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HomeMy WebLinkAboutSteven Wright dba Banyan Consulting AGREEMENT FOR PROFESSIONAL SERVICES o c-~ ~ ~I- : I ~ ~,~ , I to ~ 14 THIS AGREEMENT made and entered into by and between the CITY OF AUBURN, a Municipal Corporation in King County, Washington, hereinafter referred to as "CITY" and STEVEN WRIGHT dba BANYAN CONSULTING, whose address is 660 Wildwood Boulevard Southwest Number C-15, Issaquah, Washington 98027 (Telephone: 425-427-2494), hereinafter referred to as "CONSULTANT." In consideration of the covenants and conditions of this Agreement, the parties hereby agree as follows: 1. SCOPE OF WORK. See Exhibit A, which is attached hereto and by this reference made a part of this Agreement. 2. TERM. The CONSULTANT shall not begin any work under this Agreement until authorized in writing by the CITY. All services and all work product required under this Agreement shall be completed between March 8, 2007 and June 8, 2007. The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but may be extended by the CITY in the event of a delay attributable to the CITY, or because of unavoidable delays caused by an act of GOD or governmental actions or other conditions beyond the control of the CONSULTANT. A prior supplemental Agreement issued by the CITY is required to extend the established completion time. Agreement for Professional Services Steve Wright dba Banyan Consulting March 22, 2007 Page 1 of 13 3. COMPENSATION. The CITY shall pay the CONSULTANT for any completed work on a monthly basis. Compensation will be for billable hours on the basis of One Hundred Fifty and No/100 Dollars ($150.00) per hour, plus additional acceptable expenses directly related to the scope of work, not to exceed a total of Twelve Thousand and No/100 Dollars ($12,000.). Acceptable expenses may include, but are not limited to the following items: reproduction fees, communication fees, and mileage. The billing for non-salary costs, directly identifiable with the project, shall be submitted as an itemized listing of charges supported by copies of the original bills, invoices, expense accounts and miscellaneous supporting data retained by the CONSULTANT. Copies of the original supporting documents shall be supplied to the CITY upon request. All above charges must be necessary for the services provided under the Agreement. In the event services are required beyond those specified in the Scope of Work, and not included in the compensation listed in this Agreement, a contract modification shall be negotiated and approved by the CITY prior to any effort being expended on such services or work shall be authorized in writing under the Management Reserve Fund as detailed in Section 4. 4. PAYMENT The CONSULTANT shall be paid by the CITY for completed work and for services rendered under this Agreement. Payment for the work provided by the CONSULTANT shall be made as provided in No. 3 -Compensation, provided that the total amount of payment to the CONSULTANT shall not exceed $12,000.00 without express written modification of the Agreement signed by the CITY. The CONSULTANT may submit invoices to the CITY once per month during the progress of the work for partial payment for that portion of the project completed to --------------------------------------------------------------- Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 2 of 13 date. Such invoices will be approved by the CITY and payment made to the CONSULTANT in the amount approved. Final payment of any balance due the CONSULTANT of the total contract price earned will be made promptly upon its ascertainment and verification by the City after the completion of the work under this Agreement and its acceptance by the City. Payment provided in this section shall be full compensation for work performed, services rendered, and for all materials, supplies, equipment and incidentals necessary to complete the work. The CONSULTANT's records and accounts pertaining to this Agreement are to be kept available for inspection by representatives of the CITY and state for a period of three (3) years after final payments. Copies shall be made available upon request. 5. RESPONSIBILITY OF CONSULTANT. The CONSULTANT shall be responsible for the professional quality, technical accuracy, timely completion and the coordination of all studies, analysis, designs, drawings, specifications, reports and other services performed by the CONSULTANT under this Agreement. The CONSULTANT shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its plans, designs, drawings, specifications, reports and other services required. The CONSULTANT shall perform its services to conform to generally-accepted professional standards and the requirements of the CITY. Any approval by the CITY under this Agreement shall not in any way relieve the CONSULTANT of responsibility for the technical accuracy and adequacy of its services. Except as otherwise provided herein, neither the CITY'S review, approval or acceptance of, nor payment for, any of the services shall be construed to operate as a waiver of any Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 3 of 13 rights under this Agreement or of any cause of action arising out of the performance of this Agreement to the full extent of the law. 6. INDEMNIFICATION/HOLD HARMLESS. The CONSULTANT shall defend, indemnify and hold the CITY, its officers, officials, volunteers, and employees harmless from and shall process and defend at its own expense any and all claims, injuries, damages, losses, or suits, including attorney fees or equity arising in whole or in part from the acts, errors or omissions of the CONSULTANT in performance of this Agreement, or the CONSULTANT'S negligence or breach of any of its obligations under this Agreement; provided that nothing herein shall require the CONSULTANT to indemnify the CITY against and hold harmless the CITY from claims, demands or suits based solely upon the sole negligence of the CITY, its officers, officials, volunteers, and employees, and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT'S agents or employees and (b) the CITY, its officers, officials, volunteers, or employees, this indemnity provision with respect to (1) claims or suits based upon such negligence, (2) the costs to the CITY of defending such claims and suits, etc., shall be valid and enforceable only to the extent of the CONSULTANT'S negligence or the negligence of the CONSULTANT'S agents or employees. The provisions of this section shall survive the expiration or termination of this Agreement. 