HomeMy WebLinkAboutBerk Consulting, Inc. CONSULTING SERVICES AGREEMENT
BETWEEN
City of Auburn BERK CONSULTING, INC.
Community Development Department 2025 First Avenue,Suite 800
1 E Main Street Seattle WA 98121
Auburn, WA 98001
AGREEMENT SUMMARY
Project: City of Auburn Code Amendments
This agreement is made between the City of Auburn ("CLIENT') and BERK CONSULTING, INC. ("BERK").
BERK will provide professional consulting services for the CLIENT The scope of work and project are
described in the Scope of Work attached hereto as Exhibit A(the "SOW').
Performance
Services provided under this agreement will be performed by BERK from July 2016 through June 2017,
unless modified by a written agreement of the parties.
Compensation and Payment
The-CLIENT shall pay BERK on a time and materials basis, not to exceed $60,945 in accordance wi;h the
Budget set forth below. BERK will invoice the CLIENT on a monthly basis at CLIENT's address set forth
above. Invoices will include the hourly rate(s) for services performed, the hours worked, additional
expenses and costs incurred, and the date concluded. CLIENT shall pay the invoice within thirty(30) days
of receipt.
Budget and Timeline
BERK will invoice CLIENT on a time and materials basis,with a total not to exceed$60,945,which includes
travel and other reasonable expenses and costs. Our estimated time and cost per deliverable is shown in
the SOW The actual time and cost may vary from this estimate depending on factors outside of our
control, however, the total spent will not exceed the maximum stated above without CLIENT's prior
written consent, or unless the actual amounts of third-party expenses and costs incurred by us
substantially eicceed our estimates, in our sole discretion.
The timeline for this project is approximately 12 months, with a final project schedule to be determined
coilaboratively between the CLIENT and the BERK project team. It may be determined that the quality of
the project may best be supported with a staged deliverable schedule, with some project components
completed within a 12 month timeframe and others completed shortly thereafter Adherence to the
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
project schedule will depend upon timely availability of data, feedback on dreft deliverables, and other
material from the CLIENT project team.
Changes
BERK will accommodate CLIENT's material changes to,or requests for work outside of,the SOW attached
hereto as Exhibit A,provided that such material changes or requests, and the compensation payable to
BERK therefor,are agreed to in writing pursuant to the Amendment in substantially the form attached to
this Agreement Summary as Exhibit G.
Insurance
The Provider shall procure and maintain for the duration of this Agreement, insurence against claims for
injuries to persons or damage to property which may arise from or in connection with the performance
of the work hereunder by the Provider, or the Provider's agents, representativ8s, employees, or
subcontrectors.
Provider's maintenance of insurence as required by the Agreement shall not be construed to limit the
liability of the Providerto the coverage provided by such insurance, or otherwise limit the Citys recourse
to any remedy available at law or in equity
The Service Provider shall obtain insurence of the types described below•
A. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall
cover liability arising from premises,operations, independent contrectors, products-completed
operations, stop gap liability, personal injury and advertising injury, and liability assumed under an
insured contract. The Commercial General Liability insurence shall be endorsed to provide the
Aggregate Per Project Endorsement ISO form CG 25 03 1185. There shall be no endorsement or
modification ofthe Commercial General Liability insurance for liability arising from explosion,
collapse or underground property damage. The City shall be named as an irisured under the
Contractor's Commercial Generel Liability insurance policy with respect to the work performed for
the City using I50 Additional Insured endorsement CG 20 1010 Ol and Additional lnsured-
Completed Operations endorsement CG 20 37 10 Ol or substitute endorsements providing
equivalent coverage. Commercial General Liability insurence shall be written with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate, and a $2,000,000 products-completed
operations aggregate limit.
B. Worker's Compensation coverege as required by the Industrial Insurance laws ofthe State of
Washington.
The insurance policies are to contain, or be endorsed to contain,the following provisions for Commercial
Generai Liability insurance:
A. The Provider's insurance coverage shall be primary insurance as respects the City Any insurance,
self-insurence,or insurance pool coverege maintained by the City shall be excess of the Providers
insurance and sh"all not contribute with it.
B. The Provider's insurance shall be endorsed to state that coverage shall not be cancelled by either
party, except after 30 days prior written notice by certified mail, return receipt requested, has been
given to the City
mill BE9tK z
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
Insura�ce is to be placed with an authorized insurer in Washington State. The insurer must have a
current A.M. Best reting of not less than A:VII.
Provider shall furnish the City with certificates of insurance and a copy of the amendatory
endorsements, including but not necessarily Iimited to the additional insured endorsement, evidencing
the insurence requiremenu of the Provider before commencement of the work.
Terms and Conditions
This agreementincorporates by reference the SOW attached hereto as Exhibit A. the Standard Terms
and Conditions attached hereto as Exhibit B (together, and with all exhibits, attachmenu and schedules
hereto,the "AgreemenY'). The Agreement constitutes a binding contract between CLIENT and BERK.
Acceptance
By their execution below, the parties hereto have agreed to all of the terms and conditions of this
Agreement effective as of the last date of signature below (the "Effective Date"), and each signatory
represents that it has the full authority to accept this Agreement, and to bind her/his respective party to
all of the terms and conditions herein.
City of Auburn BERK CONSULTING,INC.
By By ��_
Tiile: Title•
Date: Date: � �u� �1�D
��1a/���.ltS' l� �,�}T'�.
m�91 �E12CC a
CONSUITING AGREEMENT:AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
Insurance is to be placed with an authorized insurer in Washington State. The insurer must have a
current A.M. Best reting of not less than A:VII.
Provider shall furnish the City with 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 the Provider before commencement of the work.
