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PROFESSIONAL SERVICES
AGREEMENT
Testcomm LLC
THIS AGREEMENT is entered by and between the City af Pasco and Testcomm LLC
referred to as Contractor for the purpose of contracting for professional services in the capacity
to provide commissioning and air bai7•ier testing services for the Tri City Animal Shelter.
RECITALS
WHEREAS, the City desires to have certain services and/or tasks perfojmed 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 eYpertise,
when required,to perform the services and/or tasks as set forth in this Agreement upon which tl�e
City is relying.
NOW, THEREFORE, in consideration of the mutual covenants, and performances
contained herein, the parties agree as follows:
1. Sco e of Services. Tlie Contractor shall perfoim such services and accomplish such tasks,
including the furnishing of all labor, materials, facilities and equipment necessary foi• fiill
perfoi�r►ance thereof, as identified and designated as Contractor Responsibilities
tlu•oughout this Agreement, and as more particularly described in Scope of Work detailed
in [Exhibit A], attached hereto and incoiporated herein(the"Project").
2. Term. This Project shall begin on the execution date listed above and promptly be
coinpleted by 12/31/2023.
3. Com ensation and Pa ment.
3.1 Payment for services provided hereunder shall be made following the performance
of such services. Such payment shalI be full compensation for work perfoimed or
seivices rendered, and for all labor,materials,supplies, ec�uipment,and incidentals
necessaiy 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
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payment is issued. Payment shall occur within thi�•ty (30) days of receipt and
approval of an invoice.
3.4 The City shall pay the Contractor for all work perfoimed and expenses incui�•ed
under this Agreement, as follows.
❑ Fixed Sum: A totai of$13.300
4. Renorts and Insnections.
4.1 The Contractor at such times and in such foitins as the City �nay require, shall
fuinish 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 tiine during nor�nal business hotu•s and as often as #he
City or the Washington State Auditor may reasonably deem necessaiy, inake
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 vy the agency or fiim as to the Contractor activities. The City may,at
its discretion, conduct an audit at its expense, using its own o�•outside auditors, of
the Contractor activities which relate, directly or indirectly, to this Agreement.
Contractor shall be provided a copy of such repoirts.
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 ��alidity. Upon
request,the Contractor shall deliver to the City copies of these licenses,z•egistration
documents,and permits o�•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
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perfoi�nance 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 thr•ee(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. Ownersb�in and Use of Documents.
5.1 All research,tests,suiveys,preliminaiy data,infoi�nation,drawings and documents
made, collected, or prepared by the Contractor for perfoi�ning the services subject
to this Agreement, as well as any final product, collectively referred to as "work
product,"shall be deen�ed as the exclusive propet�ty of the City, including copyright
as secured thereon. Contractor may not use them except in conneetion with the
perfonnance of the seivices under this Agreement or with the prioz•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 tlus Agreement. Any work product used by
the Contractor in the perfoimance of these seivices which it deeins as
"confidential,""prapri�taiy,"or a"trade secret"shall be conspicuously designated
as such.
5.2 In the event of Contractor default, or if this Agreement is terminated prior to its
completion, the work product of the Contractor, along with a summaiy of the
se��vices perfornled to date of default or teimination, shall become the pr�perty of
the City,and tender of the work product and summaiy 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 tluough default by
the Contractor. If the Agreeinent is tei-�izinated through convenience by tl�e City,
the City agrees to pay Contractor for the preparation of the summaiy of services
provided.
6. Public Recoi•ds.
6.1 Cont�•actor acicnowledges that the City is an agency subject to Chapter
42.56 RCW "Public Records Act." All preliminaiy drafts or notes prepared or
gathered by the Contractoi•, 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.
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6.2 If the Contracto�•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 fi>>e (5) business days by either providing the
records, or by identifying in writing the additional time necessaiy to provide the
records with a description of the reasons why additional time is needed. Such
additional time shall not exceed h>>er�t�� (20) business days unless extraordinaiy
good cause is shown.
63 In the event the City receives a public records request for protected work product
� of the Contractor within i#s possession, the City shall, prio�� to the release of any
protected work product or as a result of a public records request or subpoena,
provide Contt•actor at least tei�(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. Indenendent Contractor Reiationshin.
