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HomeMy WebLinkAboutContract No. 2013 2488 CONSULTING SERVICES AGREEMENT This Agreement is made as of JUh • �; ` , 2013(the "Effective Date"), by and between FLAT ROCK GEOGRAPHIC ("Contractor") and the Tri-City GIS Joint Powers Organization, consisting of the Cities of Fridley, Columbia Heights and Andover, hereinafter "Tri-City." CONTRACTOR 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 Term. The term of this Contract shall be from January 1, 2013, through December 31, 2013, unless earlier terminated by law or according to the provisions of this Contract. 2. CONTRACTOR'S OBLIGATIONS 2.1 General Description. Contractor will provide GIS technical assistance to Tri-City which includes the cities of Andover, Columbia Heights and Fridley. Additional work 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 Contractor warrants that the Services will be performed in a safe, professional and workmanlike manner consistent with the applicable industry standards and this Agreement. CONTRACTOR 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. 7268579vi 3. PAYMENT a 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 Contractor. Total Service Fees: $ 80,888.0.0000 to be allocated as follows: Andover-$35,300.00 Fridley-$30,593.00 Columbia Heights-$14,995.00 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 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 reason(s) 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 Changes to Scope Tri-City shall have the right to request changes to the scope of the Services; however, all such changes are subject to acceptance by Contractor. If any change to the scope of the Services will cause an increase or decrease in the Service 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 by e- mail. Contractor shall not proceed with performance and shall have no obligation to proceed with performance pursuant to any requested change 2 7268579vl to the scope of the Services by Tri-City unless and until Contractor has received Tri-City's agreement to such increased or decreased Service Fees or time for performance via e-mail. 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, 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 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. 7. 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 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 3 7268579v1 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. 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. 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 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. 4 7268579x1 10.2 Notice of Default. Either Parry 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. 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 Parry 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. 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 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. 5 7268579vi t 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. To Contractor: Andover: President Director of Public Works/City Engineer Flat RockGeographics, LLC City of Andover 2434 Virginia Circle 1685 Crosstown Boulevard NW Roseville, MN 55113 Andover, MN 55304 Fridley: Columbia Heights: Director of Public Works Public Works Director City of Fridley City of Columbia Heights 6431 University Avenue NE 637 - 38 1h Avenue NE Fridley, MN 55432 Columbia Heights, MN 55421 13. MODIFICATIONS Except as otherwise provided in Section 3.4 hereof, 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. 14. 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. 6 7268579v1 16. MERGER AND FINAL AGREEMENT 16.1 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 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 Parry 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 costs. While this mediation will be non-binding in all respects (except agreements in settlement of the dispute negotiated by the Parties), each Parry 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. 7 7268579vl 18. NON-DISCLOSURE OF NON-PUBLIC PRIVATE OR CONFIDENTIAL INFORMATION The parties agree that in order to perform its duties under the terms of this Agreement, Contractor will have access to and may use certain information in the custody of the City that would be categorized as private or non-public data within the meaning of Minnesota law. Any such information or data is confidential and, as an essential and necessary part of this Agreement, Contractor agrees not to disclose, use, or otherwise disseminate any such data or information to any other party or entity other than the City. Use of any such information or data by Contractor during the period of this contract shall be exclusively for the purpose of fulfilling it obligations hereunder. Contractor agrees to indemnify the City and hold it harmless from any and all disclosures of such information and data to any other party as a consequence of its actions, which would include the actions of its agents, employees or anyone else that may be acting under its direction or on its behalf. Any such information and data in Contractor's possession after fulfillment of its obligations herein shall be destroyed or returned to the City and Contractor shall retain no copies thereof for any purpose. IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date(s) indicated