Terms and Conditions
This agreement incorporates by reference the SOW attached hereto as Exhibit A, the Standard Terms
and Conditions attached hereto as Exhibit B (together, and with all exhibits, attachments and schedules
hereto,the "AgreemenY'). The Agreement constitutes a binding contrad between CLIENT and BERK.
Acceptance
By their execution below, the parties hereto have agreed to all of the terms and conditions of this
Agreement effective as of the last date of signature below (the "Effective Date"), a�d each signatory
represents that it has the full authority to accept this Agreement, and to bind her/his respective party to
all of the terms and conditions herein.
City of Auburn BERK CONSULTING, INC.
BY. I BY.
Title: Title:
Date: $�3 � ' 1 Date:
�-1��1WED��it'S l� F�J` !�-
o'��� ���� 3
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
, EXHIBIT A
SCOPE OF WORK & PROJECT BUDGET
.��I �E92K 4
SCOPE OF WORK
Auburn Code Amendments
Project Understanding
The City of Auburn is seeking consulting services to process a number of code amendments. The code
amendments are intended to implement adopted Comprehensive Plan policies, respond to emerging
issues,simplify code administration,add flexibility,and improve usability and clarity Auburn staff and the
consulting team will be working on code amendments jointly and individually in order to maximize effort.
Project Approach
The generel process for the code amendments will happen in three stages:initiation,draft code work,and
finalization. Throughout the process, the project manager will develop and update an overall project
strategy that will manage, track, and oversee the process according to a project completion strategy
developed at the outset.
The Consultant will provide project strategy and management services for the overall code update.These
services will consist of ineeting with the City to discuss target timelines, methods for integrating
supporting procedures such as SEPA review into the overall project, tracking progress for each task, and
stretegies for integrating other code changes not contained within this scope into the overell project-(code
changes that City staff will be preparing that will accompany those items outlined in Tasks 1 tliru 4).
Additionally,the Consultant and City will identify a specific protocol for how each task will proceed from
one step to the next.This will be done in order to establish a common expectation between the Consultant
and City, and to ensure consistency between the separate tasks that have different staff leads.
During the initiation steo, the Consultant will gather input from City staff, and other stakeholders
identified by the City,to better understand the need,direction,and any options that need to be explored.
The City will identify a staff lead for each code amendment as will the Consultant. The staff lead wiil be a
point of contact between the Consultant and the City through the lifecycle of the amendment.
During the draft code work steo, code amendments will evolve from concepts into draft language and
materials ready for Planning Commission review This process will include identifying and refining options
and drafting code language and support papers. At each step the Consultant will check-in with the staff
contact.The staff contact can determine if a check-in is needed with additional staff, other stakeholders,
or the Planning Commission before proceeding. Check-ins are a communication tool that facilitate joint
work on amendments by the City and the Consultant while respecting the other time commitments of
City staff. The staff contact is responsible for reviewing, or coordinating internal review, and providing
guidance that allows the Consultant to continue work on the amendment.The draft code stage is also to
confirm that approach is on target.
In the finalization sta¢e,draft code is reviewed and refined through Planning Commission and City Council.
For some amendments, this process may be handled by the City staff, but as needed the Consultants are
able to prepare presentations, present, revise code drafts and support documents, and dreft ordinances.
1
AUBURN CODE AMENDMENTS
;p�„' � 4 i I�� ,�1����' i �z�,jlq,�! .�'�i, � i,y '�af:�, ,�'F �,i," r,hi�lFx,, � 1 - +e p�.
� 'Project strategy � • Kick-off'meeting with staff � � • Project completion summary
� � • Develop project compl_etion stPategy �
IInitiation • Gather input on need,direction,options • Establish sub-scope for each
� • Assign a staff contact task.
� • Determine projectsteps I
Draft Code: • Research options and examples • Memo oremail on code
iOptions � • Narrow and reflne options—may indude a � options
� � meetin"g wi;h other stakeholders ,
� � • Moy indude a meeting with Planning �
� i Commission, as ne'eded ;
i Dreft Code: • prepare preliminary draft of code • Preliminary draft of code and
Code • Revise Code in response support materials
� Amendment e Final draft of code and
• Coordinate with other amendments
support materials
Finalization • Conduct SEPA review � • Planning Commi;sion
� • PresentfoPlanningCommission I Presentation
� • Prepare Code revisions � t Draft ordinance and support
• Provide for Commerce 60-day review
materials
i I • Prepare code and support documents for
• Council presentation
� � Council I —
� • Present to Council I
Project Tasks
Code amendments will be grouped into project tasks based on priorities determined by ;he City Tasks
may be processed in any order that meets the City's needs. It is likely that several tasks will be processed
simultaneously City staff and Consuitants will complete Task 1 and Task 2 items in 2016, with items in
Task 3 and Task 4 addressed as time and budget allows. The City may add sub-tasks to Tasks 3 and 4 as
needed.
Task 1—Priority 1. New code for land use designations that are in the Comp Plan but not in the code.This
group of amendments is also intended to proactively address the potential impacts of higher intensity
uses, and the compatibility of uses, whether within a zone or between zones or in the vicinity of the
airport. BERK will present alternatives and dreft code for these zones and overlays.
• Task lA. Open Space Zone (1835). BERK will draft a new zone.
• Task 18: Residential Transition Zone and Overlay(18.21). BERK will dreft a new zone and overlay
• Task 1C. Mixed Use Residential Zone (18.07). BERK will draft a new zone.
• Task 1D: LF Airport Landing Field Zone (18.38). BERK can assist in the administration of this overlay
with proposed amendments that create a mechanism for implementing the Airport Landing Field
Zone on adjacent properties.This amendment will include a review of the airport's master plan and
state regulatory guidance for airport compatible land use.
z
AUBURNCODEAMENDMENTS
Task 2—Priority 2: Code rewrites to improve functionality and usability
e Task 2A. Downtown Urban Center Zone(1819). BERK will work on updates to the code to refine and
refresh this approach to make it easier and more consistent to administer,with consideration of the
usability of the bonus credit system and the applicability of the code to redevelopment projects.
