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HomeMy WebLinkAboutProfessional Service Agreement with Operations Management International for WWTPAGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT, made this 18th day of September, 2006, by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho, hereinafter referred to as "CITY", 33 East Idaho Avenue, Meridian, Idaho 83642, and Operations Management International, Inc. doing business as OMI hereinafter referred to as "CONSULTANT", whose business address is 9193 S: Jamaica Street, Suite 400, Englewood, CO 80112. Scope of Services: CONSULTANT shall perform all services, and comply in all respects, as specified in the document titled "Scope of Services" a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference, together with any amendments that may be agreed to in writing by the parties. 2. Time of Performance: This agreement shall become effective upon execution by both parties, and shall expire on September 30th, 2007 unless earlier terminated or extended. 3. Indemnification and Insurance: CITY shall indemnify and hold CONSULTANT harmless from any and all liability, claims, damages, losses, and expenses, including litigation costs and attorney's fees, arising from or in any way connected with the services performed under this Agreement. CITY's indemnification of CONSULTANT specifically extends to, but is not limited to, the presence, discharge, release, or escape of contaminants of any kind. CONSULTANT shall maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, liability insurance, in which the CITY shall be named an additional insured in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. Additionally, CONSULTANT shall maintain Workers Compensation Insurance, in the statutory limits as required by law. CONSULTANT shall provide CITY with a Certificate of Insurance, or other proof of insurance evidencing CONSULTANT'S compliance with the requirements of this paragraph and file such proof of insurance with the CITY. In the event the insurance minimums are changed, CONSULTANT shall immediately submit proof of compliance with the changed limits. Evidence of all insurance shall be submitted to the City Clerk with a copy to Meridian City Accounting, 33 East Idaho Avenue, Meridian, Idaho 83642. CONSULTANT's liability for CITY's damages, in the aggregate, shall not exceed the total compensation received by CONSULTANT from CITY for services provided under this Agreement. CONSULTANT shall not be liable for fines or civil penalties, which maybe imposed by a regulatory agency, which are occasioned by the provision PROFESSIONAL SERVICES AGREEMENT -page 1 of 9 of services under this Agreement, irregardless of CONSULTANT'S actions. The limitations of liability shall apply whether CONSULTANT'S liability arises under breach of contract or warranty; tort, including negligence; strict liability; statutory liability; or any other cause, except the limitations shall not apply to willful misconduct or gross negligence. Said limitations shall apply to CONSULTANT'S officers, affiliated corporations, employees, and subcontractors. To the maximum extent permitted by law, CONSULTANT and their affiliated corporations, officers, employees, and subcontractors shall not be liable for CITY'S special, indirect, or consequential damages, whether such damages arise out of breach of contract or warranty, tort including negligence, strict or statutory liability, or any other cause of action. In order to protect CONSULTANT against indirect liability or third-party proceedings, CITY will indemnify CONSULTANT for any such damages. 4. Independent Contractor: In all matters pertaining to this agreement, CONSULTANT shall be acting as an independent contractor, and neither CONSULTANT nor any officer, employee or agent of CONSULTANT will be deemed an employee of CITY. The selection and designation of the personnel of the CITY in the performance of this agreement shall be made by the CITY. 5. Compensation: CONSULTANT shall be compensated for professional services pursuant to and specified in attached Exhibit "A." Amount of this agreement not to exceed Five Thousand Dollars ($5,000.00) 6. Method of Payment: CONSULTANT will invoice the City of Meridian Accounting Department at 33 East Idaho Avenue, Meridian, Idaho 83642 directly for all current amounts earned under this Agreement at the end of each month or upon completion of the scope of services. The CITY will pay all invoices within thirty (30) days after receipt. Interest at a rate of 1-1/2 percent per month, or that permitted by law if lesser, will be charged on all past-due amounts starting 30 days after date of invoice. Payments will first be credited to interest and then to principal. In the event of a disputed or contested billing, only that portion so contested shall be withheld from payment, and the undisputed portion shall be paid. Interest shall accrue on any contested portion of the billing and shall be payable immediately if the contested billing is resolved in favor of CONSULTANT. In the event of a disputed billing, only the disputed portion will be withheld from payment, and CITY shall pay the undisputed portion. CITY will exercise reasonableness in disputing any bill or portion thereof. No interest will accrue on any disputed portion of the billing until mutually resolved. 