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HomeMy WebLinkAboutContract 19701970 NSULTI SERVICES A SENT This Agreement is made as of ~ ~ , 200 ~ ` (the "Effective Date"), by and between 3M COMPANY, a Delaware corporation, acting through its Traffic Safety Systems Division ('°3M" or "Contractor"} and the Tri-City GIS Joint Powers Organization, consisting of the Cities of Fridley, Columbia Heights and Andover, hereinafter "Tri-City." 3M and Tri-City are collectively referred to as "Parties" and individually as a "Party." WHEREAS, Tri-City requires services to provide GIS technical assistance to the Cities of Andover, Columbia Heights and Fridley, WHEREAS, Contractor desires to and is capable of providing the necessary services according to the terms and conditions stated herein; NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein the parties agree as follows: 1. TERM 1.1 Tenn. The term of this Contract shall be from January 1, 2007, through December 31, 2007, unless earlier terminated by law or according to the provisions of this Contract. n l"t!`+9.TTT A /'~T/'4 T9 ifs /'4497 T!`~ A TTl1A TC+ G. l.V1V l l~til_.1 V1C J VDL1tJt111V1V.3 2.1 General Description. Contractor will provide 2,405 hours annually of onsite GIS technical assistance to Tri-City. The Contractor will spend approximately 80 hours per month per each city in Andover and Fridley, and approximately 40.5 hours per month in the City of Columbia Heights. Additional hours may be contracted as provided in Section 3.4. 2.2 Conformance to Specification. The Contractor will provide the Services as set forth in Exhibit A. 2.3 Limited Warranty 3M warrants that the Services will be performed in a safe, professional and workmanlike manner consistent with the applicable industry standards and this Agreement. 3M 1VIAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, A CUSTOM OR USAGE OF TRADE. 3. PAYMENT 3.1 Service Fees The Contractor's fees for Services are set forth below ("Service Fees"}. Service Fees do not include any taxes that may be due based on the Service Fees, or for reimbursable expenses, for which Tri-City agrees to pay directly or reimburse 3M. Total Service Fees: $77,145.°°-0 to be allocated as follows: Andover-$31,075.°-°, or 40%; Fridley-31,075.00-°, or 40%; Columbia Heights-$14,995.00-°, or 20% 3.2 Invoices. Contractor shall, within fifteen (15} working days follawing the Last day of each calendar month in which services were provided, submit an invoice on an invoice form acceptable to Tri-City. This invoice shall itemize 1 }the hours of services rendered listed by classification, 2) the date such services were provided, 3} a general description of the services provided, 4) the name of client receiving services, 5} the amount and type of all reimbursable expenses being charged to the Contract, 6) the dates of the performance period covered by the invoice. 3.3 Time of Payment. All invoices are due within thirty days from the invoice date. If Tri-City disputes any portion of Contractor's invoice, then Tri-City will: (a} pay any amount not in dispute by the due date; and (b} within five business days after receipt of that invoice, inform. Contractor in writing of the disputed amount and the specific reasons} for withholding payment. On Contractor's receipt of this, the Parties will work together in good faith to resolve such disputes in a prompt and mutually acceptable manner. Tri- City agrees to pay any disputed amounts within five days after the issues have been resolved. 3.4 Tri-City shall have the right to request changes within the scope of the Services; however, all such changes are subject to acceptance by Contractor. If any change causes an increase or decrease in the fees, or in the time required for performance, prior to commencing the services required by the requested change, Contractor shall notify Tri-City of such increase or decrease and the Agreement shall be modified in writing accordingly. Contractor shall not proceed with any change until a written amendment has been accepted by Contractor; however Contractor°s right to payment for such change shall not be affected in the event Contractor agrees in writing to proceed prior to the completion of such amendment. 4. COMPLIANCE WITH LAWS/STANDARDS 4.1 General. Contractor shall abide by all Federal, State or local laws, statutes, ordinances, rules and regulations now in effect or hereinafter pertaining to this Contract or to the facilities, programs and staff for which Contractor is responsible. 5. INDEPENDENT CONTRACTOR STATUS Contractor is an independent contractor and nothing herein contained shall be construed to create the relationship of employer and employee between Tri-City and Contractor. Contractor shall at ail times be free to exercise initiative, judgment and discretion as to how to best perform or provide services. 