HomeMy WebLinkAbout11-077 - Quadrant II - Disputes Review Board Services (Tukwila Urban Center Access/Klickitat) 11 -077
Council Approval NIA
CONSULTANT AGREEMENT FOR DISPUTES REVIEW BOARD SERVICES
FOR TUKWILA URBAN ACCESS IMPROVEMENT PROJECT
THIS AGREEMENT is entered into between the City of Tukwila, Washington, herein -after referred
to as "the City and Quadrant II Inc, hereinafter referred to as "the Consultant in consideration of
the mutual benefits, terms, and conditions hereinafter specified.
1. Project Designation. The Consultant is retained by the City to perform Disputes Review
Board services in connection with the project titled Tukwila Urban Access Improvements.
2. Scope of Services. The Consultant agrees to perform the services, identified on Exhibit "A"
attached hereto, including the provision of all labor, materials, equipment and supplies.
3. Time for Performance. Work under this contract shall commence upon the giving of written
notice by the City to the Consultant to proceed. The Consultant shall perform all services and
provide all work product required pursuant to this Agreement by March 31, 2012, unless an
extension of such time is granted in writing by the City.
4. Payment. The Consultant shall be paid by the City for completed work and for services
rendered under this Agreement as follows:
A. Payment for the work provided by the Consultant shall be made as provided on Exhibit
"B" attached hereto, provided that the total amount of payment to the Consultant shall not
exceed $5,000.00 without express written modification of the Agreement signed by the
City.
B. The Consultant may submit vouchers to the City once per month during the progress of
the work for partial payment for that portion of the project completed to date. Such
vouchers will be checked by the City and, upon approval thereof, payment shall be made
to the Consultant in the amount approved.
C. Final payment of any balance due the Consultant of the total contract price earned will be
made promptly upon its ascertainment and verification by the City after the completion of
the work under this Agreement and its acceptance by the City.
D. Payment is provided in this section shall be full compensation for work performed,
services rendered, and for all materials, supplies, equipment and incidentals necessary to
complete the work.
E. The Consultant's records and accounts pertaining to this Agreement are to be kept
available for inspection by representatives of the City and state for a period of three (3)
years after final payments. Copies shall be made available upon request.
5. Ownership and Use of Documents. All documents, drawings, specifications and other
materials produced by the Consultant in connection with the services rendered under this
Agreement shall be the property of the City whether the project for which they are made is
executed or not. The Consultant shall be permitted to retain copies, including reproducible
copies, of drawings and specifications for information, reference and use in connection with
the Consultant's endeavors. The Consultant shall not be responsible for any use of the said
documents, drawings, specifications or other materials by the City on any project other than
the project specified in this Agreement.
6. Compliance with Laws. The Consultant shall, in performing the services contemplated by
this Agreement, faithfully observe and comply with all federal, state, and local laws,
ordinances and regulations, applicable to the services to be rendered under this Agreement.
7. Indemnification. The Consultant shall indemnify, defend and hold harmless the City, its
officers, agents and employees, from and against any and all claims, losses or liability,
including attorney's fees, arising from injury or death to persons or damage to property
occasioned by any act, omission or failure of the Consultant, its officers, agents and
employees, in performing the work required by this Agreement. With respect to the perform-
ance of this Agreement and as to claims against the City, its officers, agents and employees,
the Consultant expressly waives its immunity under Title 51 of the Revised Code of
Washington, the Industrial Insurance Act, for injuries to its employees, and agrees that the
obligation to indemnify, defend and hold harmless provided for in this paragraph extends to
any claim brought by or on behalf of any employee of the Consultant. This waiver is mutually
negotiated by the parties. This paragraph shall not apply to any damage resulting from the
sole negligence of the City, its agents and employees. To the extent any of the damages
referenced by this paragraph were caused by or resulted from the concurrent negligence of the
City, its agents or employees, this obligation to indemnify, defend and hold harmless is valid
and enforceable only to the extent of the negligence of the Consultant, its officers, agents and
employees.
8. Insurance. The Consultant shall secure and maintain in force throughout the duration of this
contract comprehensive general liability insurance, with a minimum coverage of $500,000 per
occurrence and $1,000,000 aggregate for personal injury; and $500,000 per occurrence/
aggregate for property damage, and professional liability insurance in the amount of
$1,000,000.
