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HomeMy WebLinkAbout2020-109 Agrmt- KLD Engineering, P.C. PERSONAL SERVICES AGREEMENT (GREATER THAN $25,000.00) CONSULTANT: KLD Engineering,P.C. CITY OF CONTACT: Kevin Weinisch,PE ASHLAND Fire Department ADDRESS: 1601 Veterans Memorial Highway 455 Siskiyou Blvd. Suite 340 Ashland,Oregon 97520 Islandia,NY 11749 Telephone: 541/482-2770 • Fax: 541/488-5318 TELEPHONE: 631-524-5940 EMAIL: k •• •- @kldcompanies.com ;I;sch This Personal Services Agreement(hereinafter"Agreement") is entered into by andtwP.Cthea City of Ashland, an Oregon municipal corporation (hereinafter "City") and.KLD Engineering, foreign professional corporation-("hereinafter "Consultant"), for an Evacuation Time Estimate Study for the City of Ashland. tII NOW THEREFORE,in consideration of the mutual covenants contained herein,the City and Consultant hereby agree as follows:. 1. Effective Date and Duration: This Agreement shall become effective on the date of execution on behalf of the City,as set forth below(the"Effective Date"),and unless sooner terminated as • specifically provided herein,shall terminate upon the City's affirmative acceptance of Consultant's Work as complete and Consultant's acceptance of the City's final payment therefore, but not later than August 28,2020. 2. Scope of Work: Consultant will do an Evacuation Time Estimate Study4o 2�OCi,whihis of Ashland as more fully set forth in the Consultant's proposal dated January attached hereto'as"Exhibit A"and incorporated herein by this reference. Consultant's services • are collectively referred to in this Agreement as the"Work." 3. Supporting Documents/Conflicting Provisions: This.Agreement and any exhibits orot yr s supporting documents'shall be construed to be mutually complementary and pp wherever possible. In the event of a conflict which cannot be so resolved,the pro ionof this Agreement itself shall control over any.conflicting provisions in any of the exhibitssupporting documents. 4. All Costs Borne by Consultant: Consultant shall,at its own risk,perform ui merk described above and,unless otherwise specified in this Agreement,furnish all labor, equipment, materials required for the proper performance of such Work. Page 1 of 7: Personal Services Agreement with l Engineering,P.C. 5. Qualified Work: Consultant has represented,and by entering into this Agreement now represents,that all personnel assigned to the Work to be performed under this Agreement are fully qualified to perform the service to which they will be assigned in a skilled and worker-like manner and, if required toberegistered, licensed or bonded by the State of Oregon, are so registered, licensed and bonded. 6. Compensation: City shall pay Consultant the sum of$39,690.00 (thirty-nine thousand six hundred and ninety dollars)as full compensation for Consultant's performance of all Work under this Agreement. In no event shall Consultant's total of all compensation and reimbursement under this Agreement exceed the sum of$39,690.00 (thirty-nine thousand six hundred and ninety dollars)without the express,written approval from the City official whose signature appears • below,or such official's successor in office. Payments shall be made within thirty (30)days of the date of receipt by the City of Consultant's invoice. Should this Agreement be terminated prior to completion of all Work, payments will be made for any phase of the.Work completed and accepted as of the date of termination. 7. Ownership of Work/Documents: All Work,work product, or other documents deproproduced in furtherance of this Agreement belong to the City,and any copyright,patent, • ti proprietary or any other protected intellectual property right shall vest in and is hereby assigned • to the City. q 8. Statutory Requirements: The following laws of the State of Oregon are hereby.incorporated by reference into this Agreement: ORS 279B.220,279B.230 and 279B.235. 9. Living Wage Requirements: If the amount of this Agreement is$21,507.75 or more,paying g Consultant is required to comply with Chapter 3.12 of the Ashland Municipal Code bya a living wage,as defined in that chapter,to all employees performing Work under this Agreement and to any Subcontractor who performs 50%or more of the Work under this Agreement. Consultant is also required to post the notice attached hereto as"Exhibit B"predominantly in areas where it will be seen by all employees. 10. Indemnification: Consultant hereby agrees to defend, indemnify,save, at actions, i and hold City, its officers,employees,and agents harmless from any and all losses,claims, expenses,judgments,or other damages resulting from injury to any person(including injury resulting in death),or damage(including loss or destruction)to property,of whatsoever nature. arising out of or incident to the performance of this Agreement by C esus ant(including c udingbuWotk not limited to,Consultant's employees,agents,and others designated by toperform or services attendant to this Agreement). However,Consultant shall not be held spneased for any losses,expenses,claims, subrogatiions,actions,costs,judgments, or otherdamages, solely by the negligence of City. 11. Termination: a. Mutual Consent. This Agreement may be terminated at any time by the mutual consent of both parties. b. City's Convenience. This Agreement may be terminated by City at any time upon not '.I 6 • Page 2 of 7: Personal Services Agreement with 1 L Engineering,P.C. less than thirty (30)days' prior written notice delivered by certified mail or in person. c. For Cause., City may terminate or modify this Agreement, in whole or in part,effective upon delivery of written notice to Consultant,or at such later date as may be established by City under any of the following conditions: i. If City funding from federal, state,county or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services; ii. If federal or state regulations or guidelines or modified,pp opriate for