HomeMy WebLinkAboutKissinger & Fellman, P.C. CITY OF AUBURN
AGREEMENT FOR SERVICES
THIS SECOND AGREEMENT FOR SERVICES is made and entered into on this
2nd day of September, 2020, by and between the City of Auburn, a municipal
corporation of the State of Washington, the "City" and Kissinger & Fel!man, P.C., (the
"Consultant"), a Colorado professional corporation. The original Agreement for Services
was made and entered into by the parties on August 19, 2019 and has since expired.
RECITALS:
1. The City wants to enter into a contract with the Consultant for continued legal
services related to updating the City's telecommunications and franchise codes
including finalizing the code updates that the parties have endeavored to draft to date;
and
2. The City has hired the Consultant to provide these services in connection with
the City's work; and
3. The Consultant is able to provide services in connection with the City's needs for
this work, and is willing and agreeable to provide the services on the terms and
conditions in this Agreement.
AGREEMENT:
In consideration of the mutual promises contained in this Agreement, the parties
agree as follows:
1. Scope of Services
The Consultant agrees to perform in a good and professional manner the tasks
described in the Consultant's proposal (Exhibit "A"). The Consultant will perform
the services as an independent contractor and will 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. The parties
understand and agree that the Consultant is providing legal consulting services on
telecommunications matters to the City through the City Attorney's Office.
Consultant is not licensed to practice law in the State of Washington, and all final
decisions on legal advice to the City related to the matters covered by this
Agreement will come from the City Attorney's Office.
2. Additional Services
If additional services with respect to related work are required beyond those
specified in the Scope of Work, and not included in the compensation listed in this
Agreement, the parties will amend this Agreement before the Consultant performs
the additional services However, Consultant agrees that it will perform additional
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services on the written request of an authorized representative of the City pending
execution of an Amendment.
3. Consultant's Representations
The Consultant represents and warrants that it has all necessary licenses to
perform the services provided for in this Agreement.
4. Compensation
As compensation for the Consultant's performance of the services provided for in
this Agreement, the City will pay the Consultant the fees and costs specified in the
Consultant's proposal. Total compensation under this Second Agreement is not-
to-exceed Three Thousand Six Hundred Forty-Six Dollars and Eighty Cents
($3,646.80). The Parties acknowledge that the City has previously paid Consultant
under the original Agreement $31,353.20 as of August 14, 2020.
The Consultant will submit to the City a monthly invoice or statement of time spent
on tasks included in the scope of work, and the City upon acceptance of the
invoice or statement will process the invoice or statement in the next billing/claim
cycle following receipt of the invoice or statement.
5. Time for Performance and Term of Agreement
The Consultant will not begin any work under this Agreement until authorized in
writing by the City. The Consultant will perform the services in accordance with the
direction and scheduling provided on Exhibit "A" unless otherwise agreed to in
writing by the parties. All work under this Agreement will be completed by
January 29, 2021.
6. Ownership and Use of Documents
All documents, reports, memoranda, diagrams, sketches, plans, surveys, design
calculations, working drawings and any other materials created or otherwise
prepared by the Consultant as part of its performance of this Agreement will be
owned by and become the property of the City, and may be used by the City for
any purpose beneficial to the City.
7. Records Inspection and Audit
All compensation payments will be subject to the adjustments for any amounts
found upon audit or otherwise to have been improperly invoiced, and all records
and books of accounts pertaining to any work performed under this Agreement will
be subject to inspection and audit by the City for a period of up to three (3) years
from the final payment for work performed under this Agreement.
8. Continuation of Performance
In the event that any dispute or conflict arises between the parties while this
Contract is in effect, the Consultant agrees that, notwithstanding such dispute or
conflict, the Consultant will continue to make a good faith effort to cooperate and
continue work toward successful completion of assigned duties and
responsibilities. The City agrees that in the event of a dispute that compensation
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justly earned shall not be withheld as a means to compel future completion of
tasks.
9. Administration of Agreement
Any written notices required by the terms of this Agreement will be served on or
mailed to the following addresses:
City of Auburn Kissinger & Fellman, P.C.
25 West Main Street 3773 Cherry Creek N. Drive
Auburn, WA 98001-4998 Ptarmigan Place, Suite 900
Phone: 253-804-3101 Denver, CO 80209
Fax: 253-288-3132 Phone: 303-320-6100/877-342-3677
Fax: 303-327-8601
10. Notices
All notices or communications permitted or required to be given under this
Agreement will be in writing and will be deemed to have been given if delivered in
person or deposited in the United States mail, postage prepaid, for mailing by
certified mail, return receipt requested, and addressed to the address for the party
provided.
Either party may change their address by giving notice in writing to the other party.
11. Insurance
The Consultant will procure and maintain for the duration of this Agreement,
insurance against claims for injuries to persons or damage to property that may
arise from or in connection with the performance of the work under this Agreement
by the Consultant, or the Consultant's agents, representatives, employees, or
subcontractors.
Consultant's maintenance of insurance as required by the Agreement does not
limit the liability of the Consultant to the coverage provided by such insurance, or
otherwise limit the City's recourse to any remedy available at law or in equity.
The Consultant will obtain insurance 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 contractors, products-completed operations, stop gap liability,
personal injury and advertising injury, and liability assumed under an insured
contract. The Commercial General Liability insurance shall be endorsed to
provide a per project aggregate limit using ISO form CG 25 03 05 09 or
equivalent endorsement. There shall be no exclusion for liability arising from
explosion, collapse or underground property damage. The City shall be named
as an insured under the Consultant's Commercial General Liability insurance
policy with respect to the work performed for the City using ISO Additional
Insured endorsement CG 20 10 10 01 and Additional Insured-Completed
Operations endorsement CG 20 37 10 01 or substitute endorsements providing
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equivalent coverage. Commercial General Liability insurance 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 coverage as required by the Industrial Insurance laws
of the State of Colorado.
c. Consultant does not maintain company owned automobiles; hence no
automobile policies are required.