Eonsideration will be given to setting up the zoning for compatibility with the DUC Design Standards.
e Task 26: Neighborhood Commercial Zone(18.23).Address the potential impacts of commercial uses
on surrounding residential uses.
• Task 2G. Mixed-use and Multi-family Design Standards. Updating the Multi-Family and Mixed-use
Development Design Standards at the same time will provide consistency in approach between
these related topics.
e Task 2D: Temporary Uses(18.46), Food Trucks(1835).This sub-task involves identifying new
processes for the overall administration of temporary use permits and defining clear,consistent
standards. Forfood trucks specifically,additional research will outline alternatives for administering
permits as a temporery use or some other type of use.
Task 3— Priority 3: Implementation of Comprehensive Plan policies. BERK will propose amendments tb
implement new policies adopted in the Comprehensive Plan, addressing several sections of code, to
include: defining a system of housing types, examining property management regulations, addressing
crime prevention through environmental design, and implementing city initiatives on sustainability
o Task 3A. Crime Prevention through Environmental Design.
e Task 3B:Sustainability Incentives and Requirements(Titles 8, 16, 17, 18).
o Task 3C. Housing Maintenance and Preservation Stretegies and Requirements.
o Task 3D:Connectivity
Task 4—Priority 4 Other amendments.
e Task 4A. Short Subdivisions(17.09) and Preliminary Subdivisions (17.10). Work on these sections will
analyze the criteria for preliminary and final subdivisions and the required improvements chapter,
with a focus on identifying gaps and inconsistencies, re-organizing, and simplifying these code
sections.
• Task 4B: Downtown Urban Core Design Standards.Amend the DUC Design Standards so they are
better integrated with the DUC Zone,easier to apply,and more effective.
Tasi< 5—Project Strategy Overall project coordination and management of the code update.The Project
Manager will develop a project completion stretegy,working with staff to set target timelines and develop
a plan of action for each sub-task and the project as a whole.Throughout the project the Project Manager
will track progress of tasks completed by City staff and BERK, making adjustments as needed to reflect
changes in process, timeline, priority, or sub-task scope. The Project Manager will develop monthly
progress reports and hold check-ins at least bi-weekly
Roles and Responsibilities
The table below establishes who has primary responsibility for the deliverebles for each task at each of
the steps in the process. Responsibilities marked as TBD allow fiexibility in determining the role of city
staff in the code development process. As described in the project approach, there will be frequent
communication and collaboration throughout the process.
3
AUBURN CODE AMENDMENTS
� � �
a . . .
I 3A:Open Space 2one BERK BERK BERK City�
I 16:Residential Trensition BERK BERK BERK City ,
iC:1lAixed-use Residential Zone BERK BERK BERK City�
1D:Airport/Wnding Field BERK BERK BERK City �
2A: DUC Zone BERK BERK TBD City I
I 2B:Neighborhood Commercial2one BERK BERK TBD City�
2C Multi-family&IVlixed-use Design Standards BERK BERK TBD City �
� 2D:Temporary Uses BERK BERK TBD City
� 3A:CPTE_D BERK BERK TBD City
3B:Sustainability Incentives BERK BERK TBD City
� 3C.Housing Maintenance BERK BERK TBD __ City ,
3D:Connectivity BERK BERK TBD City
4A:Subtlivisioris BERK BERK TBD City _
� 4B:DUC Design Standards BERK BERK City City
Estimated Cost and Effort
This estimated level of effort for completing the work is identified in the table below, billed on a not-to
exceed,time and materials basis. Expenses would be billed at cost including trevel and copies.Time may
be trensferred from one task to another provided the overall scope will be completed for the total
budget.Task 2 includes hours for the Consultant to draft code amendments.Tasks 3 and 4 are shown as
estimates on the budget table, but it is assumed that these tasks will be addressed in a later phase. BERK
will not proceed to work on Tasks 3 and 4 without written authorization by the City
The overall project manager and project stretegist will be Erika Rhett, Senior Associate. She will be
supported by Manager Lisa Grueter and Senior Associate Jeff Arango.Some research will be conducted
by associates, including Jenn Tippins.
4
Manager ��10��9OC��e'SaniorAssodate Auppa�e iMaiHoursand
PrqeR Manager Fstlmrted Cort
byTas4
zois NoorW nna Si�s Siso Siso Sizs
Task 1.Priorky 1 Ihms _
�lA:OPmSPadeZone _r.,.___.___'_—_'__'_'_._�_-'__'-'_-'..-�.-32 _'"�""�,_ _.____�.,._._._._�.8-. �. l
�18CResldential 7rarisition 32 8 I
I1C.MIned-useNesiHeiitPal2orie 36 ,B �
�iD:NrportZone/InndingFiddOverlay________ _ ..._�T��_42_.__�______�____8_ .- %
Subtofal 33 110 0 32 174
$26.300
Ta4k 2_PrioAty 21tem5
2A:DUCZone '__'�_"_-_".�__ '.-_'.-..�____'—._,_.—_____-_'___"_36.-.���8-�._._s�
�28:Neighborhood Commeraal 32 8
IZC.MuIti-fsmily&"�Mined-useDesign5tandards 36� 12 f
a2D:�7emPorSiyUs„ e�_ ____T . 36 12 .- - - .-'
Subtofal -��----'---'_-...-�'_'�--'- 0 32 108 40 � 180
$26,000
Tnk 3:Vtiority 31lems(These are Phase II estimates and are not Included In the hudget totaq
j3A CPTED . _ .__'._-'__ZQ_�_ _..����_-"__8 —„"'-.�
�38:SusW i dabilit9lncentives 33. 8
I3C.Housing Mal ntenznce, 20� 8
�3D_CannecCiviN.�'___ '�.�_._.__...�...�_�__ _' ' 32. " _" _' 8 __ ____
SubloLal 30 Sfi 32 32 ' 140
Szo,�bo.
