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HomeMy WebLinkAboutContract CAG-15-163 40017,„s7 CONSULTANT AGREEMENT THIS CONSULTANT AGREEMENT ("Agreement") is made as of the 611ft ay of 1! 2015, (the "Effective Date"), between the CITY OF RENTON, a non-charter code ci organized under RCW 35A and State of Washington municipal corporation, ("Renton"), and Northwest Management Systems, ("CONSULTANT"), to provide professional pavement condition survey services in the City of Renton. Renton and CONSULTANT are at times collectively referred to as the "Parties". NOW THEREFORE, in consideration of the recitals, which are incorporated by reference, and the following mutual promises and covenants contained in this Agreement, the Parties mutually agree as follows: 1. Scope of Services. The CONSULTANT will provide all material and labor necessary to perform all work described in the PROPOSAL, which is attached and fully incorporated in this Agreement by reference with this Agreement as Attachment"A". 2. Renton's Responsibility. Renton will provide or coordinate access to the work site so that the work may be performed. 3. Consideration. Renton agrees to pay the CONSULTANT the Contract Sum, in exchange for complete performance of the professional services referred to in this Agreement and/or as is detailed in Attachment A. Any conflict or ambiguity in terms of the CONTRACTOR'S expected performance shall be guided by the terms of the contract and construed in favor of Renton. Payment for services shall be made by Renton to the CONSULTANT for completed work on a time and material basis consistent with the attached estimate, upon completion of the contracted work. Such payment shall be the full compensation for work performed, services rendered, and for all labor, materials, supplies, equipment, incidentals, and incidental costs necessary to complete the work. 4. Contract Sum. The total amount of this Contract is fifteen thousand, one hundred and fifty dollars ($15,150.00)which includes Washington State sales tax. 5. Changes in Scope of Services. Renton, without invalidating the Contract, may order changes in the Scope of Services consisting of additions, deletions or modifications. The Contract Sum may be adjusted according to any reasonable additional cost or expense resulting from such changes. Such changes in the work shall be authorized by a written Change Order signed by Renton and the CONSULTANT. The CONSULTANT shall not modify the Scope of Services, without forfeiting any unpaid fees due, unless the CONSULTANT has received Renton's prior written approval. 6. Time of Performance. The CONSULTANT shall commence performance of the Contract no later than 10 calendar days after the Contract's final execution, and shall complete the full performance of the Contract not later than 60 calendar days from the date of commencement. 7. Duration of this Agreement. This Agreement shall end at completion of the enclosed scope of services or when the Time of Performance expires, whichever is first. This Agreement may be extended only upon mutual written agreement of Renton and the CONSULTANT. 8. Method of Payment. Payment by Renton for the Services will only be made after the Services have been fully performed to Renton's satisfaction and an invoice is submitted to Renton in an acceptable form. Payment will be based on the percent of work completed, compliance with the Scope of Services. Payment will be made in the next pay cycle of Renton's Finance and Information Technology Department after receipt of such voucher or invoice (pay cycles are bi-weekly). Renton shall have the right to withhold payment to the CONSULTANT for any work not completed in a satisfactory manner until such time as the CONSULTANT modifies such work so that the same is satisfactory. If the work is not satisfactorily modified or is not in compliance with this Agreement, Renton may withhold the entire payment,without penalty. 9. Consultant is an Independent CONSULTANT. The Parties intend to create an Independent CONSULTANT-Employer Relationship and that the CONSULTANT will have the ability to control and direct the performance and details of its work, with Renton being interested only in the results obtained under the Agreement. As a result, CONSULTANT and its subcontractors, employees, agents and volunteers are not Renton employees and shall not be entitled to any employee benefits or protections. 10. Record Keeping and Reporting. The CONSULTANT and each sub-consultant, if any, shall submit upon Renton's demand to Renton such schedules of quantities and costs, progress schedules, payrolls, reports, estimates, records and miscellaneous data pertaining to the Agreement. 2 11. Indemnity. CONSULTANT agrees and covenants to hold and save Renton, its elected officials, officers, agents, representatives, employees and volunteers harmless and to promptly indemnify same from and against any and all claims, actions, damages, liability of every type and nature including all costs and legal expenses incurred by reason of any work arising under or in connection with this Agreement or work related to the Agreement, including loss of life, personal injury and/or damage to property arising from or out of any occurrence, omission or activity upon, on or about the premises worked upon or in any way relating to this Agreement. This hold harmless and indemnification provision shall likewise apply for or on account of any patented or unpatented invention, process, article or appliance manufactured for use in the performance of the Agreement, including its use by Renton, unless otherwise specifically provided for in this Agreement. The CONSULTANT agrees to name Renton as an Additional Insured on a noncontributory primary basis. In the event Renton shall, without fault on its part, be made a party to any litigation commenced by or against CONSULTANT, then CONSULTANT shall proceed and hold Renton harmless and he shall pay all costs, expenses and reasonable attorney's fees incurred or paid by Renton in connection with such litigation. Furthermore, CONSULTANT agrees to pay all costs, expenses and reasonable attorneys' fees that Renton may incur or pay in the enforcement of any of the covenants, provisions and agreements. Nothing in this Agreement shall require the CONSULTANT to indemnify Renton against and hold harmless Renton, from claims, demands or suits based solely upon the conduct of Renton, its elected officials, officers, and employees and provided further that if claims or suits are caused by or result from the concurrent negligence of (a) the CONSULTANT's agents or employees and (b) Renton, its elected officials, officers, and employees, and involves those actions covered by RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate or relative to a motor carrier transportation contract), this indemnity provision with respect to claims or suits based upon such concurrent negligence shall be valid and enforceable only to the extent of the CONSULTANT's negligence or the negligence of the CONSULTANT's agents or employees. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate or relative to a motor carrier transportation contract) 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 Renton, its elected officials, officers, employees, agents, representatives and volunteers, the consultant's liability under this Agreement shall be only to the extent of the consultant's negligence. It is further specifically and expressly understood that the indemnification provided herein constitute the consultant's waiver of immunity under RCW 51, the Industrial Insurance Act, solely for the purposes of this 3 indemnification. This waiver has been mutually negotiated by the Parties. The provisions of this section shall survive the expiration or termination of this Agreement. 12. Insurance. a. CONSULTANT'S Insurance. CONSULTANT shall secure and maintain the following insurance policies, and shall not cancel or suspend the insurance policies identified below, except after twenty (20) calendar day's prior written notice by certified-mail to the City of Renton: Commercial General Liability Insurance: Commercial general liability insurance in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate throughout the duration of this Agreement. ii. Professional Liability Insurance: Professional liability insurance, in the minimum amount of $1,000,000 for each occurrence, shall also be secured for any professional services being provided to Renton that are excluded in the commercial general liability insurance. iii. Workers' Compensation: Workers' compensation coverage, as required by the Industrial Insurance laws of the State of Washington. iv. Renton as an Additional-Insured: It is agreed that on CONSULTANT'S commercial general liability policy, the City of Renton will be named as an Additional-Insured on a primary and non-contributory basis. Any coverage maintained by the City of Renton is solely for the coverage and benefit of Renton, and its elected officials, officers, agents, employees, representatives and volunteers. v. Verification of Coverage: Subject to Renton's review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to Renton before executing the work of this Agreement. b. Review of Policy: Upon request, the CONSULTANT shall give Renton a full copy of the insurance policy for its records and for the Renton City Attorney's or Risk Manager's review. The policy limits may be reviewed and the value reassessed annually. c. Termination: Notwithstanding any other provision of this Agreement, the failure of the CONSULTANT to comply with the above provisions of this section shall subject this Agreement to immediate termination without notice to any person in order to protect the public interest. 13. Termination of Agreement. This Agreement may be terminated by either party upon ten (10) calendar days written notice should the other party fail substantially to perform in accordance with this Agreement's 4 terms through no fault of the other party, subject to the non-performing party curing any failure to perform within said ten (10) calendar days. Should failure to perform be cured within ten (10) calendar days,this Agreement shall remain in full force and effect. In the event of termination, the CONSULTANT shall be paid for services performed up to the termination date and accepted as conforming work by Renton, less any costs or expenses incurred by Renton as a result of the CONSULTANT'S breach of the Agreement. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the CONSULTANT shall become Renton's property, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work completed on such documents and other materials, unless such documents or materials failed to conform to the Agreement. 14. Arbitration. Arbitration of all questions of dispute under this Agreement may be at the choice of either party and shall be in accordance with the laws of the State of Washington. The results of arbitration shall be binding on the Parties. Choice of Arbitrator shall be as follows: each party to choose one with the third choice by mutual agreement or, if unable to agree, chosen by a Superior Court Judge. Rules of arbitration: American Arbitration Association. All arbitrators shall be well-versed/trained and experienced in design and construction issues. 15. Assignment. The Parties may not assign any portion of this Agreement without the non-assigning party's written consent, and any assignment in violation of this provision shall be void. If the non-assigning party gives its written consent to any assignment, the terms of this Agreement shall continue in full force and effect and no further assignment shall be made without additional written consent. 16. Assigns and Successors. Renton and the CONSULTANT each binds itself, its partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of the Agreement. 17. Compliance with Laws. CONSULTANT agrees to comply with all federal, state, and municipal laws, rules, regulations, or guidelines that exist or come into existence that are applicable to CONSULTANT's business, equipment, and personnel engaged in operations covered by this Agreement or accruing out of the performance of those operations. 5 18. Conflicts. In the event of any inconsistencies between CONSULTANT proposals and this Agreement,the City of Renton Agreement shall prevail. 19. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. 20. Limitation of Actions. CONSULTANT must, in any event, file any lawsuit arising from or connected with this agreement within 30 calendar days from the date the contract work is complete or CONSULTANT'S ability to file that claim or suit shall be forever barred or waived. This section further limits any applicable statutory limitations period. 21. Mediation. Mediation may precede arbitration by mutual consent of the Parties. 22. Modification. No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by each party's duly authorized representative. 