7.1 The pai�ties intend tl�at an independent contt�actor relationship is created by this
Agreement. The City is interested primarily ii� the results to be achieved; subject
to the scope of seivices and the specific requirements of this Agreement, the
implementatioil 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 puipose, and the
employees of the Contractor are iiot 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 sei�vices provided in this Agreement, Contractor is an
independent coiitractor with full authority to control and direct the perfoi7nance of
the details of tlle work,however,the results of the wark contemplated herein must
meet the approval of the City and shall be subject to flle City's general rights of
inspection and i•eview to secure the satisfactory comple#ion the�eof.
7.3 The Contractor shall comply with all State and Federal laws including, but not
limited to:
7.3.1 The definition requiren�ents of RCW 50.04.140 (Employment Security).
7.3.2 RCW 51.08.195 (Industrial I�isurance).
7.33 Obtain a City of Pasco busii�ess license.
i
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7.4 The City may,at its sole discretion,require the Conti•actor to remove any employee,
agent or seivant fi•om 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
tiine 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 fi•om the
acts,ei-��ors 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 injuiy 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 liability, including the duty and cost to
defend, hereunder shall be only to the extent of the Contractor negligence. It is
further specifically and expressly understood that the indemnification provided
herein constitutes the Contractor 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 tertnination of this Agreement.
$.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 attoiney fees caused by
Contractor 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 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 insu�•ance, or otherwise limit the City's
recourse to any remedy available at law or in equity.
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9.1 Minimum Sco�e of Insurance. Contractor shall obtain insurance of the types and
coverage described below:
9.1.1 Automobile Liability insui•ance covering all owned, non-owned, hired and
leased vehicles. Coverage shall be at least as broad as Insurance Services
Office (ISO)form CA 00 O1.
9.1.2 Commex•cial General Liability inst�rance shall be at least as broad as ISO
occui7•ence form CG 00 O1 and shall cover liability arising from pren�ises,
operations, stop-gap independent contractors and personal injuiy and
advertising injury. The City shall be named as an additional insured under
the Contractor 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.
9.13 Workers' Compensation coverage as reqiiired by the Industrial Insurance
laws of the State of Wasl�ingTon.
9.1.4 Professional Liability insurance appi•opriate to the Contractor profession.
9.2 Minimum Amounts of Insurance. Contractor shall maintain the followii�g
insurance limits:
9.2.1 Autoinobile Liability insurance with a ininin-►um combined single limit for
bodily injuiy and property damage of$1,000,000 per accident.
9.2.2 Commercial General Liability insurance shall be written with limits no less
than:
� $2,000,000 each accurrenee; and
� $2,000,000 general aggregate;
9.2.3 Professional Liability insurance shall be writtei�witli limits no less than:
� $2,000,000 per claim; and
� $2,000,000 poiicy aggregate limit;
9.3 Other Insurance Provision. The Conh•actor's Automobile Liability and Commercial
General Liability insurance policies are to contain, oi•be endorsed to contain that
they shall be primaty insurance as respect the City. Any insurance, self-insurance,
or self-insured pool coverage maintained by the City shall be excess of the
Contractor insurance and shall i�ot contribute with it.
9.3.1 The Contracto�•insui•ance shall be endorsed to state that coverage shall not
be cancelled by either pa�•ty,except after lhirty(30)days
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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 cuirent
A.M. Best rating of not less than A: VII.
9.5 Verification of Covera�e. Contractor shall fui�nish the City with original cei�tificates
and a copy of the amendatoiy endorsements, including, but not necessarily limited
to,the additioilal insured endorsement,eviderlcing 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 h��o (2) business days of their receipt of such
notice.
9.7 City Full Availability of Consultant Limits. If the Contractor maintains higher
insurance litnits than the minimums shown above, the City shall be insured for the
full available limits of Commercial General and £xcess or Umbrella liability
maintained by the Contractor,in�espective of whe#her such limits maintained by the
' Contractor are greater than those required by this Agreeinent or whether any
ce�•tificate 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 pai�t of the Contractor to rnaintain the
instirance as required shall constitute a material breach of contract,upon which the
City may, after giving fi>>e (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 t•epaid to the City on demand, �or at the sole discretion of
the City, offset against funds due the Contractor fi•om the City.
