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HomeMy WebLinkAbout2016-2692i NOV 1, G ?0i CONSENT TO ASSIGNMENT OF PUBLIC C "V K CONSULTING SERVICES AGREEMENT BETWEEN FLAT ROCK GEOGRAPHICS, LLC AND TRI-CITY GIS ORGANIZATION YJ VE/SPEC INC. AND ASSUMPTION OF CONSULTING SERVICES AGREEMENT BETWEEN FLAT ROCK GEOGRAPHICS, LLC AND TRI -CITY GIS ORGANIZATION BY RE /SPEC INC. WHEREAS, on or about December 18, 2014 the Tri -City GIS Joint Powers Organization ( "Tri- City" or "Client ") and Flat Rock Geographies, LLC ( "Flat Rock" or "Contractor ") entered into that Consulting Services Agreement, dated December 22, 2014 ( "Agreement ") a true and correct copy of which is attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, Flat Rock Geographies, LLC has since merged its operations into a new entity, RE /SPEC Inc. ( "RE /SPEC" or "Assignee "), in order to better serve new and existing clients; and WHEREAS, by its terms, Section 8 of the Agreement prohibits Flat Rock from assigning its interest in the Agreement without prior written consent of Tri -City and Section 13 of the Agreement requires any alterations, variations, and modifications of the Agreement to be reduced to writing and signed by Tri -City and Flat Rock; and WHEREAS, Flat Rock desires to assign the Agreement to RE /SPEC and is willing to assign the Agreement to RE /SPEC under the conditions set forth below; and WHEREAS, Tri -City wishes to maintain the terms and conditions already established by the Agreement for GIS consulting services; and WHEREAS, Tri -City is willing to agree to the assignment of the Agreement from Flat Consent to Assignment Consulting Services Agreement dated October 22, 2015 Page I of 4 Rock to RE /SPEC under the conditions set forth below; WHEREAS, RE /SPEC is willing to perform Flat Rock's obligations set forth in the Agreement and accept assignment of the Agreement under the conditions set forth below; NOW, THEREFORE, it is hereby agreed as follows: Tri -City hereby consents to the assignment of the Agreement to RE /SPEC, effective October 1, 2015. 2. Flat Rock acknowledges that the assignment does not relieve Flat Rock of its responsibility for the due and full performance of the Agreement and Flat Rock agrees to be liable to Tri -City for all the obligations of RE /SPEC. 3. RE /SPEC, as assignee, agrees to assume and fully and faithfully perform the obligations of Flat Rock under the Agreement in accordance with its terms and including any amendments thereof and be bound thereby and agrees to be liable to Tri -City for the performance of the Agreement. 4. Tri -City, Flat Rock and RE /SPEC agree and acknowledge that the Agreement attached hereto as Exhibit A is incorporated by reference as if fully set forth herein, that all terms and conditions of and the Agreement itself continues in full force and effect until the Agreement expires or is terminated as provided in the Agreement, and that the parties are bound by the Agreement's terms and conditions until such expiration or termination. [Remainder of a page is intentionally left blank.] Consent to Assignment Consulting Services Agreement dated October 22, 2015 Page 2 of 4 IN WITNESS THEREOF, the parties above -named hereby execute this Consent to Assignment of Consulting Services Agreement Between Flat Rock Geographics, LLC and Tri -City GIS Organization (the "Consent ") and warrant that they have full right, power, and authority to enter into this Consent on behalf of the respective parties hereto. Dated: 2015 Dated:. : '` , 2015 Dated: Dated: Dated: 2015 TRI -CITY GIS ORGANIZATION City of Fridley By: Its: City of Col By: Its: City of Anuuver ao By_ Its: FLAT ROCK, LLC 2015 4AA6'� __ By: Blaine A. Hackett Its: President ASSIGNEE: RE /SPEC INC. 2015 By: 1 Welling Its: F Consent to Assignment Consulting Services Agreement dated October 22, 2015 Page 3 of 4 Exhibit A Consent to Assignment Consulting Sen>ices Agreement dated October 22, 2015 Page 4 of 4 This Agreement is made as of 201 (the -Effective Date-), by and between FLAT ROCK GEOGRAPHICS (**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-Parly.- 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 Ten-n. The term of this Contract shall be from January 1, 2015, through December 31, 2015, unless earlier terminated by law or according to the provisions of this Contract. I CONTPACTOR"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, 7268579v 3. PAYMENT 3.1 Service Fees 'file Contractor's fees for Services are set lorth 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. $98.415 to be allocated as follows: Andover - $43,200.00 Fridley-$37,440.00 Columbia I leights-$17.775.00 12 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. 33 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 !C, �hajs.Lo _Sco e 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 110 obligation to proceed with performance pursuant to any requested change 2 7268579NI 11 6. 7 7268579N,l 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. 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. lND.,EIIJ`NDFNTCONTRACTOR 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. 