HomeMy WebLinkAboutPuget Sound Access INDEPENDENT CONTRACTOR AGREEMENT
Between
The City of Auburn
And
Puget Sound Access
This Independent Contractor Agreement("Agreement") is entered into on this 1st day
of September , 2016 (the"Effective Date"), by and between the City of Auburn, a municipal
corporation organized under Title 35A of the Revised Code of Washington (the"City"),and
Puget Sound Access, a Washington non-profit corporation ("Contractor") for the purpose of
providing consulting and freelance services for the City's City Council meeting while they are
being held at the temporary location.
WHEREAS, The City of Auburn council chambers will be under construction from
August—November 2016; and
WHEREAS, The City of Auburn Multimedia Division provides video recordings and live
internet streaming of all City Council meetings and construction activities will necessitate the
meetings be moved to alternate locations with a need to video record and provide internet
streaming in mobile locations; and
WHEREAS, Puget Sound Access has expertise in mobile video solutions and internet
streaming;
NOW,THEREFORE, in consideration of their mutual promises set out in this
Agreement, Contractor and the City agree as follows:
1. Term of Agreement
The term of this Agreement shall commence on the Effective Date and shall terminate on
October 31, 2016 unless otherwise terminated pursuant to the provisions in Section 6. This
Agreement may be renewed for additional terms upon the written approval of the parties.
2. Scope of Services by Contractor
2.1. The Contractor agrees to perform, in a good and professional manner, the tasks
described in Exhibit A, attached hereto and incorporated herein by this reference.
2.2. The Contractor shall be responsible to provide work products and services of a quality
and professional standard acceptable to the City.
2.3. The Contractor hereby represents and warrants that it has all necessary licenses and
certifications to perform the services described in Exhibit A, and is qualified to perform
such services.
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3. Additional Services provided by Contractor
3.1. From time to time hereafter, the parties may agree to the performance by the Contractor
of additional services with respect to related work or projects. Any such agreement(s)
shall be set forth in writing as an addendum to this Agreement and shall be executed by
the respective parties prior to the Contractor's performance of the services thereunder;
except as provided for by Section 6 of this Agreement.
3.1.1. Upon the signature of the parties, an addendum shall be incorporated into this
Agreement and shall have the same force and effect as if the terms of the
addendum were a part of this Agreement as originally executed and shall be
construed in accordance with the terms of this Agreement, unless otherwise
specified in the addendum, in which case the terms of the addendum shall control.
3.2. The parties agree that, in certain circumstances, it may be impractical to execute an
addendum to this Agreement prior to the commencement of additional services as
contemplated in Section 3.1, and in such instances,the Contractor agrees to perform the
requested services pursuant to the following terms:
3.2.1. The oral or written request is made by an authorized representative of the City,
3.2.2. The rate of compensation is agreed to by the parties and invoiced pursuant to
Section 5.2 of this Agreement,and
3.2.3. An addendum shall be executed as soon thereafter as is reasonably practical.
4. City Obligations
In a timely manner that does not delay the services provided by the Contractors,the City
shall:
4.1. Designate in writing a person to act as the City's representative with respect to the
services who has complete authority to transmit instructions, receive information,
interpret and define the City's policies, and make decisions regarding the services
provided by the Contractor.
4.2. Furnish the Contractor with all information, criteria, objectives, schedules, and standards
for the project(s) necessary for the Contractors to provide the services described in
Exhibit A.
4.3. Arrange for access to City property or facilities as needed by the Contractor for the
provision of services as described in Exhibit A.
4:4. Examine and evaluate all studies, reports, memoranda, plans, sketches, and other
documents prepared by the Contractor and to timely render decisions regarding such
documents to prevent a delay in the provision of services as described in Exhibit A.
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5. Compensation
5.1. As compensation for the Contractor's performance of the services described in Exhibit
A,the City shall pay the Contractor the fees and costs specified in Exhibit A, including
non-salary costs such as outside reproduction fees, courier fees, and materials and
supplies.
5.2. The total compensation for this Agreement shall not exceed $15,000, which includes a
Management Reserve Fund in the amount of$5,000.
5.3. The City may establish a Management Reserve Fund to provide flexibility of authorizing
additional funds to the Agreement for allowable unforeseen costs, or reimbursing the
Contractor for additional work beyond that already defined in this Agreement.
5.3.1. Expenditures from the Management Reserve Fund for services or costs beyond
those defined in this Agreement shall be requested by the Contractor and
approved by the City in writing prior to commencement of work.
5.3.2. The Management Reserve Fund may be replenished through subsequent
addendum to this Agreement pursuant to Section 3.
5.3.3. Upon completion of this Agreement, any funds remaining in the Management
Reserve Fund shall be paid to the Contractor.
