HomeMy WebLinkAboutDynamiCity, Inc
A ~. \ (.. . I "2-
CITY OF AUBURN AGREEMENT
FOR CONSULTING SERVICES
THIS AGREEMENT made and entered into on this 31 st day of August, 2005, by and
between the City of Auburn, a municipal corporation of the State of Washington, hereinafter
referred to as "City" and Dynami~ty, Inc. , hereinafter referred to as the "Consultant."
"'Dt:.J
WITNESSETH:
WHEREAS, the City is engaged in or readying itself to be engaged in its project of
Feasibility Study, and is in need of services of individuals, employees or firms for work on said
project; and,
WHEREAS, the City desires to retain the Consultant to provide certain services in
connection with the City's work on said project; and,
WHEREAS, the Consultant is qualified and able to provide consulting services in
connection with the City's needs for the above-described work/project, and is willing and
agreeable to provide such services upon the terms and conditions herein contained.
NOW, THEREFORE, the parties hereto agree as follows:
1. Scope of Services.
The Consultant agrees to perform in a good and professional manner the tasks described
on Exhibit "A" attached heretOl and incorporated herein by this reference. (The tasks
described on Exhibit "A" shall be individually referred to as a "task," and collectively
referred to as the "services.") The Consultant shall perform the services as an
independent contractor and shall not be deemed, by virtue of this Agreement and the
performance thereof, to have entered into any partnership, joint venture, employment or
other relationship with the City.
2. Additional Services.
From time to time hereafter, the parties hereto may agree to the perfom!1ance by the
Consultant of additional services with respect to related work or projects. Any such
agreement(s) shall be set forth in writing and shall be executed by the resp'ective parties
prior to the Consultant's performance of the services there under, except as may be
provided to the contrary in Section 3 of this Agreement. Upon proper completion and
execution of an addendum (agreement for additional services), such addendum shall be
incorporated into this Agreement and shall have the same force and effect as if the terms
of such addendum were a part of this Agreement as originally executed. The
performance of services pursuant to an addendum shall be subject to the terms and
conditions of this Agreement except where the addendum provides to the contrary, in
which case the terms and conditions of any such addendum shall control. In all other
respects, any addendum shall supplement and be construed in accordance with the terms
and conditions of this Agreement.
Page 1 of9
.."-_._-~....
3. Performance of Additional Services Prior to Execution of an Addendum.
The parties hereby agree that situations may arise in which services other than those
described on Exhibit "A" are desired by the City and the time period for the completion
of such servICes makes the execution of addendum impractical pnor to the
commencement of the Consultant's performance of the requested st::rvices. The
Consultant hereby agrees that it shall perform such services upon the oral request of an
authorized representative of the City pending execution of an addendum, at a rate of
compensation to be agreed to in connection therewith. The invoice procedure for any
such additional services shall be as described in Section 7 of this Agreement.
4. Consultant's Representations.
The Consultant hereby represents and warrants that he has all necessary licenses and
certifications to perform the services provided for herein, and is qualified to perform such
servIces.
5. City's Responsibilities.
The City shall do the following in a timely manner so as not to delay the services of the
Consultant:
a. Designate in writing a person to act as the City's representative with respect to the
servIces. The City's designee shall have complete authority to transmit
instructions, receive information, interpret and define the City's policies and
decisions with respect to the services.
b. Furnish the Consultant with all information, criteria, objectives, schedules and
standards for the project and the services provided for herein.
c. Arrange for access to the property or facilities as required for the Consultant to
perform the services provided for herein.
d. Examine and evaluate all studies, reports, memoranda, plans, sketches, and other
documents prepared by the Consultant and render decisions regarding such
documents in a timely manner to prevent delay of the services.
6. Acceptable Standards.
The Consultant shall be responsible to provide, in connection with the services
contemplated in this Agreement, work product and services of a quality andl professional
standard acceptable to the City.
