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HomeMy WebLinkAbout5126Contract Number. Vendor Sub�ect• Department: File Class: Begin Date: End Date: Review Date: Vault Date. Comments : 5126 GARY SEXTON Professional Services Agreement - Park Ave Plaza Mayor LEG 12-1 4/23/2012 9/23/2012 6/1/2012 2014 First Amendment 6/27/12 FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (Gary Sexton - Park Avenue Plaza) The City of Bremerton ("Crty") and Gary Sexton ("Consultant"), referred to collectively as the "Parties," enter into this First Amendment to Professional Agreement WHEREAS, on Apnl 4, 2012 the Crty entered mto a Professional Services Agreement ("Agreement") with consultant with a term begimm�g Apnl 23, 2012 and terminating June 23, 2012 for professional services related to the Park Avenue Plaza pro�ect, and WHEREAS, the Consultant has claimed that the City owes him compensation for work he has performed as an employee of the Crty which claim the City disagrees with, and WHEREAS, the parties now desire to extend the term of the contract to close out the pro�ect, resolve any disputed claims and to make other related amendments, NOW THEREFORE, The parties agree to extend the term of the Agreement as follows I. Section I of the Agreement entitled "Scope" is amended as set forth m Exhibrt A attached hereto II. Section II of the Agreement "entitled "Term" is amended as follows The term of this Agreement is extended for an additional three (3) month term begimm�g on June 24, 2012 and expinng on September 23, 2012 III. Section III of the Agreement entitled "Compensation" is amended as follows In consideration of the services provided durmg the term of this First Amendment to Agreement, the City shall pay Consultant a fixed monthly fee of $6,500 00 per month for an amount not to exceed $19,500 00 IV. All other terms and condrtions of the Agreement shall remam m full force and effect V. The Parties mtend that payment of compensation by the Crty pursuant to the Agreement and this First Amendment to Agreement shall constitute full payment to Consultant for compensation, mcludmg any and all claims Consultant may have had or may have agamst City for wages and/or 1 First Amendment to Professional Services Agreement benefits while Consultant was an employee of the City or for work performed pursuant to the Agreement Upon execution of this First Amendment to Agreement, Consultant waives any claims for wages, benefits and/or other compensation, whether known or unknown, for work performed pursuant to the Agreement and/or for past employment wrth the City CITY OF BREMERTON � By Patty nt Its Mayo Date Z 7 � y R\Legal\Legal\Contracts\LEGAL�2012 Gary Sexton's Contract - First Amendment doc 2 First Amendment to Professional Services Agreement CONSiJLTANT EXHIBIT A SCOPE OF WORK • Construction Manager over Serpanok and Henderson Phase II • Provide pro�ect support in the following areas ■ Budget — assist with reconciliation of contracts, approved and pending change orders and unbought scope, ■ Landscapmg — coordtnate plantings, storage of delivered landscape matenal and design recommendations, ■ Design assistance and estimat�ng for proJect closeout, ■ Closeout Phase I Park Plaza Pro�ect, and ■ Completion of outstanding punch list items associated with all public phases of the Park Plaza pro�ect ■ Other duties as assigned by the Mayor 3 First Amendment to Professional Services Agreement Contract Number: Vendor. Sub�ect: Department. File Class: Begin Date: End Date: Review Date• Vault Date: Comments : 5126 GARY SEXTON Professional Services Agreement - Park Ave Plaza Mayor LEG 12-1 4/23/2012 6/23/2012 6/1/2012 2014 � PROFESSIONAL SERVICES AGREEMENT Park Avenue Plaza The Crty of Bremerton ("Crty") and Gary Sexton ("Consultant"), referred to collectively as the "Parties," enter mto the followmg Agreement for professional services I. Scope: The Consultant agrees to perform the services more specifically described m the Scope of Work, attached hereto as Exlubrt A, wluch is incorporated by reference herem The Scope of Work may be modified only pursuant to Section VI G of this Agreement If the Scope of Work provides for unspecified additional services such services shall only be performed upon the express written request of the City Consultant further represents that the services furmshed under this Agreement will be performed m accordance with generally accepted professional practices m effect at the time such services are performed II. Term: The term of this agreement shall begm April 23, 2012 and termmate on June 23, 2012 The parties agree that the work described m Exhibit A is to be completed as provided for m the work schedule provided however, that addrtional time shall be granted by the Crty for excusable delays or extra work as provided for m section VIII (A) of this agreement III. Compensation: In consideration of the services provided pursuant to this Agreement, the Crty shall pay Consultant $6,500 00 per month for an amount not to exceed $13,000 00 The Consultant shall submrt regular billmg statements detailmg work performed and amount charged on each