5.4. The Contractor shall submit to the City an invoice or statement of non-salary costs
itemizing charges and attaching copies of original bills, invoices, expense accounts and
any other miscellaneous supporting data retained by Contractor.
5.5. After receipt of an invoice from the Contractor, the City shall process the invoice in the
next billing/claim cycle and remit payment to Contractor thereafter in the normal course
of business, subject to the terms of this Agreement.
6. Termination
The City may terminate this Agreement upon seven (7) days' written notice; provided that
the Contractor shall be compensated for services provided through the end of the month in
which the City provides written notice of termination.
7. Insurance
7.1. The Contractor shall be responsible for maintaining, during the term of this Agreement
and at its sole cost and expense, the types of insurance coverages, that include a
severability of interest provision, and in the amounts as follows:
7.1.1. Commercial General Liability in an amount not less than one million dollars
($1,000,000) per occurrence and two million dollars ($2,000,000)aggregate.
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7.1:2. Automobile Liability in an amount not less than one million dollars
($1,000,000) per occurrence.
7.1.3. A Certificate of Insurance for worker's compensation coverage, or a Sole
Proprietor Waiver if the Contractor has no employees, provided that if a
Certificate of Insurance is provided,the insurer must agree to waive all rights of
subrogation against the City, its officers, agents, employees, and volunteers for
losses arising from work performed by the Contractor for the City.
7.1.4. Professional Liability Insurance, as applicable, in an amount not less than
million dollars ($1,000,000)per occurrence and one million dollars
($1,000,000) aggregate.
7.2. Coverages described in Section 7.1 shall be written on an Insurance Services Office
(ISO) form CA 00 01 or a substitute form providing equivalent liability coverage.
7.3. The Contractor will name the City, its agents, officers, and employees as additional
insureds, except for professional liability insurance, if any, and worker's compensation
and will specify that the insurance afforced by the Contractor is primary insurance and
that any insurance coverage carried or self-insurance by the City, any department or any
employee will be excess coverage and not contributory insurance to that provided by the
Contractor.
7.4. Upon the execution of this Agreement by the Contractor, the Contractor shall furnish to
the City copies of the Certificates of Insurance drawn in conformity with the above
insurance requirements, except that such copies shall be certified upon the request of the
City.
7.5. If a policy does expire during the term of this Agreement, a renewal certificate must be
sent to the City fifteen (15)days prior to the expiration date of the policy.
7.6. Failure on the part of the Contractor to procure and maintain the required liability
insurance and provide proof thereof to the City within ten (10) days following the
commencement of a new policy, shall constitute a material breach of this Agreement
upon which the City may immediately terminate this Agreement.
7.7. The City reserves the right to continue payment of any insurance premiums otherwise
due and payable by the Contractor and to deduct reimbursement from amounts due or
subsequently due to the Contractor as described in Section 5.
8. Indemnification
8.1. The Contractor shall indemnify, defend and hold the City and/or any of its agents,
officials, elected officers and employees harmless from any and all claims, demands,
suits, proceedings, losses costs, or damages of every kind and description, including
attorneys' fees and litigations expenses which may be made against or incurred by the
City on account of loss or damage to any property or for injuries to or death of any
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person, caused by, arising out of, or contributed to, I whole or in part, by reason of any
alleged act, omission, professional error, fault, mistake, or negligence of the Contractor,
its employees, agents, representatives, or subcontractors of the Contractor, including
employees, agents, or representatives of the subcontractors in connection with, or
incidental to, the performance of this Agreement, or arising out of worker's
compensation claims, unemployment compensation claims, or unemployment disability
compensation claims of employees of Contractor or its subcontractors under similar such
laws or obligations.
8.2. If a final judgment is rendered against the City, its officers, agents, employees, and/or
any of them, or jointly against the City and Contractor, and their respective officers,
agents, employees, or any of them, the Contractor shall satisfy the same to the extent that
such judgment was due to the party's negligent acts or omissions.
8.3. 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
Contractor and the City, its officers, officials, employees, and volunteers, Contractor's
liability hereunder shall by only to the extent of Contractor's negligence.
8.4. It is further specifically and expressly understood that the indemnification provided
herein constitutes Contractor's waiver of immunity under Industrial Insurance, Title 5.1
RCW, solely for the purpose of indemnification. This waiver has been mutually
negotiated by the parties.
8.5. The provisions of this Section shall survive the expiration or termination of this
Agreement.
8.6. The Contractor's obligations under this Section do not extend to arty liability caused by
the sole negligence of the City or its employees.
9. Independent Contractor Status
The Contractor shall perform the services described in Section 2 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.