7. Compensation.
As compensation for the Consultant's performance of the services provided for herein,
the City shall pay the Consultant the fees and costs specified on Exhibit '''A'' attached
hereto and made a part hereof (or as specified in an addendum). The Consultant shall
submit to the City an invoice or statement of time spent on tasks included in the scope of
work provided herein, and the City shall process the invoice or statement in the next
billing/claim cycle following receipt of the invoice or statement, and shall rt:mit payment
to the Consultant thereafter in the normal course, subject to any conditions or provisions
in this Agreement or addendum.
8. Time for Performance and Term of Agreement.
The Consultant shall perform the services provided for herein in accordance with the
direction and scheduling provided on Exhibit "A" attached hereto and incorporated
Page 2 of9
.~'-_""-_._--._..._._-,..,_..
herein by this reference, unless otherwise agreed to in writing by the parties. The Term
of this Agreement shall commence on the date hereof or on the 1 st day of September,
2005, and shall terminate upon completion of the performance of the scope of work
provided herein, according to the schedule provided on Exhibit "A" attached hereto,
unless otherwise agreed to in writing by the parties.
9. Ownership and Use of Documents.
All documents, reports, memoranda, diagrams, sketches, plans, surveys, design
calculations, working drawings and any other materials created or otherwisl~ prepared by
the Consultant as part of his performance of this Agreement (the "Work Products") shall
be owned by and become the property of the City, and may be used by the City for any
purpose beneficial to the City.
10. Records Inspection and Audit.
All compensation payments shall be subject to the adjustments for any amounts found
upon audit or otherwise to have been improperly invoiced, and all records and books of
accounts pertaining to any work performed under this Agreement shall be subject to
inspection and audit by the City for a period of up to three (3) years fi'om the final
payment for work performed under this Agreement.
11. Continuation of Performance.
In the event that any dispute or conflict arises between the parties while this Contract is in
effect, the Consultant agrees that, notwithstanding such dispute or conflict, the Consultant
shall continue to make a good faith effort to cooperate and continue work toward
successful completion of assigned duties and responsibilities.
12. Administration of Agreement.
This Agreement shall be administered by D. Keith Wilson. President and CEO, on
behalf of the Consultant, and by the Mayor of the City, or designee, on behallf of the City.
Any written notices required by the terms of this Agreement shall be served on or mailed
to the following addresses:
City of Auburn Consultant
Auburn City Hall DynamicCity, Inc.
25 West Main 380 S. 400 W.
Auburn, WA 98001-4998 Lindon, UT 84042
(253) 931-3000 FAX (253) 931-3053 (801) 443-6500 FAX (801) 443-6501
13. Notices.
All notices or communications permitted or required to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered in person or
deposited in the United States mail, postage prepaid, for mailing by certified mail, return
receipt requested, and addressed, if to a party of this Agreement, to the address for the
party set forth above, or if to a person not a party to this Agreement, to the address
designated by a party to this Agreement in the foregoing manner.
Page 3 of9
.--.-..-.--......,-.""..---.
Any party may change his, her or its address by giving notice in writing, stating his, her
or its new address, to any other party, all pursuant to the procedure set forth in this
section of the Agreement.
14. Insurance.
The Consultant shall be responsible for maintaining, during the term of this Agreement
and at its sole cost and expense, the types of insurance coverages and in the amounts
described below. The Consultant shall furnish evidence, satisfactory to the City, of all
such policies. During the term hereof, the Consultant shall take out and maintain in full
force and effect the following insurance policies:
a. Comprehensive public liability insurance, including automobile and property damage,
insuring the City and the Consultant against loss or liability for damages for personal
injury, death or property damage arising out of or in connection with the::: performance
by the Consultant of its obligations hereunder, with minimum liability limits of
$1,000,000.00 combined single limit for personal injury, death or propeJiy damage in
anyone occurrence.
b. Such workmen's compensation and other similar insurance as may be required by
law.
c. Professional liability insurance with minimum liability limits of $1 ,000,000.
