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HomeMy WebLinkAboutWatkins Endeavor, LLC - Personal Services Agreement for Public Facility ManagementPERSONAL SERVICES AGREEMENT Public Facility Project Management Watkins Endeavor, LLC THIS AGREEMENT is entered by and between the City of Pasco and Watkins Endeavor, LLC referred to as Contractor for the purpose of contracting for personal services in the capacity as professional project management services for the City of Pasco Administrative and Community Services Department. RECITALS WHEREAS, the City desires to have certain services and/or tasks performed as set forth below requiring specialized skills, training, equipment, and other supportive capabilities; and WHEREAS, the Contractor represents that it is qualified and possesses sufficient skills, experience, equipment, and necessary capabilities, including: technical and professional expertise, when required, to perform the services and/or tasks as set forth in this Agreement upon which the City is relying. NOW, THEREFORE, in consideration of the mutual covenants, and performances contained herein, the parties agree as follows: 1. Scope of Services. The Contractor shall perform such services and accomplish such tasks, including the furnishing of all labor, materials, facilities and equipment necessary for full performance thereof, as identified and designated as Contractor's Responsibilities throughout this Agreement, and as more particularly described in Scope of Work detailed in Exhibit A, attached hereto and incorporated herein (the "Project"). 2. Term. This Project shall begin on the execution date listed above and continue on a month - by -month basis until termination. 3. Compensation and Payment. 3.1 Payment for services provided hereunder shall be made following the performance of such services. Such payment shall be full compensation for work performed or services rendered, and for all labor, materials, supplies, equipment, and incidentals necessary to complete the Project. 3.2 No payment shall be made for any services rendered by the Contractor except for services identified and set forth in this Agreement except as may be authorized by a written supplemental agreement approved by the City. 3.3 The City shall pay the Contractor for work performed under this Agreement upon timely submitted invoices detailing work performed and expenses for which reimbursement is sought. The City shall approve all invoices before Personal Services Agreement — Watkins Endeavors, LLC Public Facilities Project Management Page 1 of 10 payment is issued. Payment shall occur within thirty (30) days of receipt and approval of an invoice. 3.4 The City shall pay the Contractor for all work performed and expenses incurred under this Agreement, as follows. ❑ Monthly (Single Rate): $10,000 per month plus actual expenses incurred as provided under this Agreement, but not to exceed a total of $100,000 without prior written authorization by the City; or 4. Reports and Inspections. 4.1 The Contractor at such times and in such forms as the City may require, shall furnish to the City such statements, records, studies, surveys, reports, data, and information as the City may request pertaining to matters covered by this Agreement. 4.2 The Contractor shall, at any time during normal business hours and as often as the City or the Washington State Auditor may reasonably deem necessary, make available for examination all of its records and data with respect to all matters covered, directly or indirectly, by this Agreement and shall permit the City, or its designated authorized representative to audit and inspect other data relating to all matters covered by this Agreement. The City shall receive a copy of all audit reports made by the agency or firm as to the Contractor's activities. The City may, at its discretion, conduct an audit at its expense, using its own or outside auditors, of the Contractor's activities which relate, directly or indirectly, to this Agreement. Contractor shall be provided a copy of such reports. 4.3 The Contractor, during the term of this Agreement, shall obtain all permits and registration documents necessary for the performance of its work and for the execution of services at its own expense, and shall maintain its validity. Upon request, the Contractor shall deliver to the City copies of these licenses, registration documents, and permits or proof of their issuance or renewal. 4.4 Contractor shall maintain books, records and documents, which sufficiently and properly reflect all direct and indirect costs related to the Personal Services Agreement — Wa&ins Endeavors, LLC Public Facilities Project Management Page 2 of 10 performance of this Agreement, and shall maintain such accounting procedures and practices as may be necessary to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review, or audit as provided above. 4.5 The Contractor shall retain all books, records, documents or other material relevant to this Agreement for three (3) years after its expiration. Contractor agrees that the City, or its designee, shall have full access and right to examine any of said materials at all reasonable times during this period. 5. Ownership and Use of Documents. 