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RESOLUTION NO. 4 5 4 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AN AGREEMENT WITH THOMPSON
SMITCH CONSULTING GROUP, INC. TO ASSIST THE CITY TO
SECURE WATER RIGHTS FROM THE WASHINGTON STATE
DEPARTMENT OF ECOLOGY FOR THE PURPOSES OF
MEETING THE CITY'S WATER NEEDS
WHEREAS, the City is engaged in or readying itself to be engaged in its
project of securing a right from the Washington Department of Ecology for
purposes of ineeting the City's water supply needs, and is in need of services
on said project; and
WHEREAS, the City desires to retain the Thompson Smitch Consulting
Group, Inc. to provide certain services in connection with the 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 of the attached agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Section 1. Purpose. The Mayor and City Clerk of the City of Auburn
are hereby authorized to execute an agreement of consulting services between
the City of Auburn and Thompson Smitch Consulting Group, Inc. to assist the
City to secure water rights from the Washington State Department of Ecology
Resolution No. 4549
December 1, 2009
Page 1 of 2
for the purposes of ineeting the City's water supply needs. A copy of said
agreement is attached hereto, designated as Exhibit "A" and incorporated by
reference to this Resolution.
Section 2. Implementation. The Mayor of the City of Auburn is hereby
authorized to implement such administrative procedures as may be necessary
to carry out the directives of this resolution.
Section 3. Effective Date. This Resolution shall take effect and be in
fuli force upon passage and signatures hereon.
DATED and SIGNED THIS ZC~ DAY OF~ 2009.
OFAUBURN
PETER B. LEWIS
MAYOR
ATTEST:
&4"
Danielle E. Daskam,
City Clerk
APPR VED AS TO FORM:
6 5
Daniel B. Heid, ~
City Attomey
Resolution No. 4549
December 1, 2009
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CITY OF AUBURN AGREEMENT
FOR CONSULTING SERVICES
THIS AGREEMENT made and entered into on this Zk_"~ day of
2009, by and between the City of Auburn, a municipal corporation of the State of Washington,
hereinafter referred to as "City" and Thompson Smitch Consulting Group, Inc., hereinafter
referred to as the "Consultant."
WITNESSETH:
WHEREAS, the City is engaged in or readying itself to be engaged in its project of
securing a right from Washington Department of Ecology for purposes of ineeting the City's •
water supply needs, 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 projecr 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
as follows:
• Assist the City to secure water rights from the Washington State Department of
Ecology for the purposes of ineeting the City's water supply needs.
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 performance 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 respective 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.
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 above are desired by the City and the time period for the completion of such
services makes the execution of addendum impractical prior to the commencement of the
ConsultanYs performance oFthe requested services. 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 perfarm 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 Ciry'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 and professional
standard acceptable to tbe City.
7. Compensation.
As compensation for the ConsultanYs performance of the services provided for herein,
the City shall pay the Consultant the fees and costs specified as follows:
• $7,500 per month during the terni of this Agreement.
• Contract not to exceed $22,500.
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
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statement in the next billing/claim cycle following receipt of the invoice or statement, and
shall remit payment to the Consultant thereafrer in the normal course, subject to any
conditions or provisions in this Agreement or addendum.
8. Time for Performance and Term of Aereement.
The Consultant shall perform the services provided for herein in accordance with the
direction and scheduling provided by the City, unless otherwise agreed to in writing by
the parties. The Term of this Agreement shall commence on the date hereof or on the
first day of January, 2010 through the 31S` day of March, 2010.
9. Ownership and Use of Documents.
All documents, reports, memoranda, diagrams, sketches, plans, surveys, design
calculations, working drawings and any other materials created or otherwise 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 Insnection 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 from 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 Aereement.
This Agreement shall be administered by , on behalf of
the Consultant, and by the Mayar of the City, or designee, on behalf 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 Aubum Consultant
Auburn City Hall Thompson Smitch
25 West Main 4041 Ruston Wy, Ste 201
Aubum, WA 98001-4998 Tacoma, WA 98402
(253) 931-3000 FAX (253) 931-3053 (253) 879-1250 FAX (253) 879-1251
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, retum
receipt requested, and addressed, if to a party of this Agreement, to the address for the
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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.
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 azising 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 property damage in
any one occurrence.
b. Such workmeds 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, employees, 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 them,,orjoinUy
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. Assi ne ment•
Neither party to this Agreement shall assign any right or obligation hereunder in whole or
in paR, 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 assignar 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.
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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.
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 other 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 for herein for the months of service provided prior to termination.
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 prcihibited by this Agreement. This Agreement is for the exclusive
benefit of the partiea hereto and it=does not create a contractual relationship with or exist
for thebeneft'oEany third party; including contractors, sub-contractors and their sureties.
. , < . ~
20. Costs'to'Prevailiu P~
In the event'of such litigation or other legal action, to enforce any rights, responsibilities
or obligations under this Agreement, the prevailing parties shall be entitled to receive its
reasonable costs and attorney'sfees. 21. Anolicable Law.
This Agreement and the rights of the parties hereunder shall be governed 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 proper[y 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 of the services.
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. . . ,
22. Captions, HeadinQS 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 singulaz shall include the plural
and vice versa and masculine, feminine and neuter expressions shall be interchangeable.
Interpretation or construction of this Agreement shall not be affected by any
determination as to who is the drafrer 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 Aareement.
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. Countemarts.
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 foRh above.
CI Y O+ N CONS T
Peter . Lewis, Mayor Name: 1m ~ ~l ✓1
Title: Ir2 114wk-
Attest:
L" Name:
Danielle E. Daskam City Clerk Title:
Approv. j as t form:
~
aniel B. Heid, City Atto ey
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