Task4:CrkrRy 4ltems(These a}e Dhase II ertimates and are not induded in the budget total)
'4A;Su6diwsions � li�32 �� 8 ��
....
�4B:DUCDesign'Standards_ -� ._.20_'_"'___'."_'�._"' 12'__"_ - _ ' '
Subtotal _'—'_'__'___. ." '__"'_...."'_"'_"_'__ 0 52 0 20 72
$10,300
Task 5:Prqea Stntegy
� �_. �._.�.._�.� _r.y. .�. �. _..N s_
�._.._.._..».._____...__��._._..Y,._._ . . 6. _ .. .40 _.. . __4 __:.'___' _�.,._.'_
Su6taal 6 40 A 0 50
$7,650
TotalEstimated Hours(Tasks1,2,5) 38 182 112 72 404
Cost(Hours•Rete) 56,650 527,300 516,800 $9.000 --$59,750_.
SubfMal CansultaM Cost $59,750
ProjeR Expensas @'2%of prqect budget $1,195
Estimated Pro'ec!Total -$60,945
5
CONSULTING AGREEMENT AUGUST 22, 2016
CITY OF AUBURN CODE AMENDMENTS
EXHIBIT B
BERK Consulting, Inc.
STANDARD TERMS AND CONDITIONS
1. DEFINITIONS.As used herein and throughout this created by BERK,or commissioned by BERK,exclusively for
Agreement: the Project and incorporated into and delivered as part of
the Final Deliverabies,including and by way of example, not
1.1. Agreement means the entire content of these limitation,any and all Works,modifications to CLIENT
Standard Terms and Conditions,the Agreement Summary Content,and BERK's selection,arrengement and
to which these Standard Terms and Conditions are attached coordination of such elements together with CLIENT
(the"AgreementSummary")and the SOW,together with �ontent and/or Third Party Materials.
any ezhibits,schedules or attachments hereto.
1.8. Final Deliverables means the final versions of
1:2. CLIENT Content means all materials, Deliverables provided by BERK and accepted liy CLIENT
information,photography,writings,data and other content
provided by CLIENT for use in the preparation of and/or 1.9. Preliminary Works means all works including,
incorporetion in the Deliverables. but not limited to,Works developed by BERK and which
may or may not be shown and or delivered to CLIENT for
13. Copyrights means the property rights in consideretion but do not form part of the Final Work.
originai works of authorship,expressed in a tangible
medium of expression,as defined and eriforceabie under 1.10. Project means the scope and purpose of the
U.S.Copy�igHt Law CLIENT's identified usage of the services as described in the
SOW
1.4. Deliverables means the services and content
to lie delivered by BERK to CLIENT as specified in the SOW 1.11. Services means all services to be provided to
antl attached to the Agreement Summary as Exhibit A. CLIENT by BERK as described and otherwise further defined
in the SOW
1.5. BERK Fees means all fees, costs and expenses
payable to BERK by CLIENT in the amounts and according to 1.12. SOW means the Scope of Work attached as
the payment schedule set forth in the SOW,and all Exhibit A to the Agreement Summary,as amended dr
applicable sales, use or value added taxes,even if calculated modified in accordance with this Agreement.
or assessed subsequent to the payment schedule set forth 1.13. 7hird Party Materials means proprietary third
in the SOW party materials which are incorporeted into the Final
1.6. BERKTools means all tools developed and/or Deliverables,including without limitation stock
utilized by BERK in performing the Services, including photography, illustrations, data,fonts or models.
without limitation pre-existing and newly developed 1.14. Trademarks means trade names,words,
software including source code,excel files,word symbols,designs, logos or other devices or designs used in
documents,cartography, InDesign schematics,data6ase the Final Deliverebles.
designs, models in any medium,and application'tools,
together with any other software, or other inventions Z• APPLICATION OF TERMS.Unless otherwise agreed in
whether or not patentable, and general non-copyrightable Writing,these Terms and Conditions will apply to all work
concepts such as website design, architecture, layout, performed for CLIENT by BERK,whether pursuant to the
models, concepts, ideas,navigational and functional SOW or not.
elements(collectively, "Works'). 3. FEES, EXPENSES,COSTS; INVOICES.
1.7 Final Work means all content developed or 3.1. Fees. In consideration of the Serviees to be
�ill BERIC 5
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
performed by BERK,CIIENT shall pay to BERK the BERK Fees Changes.
in the amounts and according to the payment schedule set q,Z, Substantive Changes.If CLIENT requests or
forth in the SOW instructs Changes that amount to a revision in or near
3.2. Additional fxpenses and Costr. Unless excess of 15%of the time required to produce the
otherwise specified in the SOW,the Projed pricing includes Deliverables, and or the value or scope of the Services,
the BERK Fees and any and all additional costs and expenses BERK shall be entitled to submit an Amendment in the form
incurred by BERK in connection with this Agreement, attached to the Agreement as Exhibit C to CLIENT for
including,without limitation (a)incidental and out-of- written approval.Work shall not begin on the revised
pocket expenses including but not limited to costs for services until a fuliy signed Amendment and, if required,
telephone calls,postage,shipping,overnight courier, any additional retainer fees are received by BERK.