purchanged,or chase undere in such a way that the services are nolonger allowable this Agreement or are no longer eligible for the funding proposed for payments authorized by this Agreement;or iii. If any license or certificate required by law or regulation to be held by Consultant to provide the services required by this Agreement is for any reason denied,revoked, suspended,or not renewed. d. For Default or Breach. i. Either City or Consultant may terminate,this Agreement in the event of a breach of the Agreement by the other. Prior to such termination the party seeking termination shall give to the other party written notice of the breach and its itentri aterminate. fifteen If the party committing the breach has not entirely cured the breachgiving en days of the date of the notice,or within such other period as the partyg g the notice May authorize in writing,then the Agreement may be terminated at any time . thereafter by a written notice of termination by the party giving notice. • ii. Time is of the essence for Consultant's performance of each and every obligation and duty under this Agreement: City,by written notice to Consultant of default or breach, may at any time terminate the whOle or any part of this Agreement if Consultant fails to provide the Work called for by this Agreement within the time specified herein or within any extension thereof. iii. The rights and remedies of City provided in this subsection(d)are not exclusive and are in addition to'any other rights and remedies provided by law or under this Agreement. e. Obligation/Liability of Parties. Termination or modification of this Agreement pursuant to subsections a,b,or c above shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination or modification. However,upon receiving a notice of termination(regardless whether such notice is given pursuant to Subsection a,b,c,or d of this section, Consultant shall immediately cease all activities under this Agreement,unless expressly directed otherwise by City in the notice of termination.Further,upon termination,Consultant shall deliver to City.all documents, information,works-in-progress and other property that are or would be deliverables had the Agreement been completed. City shall pay Consultant for Work performed prior to the termination date if such Work was performed in accordance with this Agreement. KLA Page 3 of 7: Personal Services Agreement with Engineering,P.C. • 12. Independent Contractor Status: Consultant is an independent contractor and not an employee of the City for any purpose. Consultant shall have the complete responsibility for the performance of this Agreement. Consultant shall provide workers'compensation coverage as required in ORS Chapter 656 for all persons employed to perform Work pursuant to this Agreement. Consultant is a subject employer that will comply with ORS 656.017. 13. Assignment: Consultant shall not assign this Agreement or subcontract any portion of the Work without the written consent of City. Any attempted assignment or subcontract without written consent of City shall be void. Consultant shall be fully responsible for the acts or omissions of any assigns or subcontractors and of all persons employed by them,and the approval by City of any assignment or subcontract of the Work shall not create any contractual relation between the assignee or subcontractor and City. 14. Default. The Consultant shall be in default of this Agreement if Consultant:. commits any material breach or default of any covenant,warranty,certification,or obligation under the Agreement; institutes an action for relief in bankruptcy or has instituted against it an action for insolvency; makes a general assignment for the benefit of creditors;or ceases doing business on a regular basis of the type identified in its obligations under the Agreement; or attempts to assign rights in,or delegate duties under,this Agreement. 15. Insurance. Consultant shall,at its own expense,maintain the following insurance: a. Worker's.Compensation insurance in compliance with ORS 656.017,which requires subject employers to provide Oregon workers' compensation coverage for all their subject workers b. Professional Liability insurance with a combined single limit,or the equivalent,of not less than$2,000,000 (two million dollars)per occurrence. This is to cover any damages caused by error,omission or negligent acts related to the Work to be provided under this Agreement. c. General Liability insurance with a combined single limit, or the equivalent, of not less than $2,000,000(two million dollars) per occurrence for Bodily Injury, Death, and Property Damage. d. Automobile Liability insurance with a combined single limit,or the equivalent,of not less than$1,000,000 (one million dollars)for each accident for Bodily Injury and Property Damage, including coverage for owned,hired or non-owned vehicles,as applicable. e. Notice of cancellation or change. There shall be no cancellation,material change, reduction of limits or intent not to renew the insurance coverage(s)without thirty(30)days' prior written notice from the Consultant or its insurer(s)to the City. f. Additional Insured/Certificates of.Insurance. Consultant shall name the City of Ashland, • Oregon, and itselected officials,officers and employees as Additional Insureds on any insurance policies, excluding Professional Liability and Workers' Compensation,required herein,but only with respect to Consultant's services to be provided under this Agreement.The consultant's insurance is primary and non-contributory.As evidence of the insurance coverages required by this Agreement,the Consultant shall furnish acceptable insurance certificates prior to commencing the Work under this Agreement. The certificate will specify all of the parties Page 4.of7: Personal Services Agreement wit1;9t.Engineering,P.C. who are Additional Insureds. Insuring companies or entities are subject to the City's acceptance. If requested,complete copies of insurance policies;trust agreements,etc.shall be provided to the City. The Consultant shall be financially responsible for all pertinent deductibles,self-insured retentions,and/or self-insurance. 