15. Indemnification.
The Consultant shall indemnify and hold harmless the City and its officers, agents and
employees, or any of them from any and all claims, actions, suits, liability, loss, costs,
expenses, and damages of any nature whatsoever, by any reason of or arising out of the
negligent act or omission of the Consultant, its officers, agents, employe,es, or any of
them relating to or arising out of the performance of this Agreement. If a final judgment
is rendered against the City, its officers, agents, employees and/or any of thl~, or jointly
against the City and the Consultant and their respective officers, agents and employees,
or any of them, the Consultant shall satisfy the same to the extent that such judgment was
due to the Consultant's negligent acts or omissions.
16. Assignment.
Neither party to this Agreement shall assign any right or obligation hereunde:::r in whole or
in part, without the prior written consent of the other party hereto. No assignment or
transfer of any interest under this Agreement shall be deemed to release the assignor from
any liability or obligation under this Agreement, or to cause any such liability or
obligation to be reduced to a secondary liability or obligation.
17. Amendment. Modification or Waiver.
No amendment, modification or waiver of any condition, provision or term of this
Agreement shall be valid or of any effect unless made in writing, signed by the party or
parties to be bound, or such party's or parties' duly authorized representative(s) and
specifying with particularity the nature and extent of such amendment, modification or
waIver. Any waiver by any party of any default of the other party shall not effect or
impair any right arising from any subsequent default.
Page 4 of9
_._._,.~
Nothing herein shall limit the remedies or rights of the parties hereto under and pursuant
to this Agreement.
18. Termination and Suspension.
Either party may terminate this Agreement upon written notice to the oth(~r party if the
other party fails substantially to perform in accordance with the terms of this Agreement
through no fault of the party terminating the Agreement.
The City may terminate this Agreement upon not less than seven (7) days written notice
to the Consultant if the services provided for herein are no longer needed from the
Consultant.
If this Agreement is terminated through no fault of the Consultant, the Consultant shall be
compensated for services performed prior to termination in accordance with the rate of
compensation provided in Exhibit "BA" hereof.
19. Parties in Interest.
This Agreement shall be binding upon, and the benefits and obligations provided for
herein shall inure to and bind, the parties hereto and their respective successors and
assigns, provided that this section shall not be deemed to permit any transfer or
assignment otherwise prohibited by this Agreement. This Agreement is for the exclusive
benefit of the parties hereto and it does not create a contractual relationship with or exist
for the benefit of any third party, including contractors, sub-contractors and their sureties.
20. Costs to Prevailing Party.
In the event of such litigation or other legal action, to enforce any rights, re:::sponsibilities
or obligations under this Agreement, the prevailing parties shall be entitled to receive its
reasonable costs and attorney's fees.
21. Applicable Law.
This Agreement and the rights of the parties hereunder shall be gov(~rned by the
interpreted in accordance with the laws of the State of Washington and venue for any
action hereunder shall be in of the county in Washington State in which the property or
project is located, and if not site specific, then in King County, Washington; provided,
however, that it is agreed and understood that any applicable statute of limitation shall
commence no later than the substantial completion by the Consultant ofthe services.
22. 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 shall not constitute a part of this
Agreement or act as a limitation of the scope of the particular paragraph or sections to
which they apply. As used herein, where appropriate, the singular shall include the plural
and vice versa and masculine, feminine and neuter expressions shall be int(~rchangeable.
Interpretation or construction of this Agreement shall not be affected by any
determination as to who is the drafter of this Agreement, this Agreement having been
drafted by mutual agreement of the parties.
Page 5 of9
." "---....---..--.---" -
determination as to who is the drafter of this Agreement, this Agreement having been
drafted by mutual agreement of the parties.
23. Severable Provisions.
Each provision of this Agreement is intended to be severable. If any provision hereof is
illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect
the validity of the remainder of this Agreement.
24. Entire Agreement.
This Agreement contains the entire understanding of the parties hereto in respect to the
transactions contemplated hereby and supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
25. Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be one
and the same Agreement and shall 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.
=:J CONSUL~ '
~ Jl-~.
Name: ~ t~, (..)i\bc:.~
Title: C;:O
Attest:
~~~) -
.s f~!2-O\d ~N
Title: ~U('{v~ Vlc:& ~\1J€N(
t!age-Paoe 64 of9
~ -
'-~'''-~-_._~.,-^.__..