7. Notices: Any and all notices required to be given by either of the parties hereto, unless otherwise stated in this agreement, shall be in writing and be deemed PROFESSIONAL SERVICES AGREEMENT -page 2 of 9 communicated when mailed in the United States mail, certified, return receipt requested, addressed as follows: City of Meridian 33 E. Idaho Avenue Meridian, Idaho 83642 Operations Management International, Inc. ATTN: Corporate Counsel 9193 S. Jamaica Street, Suite 400 Englewood, CO 80112 Either party may change their address for the purpose of this paragraph by giving written notice of such change to the other in the manner herein provided. 8. Attorney Fees: Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorneys' fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. 9. Time is of the Essence: The parties hereto acknowledge and agree that time is strictly of the essence with respect to each and every term, condition and provision hereof, and that the failure to timely perform any of the obligations hereunder shall constitute a breach of, and a default under, this Agreement by the party so failing to perform. 10. Assignment: It is expressly agreed and understood by the parties hereto, that neither party shall have the right to assign, transfer, hypothecate or sell any of its rights under this Agreement except upon the prior express written consent of other party. 11. Discrimination Prohibited: In performing the Services required herein, CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age or disability. 12. Reports and Information: At such times and in such forms as the CITY may require, there shall be furnished to the CITY such statements, records, reports, data and information as the CITY may request pertaining to matters covered by this Agreement. 13. Audits and Inspections: At any time during normal business hours and as often as the CITY may deem necessary, there shall be made available to the CITY for PROFESSIONAL SERVICES AGREEMENT -page 3 of 9 examination all of CONSULTANT'S records with respect to all matters covered by this Agreement. CONSULTANT shall permit the CITY to audit, examine, and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. 14. Publication, Reproduction and Use of Material: No material produced in whole or in part under this Agreement shall be subject to copyright in the United States or in any other country. The CITY shall have unrestricted authority to publish, disclose and otherwise use, in whole or in part, any reports, data or other materials prepared under this Agreement. 15. Compliance with Laws: In performing the scope of services required hereunder, CONSULTANT shall comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. 16. Changes: The CITY may, from time to time, request changes in the Scope of Services to be performed hereunder. Such changes, including any increase or decrease in the amount of CONSULTANT's compensation, which are mutually agreed upon in writing by and between the CITY and CONSULTANT, shall be incorporated in written amendments to this Agreement. 17. Termination: If, through any cause, either party ,its officers, employees, or agents fails to fulfill in a timely and proper manner its material obligations under this Agreement, violates any of the covenants, agreements, or stipulations of this Agreement, falsifies any record or document required to be prepared under this agreement, engages in fraud, dishonesty, or any other act of misconduct in the performance of this contract, or if the City Council determines that termination of this Agreement is in the best interest of CITY, the other party shall thereupon have the right to terminate this Agreement after allowing a ten (10) day cure period, by giving written notice to defaulting party of such termination and specifying the effective date thereof at least fifteen (15) days before the effective date of such termination. CONSULTANT may terminate this agreement at any time by giving at least sixty (60) days notice to CITY. In the event of any termination of this Agreement, all finished or unfinished documents, data, and reports prepared by CONSULTANT under this Agreement shall, at the option of the CITY, become its property, and CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily complete hereunder. Notwithstanding the above, CONSULTANT shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this Agreement by CONSULTANT. This provision shall survive the termination of PROFESSIONAL SERVICES AGREEMENT -page 4 of 9 this agreement and shall not relieve CONSULTANT of its liability to the CITY for damages. 