10. Dispute Resolution
10.1. Continuation of Performance
In the event that any dispute or conflict arises between the parties while this
Agreement is in effect,the Contractor agrees that, notwithstanding such dispute or
conflict, the Contractor shall continue to make a good faith effort to continue to
cooperate and continue to work toward successful completion of the services
described in Exhibit A.
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10.2. Meet and.Confer Process
In the event that any party believes another party has breached a term of this
Agreement, it may request in writing that the parties meet and confer in good faith
for the purpose of attempting to reach a mutually satisfactory resolution of the
problem within fifteen(15)days of the date of service of said request.
10.3. Notice of Disagreement
Within fifteen (15) days of the meet and confer process, a party is not satisfied
with the result of the meet and confer process, or at any time if the complaining
party elects not to utilize the meet and confer process described in Section 10.2,
the complaining party may provide written notice to the affected party that
identifies and describes any alleged breach of this Agreement ("Notice of
Disagreement"), with particularity, if available, and sets forth the action required
to remedy the breach.
10.4. Response to Notice of Disagreement
10.4.1. Within fifteen(15) days of service of a Notice of Disagreement,the
recipient shall provide a written response, either denying or admitting the
allegations set forth in the Notice of Disagreement and, if the truth of the
allegations is admitted, setting forth in detail the steps it has taken and/or
will take to cure the breach.
10.4.2. Failure to serve a timely response shall entitle the complaining party to
proceed immediately to arbitration, as described in Section 10.5.
10.5. Binding Arbitration Procedure
Subject to prior compliance with the Meet and Confer process set out in Section
102 and the Notice and Response processes in Sections 10.3 and 10.4, any party
has the right to initiate binding arbitration to resolve any dispute arising under this
Agreement if the matter complained of remains unresolved. The arbitration shall
be conducted according to the following procedures:
10.5.1. The arbitration shall be administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules.The
arbitrator shall be selected pursuant to such rules; provided that s/he must
be a licensed attorney, knowledgeable in municipal law..The parties and
the arbitrator shall maintain strict confidentiality with respect to the
arbitration..
10.5.2. The arbitration shall be held in the City of Auburn, unless otherwise
agreed on by the parties. The arbitrator shall be empowered to grant
equitable and injunctive relief and specific performance on the terms and
conditions of this Agreement. The arbitrator shall not have the power to
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award punitive damages. The provisions of the Washington Rules of Civil
Procedure are incorporated into, and made a part of,this Agreement;
provided that no discovery authorized by said section may be conducted
without leave of the arbitrator, who shall decide to grant leave based on
the need of the requesting party and the burden of such discovery in light
of the nature and complexity of the dispute.
10.5.3. If either party requests a hearing, the arbitrator shall set the matter for
hearing. Otherwise, the arbitrator shall decide whether to set the matter for
hearing.
10.5.4. An award made upon written briefs of the parties, or after a hearing by the
arbitrator, shall be made in writing and give the reasons for the decision.
Judgement on the award rendered by the arbitrator may be entered in any
court having jurisdiction. The costs and expenses of the American
Arbitration Association and the arbitrator shall be shared equally by and
between the parties unless the arbitrator rules otherwise.
10.6. Enforcement
Any award in arbitration held pursuant to Section 10.5.4 may be enforced by
bringing an action in the Superior Court for King County, Washington.
11. Agreement Interpretation
11.1. 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.
11.2. As used herein, where appropriate,the singular shall include the plural and vice versa
and masculine, feminine and neuter expressions shall be interchangeable.
11.3. 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.
12. Non-Availability of Funds
12.1. Every obligation of the City under this Agreement is conditioned upon the availability
of funds appropriated or allocated for the performance of such obligation; and if
funds are not allocated and available for the continuance of this Agreement, then this
Agreement may be terminated by the City at the end of the period for which funds are
available, without the seven (7) days' notice provided by Section 6.
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12.2. No liability shall accrue to the City in the event this provision is exercised, and the
City shall not be obligated or liable for any future payments or damages as a result of
termination under this Section.
13. Non-Discrimination
13.1. The Contractor shall comply with all applicable federal, state and local non-
discrimination laws and/or policies, including, but not limited to,the Americans with
Disabilities Act; Civil Rights Act; and the Age Discrimination Act.
13.2. The Contractor shall take affirmative action to ensure that applicants for employment
and employees are not discriminated against due to race, creed, color, religion, sex,
national origin, or disability.
13.3. In the event of the Contractor's noncompliance or refusal to comply with any non-
discrimination law or policy, this Agreement may be rescinded, cancelled, or
terminated in whole or in part, without the seven (7) days' notice provided in Section
6, and the Contractor may be declared ineligible for further agreements with the City.