Said general liability policy shall name the City of Tukwila as an additional named insured
and shall include a provision prohibiting cancellation of said policy except upon thirty (30)
days prior written notice to the City. Certificates of coverage as required by this section shall
be delivered to the City within fifteen (15) days of execution of this Agreement.
9. Independent Contractor. The Consultant and the City agree that the Consultant is an inde-
pendent contractor with respect to the services provided pursuant to this Agreement. Nothing
in this Agreement shall be considered to create the relationship of employer and employee
between the parties hereto. Neither the Consultant nor any employee of the Consultant shall
be entitled to any benefits accorded City employees by virtue of the services provided under
this Agreement. The City shall not be responsible for withholding or otherwise deducting
2
federal income tax or social security or for contributing to the state industrial insurance
program, otherwise assuming the duties of an employer with respect to the Consultant, or any
employee of the Consultant.
10. Covenant Against Contingent Fees. The Consultant warrants that he has not employed or
retained any company or person, other than a bonafide employee working solely for the
Consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any
company or person, other than a bonafide employee working solely for the Consultant, any
fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon
or resulting from the award or making of this contract. For breach or violation of this warrant,
the City shall have the right to annul this contract without liability, or in its discretion to
deduct from the contract price or consideration, or otherwise recover, the full amount of such
fee, commission, percentage, brokerage fee, gift, or contingent fee.
11. Discrimination Prohibited. The Consultant, with regard to the work performed by it under
this Agreement, will not discriminate on the grounds of race, color, national origin, religion,
creed, age, sex or the presence of any physical or sensory handicap in the selection and
retention of employees or procurement of materials or supplies.
A. Compliance with Reaulations. The Consultant shall comply with the Regulations relative
to nondiscrimination in federally assisted programs of United States Department of
Transportation (USDOT), Title 49, Code of Federal Regulations, part 21, as they may be
amended from time to time, (hereinafter referred to as the Regulations), which are herein
incorporated by reference and made a part of this contract.
B. Non discrimination. The Consultant, with regard to the work performed by it during the
contract, shall not discriminate on the grounds of race, color, sex, or national origin in the
selection and retention of sub consultants, including procurement of materials and leases
of equipment. The Consultant shall not participate either directly or indirectly in the
discrimination prohibited by Section 21.5 of the Regulations, including employment
practices when the contract covers a program set forth in Appendix B of the Regulations.
C. Solicitations for Sub contracts. Including Procurement of Materials and Equipment. In
all solicitations either by competitive bidding or negotiations made by the Consultant for
work to be performed under a subcontract, including procurement of materials or leases
of equipment, each potential subconsultant or supplier shall be notified by the Consultant
of the Consultant's obligations under this contract and the Regulations relative to
nondiscrimination on the grounds of race, color, sex, or national origin.
D. Information and Reports. The Consultant shall provide all information and reports
required by the Regulations or directives issued pursuant thereto, and shall permit access
to its books, records, accounts, other sources of information and its facilities as may be
determined by the City or the appropriate federal agency to be pertinent to ascertain
compliance with such Regulations, orders and instructions. Where any information
required of a Consultant is in the exclusive possession of another who fails or refuses to
3
furnish this information, the Consultant shall so certify to the City or WSDOT or the
USDOT as appropriate, and shall set forth what efforts it has made to obtain the
information.
E. Sanctions for Non compliance. In the event of the Consultant's non compliance with the
nondiscrimination provisions of this contract, the City shall impose such contract
sanctions as it or the USDOT may determine to be appropriate, including, but not limited
to:
Withholding of payments to the Consultant under the contract until the Consultant
complies, and/or;
Cancellation, termination, or suspension of the contract, in whole or in part.
F. Incorporation of Provisions. The Consultant shall include the provisions of paragraphs
(1) through (5) in every subcontract, including procurement of materials and leases of
equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The
Consultant shall take such action with respect to any sub consultant or procurement as
the City or USDOT may direct as a means of enforcing such provisions including
sanctions for non compliance. Provided, however, that in the event a Consultant becomes
involved in, or is threatened with, litigation with a subconsultant or supplier as a result of
such direction, the Consultant may request WSDOT enter into such litigation to protect
the interests of the state and, in addition, the Consultant may request the USDOT enter
into such litigation to protect the interests of the United States.