18. Intellectual Property. All of the Work products of CONSULTANT in executing this Project (including all the rights related to such Work Products) shall be the sole property of CONSULTANT, subject to the rights of the CITY, as the case may be. All reports, data, information, documents, specifications, flow-charts, discoveries, know-how, inventions, processes, firmware, computer software, source acid object code, and software documentation as well as any resulting intellectual property, including but not limited to, invention disclosures, provisional patent applications, regular patent applications, patents, trade secrets, proprietary information, copyrights, trademarks, service marks, domain names, trade dress, and moral rights developed during the course of, or as a result of, the Project shall be the sole property of CONSULTANT, subject to the rights of the CITY, as the case may be. 19. Construction and Severability: If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. 20. Entire Agreement: This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral of written, whether previous to the execution hereof or contemporaneous herewith. 21. Applicable Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho. 22. Approval Required: This Agreement shall not become effective or binding until approved by the City of Meridian. End of text. PROFESSIONAL SERVICES AGREEMENT -page 5 of 9 CONSULTANT Attest: WILLIAM G. BERG, JR.~CITjP" CLERK ~1 t W a,,,,~,L W . B~ CITY OF MERIDIAN TAMM de EERD, MAYOR ;~~ ~ ~-, t~ f~~~~w ~~~ ~~AL ~r Y~~"~ , ,F _,_,~ ~ `~, .• -, ,. ,,,. ~',~~~~„ a .vtea. PROFESSIONAL SERVICES AGREEMENT -page 6 of 9 EXHIBIT A COMPENSATION CONSULTANT shall be reimbursed at a rate of $127.85 per hour for services rendered under this Agreement. All direct expenses incurred by CONSULTANT during performance (such as travel expense, meals, supplies, etc) shall be charged a their actual cost plus a five (5%) markup. Not to exceed Five .Thousand Dollars ($5,000.00). PROFESSIONAL SERVICES AGREEMENT -page 7 of 9 EXHIBIT B SCOPE OF WORK The following scope of work for the City of Meridian's Wastewater Treatment Plant will be carried out at the request of the City Attorney, held in privilege and reported only to the Attorney for their use. 1. Review a. Permit/Fact Sheet b. Search Warrant c. Select Correspondence d. Treatment plant layout and process flow 2. Interview select employees visited by US EPA CID and record as privileged interviews their impressions of EPA's concerns. 3. Make preliminary recommendations to develop strategy of defense for and improvements to the current treatment plant operation. CITY will make its facilities accessible to CONSULTANT as required for CONSULTANT's performance of its services and will provide labor and safety equipment as required by CONSULTANT for such access. The Scope of Services does not include costs of CONSULTANT for required or requested assistance to support, prepare, document, bring, defend, or assist in litigation undertaken or defended by CITY. All such Services required or requested of CONSULTANT by CITY, except for suits or claims between the parties to this Agreement, will be reimbursed as mutually agreed. Exclusions 1. The scope of this Agreement shall be limited to wastewater discharge permit(s), other permits shall be considered outside the scope of this contract unless specifically named in the Agreement. 2. Analysis of references by inclusion shall be limited to specific references in the permit(s), general inclusion shall not be included. 3. Reports shall be made only to the CITY's legal department. 4. No staff utilized in carrying out this scope of work shall be utilized as a testifying witness without the express permission of CONSULTANT. 5. Laboratory Methodology shall be assessed only to the extent that assurance shall be gained that approved methods under 40 CFR 136 are being utilized for reporting purposes. PROFESSIONAL SERVICES AGREEMENT -page 8 of 9 (Additional laboratory assessment maybe added to the Agreement if requested by the CITY at additional cost.) 6. Information determined as a result of the scope of this work shall be utilized at the sole discretion of the CITY's legal counsel. 1 Permits contain both general and specific references, an example of a specific reference would be "40 CFR 122.21(j)" which provide a standard to judge performance against, a general reference would simply say "40 CFR 122". PROFESSIONAL SERVICES AGREEMENT -page 9 of 9