Contract - 02-03-2015 - 6959 - Personal Services Agreement and Confidentiality Agreement - The Futures Corporation (FTC).Print Agenda Summary
AS -6959
BOCC Agenda
Meeting Date: 02/03/2015
PERSONAL SERVICES AGREEMENT
Futures Corporation (FTC)
Page 1 of 1
5.
AND CONFIDENTIALITY AGREEMENT - The
Submitted For: Brad Bastin, Public Works
Department: Public Works
Submitted By: Emilie Cochrane, Public
Works
Information
Subject and Summary Statement
Attached is a Personal Services Agreement and Confidentiality Agreement with The
Futures Corporation, Dr. John Luthy specifically to provide organization analysis, employee
development, strategic planning and succession planning process that encompasses some
training, on and off -site analysis, current process review, presentations, organization
counseling and associated recommendations and implementation strategies for Public
Works as requested. The term of the agreement is from January 1, 2015 to December 31,
2016,
Will Staff Attend Y / N
Yes
Department Recommendation
It is the recommendation of the Department of Public Works that the Board moves to enter
into the Personal Services Agreement with the Futures Corporation, accept the
Confidentiality Agreement and approve the documents be executed.
Personal Services Agreement
Confidentiality Agreement
Inbox
County Engineer
Ron Junker
Doug Jensen
Clerk of the Board
Reviewed By
Brad Bastin
Ron Junker
Doug Jensen
Traci Jackson
Form Started By: Emilie Cochrane
Final Approval Date: 02/03/2015
Attachments
Form Review
Date
01/28/2015 01:35 PM
01/29/2015 08:29 AM
01/30/2015 01:15 PM
02/03/2015 08:55 AM
Started On: 01/26/2015 10:06 AM
http:// agendaquick /frs /publish/print_ag_memo. cfm ?seq= 6959 &rev_num =0 &mode= Externa... 2/3/2015
PERSONAL SERVICES AGREEMENT
SHING16
THIS AGREEMENT is entered into between COWLITZ COUNTY, a political subdivision of the State of
Washington, (hereinafter called "COUNTY ") and
Name: The Futures Corporation (TFC)
Address: 1109 Main Street, Suite 299A
Boise, ID 83702
Phone No: 208 -345 -5995
Fax No:
hereinafter called "CONSULTANT'.
This AGREEMENT is comprised of:
Attachment A — Scope of Work
Attachment B — Compensation
Attachment C — General Conditions
Attachment D — Special Terms and Conditions
Attachment E — (specify)
copies of which are attached hereto and incorporated herein by this reference as if fully set forth.
The term of this AGREEMENT shall commence on the 1st day of January, 2015, and shall, unless
terminated as provided elsewhere in the AGREEMENT, terminate on the 31St day of December, 2016.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT on this Lf-day Fes, of
2015.
THE FUTURES CORPORATION
Federal ID# 82- 0418165
APPROVED AS TO FORM:
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BOARD OF COUNTY COMMISSIONERS
OF COWLITZ COUNTY, WASHINGTON r
ichael A. Karnofski Chair a
Dennis P. Weber, Commission r
Gardner, Commissioner
ATTEST:
Clerk of the Board
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PERSONAL SERVICES AGREEMENT
SCOPE OF WORK
ATTACHMENT A
1) TFC, and Dr. John Luthy specifically, will assume a contracted position to provide
organization analysis, employee development, strategic planning, and succession planning
processes that encompass some training, on and off -site analysis, current process review,
presentations, organization counseling and associated recommendations and
implementation strategies for the County, undertaking the duties and responsibilities
agreed upon by the parties as set forth in this document. Basic responsibilities and actions
may include, but are not limited to, the following general Phases:
Phase I — Analysis
As requested by the department director, travel to Cowlitz County to hold on -site work
sessions at the Public Works Department to assess organization structure, internal issues,
current strategic planning process, internal and external relationships, existing succession
plans, staff development planning, and workflow /reporting structure. While on site, assist
with implementation of strategic plan initiatives and continue to assist with the planning
process, consistently training key personnel who are engaged with organization
development and improvement. Include meetings and work sessions with key
director /managers within Public Works, County Commissioners, Human Resources, etc.
This begins both initial organization analysis and planning processes and requires at least
four days on site, plus another day at the TFC office to prepare notes and recommended
actions. Estimated at 5 days @ $1200 /day plus expenses.