servi[e bureaus,Third Party Materials, printing or q,3. Timing. BERK will prioritize performance of[he
typesetting, blueprints,models,presentation materials,
Services as may be necessary dr as identified in the SOW,
photocopies,computer expenses, parking fees and tolls, and will undertake commercially reasonable efforts to
and taxis at cost plus,if applicable,a mileage
perform the Services within the time(s)identified in the
reimbursement at the current federel reimbursable rate; SOW BERK shall be entitled to request written clarification
and(b)travel expenses including transportation,meals,and
of any concern,objection or corredion.CLIENT
lodging.
acknowledges and agrees that BERK's ability to meet any
3.3. Invoices.All invoices are payable within thirty and all schedules is dependent upon CLIENTs prompt
(30)days of receipt.A monthly service charge of 1.5%(or performance of its obligations to p�ovide materials and
the greatest amount aliowed by state law)is payable on all written approvals and/or instr�ctions pursuant to the SOW
overdue balances. Payments will be credited first to Iate and that any delays in CLIENT's pertormahce or Changes in
payment charges and next to the unpaid balance. CLIEN7 the Services or Deliverables requested by CLIENT may delay
shall be responsible for all colledion or legal fees delivery of the Deliverebles.Any such delay caused by
necessitated by lateness or default in payment. BERK CLIENT shall not constitute a breach of any term,condition
reserves the right to withhold delivery and any transfer of or BERK's obligations under this Agreement.
ownership of any current work if accounts are not current q,4. QualiryAssurance and Acceptance. BERK will
or dveriiue invoices are not paid in full.All grants of any exercise commercially reasonable efforts to ensure the
license to use or transfer of ownership of any intellectual
quality of the Deliverables and to make all necessary
property rights under this Agreement are conditioned upon corrections prior to providing Deliverables to CLIENT
receipt of payment in full which shall be inclusive of any and CLIENT will promptly notify BERK,in writing,of any failure
all outstanding BERK Fees, Excess Costs(it any), and the of such Deliverable to comply with the speciFications set
costs of Changes(if any). forth in the SOW,or of any other objections,corrections,
4. CHANGES. changes or amendments CLIENT wishes made to such
4.1. General Changes. Unless otherwise provided Deliverable.Any such written notice shall be sufficient to
in the SOW,and except as otherwise provided for herein, �learly identify ahy objection, correction or change or
CLIENT shall pay additional charges for changes("Changes") amendment,and BERK will undertake to make the same in
requested by CLIENT which are outside the scope of the a commercially timely manner Any and all objections,
Services on a time and materials basis,as set forth in an corrections,changes or amendments shall be subject to the
Amendment in substantially the form attached to the terms and conditions of this Agreement. In the absence of
Agreement as Exhibit C(an"AmendmenC').Such charges such notice from CLIENT,the final Deliverable shall be
shall be in addition to the BERK Fees, despite any maximum deemed accepted.
budget,contract price or final price identified therein. BERK 5. INTELLECTUAL PROPERTY
may extend or modify any delivery schedule or deadlines in
5.1. Rights to Deliverables other than Final Work.
the SOW and Deliverables as may be required by such
o��� BG�/� 2
CONSULTING AGREEMENT AUGUST 22, 2016
CITY OF AUBURN CODE AMENDMENTS
a. CLIENT ConYent.CLIENT Content, including all pre- subjed to Sections 5.1(c),5.1(d)and 5.2,and
existing Tredemarks,shall remain the sole property expressly conditioned upon full payment of all fees,
of CLIENT or its respettive suppliers, and CLIENT or costs and out-of-pocket expenses due,BERK assigns
its suppliers shall be the sole owner of ail rights in to CLIENT all ownership rights,including any
connec[ion therewith.CLIENT hereby grants to copyrights,in and to any artworks or designs
BERK a nonexclusive,nontrensferable license to use, comprising the Works created by BERK for use by
reproduce,modify,display and publish the CLIENT CLIENT as a Trademark. BERK shall cooperate with
Content solely in connection with BERK's CLIENT and shall ezecute any additional documents
performance of the Services,preparetion of the reasonably requested by CLIENT to evidence such
Deliverables and limited promotional uses of the assignment.CLIENT shall have sole responsibility for
Deliverebles as authorized in this Agreement. ensuring that any proposed trademarks or Final
b. Third Party Materiak.All Third Party Materials are Deliverables intended to be a Trademark are
the exclusive property of their respeaive owners. available for use in commerce and federal
BERK shall inform CLIENT of ail Third Party Materials registretion and do not otherwise infringe the rights
that may be required to perform the Services or of any third party. CLIENT heretiy indemnifies,saves
otherwise integrated into the Final Work. Under and holds harmless BERK from any and all damages,
such circumstances BERK shall inform CLIEN7 of any Iiabiiities,cosu, losses or expenses arising out of
need to license,at CLIENT's expense,and p"rovide any claim,demand,or action by any third party
client an opportunity to obtain the license(s) alleging any infringement arising out of CLIENTs use
necessary to permit CLIENT's use ot the Third Party and/or failure to obtain rights to use or use of the
Materials consistent with the usage rights grented Trademark.
herein. In the event CLIENT fails to properly secure f. BERKTools.All BERK Tools are and shall remain the
or otherwise arrange for any necessary licenses or exclusive property of BERK. CLIENT may not directly
instruas the use of Third Party Materials, BERK shall or indirectly,in any form or manner,decompile,
not use the materials unless CLIENT hereby reverse engineer, create derivative works or
indemnifies,saves and holds haYmless BERK from otherwise disassemble or modify any BERK Tools
any and all damages, liabilities,costs, losses or comprising any software,works of authorship,
expenses arising out of any claim,demand,or action models or technology of BERK.