6. INDEMNIFICATION Contractor shall indemnify, hold harmless and defend Tri-City, its members, officers and employees against any and all liability, loss, costs, damages, expenses, claims or actions, including attorneys' fees which Tri-City, its officers or employees may hereafter sustain, incur or be required to pay, arising out of or by reason of any negligent or willful act, or negligent or willfizl omission of Contractor, its agents, servants or employees, in the execution, performance, or failure to adequately perform Contractor's obligations pursuant to this Contract. 3 ~. INSURANCE 7.1 General Terms. In order to protect itself and to protect Tri-City under the indemnity provisions set forth above Contractor shall, at Contractor's expense, procure and maintain policies of insurance covering the term of this Contract, as set forth below. Such policies of insurance shall apply to the extent of, but not as a limitation upon or in satisfaction of, the indemnity provisions herein. All retentions and deductibles under such policies of insurance shall be paid by Contractor. Each such policy shall not be canceled by the issuing insurance company without at least thirty (30} days written notice to Tri-City of intent to cancel. 7.2 Coverage. The policies of insurance to be obtained by Contractor pursuant to this section shall be purchased fiom a licensed carrier and shall include the following: A} Professional Liability (1 } A professional liability insurance policy covering personnel of Contractor, if any, who provide professional services under this Contract, which shall include the following coverages at a minimum: Personal Injury/Damage: $200,000 per person $600,000 per occurrence B} Workers' Compensation If applicable, Contractor shall procure and maintain a policy that at least meets the statutory minimum. 7.3 Certificates. Friar to or concurrent with execution of this Contract, Contractor shall file certificates or certified copies of such policies of insurance with Tri-City. 7.4 Failure to Provide Proof of Insurance. Tri-City may withhold payments for failure of Contractor to furnish proof of insurance coverage or to comply with the insurance requirements as stated above until such time the Contractor complies with the requirements of this Section. 4 8. SUBCONTRACTING Contractor shall not enter into any subcontract for the performance of the services contemplated under this Contract nor assign any interest in the Contract without prior written consent of Tri-City. 9. DEFAULT 9.1 Inability to perform. Contractor shall make every reasonable effort to maintain staff, facilities, and equipment to deliver the services to be purchased by Tri-City. Contractor shall immediately notify Tri-City in writing whenever it is unable to or reasonably believes it is going to be unable to provide the agreed upon quality of services. Upon such notification, Tri-City shall determine whether such inability requires a modification or cancellation of this Contract. 9.2 Duty to Mitigate. Both parties shall use their best efforts to mitigate any damages which might be suffered by reason of any event giving rise to a remedy hereunder. 10. TERMINATION 10.1 With or Without Cause. Notwithstanding any other prevision of this Contract, either Party may terminate this Contract at any time for any reason by giving thirty (30) days written notice to the other. Tri-City shall pay to Contractor the reasonable va.1ue of services received from- Contractor as of the termination date. 10.2 Notice of Default. Either Party may terminate this Contract for cause by giving ten (10} days written notice of its intent. Said notice shall specify the circumstances warranting termination of this Contract. 10.3 Failure to Cure. If the Party in default fails to cure the specified circumstances as described by the notice given under the above paragraph within the ten (10) days, or such additional time as may be mutually agreed upon, then the whole or any part of this Contract may be terminated by written notice. 5 10.4 Notice of Termination. Notice of Termination shall be made by certified mail or personal delivery to the other Party's Authorized Representative. Notice of Termination is deemed effective upon delivery to the address of the Party as stated in paragraph 12. 10.5 Effect of Termination. Termination of this Contract shall not discharge any liability, responsibility or right of any Party which arises from the performance of or failure to adequately perform the terms of this Contract prior to the effective date of termination, in accordance with the laws of the State of Minnesota. 11. CONTRACT RIGHTS/RE.MEDIES 11.1 Rights Cumulative. All remedies available to either Party under the terms of this Contract or by law are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies. 11.2 Waiver. Waiver for any default shall not be deemed to be a waiver of any subsequent default. Waiver or breach of any provisian of this Contract shall not be construed to be modification for the terms of this Contract unless stated to be such in writing and signed by authorized representatives of Tri-city and Contractor. 