Work on- and off -site with Department management to help develop a long -term strategic
plan that identifies major challenge areas in the County and poses key goals and actions.
Ensure that the department has a plan with long -term goals that relate to BOTH external
and internal challenges. The department will undertake a 2014 -2015 planning process that
creates an agenda for measured improvement within the County AND inside the
organization. Estimated at 6 days on site, 2 days off site to help re -work the draft strategic
plan, develop a stronger document, and continue to edit text into a concise document that
provides the basis for continuous process and organizational improvement. Total —8 days
@$1200 /day plus expenses.
Using information gained through ongoing organizational analysis and the strategic
planning process, work with management to ensure the formulation of a clear
organizational improvement and development plan. Historic data combined with strategic
planning data will inform actions and strategies that may pertain to organization structure,
ATTACHMENTA Page 1
PERSONAL SERVICES AGREEMENT ATTACHMENT A
operational focus, succession, staff development, performance management, major
internal and external challenges, leadership development, and a variety of other potential
subjects. All areas will be explored and the report will provide rationale as well as
recommendations. Estimated at 6 days @ $1200 /day plus expenses.
Phase IV — Implementation: Creating Planned Strategic & Organizational Improvement
As required during the contract period, schedule work sessions on site with the Department
and other agencies as required. This Phase is critical because it deals with actual
implementation of identified initiatives that will strengthen the department. Dr. Luthy will
work on- and off -site with management to identify clear actions, training topics, coaching,
facilitation, problem solving, and on -going planning for the areas outlined. Succession,
leadership, strategic direction, and overall organization development will be covered as
required as part of strategic and organizational development during 2015 and 2016.
This Phase requires the most time. However, it is never clear how much time will be
required. Eight days is typically sufficient. Some departments request ongoing assistance,
which extends time requirements. Includes on- and off -site work encompassing training,
coaching, interventions, problem solving, implementation of internal improvement
strategic initiatives, etc. Estimate 10 days @$1,500 /day plus expenses.
2) Compensation. In consideration of the functions performed hereunder by TFC, the County
will pay TFC the amount of $1200 per day in addition to all normal and expected expenses
including air, lodging, meals, rental car, automobile transportation, telephone, mailing, and
any other expense that is dedicated to the County in the execution of this agreement.
Total estimated man -days - 28 days @ $1,200 /day or $33,600 with all hours receiving
prior approval from the Department for project work. There may be opportunities to
consolidate workdays and actions and every attempt will be made to reduce the
number of hours.
Expenses are charged separately and are not to be incurred without prior approval
from the Department/ County. Air travel, rental car, gasoline, lodging, and food is
reimbursed at cost and all receipts must be provided with each invoice. Any use of
personal vehicle for travel to Cowlitz County will be reimbursed at $.50 per mile.
Travel expense is estimated based on 4 trips annually at $375/ trip, with an average of
3 nights at $95 /night; four trips estimated at $2,640 plus gasoline and food, estimated
at <$650 total; total estimated expenses - $3,290.
Total project budget as estimated is not to exceed 36,890 annually without prior approval from
the Department. This assumes ALL work is done in one year instead of over two years.
3) Invoices. Invoices will be sent on a regular basis as elements of work are performed.
ATTACHMENT A Page 1
PERSONAL SERVICES AGREEMENT ATTACHMENT A
4) Accepted Practice. The County agrees to utilize TFC as a succession planning and
organization development consultant in every manner prescribed in accepted practice. It
agrees to fully support TFC in consultative activities, training presentations, counseling,
analysis, planning, and other activities including, but not limited to those described herein.
5) Conduct. TFC agrees to conduct the County's activities pursuant to accepted business and
governmental practices and with full commitment to achieve the goals and objectives set
forth in plans developed by and for the County. TFC pledges to fully support the County, its
officials, managers, and department staff to develop the plans and organizations that can
maximize their long -term potential. It will perform its obligations under the plans and
organizations that can maximize their long -term potential. It will perform its obligations
under this agreement to the best of its abilities. However, TFC does not guarantee nor can
it be held liable or accountable for the ultimate success of the County, its employees,
programs, systems, or processes.
6) Enforcement. Should it become necessary for TFC to enforce the provisions of this
agreement, it shall be entitled to its reasonable attorney fees and associated costs.