12. Assignment. The Consultant shall not sublet or assign any of the services covered by this
Agreement without the express written consent of the City.
13. Non Waiver. 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 provision.
14. Termination.
A. The City reserves the right to terminate this Agreement at any time by giving ten (10)
days written notice to the Consultant.
B. In the event of the death of a member, partner or officer of the Consultant, or any of its
supervisory personnel assigned to the project, the surviving members of the Consultant
hereby agree to complete the work under the terms of this Agreement, if requested to do
so by the City. This section shall not be a bar to renegotiations of this Agreement
between surviving members of the Consultant and the City, if the City so chooses.
15. Attorneys Fees and Costs. In the event either party shall bring suit against the other to
enforce any provision of this Agreement, the prevailing party in such suit shall be entitled to
recover its costs, including reasonable attorney's fees, incurred in such suit from the losing
parry.
4
16. Notices. Notices to the City of Tukwila shall be sent to the following address:
City Clerk
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Notices to Consultant shall be sent to the following address:
Norman Anderson
Quadrant II, Inc.
114 21" Ave SW
Olympia, WA 98501
17. Integrated Agreement. This Agreement, together with attachments or addenda, represents
the entire and integrated Agreement between the City and the Consultant and supersedes all
prior negotiations, representations, or agreements written or oral. This Agreement may be
amended only by written instrument signed by both the City and the Consultant.
DATED this of 20�
Y
CITY OF TUKWILA CONSULTANT
By:
Mayor
Printed Name: A)6n* J Xuapewc -O•J
Title: ?fztxfVACNT
Attest/Authenticated: Approved as to Form:
City Cle� Attorney
5
EXHIBIT A
Scope of Services to be Provided by Consultant
The Consultant shall furnish services including, but not limited to, the following:
Participate as a member of the Disputes Review Board for the City's Tukwila Urban Access
Improvements Project. A description and requirements for the Board and its members as provided in
the construction contract for this project is attached for reference.
The Board member shall be Norman Anderson, and shall be available for up to five meetings between
Notice to Proceed and March 31, 2012.
6
1 -x9.11 Disputes and Claims
(Special Provision) New
When protests occur during a Contract, the Contractor shall pursue resolution through. the
Project Engineer. The Contractor shall follow the procedures outlined in Section 1- 04.5.
If the negotiations using the procedures outlined in Section 1 -04.6 fail to provide satisfactory
resolution of protests, then the Contractor shall provide the Project Engineer with written
City of Tukwila Approved for Construction
Tukwila Urban Access improvement Project
Project No. 84 -RW -19 SP 85
7
Conformed Set
notification that the Contractor will continue to pursue the dispute in accordance with the
provisions of Section 1- 09.11. The written notification shall be provided within 7- calendar days
after receipt of the Engineer's written determination that the Contractor's protest is invalid
pursuant to Section 1 -04.5. The Contractor's written notice of dispute shall cause the Engineer
to schedule a meeting of the Disputes Review Board as outlined in Section 1- 09.11(1).
In spite of any protest or dispute, the Contractor shall proceed promptly with the Work as the
Engineer orders.
1- 09.11(1) Disputes Review Board
In order to assist in the resolution of disputes arising out of the Work of this project, as a
condition of this contract, a Disputes Review Board shall be created, (hereinafter called the
"Board."). Disputes shall be referred to the Board when negotiations using the procedures
outlined in Section 1 -04.5 fail to provide a satisfactory resolution and prior to
the Contractor filing a formal claim pursuant to Section 1- 09.11(2).
The Board shall have regular meetings at or near the job site. The frequency of regular
meetings will be set by agreement of the Board, the Contracting Agency, and the Contractor,
consistent with the construction activities and the matters under consideration and dispute, but
estimated to be three to four meetings per year. Each meeting will consist 'of a round table
discussion and a field inspection of the work being performed on that contract. The round table
discussion will be conducted by the Contracting Agency's representative and will be attended by
selected personnel from the Contracting Agency and the Contractor. The agenda will generally
be as follows:
Meeting opened by Chairman of the Board.
