HomeMy WebLinkAboutContract 20602060
CNSLTIN SERVICES EENT
This Agreement is made as of '~;~~, , 200~~ (the "Effective Date"}, by and
between 3M COMPANY, a De~~ware 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:
TERM
1.1 Term.
The term of this Contract shall be from January I, 2008, through
December 31, 2008, unless earlier terminated by law or according to the
provisions of this Contract.
2. CONTRACTOR'S OBLIGATIONS
2.2 General Description.
Contractor will provide 2,361 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 37
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 MAKES 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.I 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: $80,275.°-° to be allocated as follows:
Andover-$32,640.0-°, or 40%;
Fridley-32,640.°~}, or 40%;
Columbia Heights-$14,995.0-°, or 20%
3.2 Invoices.
Contractor shall, within fifteen (15} working days following 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 Patent.
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
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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 all 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, casts, 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 willful omission of
Contractor, its agents, servants or employees, in the execution, performance, or
failure to adequately perform Contractor's obligations pursuant to this Contract.
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?. Il`~1SURANCE
7.1 General Terms.
In order to protect itself and to protect. Tri-City under the indemnity
provisions set forth above Coniractor shah, ai Cuiitiacto'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 from 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
5600,000 per occurrence
B} Workers' Compensation
If applicable, Contractor shall procure and maintain a policy that at least
meets the statutory minimum.
7.3 Certificates.
Prior 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.
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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 Inabilityperform.
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 gaing 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 ather provision 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 value of services received from Contractor as of the
termination date.
10.2 Notice of Default.
Either Party may terminate this Contract far 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 whale or
any part of this Contract maybe terminated by written notice.
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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/REMEDIES
11.1 Rights Cumulative.
A11 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 provision 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 Majeure
Contractor will not be responsible for the delay in its performance of any
obligation under this Agreement caused by acts of God, 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 fallowing named persons and addresses unless otherwise stated. in this
Contract, or in a modification of this Contract.
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To Contractor:
Division Vice President
Traffic Safety Systems Division
3M Center Building 225
ST. Paul, MN 55144
Fr~• dley:
Director of Public Works
City of Fridley
6431 University Avenue NE
Fridley, MN 55432
MODIFICATIONS
Andover:
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 IN 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.
15. 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.
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16. MERGER
Final Agreement.
This Contract is the final statement of the agreement of the Parties and the
complete ana exc~us~ve statemen~ or the terms agreea upon, anu 5nau ~u~Cr~cuc
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 WAIVES 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
Parties agree to voluntary, non-binding mediation to resolve any dispute
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 casts.
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. AII negotiations between the Parties pursuant to this
Section 17 will be treated as compromise and settlement negotiations for
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purposes of the applicable rules of evidence.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date(s)
indicated below.
CONTRACTOR.
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Exhibit A
Contractor shall provide the following services generally described as GIS On-
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
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ASSIGNMENT AND DELEGATION
For value received, 3M Company (3M) assigns to GIS Rangers, L. L. C ("Rangers") all of
3M's rights, title and interest in the Consulting Services Agreement between 3M and the Tri-
City GIS Joint Powers Organization ("Tri-Cities") dated January 25, 2008 (Agreement). 3M
also delegates to Rangers all of 3M's duties under the Agreement. 3M warrants that the
Agreement is in full force and effect and has not been breached by either party, and there are
no set-offs or counterclaims against 3M.
Date ~,%
ACCEPTANCE OF ASSIGNMENT AND DELEGATION
For value received, Rangers accepts the foregoing assignment and agrees to assume and
perform all of 3M's duties under the Agreement as if Rangers had been an original party to
the Agreement and Rangers agrees to indemnify, defend and hold 3M harmless from any
liability arising out of or related to Rangers' performance or non-performance of the assumed
duties.
GIS Rangers, L. L. C.
. .. ..
~-
Blaine Hackett
President
Date ~~~~' f~
CONSENT TO ASSIGNMENT AND NOVATION
In consideration of Ranger's assumption of 3M's duties under the Agreement, the City of
Columbia Heights as a member of Tri-Cities consents to the assignment to Ranger of 3M's
rights and the delegation to Ranger of 3M's duties under the Agreement and the City of
Columbia Heights agrees that 3M is discharged as a party to the Agreement and that 3M shall
not be liable in any way to City of Columbia Heights for the performance or non-performance
of the Agreement by Ranger.
City of Colum i Heights
By
Walter Fehst
City Manager
Date