by a third party arising out of CLIENT's failure to 5.2. Rights to Final Work. Upon completion of the
obtain copyright,trademark, pulilicity, privacy, Services,and expressly subject to full payment of all fees,
defamation or other releases or permissions with �osts and expenses due, BERK hereby assigns to CLIENT all
respect to materials included in the Final Work. right,title and interest, including without limitation
c. Preliminary Works. BERK retains all rights in and to copyright and other intellectual property rights, in and to
all Preliminary Works. CLIENT shall return all the Final Work. For the avoidance of doubt,CLIENT has no
Preliminary Works to BERK within thirty(30)days of rights,or interest in or to the Final Work unless and until
completion of the Services and all rights in and to BERK receives full payment of all fees,costs and expenses
any Preliminary Works shall remain the exclusive due. BERK agrees to reasonably cooperate with CLIENT and
property of BERK. shall execute any additional documents reasonably
d. Original Works. BERK retains all right and title in and necessary to evidence such assignment.
to any original Works comprising Final Work, 6. CLIEN7 RESPONSIBILRIES.CLIENT acknowledges that it
inciuding alI rights to display, license or sell such shall be responsible for performing the following in a
Works.CLIENT shall return all original works to BERK reasonable and timely manner•(a)coordination of any
within thirty(30)days of completion of the Services. decision-making with parties other than BERK,(b)p�ovision
e. Trademarks. Upon completion of the Services, of CLIENT Content in a form suitable for reproduction or
�ill BERK 3
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
incorporation into the Deliverables without further means by which the Services are accomplished.This
preparation,unless otherwise expressly provided in the Agreement does not create a partnership orjoint venture
SOw;and(c)final proofreading and in the event that and neither party is authorized to act as agent or bind the
CLIENT has approved Deliverables but errors, such as,by other party except as expressly stated in this Agreement.
way of example, not limitation,typographic errors or BERK and the work product or Deliverables prepared by
misspellings,remain in the finished product,CLIENT sha�l BERK shall not be deemed a work for hire as that term is
incur the cost of correding such errors. defined under Copyright Law.All rights,if any,granted to
7 ACCREDITATION/PROMOTIONSBERK retains the right to �LIENT are contradual in nature and are wholly defined by
reproduce, publish and display the Deliverables in BERK's the express written agreement of the parties and the
portfolios and websites,and in periodicals and other media various terms and conditions of this Agreement.
or ezhibits for the purposes of marketing, recognition of 9.2. No ExGusivity.The parties expressly
professional excellence or advancement,and to be credited acknowledge that this Agreement does not create an
with authorship of the Deliverebles in connection with such exclusive relationship between the parties.CIIENT is free to
uses. Either party,subject to the other's reasonable engage others to perform services of the same or similar
approval,may describe its role in relation to the Projed nature to those provided by BERK,and BERK shall be
and,if applicable,the services provided to the other par[y entitled to offer and provide services ta athers,solicit other
on iu website and in other promotional materials,and,if clients and otherwise advertise the services offered by
not expressly objected to, include a link to the other party's BERK.
website.
93. BERKAgents.BERK shall be permitted to
8. CONFIDENTIAL INFORMATION.Each party acknowledges engage and/or use third party service providers as
that in connection with this Agreement it may receive independent contractors in connedion with the Services
certain confidential or proprietary technical and business ("Work Agents"). Notwithstanding the foregoing, BERK shall
information and materials of the other party,inciuding remain fully responsible for such Work Agents'compliance
without limitation CLIENT Content,Works, BERK Toois, with the various terms and conditions of this Agreement vis
Third Party Materials and Preliminary Works("Confidential a vis CLIENT,even though BERK's liability vis a vis any Work
Information"). Each party, its agents and employees shall Agent may be iimited by an agreement between BERK and
hold and maintain in strict confidence all Confidential such Work Agent.
Information,shall not disclose Confidential Information to g.q. No Solicitation. During the term of this
any third party,and shall not use any Confidential qgreement,and for a period of twelve(12) months after
Information except as may be necessary to perform its
expiration or termination of this Agreement,CLIENT agrees
obligations under the SOW and this Agreement,except as not to solicit, recruit, engage or otherwise employ or retain,
may be required by a court,governmental authority,or by on a full-time,part-time,consulting,work-for-hire or any
law as interpreted by the Party requested to disclose other kind of basis, any BERK,employee or Work Agent of
information.Notwithstanding the foregoing,Confidential gERK,whether or not said person lias been assigned to
Information shall not include any information that is in the
perform tasks under this Agreement. In the event such
public domain or bxomes publicly known through no fault employment,consultation or work-for-hire event occurs,
of the receiving party,or is otherwise properly received �LIENT agrees that BERK shall be entitled to an agency
from a third party without an obligation of confidentiality. �ommission to be the greater of,either(a)25Y�of said
9. RELATIONSHIP OF THE PARTIES. person's starting salary with CLIENT,or(b)25%of fees paid
9.1. Independent Lontractor BERK is an to said person in the first twelve(12)month period if
independent contractor, not an employee of CLIENT or any engaged by CLIENT as an independent contractor In the
company a�liated with CLIENT BERK shall provide the event of(a)above,payment of the commission will be due
Services under the general direction of CLIENT, but BERK Within 30 days of the employment starting date. In the
shall determine, in BERK's sole discretion,the manner and event of(b)above, payment will be due at the end of any
��e� ��RY� 4
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
month during which the independent cbntrector performed liabilities,costs, losses or expenses arising out of any claim,
services for CLIENT BERK,in the event of nonpayment and demand,or action by a third party arising out of any breach
in connection with this section,shall be entitled to seek all of CLIENT's responsibilities or obligations, representations
remedies under law and equity. or warranties under this Agreement. Under such
30. WARRAWTIES AND REPRESENTATIONS. circumstances BERK shall promptly notify CLIENT in writing
of any claim or suit;(a)CLIENT has sole control of the
10.1. By CLIENT CLIENT represents,warrants and defense and ail related settlement negotiations;and
covenants to BERK that(a)CLIENT owns aIl right,title,and (b) BERK provides CLIENT with commercially reasonable
interest in,or otherwise has full right and authority to assistance, information and authority necessary to perform
permit the use of the CLIENT Content,(b)to the best of CLIENT's obligations under this sedion.CLIEN7 will
CLIENTs knowledge,the CLIENT Content does not infringe reimburse the reasonable out-of-pocket expenses incurred
[he rights of any third party,and use of the CLIENT Content by BERK in providing such assistance.