Remarks by the City's representative.
A description by the Contractor of work accomplished since the last meeting, the
current status of the work, schedule -wise, and a forecast for the coming period.
An outline, by the Contractor, of potential problems and a description.
An outline, by the City's representative, of the status of the work as the City views it.
A brief description, by the Contractor and /or the City, of potential claims or disputes,
which have surfaced since the last meeting.
A summary, by the Contractor, the City or the Board, of the status of past disputes and
claims.
The Board will consider disputes referred to it and furnish recommendations to the Contracting
Agency and Contractor to assist in the resolution of the differences between them. The purpose
of the Board response to such issues is to provide nonbinding findings and recommendations
designed to expose the disputing parties to an independent view of the dispute.
The Board members will be especially knowledgeable in the type of construction involved in the
Project and shall discharge their responsibilities impartially and independently considering the
facts and conditions related to the matters under consideration and the provisions of the
Contract.
1- 09.11(1)A Disputes Review Board Membership
City of Tukwila Approved for Construction
Tukwila Urban Access improvement Project
Project No. 84 -RW -19 SP 86
8
Conformed Set
The Board shall consist of 1 member selected by the Contracting Agency and 1 member
he Contracting Agency and the Contractor. r
selected b the Contractor, these 2 members hers to select the third member. The fiat
se Y Cntractor w A ency or Cont
members shall be mutually acceptable to both #able to the Contracting 9
or both of the 2 members selected are not accep
another selection shall be made.
Contracting Agency and Contractor shalt each select Contract,wi h respective their respective Board
The Cont g art from this
negotiate an agreement, separate and apart
member within 60 calendar days after the Execution of the Contract. the {Scope of
at
The agreements with these 2 Board e Procedures" con tain DisputesuReview Boards availa that
Work" and "Suggested Administrat
www.wsdot.wa.gov /Consulting These negotiated agreements shalt also include
require the respective selected members to immedi llcomplement the first 2aby third furnishing e a
The goal is to obtain a Chid Board member w
needed expertise, which will
f the Boyer will b
e appointed 1 pp a in the same e manner as the
needs to be replaced, the replacement member
replaced member was appointed. The appointment of a replacement Board member will begin
promptly upon determination of the need for r be te�mina #ed at any with notless than 30-
calendar days. Service of a Board member may
calendar days notice as follows:
1. The Contracting Agency may terminate service of the Contracting Agency appointed
member.
2. The Contractor may terminate service of the Contractor appointed member.
3. The third member's services may be terminated by agreement of the other 2 members.
4. By resignation of the member.
Termination of a member will be followed by appointment of a substitute as specified above. No
member shall have a financial interest in the Contract, except for payments for services on the
Board. The Contracting Agency- selected member and the Contractor selected member shall not
have been employed by the party who selected them within a period of 1 -year; except that,
service as a member of other Disputes Review Boards on other contracts will not preclude a
member from serving on the Board for this Contract.
Compensation for the Board members, and the expenses of operation of the Board, shall be
shared by the Contracting Agency and Contractor in accordance with the following:
1. The Contracting Agency will compensate directly the wages and travel expense for its
selected member.
2. The Contractor shall compensate directly the wages and travel expense for its
selected member.
3. The Contracting Agency and Contractor shall share equally in the third member's
wages and travel expense, and all of the operating expenses of the Board. These
equally shared expenses shall be billed to and paid by the Contracting Agency. The
Contractor's share will be deducted from monies due or coming due the Contractor.
4. The Contracting Agency, through the Engineer, will provide administrative services,
such as conference facilities and secretarial services, to the Board and the Contracting
Agency will bear the costs for this service.
1- 09.11(1)B Disputes Review Board Procedures
City of Tukwila Approved for Construction
Tukwila Urban Access improvement Project
Project No, 84 -RW -19 SP 87
9
Conformed Set
The Board, the Contracting Agency, and the Contractor shall develop by agreement the Board's
rules of operation and procedures to be followed for the Project. In developing the Agreement,
the parties shall take into consideration their respective duties and responsibilities set forth in
the Scope of Work" section of their agreements.