task or portion thereof The descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Fee Schedule Upon receipt of a conformmg billmg statement, the City shall promptly process payment PROVIDED, HOWEVER, the Crty reserves the right to priorrtize scoped work and accelerate and/or delay work tasks under the time frame set forth m Section II herein Consultant shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement Consultant shall only be compensated for additional services if requested pursuant to Section I If a billmg statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance Such wrthholding does not relieve Consultant of rts obligations under this Agreement IV. Relationship of Parties: Consultant represents that it is skilled m the matters addressed in the Scope of Work and is performmg mdependent functions and responsibilrties wrthm rts field of expertise Consultant and its personnel are mdependent Consultants and not employees of the City Consultant and its personnel have no authorrty to bmd the Crty or to control the City's employees and other Consultants None of the benefits provided by the Crty to rts employees, includmg, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-Consultants of the Consultant Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub-Consultants during the performance of 1 this Agreement The Crty may, during the term of this Agreement, engage other independent Consultants to perform the same or similar work As an mdependent Consultant, Consultant is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement These taxes and fees mclude but are not hmrted to State industrial msurance, Busmess & Occupahon, State professional licensmg, and Crty busmess hcensing If any taxes or fees due the Crty have been declared delinquent, the City may wrthhold the delmquent amount, plus any addihonal charges arising from the delinquency, from any payments due Consultant V. Indemnification: Consultant shall defend, indemnify and hold the Crty, rts officers, officials, employees, agents and volunteers harmless from any and all claims, mJuries, damages, losses or surts, mcluding all legal costs and attorney fees, arismg out of or m connection wrth the performance of this Agreement, except for that portion of the m�uries and damages caused by the Crty's negligence The City's review or acceptance of any of the work when completed shall not be grounds to avoid any of these covenants of indemmfication Should a court of competent �urisdiction determine that this Agreement is sub�ect to RCW 4 24 115, then, m the event of liabilrty for damages arising out of bodily in�ury to persons or damages to property caused by or resultmg from the concurrent negligence of the Consultant and the Crty, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE 1NDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER The provisions of this section shall survive the expiration or termination of this Agreement VI. General Conditions: A Reports and Information When requested by the Crty, Consultant shall furnish periodic reports and documents on matters covered by this Agreement The reports and documents shall be furnished m the time and form requested Consultant shall maintain accountmg records m accordance with Generally Accepted Accounting Prmciples (GAAP) to substanhate all billed amounts B Ownership and Use of Records and Documents Original documents, drawmgs, designs and reports, mcludmg those m electronic format, developed under this Agreement are the property of the City All wntten mformation submitted by the City to the Consultant m connection wrth the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like mformarion relatmg to rts own business If such information is publicly available or is already m Consultant's possession or known to rt, or is rightfully obtamed by the Consultant from third parties, Consultant shall bear no responsibility for its disclosure, madvertent or otherwise 2 All documents, mcluding all reports, drawmgs, specifications, computer software or other rtems prepared or furnished by Consultant pursuant to this Agreement, are mstruments of service with respect to the pro�ect and are the property of the Crty Any reuse by the Crty for other than the specific purpose intended will be at Crty's sole risk C Work Performed at Consultant's Risk Consultant shall take all precautions necessary and shall be responsible for the safety of rts employees, agents, and sub-consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to matenals, tools, or other articles used or held for use in connection with the work D Place of Work The Consultant shall perform the work authorized under this Agreement at rts offices in Bremerton, Washington Meetmgs with the City staff as described m Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the parties E Entire Agreement This Agreement and its Exhibrts constrtutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement F Severabilitv Should any part of tlus Agreement be found void, the balance of the Agreement shall remain in full force and effect G Modification This Agreement may only be