The insurance policies are to contain, or be endorsed to contain, the following
provisions for Commercial General Liability insurance:
a. The Consultant's insurance coverage will be primary insurance as respects the
City. Any insurance, self-insurance, or insurance pool coverage maintained by
the City will be excess of the Consultant's insurance and will not contribute with
it.
b. The Consultant'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.
The insurer must have a current A.M. Best rating of not less than A:VII.
Consultant will 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 Consultant
before commencement of the work. 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 7 until the
Consultant has fully complied with this section.
If the Consultant maintains higher insurance limits than the minimums shown
above, the City will be insured for the full available limits of Commercial General
and Excess or Umbrella liability maintained by the Consultant, irrespective of
whether such limits maintained by the Consultant are greater than those required
by this contract or whether any certificate of insurance furnished to the City
evidences limits of liability lower than those maintained by the Consultant.
Failure on the part of the Consultant to maintain the insurance as required will
constitute a material breach of contract, upon which the City may, after giving five
business days' notice to the Consultant to correct the breach, immediately
terminate the contract or, at its discretion, procure or renew such insurance and
pay any and all premiums in connection therewith, with any sums so expended to
be repaid to the City on demand, or at the sole discretion of the City, offset against
funds due the Consultant from the City.
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12. Indemnification/Hold Harmless
The Consultant shall defend, indemnify and hold the City, its officers, officials,
employees, and volunteers harmless from any and all claims, injuries, damages,
losses, or suits including attorney fees, arising out of or in connection with the
performance of this Agreement, except for injuries and damages caused by the
sole negligence of the City.
If a court of competent jurisdiction determines 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 the Consultant and the City, its officers, officials, employees, and
volunteers, the Consultant's liability will be only to the extent of the Consultant's
negligence. It is further specifically and expressly understood that the
indemnification provided herein constitutes the Consultant's waiver of immunity
under Industrial Insurance, Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The
provisions of this section will survive the expiration or termination of this
Agreement.
13. Assignment
Neither party to this Agreement will assign any right or obligation hereunder in
whole or in part, without the prior written consent of the other party. No
assignment or transfer of any interest under this Agreement will be deemed to
release the assignor from any liability or obligation under this Agreement, or to
cause any liability or obligation to be reduced to a secondary liability or obligation.
14. 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.
15. Amendment, Modification or Waiver
No amendment, modification or waiver of any condition, provision or term of this
Agreement will be valid or of any effect unless made in writing, signed by the party
or parties to be bound, or such party's or parties' duly authorized representative(s)
and specifying with particularity the nature and extent of such amendment,
modification or waiver. Any waiver by any party of any default of the other party
will not affect or impair any right arising from any subsequent default.
Nothing in this section will limit the remedies or rights of the parties hereto under
and pursuant to this Agreement.
16. Termination for Cause.
If the City determines that the Consultant failed to comply with the conditions of the
Agreement, the City has the right to suspend or terminate the Agreement by giving
the Consultant a written notice of corrective action required. If the Consultant does
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not remedy all conditions in the corrective notice within thirty (30) days of the date
of notice, the City may terminate or suspend the contract or require specific
performance including completion of the Agreement.
17. Termination for Convenience
Either Party may terminate this Agreement by providing the other party with written
notice of such termination, specifying the effective date with at least thirty (30)
days' notice.
18. Parties in Interest
This Agreement will be binding upon, and the benefits and obligations will inure to
and bind, the parties and their respective successors and assigns, provided that
this section will not be deemed to permit any transfer or assignment otherwise
prohibited by this Agreement. 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, sub-contractors and their sureties.
19. Costs to Prevailing Party
In the event of litigation or other legal action to enforce any rights, responsibilities
or obligations under this Agreement, the prevailing party will be entitled to receive
its reasonable costs and attorney's fees.
20. Applicable Law
This Agreement and the rights of the parties will be governed by and interpreted in
accordance with the laws of the State of Washington and venue for any action will
be in of the county in Washington State in which the property or project is located,
and if not site specific, then in King County, Washington; Any applicable statute of
limitation will commence no later than the substantial completion by the Consultant
of the services.
21. Captions, Headings and Titles
All captions, headings or titles in the paragraphs or sections of this Agreement are
inserted for convenience of reference only and do 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. The singular includes the plural and vice versa and
masculine, feminine and neuter expressions will be interchangeable. Interpretation
or construction of this Agreement will 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.
22. Severable Provisions
Each provision of this Agreement is intended to be severable. If any provision is
illegal or invalid for any reason whatsoever, that illegality or invalidity will not affect
the validity of the remainder of this Agreement.
23. Entire Agreement
This Agreement contains the entire understanding of the parties hereto in respect
to the transactions contemplated in the Agreement and supersedes all prior
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agreements and understandings between the parties with respect to the subject
matter.
24. Counterparts
This Agreement may be executed in multiple counterparts, each of which will be
one and the same Agreement and will 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 have caused this Agreement to be executed
effective the day and year first set forth above.
CITY OF AUBURN Kissinger & Fellman, P.C.
ancy Ba s, ayor Signature
Name: Kenneth S. Fellman
Title: President
Federal Tax ID No: 84-0857437
Approved as to form:
Kendra Comeau, City Attorney
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Exhibit A
Scope of Services
TASK 1 —DRAFT CODE PREPARATION
- Finalize substantive draft code modifications and new
provisions to City Code.
TASK 2—LEGISLATIVE PROCESS SUPPORT
- Answer specific questions from staff arising from City
staff's outreach to industry and the City's legislative
process.
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