as well as any Trademarks in connection with the Projed
does nat and will not violate the rights of any third parties, 11.2. By BERK.Subject to the terms,conditions,
(c)CLIENT shall comply with the terms and conditions of express representations and warranties provided in this
any licensing agreements which govern the use of Third Agreement, BERK agrees to indemnify,save and hold
Party Materials,and(d)CLIENT shall comply with all laws harmless CLIENT from any and all damages,Iiabilities,costs,
and regulations as they relate to the Services and �osses or expenses arising out of the performance of this
Deliverables. agreement except in the event any such claims,damages,
liabilities,costs,losses or expenses arise directly as a result
10.2. By BERK.(a)BERK hereby represents,warrants of gross negligence or misconduct of CLIENT provided that
and covenants to CLIENT that BERK will provide the Services (a)CLIENT promptly notifies BERK in writing of the claim;
identified in the Agreement in a professional and (b)BERK shall have sole control of the defense and all
workmanlike manner and in accordance with all reasonable related settlement negotiations;and(c)CLIENT shall
professional standards for such services,(b) BERK further provide BERK with the assistance, information and authority
represents,warrants and covenants to CLIENT that necessary to perform BERK's obligations under this sedion.
(i)except for Third Party Materials and CLIENT Content,the Notwithstanding the foregoing,BERK shall have no
Final Deliverables shall be the original work of BERK and/or obligation to defend or otherwise indemnify CLIENT for any
its independent contractors,(ii)in the event that the Final ciaim or adverse finding of fact arising out of or due to
Deliverebles include the work of independent contrectors CL�EN7 Content,any unauthorized content, improper or
commissioned for the Project by BERK,BERK shall have illegal use,or the tailure to update or maintain any
secure agreements from such contractors granting all Deliverebles provided by BERK.
necessary rightr,title,and interest in and to the Final
Deliverables sufficient for BERK to grant the intellectual 11.3. Limitation of Liabilify.THE SERVICES AND THE
property rights provided in this Agreement,and(c)EXCEPT WORK PRODUCT OF BERK ARE SOLD"AS IS." IN ALL
FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CIRCUMSTANCES,THE MAXIMUM LIABILITY OF BERK, ITS
STATED IN THIS AGREEMENT, BERK MAKES NO DIRECTORS,OFFICERS,EMPLOYEES,WORK AGENTS AND
WARRANTIES WHATSOEVER. BERK EXFLICITLY DISCLAIMS AFFILIATES("BERK PARTIES"),TO CLIENT FOR DAMAGES
ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRE55 OR FOR ANY AND ALL CAUSES W HATSOEVER,AND CLIENTS
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MAXIMUM REMEDY, REGARDLE55 OF THE FORM OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR A�ION,WHETHER IN CONTRACT,TORT OR OTHERWISE,
PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT SHALL BE LIMITED TO THE FULL AMOUNT OF THE BERK
RULES OR REGULATIONS APPLICABLE TO THE PROJECT FEES. IN NO EVENT SHALL BERK BE LIABLE FOR ANY LOST
DATA OR CONTENT, LOST PROFITS, BUSINESS
11. INDEMNIFICATION/LIABILITY INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL,
11.1. ByCUENT CLIENT agrees to indemnify,save SPECIAL,CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
and hold harmless BERK from any and all damages, DAMAGES ARISING OUT OF OR RELATING TO THE
m��� B�RI� 5
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
MATERIALS OR THE SERVICES PROVIDED BY BERK, EVEN IF must be in writing,except that BERK's invoices.may include,
BERK HAS BEEN ADVISED OF THE POSSIBIIITY OF SUCH and CLIENT shall pay,expenses or costs that CLIENT
DAMAGES,AND NOTWITHSTANDING THE FAILURE OF authorizes by electronic mail in cases of extreme time
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY sensitivity. Failure by either party to enforce any right or
12. TERM AND TERMINATION. seek to remedy any breach under this Agreement shall not
be construed as a waiver of such rights nor shall a waiver by
12.1. This Agreement shall commence upon the either party of default in one or more instances be
Effective Date and shall remairi effective until the Services construed as constituting a continuing waiver or as a waiver
are completed and delivered. of any other breach.
12.2. This Agreement may be terminateii at any 131. Notices.All notices to be given hereunder shall
time by either party effective immediately upon notice,or be transmitted in writing either by facsimile or electronic
the mutual agreement of the parties,or if any party mail with[eturn confirmation of receipt or by certified or
(a) becomes insolvent,files a petition in bankruptcy, makes registered mail,return receipt reques'ted,and shall be sent
an assignment for the benefit of its creditors;or to the addresses identified in the Agreement Summary,
(b)breaches any of its material responsibilities or unless notification of change of address is given in writing.
obiigations under this Agreement,which breach is not Notice shall be effective upon receipt or in the case of fax or
remedied within ten(10)days from receipt of written email, upon confirmation of receipt.
notice of such breach.