modified by wntten mstrument signed by both Parhes H Written Notices All commurucations regardmg this Agreement shall be sent to the parties at the addresses listed below by registered or 1 st class mail, or by personal service, 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 hereafter specified m writing Crty Address City of Bremerton Attn Mayor 345 6`" Street, Ste Consultant Address Gary Sexton 202 Bow Road 600 Fox Island, WA 98310 Bremerton, WA 98337 I Waiver Failure to enforce any provision of this Agreement shall not be deemed a waiver of that provision Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power J Non-Waiver of Breach• The failure of the City to insist upon stnct performance of any of the covenants and agreements contamed herem, or to exercise any option herem conferred m one or more mstances shall not be construed to be a waiver or relmquishment of said covenants, agreements or ophons, and the same shall be and remam m full force and effect K Compliance wrth Laws Consultant shall comply wrth all applicable Federal, State, and local laws in performmg its obligations under this Agreement Kj L Choice of Law and Venue This Agreement shall be mterpreted according to the laws of the State of Washington Any Judicial action to resolve disputes arismg out of this Agreement shall be brought m Krtsap County Superior Court M Attornevs' Fees In the event of litigation to enforce any of the terms or provisions herem, each party shall pay all its own costs and attorney's fees N Assi� Any assignment of this agreement by the Contractor wrthout the written consent of the City shall be void VII. Nondiscrimination: Consultant shall not discriminate in employment or services to the public on the basis of race, color, national origm, sex, religion, age, marrtal status, disabilrty, or sexual orientation except for employment actions based on bona fide occupational qualification VII. Termination: This Agreement shall remain in force until completion and acceptance of the services, terminated by written instrument upon mutual consent, or by the City of Bremerton for convemence This Agreement may be immediately termmated for cause by a Party if the other Party substantially fails to perform through no fault of the termmating Party, and the non- performmg Party does not commence correction of the failure of performance wrthin thirty (30) days of the termmatmg Party's sending notice to the non-performing Party Any Notice by Consultant shall include a report showmg the status of all items listed m the Scope of Work current through the termmation date If the Crty receives reimbursement by any federal, state, or other source for work described m Sechon I herem, and that funding is wrthdrawn, reduced or limrted m any way, or the pro�ect is cancelled or substantially reduced after the execution date of this Agreement and prior to the completion of the work, the City may summarily termmate this Agreement A Excusable Delavs The right of Consultant to proceed shall not be terminated nor shall Consultant be charged wrth liquidated damages for any delays m the completion of the work due to 1) any acts of the federal government in controlling, restrictmg, or requisitiomng materials, equipment, tools, or labor by reason of war, national defense, or other national emergency, 2) any acts of the Crty, its consultants, or other public agencies causmg such delay, and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and wrthout the fault or negligence of the Consultant, mcluding, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual seventy PROVIDED, HOWEVER, that the Consultant must promptly notify the Crty wrthin ten (10) calendar days in writing of the cause of the delay If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the Crty shall, in wrrting, extend the time for completmg the work for a period of time commensurate wrth the penod of excusable delay B Ri h�pon Termmation In the event of termination, the Crty shall pay for all services performed by the Consultant to the effective date of termmation, as described on a final mvoice submitted to the Crty After termination, the Crty may take possession of all records and data wrthm the Consultant's possession pertammg to this pro�ect which may be used by the Crty wrthout restnction Any such use not related to the pro�ect which Consultant was contracted to perform shall be wrthout liabilrty or legal exposure to the Consultant 4 CITY OF BREMERTON ���G� � B � T its .� Date � � — 8 �t — '2012i orm Bremerton Crt R \Legal\Legal\ContractsU.EGAL\Gary Sexton PSA doc CONSULTAN B � rts Date . � Z� . � ' � � � :���. _ •�. ��7��� , � � s EXHIBIT A SCOPE OF WORK • Construction Manager over Serpanok and Henderson Phase II • Provide pro�ect support m the following areas ■ Budget — assist wrth reconciliation of contracts, approved and pendmg change orders and unbought scope, ■ Landscaping — coordinate plantings, storage of delivered landscape material and design recommendations, ■ Design assistance and estimatmg for pro�ect closeout, ■ Closeout Phase I Park Plaza Pro�ect, and ■ Other duties as assigned by the Mayor �