11.3 Force Maj sure Contractor will not be responsible for the delay in its performance of any obligation under this Agreement caused by acts of Gad, legal restrictions, or any other similar conditions beyond the control of Contractor. 12. AUTHORIZED REPRESENTATIVE Notification required to be provided pursuant to this Contract shall be provided to the following named persons and addresses unless otherwise stated in this Contract. or in a modification of this Contract. 6 13 14 To Contractor: Division Viee President Traffic Safety Systems Division 3M Center Building 225 ST. Paul, MN 55144 Fn. dley: Director of Public Works City of Fridley 6431 University Avenue NE Fridley, MN 55432 MODIFICATIONS Andaver: City Engineer City of Andover 1685 Crosstown Boulevard NW Andover, MN 55304 Columbia Hei ts: Public Works Director City of Columbia Heights 637 - 38th Avenue NE Columbia Heights, MN 55421 Any alterations, variations, modifications, or waivers of the provisions of this Contract shall only be valid when they have been reduced to writing, and signed by authorized representatives of Tri-City and Contractor. LIMITATION OF LIABILITY. NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES II~,T ANY WAY RELATED TO THE SERVICES, THIS AGREEMENT OR THE TERMINATION OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT. I5. SEVERABILITY The provisions of this Contract shall be deemed severable. If any part of this Contract is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Contract unless the part or parts which are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Contract with respect to either Party. 7 16. MERGER Final Agreement. This Contract is the final statement of the agreement of the Parties and the complete and exclusive statement of the terms agreed upon, and shall supersede all prior negotiations, understandings or agreements. There are no representations, warranties, or stipulations, either oral or written, not herein contained. 17. DISPUTE RESOLUTION 17.1 This Agreement will be construed and enforced according to the laws of the State of Minnesota, without regarding to its conflicts of law rules. Any litigation regarding this Agreement must be filed and maintained in the state or federal courts of the State of Minnesota and the Parties consent to the personal jurisdiction of such courts. No provision of this Section 17 will preclude either Party seeking injunctive relief to prevent immediate or irreparable harm to it, but the mediation stated in Section 17.3 will otherwise be fully exhausted before the commencement of any litigation. 17.2 EACH PARTY IRREVOCABLY WADES ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CLAIMS OR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT. Any lawsuit or other action, regardless of form, relating to this Agreement, including, without limitation, an action for breach of warranty, must be commenced within one year after the later of: (a) date on which the breach of warranty or other cause of action occurred; or (b) date on which that Party knew or should have known of that breach of warranty or other cause of action. 17.3 Prior to commencement of any litigation regarding this Agreement, the rattles agree to voluntary, non-nmamg meaianon to resolve any uispuce they may have. The mediation will be conduct by a mutually selected mediator (or if the Parties cannot agree, by a mediator selected by the CPR Institute for Dispute Resolution}, in accordance with the CPR Institute's Model Procedure for Mediation of Business Disputes. The Parties will each pay its own attorneys' fees and will share equally the other mediation costs. While this mediation will be non-binding in all respects (except agreements in settlement of the dispute negotiated by the Parties}, each Party will appear when directed by the mediator, be fully prepared to work toward the dispute's resolution, and participate in good faith. If the mediation does not result in a mutually satisfactory resolution of the dispute within ninety days after it is begun, either Party may commence an action as permitted under Sections 17.1 and 17.2. All negotiations between the Parties pursuant to this Section 17 will be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence. IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date(s) indicated below. CONTRACTOR ,, B Y~ Title: "`~~ ~_ Date: By: Title: - ry Date: s Exhibit A Contractor shall provide the following services generally described as GIS 4n- Site Support, including but not limited to: • Maintain and edit all GIS datasets being used for Companies GIS • Create new datasets by: o Heads up digitizing o Merging new datasets o Spatial analysis o Geoprocessing o Geocoding • Create and update GIS maps • Advise Tri-City on GIS projects and software • Maintain and keep records of GIS-related software and software licenses • Customize GIS software where applicable • Customize and maintain GIS related web pages Other non-GIS services: • Create and maintain Microsoft Access databases • Customize forms and reports using Microsoft Access 10