13.4. The Contractor is responsible for any and all costs or liability arising from the
Contractor's failure to so comply with applicable law.
14.Records
All documents, reports, memoranda, diagrams, sketches, plans, surveys, design calculations,
working drawings, and any other materials created or otherwise prepared by the Contractors
as part of their performance of this Agreement shall be owned by and become the property of
the City, may be used by the City for any purpose beneficial to the City, and shall be subject
to the requirements of the Public Records Act, Chapter 42.56 RC W.
15. Inspection & Audit
15.1. All compensation payments shall be subject to 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 six (6) years from the final
payment for work performed under this Agreement.
15.2. If any litigation, claim, dispute, or audit is initiated before the expiration of the six (6)
year period, all records and books of accounts pertaining to any work performed
under this Agreementshall be retained until all litigation, claims, disputes, or audits
have been finally resolved.
16. Conflict of Interest Cancellation
The City may, in its sole discretion, by written notice to the Contractor, immediately
terminate this Agreement,without the seven (7)days' notice provided by Section 6, if it is
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found after due notice and examination by the City that there is a violation of the Ethics in
Public Service Act, Chapter 42.52 RCW.
17. Third Party Antitrust Violations
The Contractor assigns to the City any claim for overcharges resulting from antitrust
violations to the extent that such violations concern materials or services supplied by third
parties toward fulfillment of this Agreement.
18. Limitations
Nothing in this Agreement shall be construed as limiting or expanding the statutory
responsibilities of the parties or as requiring the parties to expend any sum in excess of its
appropriations..
19. Force.Majeure
No party to this Agreement shall be held responsible for delay or default caused by terrorism,
natural disasters, riots, acts of god and/or war that is beyond the reasonable control of the
parties.
20. Severability
Each provision of this Agreement is intended to be severable, and 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.
21.Amendment,Assignment& Waiver
21.1. No amendment, modification, or waiver of any condition, provision, or term of this
Agreement shall be valid unless it is made in writing, signed by the party or parties to
be bound, or the duly authorized representatives thereof, and specifies, with
particularity, the nature and extent of such amendment, modification, or waiver.
21.2. No party to this Agreement shall assign any right or obligation in this Agreement, in
whole or in part, without the prior written consent of the other parties, and any such
assignment shall not 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.
21.3. The failure of either party at any time to require performance by another party of any
provisions of this Agreement will in no way affect the party's subsequent rights and
obligations under that provision, and waiver by any party of the breach of any
provision of this Agreement shall not be taken or held to be a waiver of any
succeeding breach of such provision or as waiver of such provision itself.
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22. Integration & Binding Effect
22.1. This Agreement, together with any subsequent amendments or addendums,
constitutes the entire agreement of the parties and no other understandings, oral or
otherwise, regarding this Agreement shall exist or bind any of the parties.
22.2. This Agreement shall be binding upon, and the benefits and obligations provided for
herein shall inure to and bind,the parties 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.
22.3. This Agreement is for the exclusive benefit of the parties and it does not create a
contractual relationship with, or exist for the benefit of, any third party, including
contractors, subcontractors, or their sureties.
23..Choice of Law
23.1. 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 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 Contractors of the services.
23.2. Subject to the limitations set forth in RCW 4.84.330, each party agrees to bear its own
costs and attorneys' fees generated by any dispute arising out of this Agreement.
24. Notices, Reports & Correspondence
24.1. 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.
24.2. 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.
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24.3. All notices, reports, and correspondence shall be sent to:
City of Auburn Contractor
Auburn City Hall Puget Sound Access
Attn: Jason Jones Attn:Jeffrey D. McCord
25 West Main St. 1717 SE Maple Valley Highway
Auburn, WA 98001-4998 Renton, WA 98056
(253)288-7430 (206) 234-4357
iiones(a)auburnwa.gov jeffm@pugetsoundaccess.org
25. Signature Authority
This Agreement may be executed in 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.
CITY OF AUBURN
Nan y Backus,
Attest:
Danielle Daskam, City Clerk
Approve. :s to form
/ ' /I
Davie B. Heid,City Attorney
PUGET SOUND ACCESS
il
•
e' ey D. McCord, Executive Director
Federal Tax ID# 31-1791062
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EXHIBIT A
Scope of Work
Puget Sound Access and staff will provide the following services as part of the above agreement:
• Consult with City of Auburn staff on mobile video streaming solutions
• Advise and research equipment
• Advise and research solutions for live streaming option
• Purchase of equipment, if needed
• Set up and training on streaming equipment
• Provide videographer if needed to assist in filming
• Assist with troubleshooting of equipment, if needed
• Assist with troubleshooting of live intemet streaming, if needed
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