below. FLAT ROCK GEOGRAPHICS, LLC TRI-CITY GIS ORGANIZATION By: By: Title: ,` L Title: Mavor Date: Date: December 3, 2012 d / By: _ Title: J�✓� Date: /,z2 11,1"11.2 By: Title: City Manager Date: 8 726as79vl Exhibit A Contractor shall provide the following services generally described as GIS On- Site Support, including but not limited to: Tri-City GIS Specialist $36.77 per hour Field Collection, Data Input, Data Editing, Data Creation, Data Management, Data Updates, Data Sychronization, Mapping, Geocoding, Update GeoMoose Layers, Run reports (CTS, GranitXP),General Maintenance of software,Checkln/Checkout Field data Analyst $65.00 per hour GeoMoose Customization, GIS Software Installation, Data Modelling, Model Builder,ArcPad Forms, CTS technical support, CityWorks Database manipulation Programmer $95.00 per hour Writing Code(HTML,VBSCRIPT), GeoMoose Custom Development (PHP,Javascript),Automation Project Manager $75.00 per hour Run meetings, Demos,Training,Task Management IT $90.00 per hour Software Installation, OS Tech support Sr. Project Manager 1 $90.00 per hour Advanced Client Relations, Advanced Data Modeling NOTE:This is not a comprehensive list. 9 7z6s57svi GIS JOINT POWERS AGREEMENT This Agreement is made and entered into by and between the City of Andover, a Minnesota municipal corporation, the City of Fridley, a Minnesota municipal corporation, and the City of Columbia Heights, a Minnesota municipal corporation. RECITALS WHEREAS, the parties hereto desire to jointly and cooperatively exercise their powers to provide geographic information systems and data as efficiently and cost-effectively as possible; and WHEREAS, the parties hereto previously executed a GIS Joint Powers Agreement in 1996 (the"1996 JPA Agreement"),which has lapsed; and WHEREAS, despite the lapse of the 1996 JPA Agreement, the parties hereto continued to jointly and cooperatively contract for a common geographic information systems and data; and WHEREAS, the parties desire to reaffirm their commitment to such joint and cooperative activity concerning common geographic information systems and data, and memorialize their joint and cooperative activity and agreement with respect to such activity; NOW THEREFORE, in consideration of the mutual covenants herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: -1- I. PARTIES The parties to this Agreement are governmental units of the State of Minnesota. This Agreement is made pursuant to Minnesota Statutes, Section 471.59, as may be amended from time to time. II. DEFINITIONS For the purpose of this Agreement, the terms defined in this Article have the meanings given to them. Section 1. "Board"means the board of directors established by Article V. Section 2. "Council"means the governing body of eachgovernmental unit. Section 3. "GIS"means geographic information systems. Section 4. "GIS Provider" means the person or firm hired to provide GIS technical assistance to the Organization and fulfill the tasks generally described in Section IV of this Agreement. Section 5. "Member" means the governmental unit which has entered into and become a party to this Agreement. Section 6. "Members" means all the governmental units which have entered into and become a party to this Agreement. Section 7. "Organization" means the joint and cooperative organization created by this Agreement and comprised of the Members of this Agreement. III. GENERAL PURPOSE The general purpose of this Agreement is to establish an organization to coordinate efforts to provide GIS services to the Members and provide joint funding of a GIS Provider. IV. SCOPE OF SERVICES -2- This Organization shall be responsible for organizing and updating databases for use with GIS software, updating of GIS base maps, and providing custom GIS applications based on the need of each of the Members. Furthermore, the Organization shall provide various forms for training of GIS users, develop proposals that will enable individual Members to seek quotes for various data gathering input to their respective GIS systems, analyze each Member's GIS hardware, and render advice relative to the networking of each Member's hardware. V. GOVERNING BOARD The governing body of the Organization shall be a Board consisting of three persons, each of whom shall be the City manager/administrator of each Member or their designees. The Board shall not have the authority to issue bonds. VI. MEETINGS Section 1. Board members shall meet at least once annually for the purpose of evaluating the work of the GIS Provider as well as defining the scope and cost of work to be completed in the next calendar year. Said meeting shall be held on or before October 1St, of each year, or on such other day as the Board may mutually agree upon. Section 2. The Board may make such contracts and enter into such agreements as it deems necessary to make effective any power granted by this Agreement. It may contract with any of its Members, or others, to provide space, services or materials on behalf of the Organization. VII. DISTRIBUTION OF BENEFITS All benefits of the GIS Provider services are to be allocated among the Members of the Organization in a manner and in proportion as mutually agreed upon by the Members based upon their individual usage of the services. The GIS Provider will strive to accomplish the items in -3- the Scope of Services relevant