7) Indemnification. The County will indemnify and hold harmless TFC, its officers, employees
and representatives from any liability arising from the business or practice activities of the
County of the dissolution of the County or any of its departments, except those caused by
the gross negligence or willful misconduct of TFC or its representatives. TFC will indemnify
and hold harmless the County its officers, officials and employees from any liability
associated with this agreement, except those caused by the gross negligence or willful
misconduct of the County or its representatives.
8) Termination. This agreement is subject to termination in the event of any of the following:
a) Upon mutual written consent of the parties, with 30 days advance written notice;
b) Upon bankruptcy or other involuntary dissolution of either party;
c) Upon default by either party or any conditions of this agreement, provided that one
party notifies the defaulting party in writing within 30 days of said default, and
provided the defaulting party does not correct the default within 15 days of receipt
of such notice; or
d) Upon the gross negligence or malfeasance by either party. Such conditions must be
well substantiated and proven to be contrary to accepted standards of business
conduct.
e) Upon 30 days advance written notice by the County, should it desire to terminate
this agreement. Should this occur, and be outside conditions set forth in b., c., and
d., above, the County will pay TFC for the unpaid time worked to that point at TFC's
normal $150 per hour fee, plus incurred expenses, the sum of which is due and
payable upon termination.
ATTACHMENT A Page 1
PERSONAL SERVICES AGREEMENT ATTACHMENT A
9) Confidentiality. Nondisclosure of confidential information during employment period and
after termination.
TFC agrees that for and during the entire term of this agreement, any information, data,
analysis, projections, plans, records, personnel history, accounting, procedures, and the
like, shall be considered and kept as the private and privileged records of the County, and
will not be divulged to any person, practice, corporation, or other entity except on the
direct authorization of the management of the County. Further, upon termination of this
agreement, for any reason, TFC agrees that TFC will continue to treat as private and
privileged any research, analytical, or planning information, data, calculations, projections,
estimates, employee lists, records, personnel history, accounting procedures, and the like,
and will not release any such information to any person, practice, corporation, or other
entity, either by statement, deposition, or as a witness, except upon direct written
authority of the management of the County, and the County shall be entitled to an
injunction by any competent court to enjoin and restrain the unauthorized disclosure of
such information. This is in effect even though much of the County's information is public
information.
ATTACHMENT A Page 1
PERSONAL SERVICES AGREEMENT
COMPENSATION
ATTACHMENT B
HOURLY RATES: For services rendered, the COUNTY shall compensate the CONSULTANT at the
hourly rates documented in the attached scope of work.
Payments for completed tasks shall be made no more frequently than monthly.
Each request for payment shall be supported by an invoice specifying: the name /position of the
CONSULTANT's employee if two or more are identified above; number of hours worked;
completed tasks for which compensation is sought; estimated percentage of task completion;
payment amount requested.
In no event shall CONSULTANT be compensated in excess of thirty six thousand eight hundred
ninety dollars ($36,890) for the completed work set forth in Attachment "A."
The compensation set forth herein includes, without limitation: labor, materials, equipment,
travel, telephone, computer, copiers and the like.
ATTACHMENT B Page 1
PERSONAL SERVICES AGREEMENT
GENERAL CONDITIONS
ATTACHMENT C
1. Scope of CONSULTANT's Services. The CONSULTANT agrees to provide to the COUNTY
services and any materials set forth in the project narrative identified as Attachment A
during the AGREEMENT period. No material, labor, or facilities will be furnished by the
County, unless otherwise provided for in the AGREEMENT.
2. Accounting and Payment for CONSULTANT Services. Payment to the CONSULTANT for
services rendered under this AGREEMENT shall be as set forth in Attachment B. Unless
specifically stated in Attachment B, the COUNTY will not reimburse the CONSULTANT for
any costs or expenses incurred by the CONSULTANT in the performance of this contract.
The COUNTY shall compensate the CONSULTANT through the County voucher system for
the CONSULTANT's service pursuant to the fee schedule set forth in Attachment B.
3. Delegation and Subconsultanting. CONSULTANT's services are deemed personal and no
portion of this contract may be delegated or subconsultanted to any other individual, firm
or entity without the express and prior written approval of the County Project Manager.