7. INDEPENDENT CONTRACTOR/ASSIGNMENT. The parties agree and understand that the CONSULTANT is an independent contractor and not the agent or employee of the CITY and that no liability shall attach to the CITY by reason of entering into this Agreement except as otherwise provided herein. The parties agree that this Agreement may not be assigned in whole or in part without the written consent of the CITY. Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 4 of 13 8. INSURANCE. CONSULTANT shall procure and maintain for the duration of this Agreement, insurance 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 CONSULTANT, its agents, representatives, or employees. CONSULTANT shall obtain insurance of the types and in the amounts described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles, with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Coverage shall be written on Insurance Services Office (ISO) form CA 00 O1 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, and personal injury and advertising injury, with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. The CITY, its officials, employees and agents shall be named as an insured under the CONSULTANT'S Commercial General Liability insurance policy with respect to the work performed for the CITY. 3. Worker's Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the CONSULTANT'S profession, with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 5 of 13 The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability, and Commercial General Liability insurance: The general liability coverage shall also provide that the CITY, its officers, employees and agents are to be covered as additional insured as respects: Liability arising out of the services or responsibilities performed by or under obligation of the CONSULTANT under the terms of this Agreement, by the CONSULTANT, its employees, agents and subcontractors. The CONSULTANT'S insurance coverage shall be primary insurance as respects the CITY, its officials, employees and agents. Any insurance, self insurance, or insurance pool coverage maintained by the CITY, its officials, employees or agents shall be excess of the CONSULTANT'S insurance and shall not contribute with it. Each insurance policy required by this section of the Agreement shall be endorsed to state that coverage shall not be suspended, voided, or cancelled by either party except after thirty (30) days prior written notice has been given to the CITY by certified mail, return receipt requested. All insurance shall be obtained from an insurance company authorized to do business in the State of Washington. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. The CONSULTANT shall furnish the City with original certificates of insurance and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance coverage required by this section within 14 days of the execution of this Agreement. The CITY reserves the right to require that complete, certified copies of all required insurance policies be submitted to the CITY at any time. The CITY will pay no progress payments under Section 3 until the CONSULTANT has fully complied with this section. Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 6 of 13 9. NONDISCRIMINATION. The CONSULTANT may not discriminate regarding any services or activities to which this Agreement may apply directly or through contractual, hiring, or other arrangements on the grounds of race, color, creed, religion, national origin, sex, age, or where there is the presence of any sensory, mental or physical handicap. 10. OWNERSHIP OF RECORDS AND DOCUMENTS. The CONSULTANT agrees that any and all drawings, computer discs, documents, records, books, specifications, reports, estimates, summaries and such other information and materials as the CONSULTANT may have accumulated, prepared or obtained as part of providing services under the terms of this Agreement by the CONSULTANT, shall belong to and shall remain the property of the CITY OF AUBURN. In addition, the CONSULTANT agrees to maintain all books and records relating to its operation and concerning this Agreement for a period of six (6) years following the date that this Agreement is expired or otherwise terminated. The CONSULTANT further agrees that the CITY may inspect any and all documents held by the CONSULTANT and relating to this Agreement upon good cause at any reasonable time within the six (6) year period. The CONSULTANT also agrees to provide to the CITY, at the CITY'S request, the originals of all drawings, documents, and items specified in this Section and information compiled in providing services to the CITY under the terms of this Agreement. 11. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS-PRIMARY COVERED TRANSACTIONS. The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals: Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 7 of 13 (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; (b) Have not within athree-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission or fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or contract under a public transaction; violation of federal or state antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph ~~(b)" of this certification; and (d) Have not within athree-year period preceding this application/proposal had one or more public transactions (federal, state, or local) terminated for cause or default. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 8 of 13 12. TERMINATION OF AGREEMENT. This Agreement may be terminated by either party upon twenty (20) days written notice to the other party, and based upon any cause. In the event of termination due to the fault of other(s) than the CONSULTANT, the CONSULTANT shall be paid by the CITY for services performed to the date of termination. Upon receipt of a termination notice under the above paragraph, the CONSULTANT shall (1) promptly discontinue all services affected as directed by the written notice, and (2) deliver to the CITY all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as the CONSULTANT may have accumulated, prepared or obtained in performing this Agreement, whether completed or in process. It is provided, however, that in the event of termination at (a) the discretion of the CONSULTANT, or (b) for situations such as, but not limited to, unavailability of key Architect personnel of the CONSULTANT, destruction of project documentation, or financial issues of the CONSULTANT, compensation shall be limited to the work that will actually be useful to the City, as determined by and in the sole discretion of the City. 13. GENERAL PROVISIONS. 13.1. This Agreement shall be governed by the laws, regulations and ordinances of the City of Auburn, the State of Washington, King County, and where applicable, Federal laws. 13.2. All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach hereof, except with respect to claims which have been waived, will be decided by a court of competent jurisdiction in King County, Washington. Pending final decision of a dispute hereunder, the Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 9 of 13 CONSULTANT and the CITY shall proceed diligently with the performance of the services and obligations herein. 13.3. In the event that any dispute or conflict arises between the parties while this Agreement 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. 13.4. The CITY and the CONSULTANT respectively bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement with respect to all covenants to this Agreement. 13.5. This Agreement represents the entire and integrated Agreement between the CITY and the CONSULTANT and supersedes all prior negotiations, representations or agreements either oral or written. This Agreement may be amended only by written instrument signed by both the CITY and the CONSULTANT. 13.6. Should it become necessary to enforce any term or obligation of this Agreement, then all costs of enforcement including reasonable attorneys fees and expenses and court costs shall be paid to the substantially prevailing party. 13.7. The CONSULTANT agrees to comply with all local, state and federal laws applicable to its performance as of the date of this Agreement. 13.8. If any provision of this Agreement is invalid or unenforceable, the remaining provisions shall remain in force and effect. 13.9. This Agreement shall be administered by David A. Clark on behalf of the CONSULTANT, and by the Mayor of the CITY, or designee, on behalf of the CTTY. Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 10 of 13 Any written notices required by the terms of this Agreement shall be served on or mailed to the following addresses: City of Auburn Attn: Laurie Rose 910 Ninth Street SE Auburn WA 98002 Phone: 253-931-3043 Fax: 253-931-4005 E-mail: Irose@auburnwa.gov Banyan Consulting Attn: Steve Wright 660 Wildwood BLVD SW #C-15 Issaquah, WA 98027 Phone: 425-427-2494 Fax: E-mail: 13.10. All notices or communications permitted or required to be given under this Agreement shall be in writing and shall be delivered in person or deposited in the United States mail, postage prepaid. Any such delivery shall be deemed to have been duly given if mailed by certified mail, return receipt requested, and addressed to the address for the party set forth in or if to such other person designated by a party to receive such notice. It is provided, however, that mailing such notices or communications by certified mail, return receipt requested is an option, not a requirement, unless specifically demanded or otherwise agreed. 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. 13.11. 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. Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page li of 13 CITY OF AUBU " ~ ,,~ :.::.:~ .-~ ... Peter B Lewis, Mayor Date APR - 6 2007 ATTEST: \ ('~ Bafliel~E- ~~-,-~¢~-Fel~4~ Cathy Richardson, Deputy City Clerk BANYAN CONSULTING BY: Title'~~ lSic _~ Federal Tax ID # i Date ~.h~ fZ o Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 12 of 13 APPROVED AS TO FORM: Steve Wright Consultant Agreement Exhibit A Scope of Work CONSULTANT will develop along-range theater reuse and/or business plan to adapt the use of the Auburn Avenue Theatre into a viable destination location for cultural arts and entertainment in Auburn. Working toward the City of Auburn's goal of becoming a cultural arts and entertainment destination in this region, CONSULTANT will design an effective multi-use plan for performances in the facility including, but not limited to, performing arts, various entertainment, lectures, multi-media presentations, films, special events, recreation programs, and meetings. The primary focus will be on performing arts and entertainment. Commercial "store-front" space may be proposed in conjunction with the theater to provide a viable income/revenue stream to support the operation of the theater. Capacity for two-dimensional visual art display is another acceptable element of the project. Elements of the project will may include, but are not limited to: a. Fact finding meetings with City, staff and stakeholders; b. Analysis of current programs; City needs, zoning, and current development projects, which serve the interest of the project;. c. Hold focus-group meetings as needed; d. Compile and analyze data; develop recommendations and present an initial draft to City staff for comment and adjustment; e. Research and collect data; meet with potential architects to review feasibility and project start/end dates; f. Write report, make any necessary updates, and make final presentation to Mayor and City Council for approval Agreement for Professional Services Steve Wright, Banyan Consulting March 22, 2007 Page 13 of 13