5.1 All research, tests, surveys, preliminary data, information, drawings and documents made, collected, or prepared by the Contractor for performing the services subject to this Agreement, as well as any final product, collectively referred to as "work product," shall be deemed as the exclusive property of the City, including copyright as secured thereon. Contractor may not use them except in connection with the performance of the services under this Agreement or with the prior written consent of the City. Any prior copyrighted materials owned by the Contractor and utilized in the performance of the services under this Agreement, or embedded in with the materials, products and services provided thereunder, shall remain the property of the Contractor subject to a license granted to the City for their continued use of the products and services provided under this Agreement. Any work product used by the Contractor in the performance of these services which it deems as "confidential," "proprietary," or a "trade secret" shall be conspicuously designated as such. 5.2 In the event of Contractor's default, or if this Agreement is terminated prior to its completion, the work product of the Contractor, along with a summary of the services performed to date of default or termination, shall become the property of the City, and tender of the work product and summary shall be a prerequisite to final payment under this Agreement. The summary of services provided shall be prepared at no additional cost, if the Agreement is terminated through default by the Contractor. If the Agreement is terminated through convenience by the City, the City agrees to pay Contractor for the preparation of the summary of services provided. 6. Public Records. 6.1 Contractor acknowledges that the City is an agency subject to Chapter 42.56 RCW "Public Records Act." All preliminary drafts or notes prepared or gathered by the Contractor, and recommendations of the Contractor are exempt prior to the acceptance by the City or public citation by the City in connection with City action. Personal Services Agreement — Watkins Endeavors, LLC Public Facilities Project Management Page 3 of 10 6.2 If the Contractor becomes a custodian of public records of the City and request for such records is received by the City, the Contractor shall respond to the request by the City for such records within five (5) business days by either providing the records, or by identifying in writing the additional time necessary to provide the records with a description of the reasons why additional time is needed. Such additional time shall not exceed twenty (20) business days unless extraordinary good cause is shown. 6.3 In the event the City receives a public records request for protected work product of the Contractor within its possession, the City shall, prior to the release of any protected work product or as a result of a public records request or subpoena, provide Contractor at least ten (10) business days prior written notice of the pending release and to reasonably cooperate with any legal action which may be initiated by the Contractor to enjoin or otherwise prevent such release. 7. Independent Contractor Relationship. 7.1 The parties intend that an independent contractor relationship is created by this Agreement. The City is interested primarily in the results to be achieved; subject to the scope of services and the specific requirements of this Agreement, the implementation of services will lie solely with the discretion of the Contractor. No agent, employee, officer or representative of the Contractor shall be deemed to be an employee, agent, officer, or representative of the City for any purpose, and the employees of the Contractor are not entitled to any of the benefits or privileges the City provides for its employees. The Contractor will be solely and entirely responsible for its acts and for the acts of its agents, employees, officers, subcontractors or representatives during the performance of this Agreement. 7.2 In the performance of the services provided in this Agreement, Contractor is an independent contractor with full authority to control and direct the performance of the details of the work, however, the results of the work contemplated herein must meet the approval of the City and shall be subject to the City's general rights of inspection and review to secure the satisfactory completion thereof. 7.3 The Contractor shall comply with all State and Federal laws including, but not limited to: 7.3.1 The definition requirements of RCW 50.04.140 (Employment Security). 7.3.2 RCW 51.08.195 (Industrial Insurance). 7.3.3 Obtain a City of Pasco business license. Personal Services Agreement — Watkins Endeavors, LLC Public Facilities Project Management Page 4 of 10 7.4 The City may, at its sole discretion, require the Contractor to remove any employee, agent or servant from employment on this Project who, in the City's sole discretion, may be detrimental to the City's interest. 7.5 Contractor as an independent contractor and not an employee shall not be entitled to any employee benefits including but not limited to vacation time, sick leave, paid time off, or paid holidays. 8. Indemnification. 8.1 The Contractor shall defend, indemnify, and hold harmless 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 resulting from the acts, errors or omissions of the Contractor in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. 8.2 However, 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 the Contractor, and the City, its officers, officials, employees, and volunteers, the Contractor's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Contractor's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 8.3 No liability shall attach to the City by reason of entering into this Agreement except as expressly provided herein. 