41 Independent CONSULTANT. The CONSULTANT's services shall be furnished by the
CONSULTANT as an independent CONSULTANT and nothing herein contained shall be
construed to create a relationship of employer /employee or master /servant.
The CONSULTANT acknowledges that the entire compensation for this AGREEMENT is
specified in Attachment B and the CONSULTANT is not entitled to any county benefits
including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental or
other insurance benefits, or any other rights or privileges afforded to Cowlitz County
employees. The CONSULTANT represents that it maintains a separate place of business,
serves clients other than the COUNTY, will report all income and expense accrued under
this contract with the Internal Revenue Service on a business tax schedule, and has a tax
account with the State of Washington Department of Revenue for payment of all sales and
use and Business and Occupation taxes collected by the State of Washington.
In the event that either the state or federal government determines that an
employer /employee or master /servant relationship exists rather than an independent
CONSULTANT relationship such that Cowlitz County is deemed responsible for federal
withholding, social security contributions, workers compensation and the like, the
CONSULTANT agrees to reimburse Cowlitz County for any payments made or required to be
made by Cowlitz County. Should any payments be due to the CONSULTANT pursuant to
this AGREEMENT, the CONSULTANT agrees that reimbursement may be made by deducting
from such future payments a pro rata share of the amount to be reimbursed.
ATTACHMENT C Page 1
PERSONAL SERVICES AGREEMENT ATTACHMENT C
Notwithstanding any determination by the state or federal government that an
employer /employee or master /servant relationship exists, the CONSULTANT, its officers,
employees and agents, shall not be entitled to any benefits which Cowlitz County provides
to its employees.
S. No Guarantee of Employment. The performance of all or part of this contract by the
CONSULTANT shall not operate to vest any employment rights whatsoever and shall not be
deemed to guarantee any employment of the CONSULTANT or any employee of the
CONSULTANT or any subconsultant or any employee of any subconsultant or CONSULTANT
by the COUNTY at the present time or in the future.
6. Regulations and Requirements. This AGREEMENT shall be subject to all federal, state and
local laws, rules, and regulations.
79 Right to Review. This contract is subject to review by any federal or state auditor. The
COUNTY shall have the right to review and monitor the financial and service components of
this program by whatever means are deemed expedient by the County Project Manager.
Such review may occur with or without notice, and may include, but is not limited to,
on -site inspection by County agents or employees, inspection of all records or other
materials which the COUNTY deems pertinent to the AGREEMENT and its performance, and
any and all communications with or evaluations by service recipients under this
AGREEMENT. The CONSULTANT shall preserve and maintain all financial records and
records relating to the performance of work under this AGREEMENT for three (3) years
after contract termination, and shall make them available for such review, within Cowlitz
County, State of Washington, upon request, during reasonable business hours.
8. Modifications. Either party may request changes in the AGREEMENT. Any and all agreed
modifications shall be in writing, signed by each of the parties.
9. Termination for Default. If the CONSULTANT defaults by failing to perform any of the
obligations of the contract or becomes insolvent or is declared bankrupt or makes an
assignment for the benefit of creditors, the COUNTY may, by depositing written notice to
the CONSULTANT in the U.S. Mail, postage prepaid, terminate the contract, and at the
COUNTY's option, obtain performance of the work elsewhere. If the contract is terminated
for default, the CONSULTANT shall not be entitled to receive any further payments under
the contract. Any extra Cost or damage to the COUNTY resulting from such default(s) shall
be deducted from any money due or coming due to the CONSULTANT. The CONSULTANT
agrees to bear any extra expenses incurred by the COUNTY in completing the work,
including all increased costs for completing the work, and all damage sustained, or which
may be sustained by the COUNTY by reason of such default.
ATTACHMENT C Page 2
PERSONAL SERVICES AGREEMENT ATTACHMENT C
If a notice of termination for default has been issued and it is later determined for any
reason that the CONSULTANT was not in default, the rights and obligations of the parties
shall be the same as if the notice of termination had been issued pursuant to the
Termination for Public Convenience paragraph hereof.