to all Members before performing additional, individual Member- specific tasks. The GIS Provider will be available to meet with the representative of each of the Members to discuss progress being made on each of the items listed in the Scope of Services and each Member's specific tasks. VIII. FINANCES Section 1. Members shall contribute to the cost of a contract with a GIS Provider for the performance of tasks identified under the Scope of Services in proportion to the benefit of service each Member receives from the GIS Provider. Each Member shall be provided with a quarterly summary of costs incurred under this Agreement, and will pay amounts due within thirty (30) days of receiving said summary. Section 2. The Organization's funds may be expended by the Board in accordance with this Agreement in a manner determined by the Board. The Board shall designate the City of Columbia Heights to act as depository for the Organization's funds. There shall be no disbursement of Organization funds from the City of Columbia Heights depository account without the prior written approval of at least two Board members. Section 3. The City of Columbia Heights will receive invoices from the GIS Provider and pay the GIS Provider on a monthly basis for the work performed, in accordance with this Agreement. The City of Columbia Heights shall be responsible for maintenance of any grant revenue or other revenues collected by the Organization. Interest collected on funds held on behalf of the Organization shall be the property of the Organization. Section 4. The Board shall make a financial accounting report to the Members at least once a year. The books and records of the Organization shall remain open and available for inspection by Members at all reasonable times. -4- Section 5. An annual budget shall be adopted by the Board at the organizational meeting and the annual meeting each year. Copies of the budget shall be mailed promptly to the City manager/administrator of each Member. The budget shall be deemed approved by each Member with the exception of any Member who, at any time prior to the annual meeting, gives notice in writing to other Members that it is withdrawing from the Organization. IX. INDEMNIFICATION Each Member shall fully indemnify and hold harmless the other Members against all claims, losses, damages, liability, lawsuits,judgments, costs and expenses by reason of action or inaction of its employees assigned to the Organization. The Agreement to indemnify and hold harmless does not constitute a waiver by any Member of limitations on liability provided by Minnesota Statutes, Chapter 466. To the fullest extent permitted by law, this Agreement is intended to be, and shall be, construed as a "cooperative activity" and it is the intent of the Members that they shall be deemed a "single governmental unity" for the purposes of liability, as set forth in Minn. Stat. §471.59, Subd. la(b). Nothing herein shall be construed to waive or limit any immunity availability to any Member, whether set forth in Minnesota Statutes, Chapter 466 or otherwise. Under no circumstances shall a Member be required to pay on behalf of itself or other Members, any amounts in excess of the limits of liability established in Minnesota Statutes, Chapter 466 relative to any third party claim. The statutory limits of liability for some or all of the Members may not be added together or stacked to increase the maximum amount of liability for any third party claim. -5- X. DURATION This Agreement shall become effective upon the execution by all Members listed in Paragraph 1 of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same Agreement. This signed Agreement shall be filed with the City Clerk in the City of Andover, who shall notify all Members in writing of its effective date.' Section 1. This Agreement shall continue in full force and effect, automatically renewing annually, unless and until terminated pursuant to Section 2 of this Article. Section 2. This Agreement can be terminated at any time upon the prior written agreement of two-thirds (2/3) of the Board members. Section 3. Upon termination of this Agreement, all property of the Organization, and any proceeds from the sale thereof, shall be distributed to the Members in proportion to the contributions of each Member of this Agreement. Section 4. Governmental units wishing to become Members after the effective date of this Agreement may be admitted only upon the favorable vote of two-thirds (2/3) of the votes of the Board members. Financial contributions and responsibilities of any newly admitted Member shall be prorated to the date of membership as determined by the Board. IN WITNESS WHEREOF, the undersigned governmental units, by action of their governing bodies, have caused this Agreement to be executed in accordance with the authority of Minnesota Statutes, Section 471.59. [The remainder of this page is intentionally left blank.] -6- CITY OF ANDOVER SIGANTURE PAGE Approved by the City Council CITY OF ANDOVER Title Xox� Dat i ature BVL Date of Signature -7- CITY OF FRIDLEY SIGNATURE PAGE Approved by the City Council CITY OF FRIDLEY By Mayor Date of Signature By City Manager Date of Signature CITY OF COLUMBIA HEIGHTS SIGNATURE PAGE Approved by the City Council CITY OF C%UMBI 6HEHTS? January 28, 2013 Title Mayor Date of Signature ZBy Title City Manaqer Date of Signature -9-