8.4 This indemnification shall include damages, penalties and attorney fees caused by Contractor's delayed or failed performance of Section 6 above. 9. Insurance. The Contractor shall procure and maintain for the duration of the 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 Contractor, its agents, representatives, employees, or subcontractors. The Contractor's maintenance of insurance as required by the Agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. Personal Services Agreement — Watkins Endeavors, LLC Public Facilities Project Management Page 5 of 10 9.1 Minimum Scope of Insurance. Contractor shall obtain insurance of the types and coverage described below: 9.1.1 Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01. 9.1.2 Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop -gap independent contractors and personal injury and advertising injury. The City shall be named as an additional insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the City using an additional insured endorsement at least as broad as ISO endorsement form CG 20 26. 9.1.3 Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 9.2 Minimum Amounts of Insurance. Contractor shall maintain the following insurance limits: 9.2.1 Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 9.2.2 Commercial General Liability insurance shall be written with limits no less than: ® $1,000,000 each occurrence; and ® $2,000,000 general aggregate; 9.3 Other Insurance Provision. The Contractor's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance as respect the City. Any insurance, self-insurance, or self -insured pool coverage maintained by the City shall be excess of the Contractor' S insurance and shall not contribute with it. 9.3.1 The Contractor'S insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days Personal Services Agreement — Waddris Endeavors, LLC Public Facilities Project Management Page 6 of 10 prior written notice by certified mail, return receipt requested, has been given to the City. 9.4 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. 9.5 Verification of Coverage. Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including, but not necessarily limited to, the additional insured endorsement, evidencing the insurance requirements of the Agreement before commencement of the work. 9.6 Notice of Cancellation. The Contractor shall provide the City with written notice of any policy cancellation within two (2) business days of their receipt of such notice. 9.7 City Full Availability of Consultant Limits. If the Contractor maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by the Contractor, irrespective of whether such limits maintained by the Contractor are greater than those required by this Agreement or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by the Contractor. 9.8 Failure to Maintain Insurance. Failure on the part of the Contractor to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five (5) business days notice to the Contractor to correct the breach, immediately terminate the Agreement 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 Contractor from the City. 10. Nondiscrimination. In the performance of this Agreement, the Contractor will not discriminate against any employee or applicant for employment on the grounds of race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap; provided that the prohibition against discrimination in employment because of handicap shall not apply if the particular disability prevents the proper performance of the particular worker involved. The Contractor shall ensure that applicants are employed, and that employees are treated during employment in the performance of this Agreement without discrimination because of their race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap. Consultant shall take such action with respect to this Agreement as may be required to ensure full compliance with local, State and Federal laws prohibiting discrimination in employment. Personal Services Agreement — Watldns Endeavors, LLC Public Facilities Project Management Page 7 of 10 11. Covenant Against Contingent Fees. The Contractor warrants that it has not employed nor retained any company, firm, or person, other than a bona fide employee working exclusively for the Contractor, to solicit or secure this Agreement; and that it has not paid or agreed to pay any company, person or firm, other than a bona fide employee working exclusively for the Contractor, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the City shall have the right to terminate this Agreement. 12. Assignment and Subcontracting. 12.1 The City has awarded this Agreement to the Contractor due to its unique qualifications to perform these services. The Contractor shall not assign (or subcontract other than as specifically identified in Exhibit A) its performance under this Agreement or any portions of this Agreement without the prior written consent of the City, which consent must be sought at least thirty (30) days prior to the date of any proposed assignment. 12.2 Any work or services assigned or subcontracted hereunder shall be subject to each provision of this Agreement including Section 6, Public Records; Section 10, Nondiscrimination; proper bidding procedures where applicable; and all local, State and Federal statutes, ordinances, and guidelines. 12.3 Any technical or professional service subcontract not listed in this Agreement, must have prior written approval by the City. 13. Termination. 