16. Nondiscrimination: Consultant agrees that no person shall,on the grounds of race, color, religion, creed,sex,marital status,familial status or domestic partnership, national origin,age, mental or physical disability, sexual orientation,gender identity or source of income, suffer discrimination in the performance of any Work under.this Agreement when employed by • Consultant. Consultant agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. Further,Consultant agrees not to discriminate against a disadvantaged business enterprise, minority-owned business,woman- owned business,a business that a service-disabled veteran owns or an emerging small business enterprise certified under ORS 200.055, in awarding subcontracts as required by ORS 279A.110. 17. Consultant's Compliance With Tax Laws: 17.1 Consultant represents and warrants to the City that: 17.1.1 Consultant shall,throughout the term of this Agreement, including any extensions hereof,comply with: (i)All tax laws of the State of Oregon, including but not limited to ORS 305.620 and ORS Chapters 316, 317,and 318; (ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable to Consultant; and • (iii) Any rules,regulations,charter provisions,or ordinances that implement or enforce any of the foregoing tax laws or provisions. 17.1.2 Consultant, for a period of no fewer than six (6)calendar years preceding the Effective Date of this Agreement,has faithfully complied with: (i) All tax laws of the State of Oregon, including but not limited to ORS 305.620 and ORS Chapters 316, 317,and 318; (ii) Any tax provisions imposed by a political subdivision of the State of Oregon • applicable to Consultant; and (iii) Any rules, regulations,charter provisions,or ordinances that implement or • enforce any of the foregoing tax laws or provisions. 18. Notice. Whenever notice is required or permitted to be given under this Agreement, such notice shall be given in writing to the other party by personal delivery,by sending via a reputable commercial overnight courier,by mailing using registered or certified United States mail,return receipt requested,postage prepaid,or by electronically confirmed at the address or facsimile number set forth below: • Page 5 of 7: Personal Services Agreement with 1f,P1L Engineering,P.C. If to the City: Ashland Fire&Rescue ' Attn:Terri Stewart ` 455 Siskiyou Blvd. Ashland, OR 97520 • Telephone: 541-482-2770 . Email:terti.stewart@ashland.or.us . j With a copy to: City of Ashland Attn: Legal Department • 20 E.Main Street - Ashland,OR 97520 Telephone: 541-488-5350 If to Consultant: KLD Engineering,P.C. Kevin Weinisch,PE . , 1601 Veterans Memorial Highway, Suite 340 • Islandia,NY 11749 - Telephone: 631-524-5940 Email: kwei i ics.corrr ktie: sI Q/kIJCoars ecVoivi . 19. Governing Law. This Agreement shall be governed by the laws of the State of Oregon without regard to conflict of laws principles. Exclusive venue for litigation of any action arising under this Agreement shall•be in the Circuit Court of the State of Oregon for Jackson County unless exclusive jurisdiction is in federal court, in which case exclusive venue shall be'in the federal district court for the district of Oregon. Each party expressly waives any and all rights to maintain an action under this Agreement in any other venue,and expressly consents that,upon • motion of the other party,any case may be dismissed or its venue transferred, as appropriate,so . as to effectuate this choice of venue. 20. Amendments. This Agreement may be amended only by written instrument executed by both • parties with the same formalities as this Agreement. 21. Nonappropriations Clause. Funds Available and Authorized: City has sufficient funds • currently available and authorized for expenditure to finance the costs of this Agreement within the City's fiscal year budget. Consultant understands and agrees that City's payment of amounts under this Agreement attributable to Work performed after the last day of the current fiscal year is contingent on City appropriations,or other expenditure authority sufficient to allow City in the exercise of its reasonable administrative discretion,to continue to make payments under this Agreement. In the event City has insufficient appropriations, limitations or other expenditure . 14.1..0 . Page 6 of 7: Personal Services Agreement with[ Engineering,P.C. t ' I • authority,City may terminate this Agreement without penalty or liability to City,effective upon the delivery of written notice to.Consultant,with no further liability to Consultant. 22. THIS AGREEMENT AND THE ATTACHED EXHIBITS CONSTITUTE THE ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES. NO WAIVER, 0 CONSENT,MODIFICATION OR CHANGE OF TERMS OF THIS AGREEMENT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH III WAIVER, CONSENT,MODIFICATION OR CHANGE,IF MADE, SHALL BE EFFECTIVE I • ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS,AGREEMENTS,OR REPRESENTATIONS,ORAL OR WRITTEN,NOT SPECIFIED HEREIN REGARDING THIS AGREEMENT. CONSULTANT,BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE,HEREBY ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT,UNDERSTANDS IT,. AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. 23. Certification. Consultant shall sign the certification attached hereto as"Exhibit C"and incorporated herein by this reference. CITY OF ASHLAND: KLD ENGINEERING,P.C.: By: . . By: City..Administrator Signature /414,9-1 .l Wevv, W'f q ry sc Printed Name Printed Name G4./ CC ;or VP, Treoc re r Date Title • 31232020 Date Purchase Order No. W-9 is to be submitted with this signed Agreement APPROVED AS TO FORM: i zce;s12... �� • . • ssistant City Attorney 4.4 Date Page 7 of 7: Personal Services Agreement with IcEngineering,P.C.