The parties may also consider the "Suggested Administrative Procedures" for the Board's
operation included in their agreements. These Procedures express, in general terms, the policy
for the creation and operation of the Board.
No dispute shall be referred to the Board unless the Contractor has complied with the
requirements of Section 1 -04.5 and Section 1- 09.11. If the dispute is referred to the Board, then
the Board will consider the matter in dispute and provide recommendations concerning:
1. The interpretation of the Contract
2. Entitlement to additional compensation or time for performance
3. The amount of additional compensation or time for performance following a
recommendation of entitlement by the Board provided that; (1) the parties were not able
to reach a resolution as to the amount of the equitable adjustment or time; (2) the
Engineer has made a unilateral determination of the amount of compensation for time;
and (3) the Contractor has protested the Engineer's unilateral determination.
4. Other subjects mutually agreed by the Contracting Agency and Contractor to be a
Board issue.
Once the Board is established, the dispute resolution process shall be as follows:
1. Board hearing dates will be scheduled by agreement of the parties.
2. The Contractor and the Contracting Agency shall each be afforded an opportunity to
be heard by the Board and to offer evidence. Either party furnishing any written evidence
or documentation to the Board must furnish copies of such information to the other party
a minimum of 15- calendar days prior to the date the Board sets to convene the hearing
for the dispute. Either party shall produce such additional evidence as the Board may
deem necessary to an understanding and determination of the dispute and furnish
copies to the other party.
3. After the hearing is concluded, the Board shall meet in private and reach a
conclusion supported by 2 or more members. Its findings and recommendations,
together with its reasons shall then be submitted as a written report to both parties. The
recommendations shall be based on the pertinent Contract Provisions and facts and
circumstances involved in the dispute. The Contract shall be interpreted and construed
in accordance with the laws of the State of Washington. The Board shall make every
effort to reach a unanimous decision. If this proves impossible, the dissenting member
may prepare a minority report.
4. Within 30- calendar days of receiving the Board recommendations, both the
Contracting Agency and the Contractor shall respond to the other in writing
signifying that the dispute is either resolved or remains unresolved. Although both parties
should place weight upon the Board recommendations, the
recommendations are not binding.
In the event the Board's recommendations do not lead to resolution of the dispute, all Board
records and written recommendations, including any minority reports, will be admissible as
evidence in any subsequent litigation. If the Board's assistance does not resolve the dispute, the
City of Tukwila Approved for Construction
Tukwila Urban Access Improvement Project
Project No. 84 -RW -19 Sp 88
10
Conformed Set
Contractor must file a claim according to Section 1- 09.11(2) before seeking any form of judicial
relief.
1- 09.13(3) Claims $250,000 or Less
(October 1, 2005 APWA GSP) Replacement
The Contractor and the Contracting Agency mutually agree that those claims that total $250,000
or less, submitted in accordance with Section 1 -09.11 and not resolved by nonbinding ADR
processes, shall be resolved through litigation unless the parties mutually agree in writing to
resolve the claim through binding arbitration.
1- 09.13(3)A Administration of Arbitration
(October 1, 2005 APWA GSP) Modification
Revise the third paragraph to read:
The Contracting Agency and the Contractor mutually agree to be bound by the decision
of the arbitrator, and judgment upon the award rendered by the arbitrator may be
entered in the Superior Court of the county in which the Contracting Aaencv's
headquarters are located. The decision of the arbitrator and the specific basis for the
decision shall be in writing. The arbitrator shall use the contract as a basis for decisions.
11
EXHIBIT B
Billing/Rate Information
The Consultant shall be reimbursed at the following rates:
Professional Time: $160 Per Hour
Travel Time: $160 Per Hour
Travel time from Olympia to the City of Tukwila will be billed as 2.0 hours per round trip.
In addition to the above hourly rate, the Consultant will invoice the following direct non salary
expenses at actual costs: long distance telephone fax, printing reproduction, postage delivery
and supplies.
Travel costs will be billed in accordance with the Washington State Department of Transportation
Accounting Manual M13 -82, Chapter 10, Travel, and its updates.
All costs will be invoiced to the City of Tukwila without additional markup.
Quadrant II, Inc. Washington State UBI 601 686 037
US Federal Tax ID 91- 1709596
12