23. Non-Discrimination and Compliance with Applicable Federal,State and Local Laws. Except to the extent permitted by a bona-fide occupational qualification, the CONSULTANT agrees as follows: The CONSULTANT will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps or marital status. The CONSULTANT will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. The CONSULTANT will, in all solicitations for employee's job orders placed with any employment agency or other firm or agency, state that all qualified applicants will receive consideration for employment without regard for race, creed, color national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital 6 status. The words "equal opportunity employer" in advertisements shall constitute compliance with this paragraph. The CONSULTANT will include the provisions of the foregoing paragraphs in every subcontract or purchase order for the goods or services which are subject matter of this contract. In the event of non-compliance by the CONSULTANT with any of the non-discrimination provisions of the contract, the Owner shall have the right, at its option, to cancel the contract in whole or in part, without penalty. If the Agreement is canceled based on non-compliance with this section of the Agreement after partial performance, Renton shall be obligated to pay the fair market value or the contract price, whichever is lower, for good or services which have been received and accepted. The CONSULTANT is solely responsible for knowledge of and compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project,which includes but is not limited to fair labor laws and worker's compensation. Renton requires all businesses and individuals doing business in Renton to have and maintain a valid City of Renton business license. (For Renton licensing information call 425-430-6851). 24. No Waiver. Neither the final certificate of payment nor any provision in the Agreement or partial or entire use of any installation provided for by this Agreement shall relieve the CONSULTANT of liability in respect to any warranties or responsibility for faulty materials or workmanship. The CONSULTANT shall be under the duty to remedy any defects in the work and pay for any damage to other work resulting therefrom which shall appear within the period of one (1) year from the date of final acceptance of the work, unless a longer period is specified. Renton will give notice of observed defects within a reasonably prompt time after discovery, and CONSULTANT shall be obligated to take immediate steps to correct and remedy any such defect,fault or breach at the sole cost and expense of CONSULTANT. The failure of Renton to insist upon strict performance of any of the covenants and agreements contained in this Agreement, or to exercise any option conferred by this Agreement in one or more instances shall not be construed to be a waiver or relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. 25. Public Document/Public Disclosure. This Agreement will be considered a public document and will be available for reasonable inspection and copying by the public during regular business hours. This document may be disclosed pursuant to RCW 42.56 (Public records act). 7 26. Remedies. Any remedies provided for in this Agreement are non-exclusive, and shall be cumulative with all other remedies available to Renton at law, in equity, or by statutes, unless specifically waived in this Agreement or in a subsequent signed document signed by Renton's authorized representative. 27. Singular, Plural and Gender. Whenever required by the context of Agreement, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neutral genders shall each include the other. 28. Sole and Entire Agreement. This Agreement is the entire agreement between the Parties and any representations or understandings, whether oral or written, not incorporated by reference into this Agreement are excluded. 29. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than Renton and CONSULTANT, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Renton and CONSULTANT and no one else. 30. Written Notice: All communications regarding this Agreement shall be sent to the Parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be specified by the recipient Party in writing. 8 • IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date written above. CON5ULTANT,, CITY OF RENTON -) �� ,c�v"�� u (��° Signature nature Paul Sachs, President Gregg Zimmerman, Public Works Administrator Printed Name and Title Printed Name and Title Northwest Management Systems Business Name 3302 North 7`^Street Mailing Address Tacoma, Washington 98406 City State Zip I63'319'8904 Telephone 9 Attachment A Scope of Work Task A. Condition Surveys&PCI Calculations NWMS will perform a pavement condition survey on roughly 915 segments in the City of Renton. These 915 segments were not rated prior to 2008.They consist of new annexation areas and State Routes 515 and 900. Like many Puget Sound Communities, Renton has a pavement network that is subjected to high volumes and heavy loads from the surrounding area.The distresses present are reflective of the traffic levels, as well as the environment and climate.Common distresses include alligator cracking, rutting, distortions, patches and utility cuts as well as weathering and raveling. The distress types to be collected will include: • Alligator Cracking • Longitudinal Cracking • Transverse Cracking • Weather and Raveling • Rutting • Utility Cuts and Patches A walking survey on each of the 915 segments'will be performed. 100%of the street will be rated.Any areas that are not typical of the entire section will be inspected and recorded as a special sample unit. In total roughly 915 pavement sections will be inspected. Typically,a one-person crew will perform the condition surveys. On four or five lane streets a two person team may be used.The distress data will be recorded in the field using a PDA. NWMS will be responsible for providing all equipment necessary for performance of this task. All information collected from the condition surveys will then be entered into the MTC pavement management system database.This task shall be performed at NWMS' office in order to provide quality control of all data entered into the system. NWMS recommends this procedure over data entry in the field to avoid errors and to provide backup forms of all information recorded in the field. NWMS will then perform the pavement condition index(PCI)calculations using the MTC pavement management system software, and correct any errors found.The PCI may then be used in the pavement performance models and in the budgetary analyses. Time Schedule of Completion The work for this task will be completed by August 31, 2015. Cost Estimate The cost estimate to perform this work is$15,150. This cost estimate uses the hourly rates that were used to develop the original 2013 estimate. 10 r