13.3. No Assignment. Neither party may assign,
12.3. In the event of termination by the CLIENT or if whether in writing or orally,or encumber its rights or
12:2.(a)or(b)is true of CLIENT, BERK shall be compensated obligations under this Agreement or permit the same to be
for the Services performed through the date of termination transferred,assigned or encumbered by operation of law or
in the amount of(a)any advance payment, (b)a proreted otherwise,without the prior written consent of the other
portion of the BERIC Fees due,or(c) hourly fees,if any are party.
specified on the SOW,for work performed by BERK or
BERK's agents as of the date of termination,whichever is 13.4. Force Majeure. BERK shall not be deemed in
greater;and CLIENT shall pay all Berk Fees and Excess Costs breach of this Agreement if BERK is unable to complete the
if an and the costs of Chan es if an incurred throu h Services or any portion thereof by reason of fire,
( Y�� g ( Y) g earthquake,terrorism,labor dispute,act of God or public
anii up to,the date of cancellation.
enemy,death, illness or incapacity of BERK or any local,
12.4. In the event of termination by CLIENT and state,federal, national or international law,governmental
upon full payment of compensation as provided herein, order or regulation or any other event beyond BERK's
BERK grents to GLIENT such right and title with respect to control(collectively, "Force Majeure Event='). Upon
those Deliverebles provided to,and accepted by CLIENT as occurrence of any Force Majeure Event, BERK shall give
of the date of termination,provided, however,that such notice to CLIEN7 of its inability to peifoYm or of delay in
Deliverebles are indicated to CLIENT by BERK in writing. completing the Services and shall propose revisions to the
32.S.In the event of termination by BERK, BERK shall schedule for completion of the Services.
provide CLIENT all work and content developed or 13.5. Governing Law and Dispute Resolution.The
created by BERK in performance of this agreement formation, construction, performance and enforcement of
through the date of termination. BERK shall grant to this Agreement shall be in accordance with the laws of the
CLIENT such right and title with respect to this work United States and the state of Washington without regard
and content provided to and accepted by CLIENT to its conflict of law provisions or the conflict of law
13. GENERAL. provisioris of any other jurisdidion. In the event of a
dispute arising out of this Agreement,the parties agree to
13.1. Modification/Waiver This Agreement may be attempt to resolve any dispute by negotiation between the
modified by the parties.Any modification of this Agreement parties. If they are unable to resolve the dispute, either
�ill BEI2LC 6
CONSULTING AGREEMENT AUGUST 22,2016
CITY OF AUBURN CODE AMENDMENTS
paity may commence mediation and/or binding arbitration or unenforceable provision shall be replaced by a valid or
through the American Arbitration Association,or other enforceable provision.
forum mutually agreed to by the parties.The prevailing 13.7 Headings.The numbering and captions of the
party in any dispute resolved by binding arbitretion or various sections are solely for convenience and reference
litigation shall be entitled to recover its attorneys'fees and only and shall not affed the scope,meaning,intent or
costs. In all other circumstances,the parties specifically interpretation of the provisions of this Agreement nor shall
consent to the local,state and federal courts located in King such headings otherwise be given any legal effect.
County,State of Washington.The parties hereby waive any
jurisdictional or venue defenses available to them and 13.8. Integration. This Agreement comprises the
further consent to service of process by maii.CLIENT entire understanding of the parties hereto on the subject
acknowledges that BERK will have no adequate remedy at matter herein contained,and supersedes and merges all
law in the event CLIENT uses the Deliverables in any way prior and contemporaneous agreements,understandings
not permitted hereunder,and hereby agrees that BERK and discussions between the parties relating to the subject
shall be entitled to equitable relief by way of temporary and matter of this Agreement. In the event of a conflict
permanent injunction,and such other and further relief at between the Agreement Summary or the SOW and these
law or equity as any arbitretor or court of competent Standard Terms and Conditions,the terms of the
jurisdidion may deem just and proper, in addition to any Agreement Summary or the SOW,as applicable,shall
and all other remedies provided for herein. control.Supplemental,additional or complementary terms
shall not be deemed to conflict for qurposes of this Section
13.6. Severabiliry Whenever possihle,each 13.8.This Agreement comprises the Agreement Summary,
provision of this Agreement shall be interpreted in such the Standard Terms and Conditions,the SOW,and all
manner as to be effective and valid under applicable law, attachments and exhibits thereto.
but if any provision of this Agreement is held invalid or
unenforceable,the remainder of this Agreement shall
never[heless remain in full force and effect and the invalid
oi�� ���K 7
EXHIBIT C
FORM OF AMENDMENT
PROIECT IVame Number
-— �--=-- _
Amendment Number•
Amendment Effective Date:
This Amendment(this"AmendmenY')is incorporated by reference into and made a part of the Consultin@
Services Agreement dated as of� l by and between � � ' ("CLIENT") and BERK Consulting,
Inc. ("BERK") including the attachments, schedules and exhibits attached thereto (the "AgreemenY').
Capitalized terms used but not defined herein have the meaning"s assigned to them under the Agreement.
The parties to the Agreement agree to make the following additions or modifications to the SOW as
follows:
[Describe changes]
Except as modified by this and any previously issued Amendment, all other terms and conditions of the
Agreement r8main in full force and effect. This Amendment may be executed in counterparts, each of
which is deemed an original, but all of which constitutes one and the same agreement. Delivery of an
executed counterpart of this Amendment electronically or by facsimile shall be as effective as delivery of
an original signed counterpart of this Amendment.
By their execution below, the parties hereto have agreed to all of the terms and conditions of this
Amendment effective as of the Amendment Effective Date listed above, and each signatory represents
that it has the fu�l authority to accept this Amendment, and to bind her/his respective party to all of the
terms and conditions herein.
CLIENT BERK CONSULTING, INC.
By By
Title: Title:
Date: Date:
2