10. Nondiscrimination. In the perfoimance of this Agreement, the Contractor will not
discriminate against any employee or applicant for employ�nent 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 pai�ticular 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,
inarital status,age or the presence of any sensory, mental or physical handicap. Consultant
shall take such action with respect to this Agreement as inay be required to ensure full
compliance with local, State and Federal laws prohibiting discrimination in employment.
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1 i. Covenant Against Contin�ent Fees. The Contractor wairants that it has not employed nor
i•etained any company, firm, oi• person, other than a bona fide employee working
eYclusively for the Contractor,to solicit or sectire this Agreement; and that it has not paid
or agreed to pay any company, person or fii-m, 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 fi•om the award or making of this
Agreement. For breach or violation of this wairanty, tlle City shall have the right to
teirninate this Agreement.
i2. Assi�nment and Subcontractin�,
12.1 The City has awarded tliis Agreement to the Contractot• due to its utlique
qualifications to perform these services. The Contractor shall not assign (or
subcontract other than as specifically identified in Exhibit A)its perfoi�nance under
this Agreement or any portions of this Agreeinent without the prior written consent
of the Ci#y, wliich consent must be sought at least lhi�7y(30) days prior to the date
of any proposed assigiunent.
12.2 Any work or seivices assigned or subcontracted hereimder shall be subject to each
pj�ovision of this Agi•eeillent including Section 6, Public Records; Section 10,
Nondiscrimination;proper bidding proceduz•es where applicable;and all local,State
and Fede��al statutes, ordinances,and guidelines.
12.3 A;Zy technical or professional service subcontract not listed in this Agreenient,must
have prior written approval by the City.
13. Termination.
13.1 Termination for Convenience. Either party may tei-�ninate this Agr•eement for any
reason upon giving the other party no less than te��(10)btisiness days written notice
in advaiace of the effective date of such terinination.
13.2 Terinination for Cause. If the Contractor fails to perform in the maruier called for
in this Agreement,or if the Conh•actoi•fails to comply wi#h any other provisians of
this Agreement and fails to coi7•ect such noncompliance within fii�e (5) business
days of written notice thereof, the City may terminate this Agreement for cause.
Termination shall be affected by servii�g a notice of termination on the Contractor
setting foi�th 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,
incui7ed prior to ternunation.
14. General Provisions.
14.1 For the purpose of this Agreement,time is of the essence.
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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: N. Zach Ratkai, or his designee
525 N. 3rd Ave
Pasco, WA 99301
ratkaiz@pasco-wa.gov
14.3.2 For the Contractor: Jert•y Ensminger, or his/her designee
2211 E. Sprague Avenue
Spokane, WA 99202
15. Dis�te Resolution.
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 Praject Administrato�•s, or their designees,
shall first meet in a goocl faith effort to resolve such dispute. In the event the dispute
cannot be resolved by agreement of the pai�ties, said dispute shall be resolved by
arbiti•ation pursuant to RC W 7.04A,as amended,with both parties waiving the right
of a juiy 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. Inte�ration. This Agreement between the parties consists in its entirety of this document
and any e�ibits,schedules or attachments. Any modification of this Agreement or change I
o�•der affecting this Agreeinent shall be in v�n•iting and signed by both parties. '
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18. Authorization. By signature below, each party warz•ants that they are authorized and
empowered to execute this Agreement binding the City and the Cont�•actoj•respectively.
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed on the
date fi�•st written above.
�
CITY OF PASCO,WASH TON CONSULTANT �� �
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;
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', ACS Director erald Ensminger,Test �r� LLC
�TGSSC.- ���.P ��'Y�rt W
ATT�ST:
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� Q �G. ,ri,e�� ---
Debra C. Barham, Ci#y Clerk
APPROVED AS TO F4RM:
ICerr Ferguso aw, LLC, City Attoiney
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