inducements from any other Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 6 contractor, supplier, manufacturer, or subcontractor in connection with CONSULTANT’S proposal; that CONSULTANT has not conferred with any public employee having official responsibility for this procurement transaction; and that CONSULTANT has not received any payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, in connection with this proposal or procurement transaction, unless consideration of substantially equal or greater value was exchanged. 14. SEVERABILITY If any part, term, or provision of this Agreement is found by a Court to be legally invalid or unenforceable, then such provision or portion thereof will be performed in accordance with applicable laws to the extent possible. The invalidity or unenforceability of any provision or portion of this Agreement or any contract document related to this Agreement will not affect the validity of any other provision or portion of this Agreement or any related contract document. 15. AGREEMENT CONSTRUED UNDER WASHINGTON LAWS The Agreement is deemed to be executed and performed in the State of Washington and will be construed in accordance with the laws of the State of Washington. 16. CONFLICT OF TERMS If there is a conflict, discrepancy, or inconsistency between the language in this Agreement and the language in the CONSULTANT’S Proposal Letter (Exhibit A) or any other document or exhibit attached to this Agreement, the language in this Agreement will control. 17. ENTIRE UNDERSTANDING This Agreement comprises the entire understanding between the parties and cannot be modified, altered, or amended, except in writing and signed by the parties. 18. TERM The term of this Agreement will be from the date of execution through March 31, 2026, unless it is terminated earlier by either party pursuant to Section 10 of this Agreement. The term of this Agreement may be extended upon the mutual consent of both parties in writing. Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 7 By signing below, each party executes this Agreement as of the date written below and agrees to all the terms and conditions contained herein. CITY OF AUBURN By: _________________________ Print Name: Nancy Backus Title: Mayor Date:_______________________ By: ________________________ Print Name: Jamie Thomas Title: Finance Director Date:______________________ BERRY, DUNN, MCNEIL & PARKER, LLC dba BERRYDUNN By:_______________________ Name: Seth Hedstrom Title: Principal Date:______________________ Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 10/21/2024 10/21/2024 10/21/2024 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4 Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4Docusign Envelope ID: 4D0BD77E-EDC0-4350-856C-10CA038952C4