Corporate?
STATE OF WASHINGTON )
~)SS
COUNTY OF' )
ON THIS day of ~h<,.....,.b.....-- ,200J, before me, personally
appeared 'l) '(: ~~ l ~ 'I \ ~n.\_ and ....\ma... S'Ilb-eovJ 8~ ' to
me known to be the C_~o t:(f\d ~~~ve VlVl:. ~f~.:etJT ami:
of the Contractor, the party(ies) who executed - the corporation/company that executed the within and
foregoing instrument, and acknowledged said instrument to be his/her/their the free and voluntary act and
deed of said corporation/company, for the uses and purposes therein mentioned, and on oath stated that
they were authorized to execute said instrument.
GIVEN under my hand and official seal this 1#-dayof U~b61'" , 200S"".
,...,.....,""',,\, , ~~
__....~\f;. K.C, f::'. ""
-- ~ ......... u.. " N T Y PUBLIC in and for =:he te of
-:<' .' 'ON '. ~ '
- ~ .'cSI' ~-t', <:: '
- . ~.", ,,<). , K/~~ QJ-
: !JJ ..'~. ~" ~ " Washington, residing at
: /...:. .:if ~01ARy ~". ':]J ~
:(/)'0 (/l. ~ My Commission Expires: pj. ;,L1. iFf-
~ : ..~'.. : ~
,. G'"
~ '. PUBL\ : ~ ::
I. . '0"
~ (J)"A ". ." /.;. :
", "'~"...-!-29-~!,"~0 .:
" ~ ....... >(\'\ --
I,." OF WAS ....--
..,\\\.'\'\."",................
Page 7 of9
-'-,"-~~.,-~~.,._-,...__._---_._.,
Exhibit A
Pursuant to the terms of this contract, and in consideration for payment described bdow,
DynamicCity will complete a Feasibility Study for the city of Auburn, Washington, according to
the following:
Feasibility Study Objectives
. Develop Financial Model for an open infrastructure network in Auburn
. Prepare for Business Case & Financing
Timeline and Meetings
. 12 weeks to complete
. Kick-offmeeting (1 day meeting): approximately 10 days from signing of contract
. GIS data delivered to DynamicCity: no later than 3 weeks from project start
. Demand Analysis presentation (1/2 day meeting): approximately 5 weeks from project start
. Architecture and Technology discussion (1/2 day meeting): approximately 8 weleks from
project start (includes analysis of wireless technologies)
. Cost analysis (1/2 day presentation): approximately 11 weeks from project start.
. Final presentation and wrap up (1/2 day presentation): approximately 12 weeks from project
start (includes discussion of public relations and inter-governmental agencies)
NOTE: As per Section 5 of the agreement, all timelines are dependent on timely delivery ofrequi,.ed city data
(GIS data). Delays in receiving data will result in corresponding timeline shifts.
Deliverables
. High-level cost/revenue model for the open infrastructure case
0 Costs-
. Map fiber routes for 2 sample footprints I
. Forecast cable distances for entire city
. Project costs for all necessary electronics
. Forecast construction and labor costs
. Establish base assumptions and forecast operating costs
0 Revenue (Demand Analysis)-
. Project subscriber and service adoptions based on demographics and
extrapolated from research in other markets
. Develop revenue projections
. Provide comparisons with existing network performance in other markets
. Study and education sessions with City staff and council, plus presentation of report to key
City stakeholders (as described above in Timelines and Meetings section).
Agreement Consideration
. Approximate value of the open infrastructure case is $65,000
. $16,000 paid by the City for work performed
1 A "footprint" is the fiber and electronics infrastructure connecting approximately 1 ,000 premises in the city. These
premises are aggregated to a community cabinet.
Page 8 of9
n_..".~."_._"____
0 50% up front, 50% upon completion of work
. DynamicCity contribution to the study is $49,000
. City provides GIS data (including utility pole data)
. Pending results of initial study, best efforts to move to business case and financing
Page 9 of9
.----.--""-.. ,.-.....-.-.--