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, serNants or employees, in the execution. performance. or failure to adequately perform Contractor's obligations pursuant to this Contract. 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, 72 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 l'ollowing coverages at a rninirriurn: 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 ot'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 ofTri-City. 9. DEFAULT 91 Inability to perform. Contractor shall make every reasonable effort to maintain staff. J'acilities, 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 Nj i ti atc, 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. 10.2 Notice ol'Default. 4 72685790 Dither 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 ol'this Contract. 10.3 Failure to Cure. ll'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 ol'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 ermination is deemed elTective upon delivery to the address of the Party as stated in paragraph 12, 10.5 EfTect of Termination. Termination of this Contract shall not discharge any liability_ responsibility or right of any Party which arises frorn 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. CONTRACT RIGHTS/REMEDIES 11.1 Rights Cumulative. All remedies available to either Party under the ten-as 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 Lo Contractor will not be responsible for the dela), 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. 72685790 12 13 14 Fri 16. 7268571A1 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: President Flat Rock Geographies, LLC 2434 Virginia Circle Roseville, MN 55113 ) Fri_ dley: Director ot'llublic Works City of Fridley 6431 University Avenue NE Fridley, MN 55432 MODIFICATIONS Andover: Director of Public Works/City Engineer City of Andover 1685 Crosstown Boulevard NW Andover, M-N, 55304 Columbia lj!ei hts. Public Works Director City of Columbia Heights 637 - 38"' Avenue NE Columbia Heights, MN 55421 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. 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. 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. MERGER AND I"INAL AGREEMENT 16.1 This Contract is the final statement of the agreement of the Parties and the 6 complete and exclusive statement of the terms agreed upon, and shall supersede all prior negotiations, understandings or agreements. '['here are no representations, warranties, or stipulations. either oral or written, not herein contained. 17. DISPUTE RESOLUTION 17.1 This Agreement will be construed and cn16rced 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 courls. 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 'kA'ITFI RESPECT TO ANY CLAIMS OR DISPUITES ARISING OUT OF OR RELATED TO THIS AGREEMENT, Any lawsuit or other action. regardless of form, relating to this Agreement. including. without limitation. all 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. 173 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 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 ol" the applicable rules of evidence. 18. NON-DISCLOSURE OF NON-PUBLIC. PRIVATE OR CONFIDENTIAL INFORMATION 7 7268579NA Tile parties o&roo that in order 0a perform by duties under the (cnnu of this Agreement. Conti-actor will have access 0m and may use certain iofbnnxUiun in the custody u[dhcCi{y that would be categorized as private or non-public data within the meaning o[ Minnesota law. &m*uchiuformationmdataiaoonfidentialmd- as an essential and necessary part u[ this /1unemuot' Contractor agrees not to dimc|osc' use. or oxhervise diyxconinukr nny such data or in�xn/atiom 10 onI other purty or entity other than Lbc[ily. Use ofuny such information or data br Contractor dudoo the period o[ this contract shall be exclusively [nr Ulc purpose o|- fulfilling its obligations hereunder. Contractor agrees to indemnify the City and hold it honn|css from any and all disclosures of such iril'ormation and data to any other party as a consequence of its oo1k`uy, which would include the actions of its agents, employees uvunyoocelse that may be acting under its direction or oil its behalf. Any such iufhnnubou and data in Contractor's possession after /b1fiUmen( of its obligations herein shall be destroyed or returned to tile [h\' and Contractor shall retain no copies thereof for any purpose. IN WITNESS WHEREOF. the parties hereto have executed this Contract oil tile date(o) indicated below. CONTRACTOR Ti t le t Date: 0—k�-1 9 8 roW7p / Contractor shall provide the f'ol|owing aco/iccx generally described an {3lS Support: Regular Hourly Rate !Tri-[by2015 Discount Hourly Rate Specialist i $6s.00 $45.00 Field Data Collection, Data Input, Data Editing, Data Updates, Data Management, Data Sychronization, Mapping, Geocoding, Analyst $75.00 $65.00 Run reports (CTS, GranitXP), Checkln/Checkout Field data, Data Modelling, Model Builder, ArcPad Form Creation, Database creation, Update GeoMoose Layers Project Manager $120.00 $95.00 Run meetings, Demos, Training, Task Management, Staff support Software Installation, OS Tech support, General Maintenance of software, CTS technical support Programmer/Developer 1 $150.00 $120.00 Writing Code (HTML, VBSCRIPT), Custom Development (PHP, Javascript), Automation, 9