13.1 Termination for Convenience. Either party may terminate this Agreement for any reason upon giving the other party no less than ten (10) business days written notice in advance of the effective date of such termination. 13.2 Termination for Cause. If the Contractor fails to perform in the manner called for in this Agreement, or if the Contractor fails to comply with any other provisions of this Agreement and fails to correct such noncompliance within five (5) business days of written notice thereof, the City may terminate this Agreement for cause. Termination shall be affected by serving a notice of termination on the Contractor setting forth the manner in which the Contractor is in default. The Contractor will only be paid for services and expenses complying with the terms of this Agreement, incurred prior to termination. 14. General Provisions. 14.1 For the purpose of this Agreement, time is of the essence. Personal Services Agreement — Watldns Endeavors, LLC Public Facilities Project Management Page 8 of 10 14.2 Notice. Notice provided for in this Agreement shall be sent by: 14.2.1 Personal service upon the Project Administrators; or 14.2.2 Certified mail to the physical address of the parties, or by electronic transmission to the e-mail addresses designated for the parties below. 14.3 The Project Administrator for the purpose of this Agreement shall be: 14.3.1 For the City: 14.3.2 For the Contractor: 15. Dispute Resolution. N. Zach Ratkai, or his designee Administrative & Community Services Director 525 North Yd Avenue, PO Box 293 Pasco, WA 99301 Matthew Watkins, Owner Watkins Endeavor, LLC 8616 Massey Dr, Pasco, WA 99301 15.1 This Agreement has been and shall be construed as having been made and entered into and delivered within the State of Washington and it is agreed by each party hereto that this Agreement shall be governed by the laws of the State of Washington. 15.2 In the event of a dispute regarding the enforcement, breach, default, or interpretation of this Agreement, the Project Administrators, or their designees, shall first meet in a good faith effort to resolve such dispute. In the event the dispute cannot be resolved by agreement of the parties, said dispute shall be resolved by arbitration pursuant to RCW 7.04A, as amended, with both parties waiving the right of a jury trial upon trial de novo, with venue placed in Pasco, Franklin County, Washington. The substantially prevailing party shall be entitled to its reasonable attorney fees and costs as additional award and judgment against the other. 16. Nonwaiver. Waiver by the City of any provision of this Agreement or any time limitation provided for in this Agreement shall not constitute a waiver of any other similar event or other provision of this Agreement. 17. Inteiration. This Agreement between the parties consists in its entirety of this document and any exhibits, schedules or attachments. Any modification of this Agreement or change order affecting this Agreement shall be in writing and signed by both parties. Personal Services Agreement — Watkins Endeavors, LLC Public Facilities Project Management Page 9 of 10 18. Authorization. By signature below, each party warrants that they are authorized and empowered to execute this Agreement binding the City and the Contractor respectively. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above. CITY OF PASCO, WASHINGTON D"Zabell.- Ci y Mftffage ATTEST: Debra C. Barham, City Clerk APPROVED AS TO FORM: Law, PLLC, City Attorney Personal Services Agreement — Watkins Endeavors, LLC Public Facilities Project Management CONSULTANT Matt Watkins, Consultant. Page 10 of 10 Exhibit A Scope of Work Scope of Work as established by the Pasco Public Facility District Board of Directors PFD Board Interaction 1. Answer to PFD Board of Directors 2. Monthly activities/status reporting to PFD Board 3. On behalf of PFD Board — Interact with Pasco City Departments: Manager, Finance, Parks & Recreation, Engineering, etc. 4. Accurately communicate PFD Board actions & intentions to media and the City of Pasco Design 5. PFD Board oversight and final authority 6. Requests for design consultant 7. Present design consultant bids to PFD Board 8. Inform design consultant(s) of accepted bid 9. Communicate capital costs and operations budget considerations to design consultant 10. Initiate initial design/mock-up work with consultant 11. Receive Community input 12. Similar facilities visit(s) 13. Reconcile initial design mock-up, community input and similar visits to final design Construction 14. Report to PFD construction committee 15. Design firm contract and contact bid requests 16. Obtain bids 17. Evaluate bid 18. Present bids to PFD board for final approval 19. Inform construction contractor of accepted bid 20. Work with construction contractor to understand/present phase plan to PFD Board 21. Review contractor draw requests 22. Oversee construction activities 23. Punch list completion to satisfaction of PFD Board 24. Opening day/dedication organizing 25. Hand-off to operations committee Finance & Management 26. Maintain accounting system to provide financial reporting to PFD Board and WA State Auditor's Office 27. Prepare budget Personal Service Agreement — Watkins Endeavors, LLC Public Facilities Project Management E-1 28. Income management 29. Vendor bill paying 30. Personnel Management 31. Quarterly financial reporting to board, including profit & loss actual/comparisons. Explain actual/budget variances. 32. Cooperatively work with State Auditor's Office. Personal Service Agreement — Watkins Endeavors, LLC Public Facilities Project Management E-2