10. Termination for Public Convenience. The COUNTY may terminate the contract in whole or
in part whenever the COUNTY determines, in its sole discretion that such termination is in
the interests of the COUNTY. Whenever the contract is terminated in accordance with this
paragraph, the CONSULTANT shall be entitled to payment for actual work performed for
completed items of work. An equitable adjustment in the contract price for partially
completed items of work will be made, but such adjustment shall not include provision for
loss of anticipated profit on deleted or uncompleted work. Termination of this contract by
the COUNTY at any time during the term, whether for default or convenience, shall not
constitute a breach of contract by the COUNTY.
11, Termination Due to Insufficient Funds. If sufficient funds for payment under this contract
are not appropriated or allocated or are withdrawn, reduced, or otherwise limited, the
COUNTY may terminate this contract upon thirty (30) days written notice to the
CONSULTANT. No penalty or expense shall accrue to the COUNTY in the event this
provision applies.
12. Termination Procedure. The following provisions apply in the event that this AGREEMENT
is terminated:
a) The CONSULTANT shall cease to perform any services required hereunder as of the
effective date of termination and shall comply with all reasonable instructions
contained in the notice of termination, if any.
b) The CONSULTANT shall provide the COUNTY with an accounting of authorized services
provided through the effective date of termination.
c) If the AGREEMENT has been terminated for default, the COUNTY may withhold a sum
from the final payment to the CONSULTANT that the COUNTY determines necessary to
protect itself against loss or liability.
13. Defense and Indemnity AGREEMENT. The CONSULTANT agrees to defend, indemnify and
save harmless the COUNTY, its appointed and elected officers, agents and employees, from
and against all loss or expense, including but not limited to claims, demands, actions,
judgments, settlements, attorneys' fees and costs by reason of any and all claims and
demands upon the COUNTY, its elected or appointed officials or employees for damages
because of personal or bodily injury, including death at any time resulting therefrom,
sustained by any person or persons and on account of damage to property including loss of
use thereof, whether such injury to persons or damage to property is due to the negligence
of the CONSULTANT, his /her subconsultants, its successor or assigns, or its or their agent,
servants, or employees, the COUNTY, its appointed or elected officers, employees or their
ATTACHMENT C Page 3
PERSONAL SERVICES AGREEMENT ATTACHMENT C
agents, except only such injury or damage as shall have been occasioned by the sole
negligence of the COUNTY, its appointed or elected officials or employees. It is further
provided that no liability shall attach to the COUNTY by reason of entering into this
contract, except as expressly provided herein.
The COUNTY agrees to defend, indemnify and save harmless the CONSULTANT, its
appointed and elected officers, agents and employees, from and against all loss or
expense, including but not limited to claims, demands, actions, judgments, settlements,
attorneys' fees and costs by reason of any and all claims and demands upon the
CONSULTANT, its elected or appointed officials or employees for damages because of
personal or bodily injury, including death at any time resulting therefrom, sustained by any
person or persons and on account of damage to property including loss of use thereof,
whether such injury to persons or damage to property is due to the negligence of the
COUNTY, its subconsultants its successor or assigns, or its or their agent, servants, or
employees, the CONSULTANT, its appointed or elected officers, employees or their agents,
except only such injury or damage as shall have been occasioned by the sole negligence of
the CONSULTANT, its appointed or elected officials or employees. It is further provided
that no liability shall attach to the CONSULTANT by reason of entering into this contract,
except as expressly provided herein.
14. Industrial Insurance Waiver. With respect to the performance of this AGREEMENT and as
to claims against the COUNTY, its appointed and elected officers, agents and employees,
the CONSULTANT expressly waives its immunity under Title 51 of the Revised Code of
Washington, the Industrial Insurance Act, as now or hereafter amended, for injuries to its
employees and agrees that the obligations to indemnify, defend and hold harmless
provided in this AGREEMENT extend to any claim brought by or on behalf of any employee
of the CONSULTANT. Along with the other provisions of this AGREEMENT, this waiver is
mutually negotiated by the parties to this AGREEMENT.
15. Venue and Choice of Law. In the event that any litigation should arise concerning the
construction or interpretation of any of the terms of this AGREEMENT, the venue of such
action shall be in the courts of the State of Washington in and for the County of Cowlitz.
This AGREEMENT shall be governed by the law of the State of Washington.
16, Withholding Payment. In the event the County Project Manager determines that the
CONSULTANT has failed to perform any obligation under this AGREEMENT within the times
set forth in this AGREEMENT, then the COUNTY may withhold from amounts otherwise due
and payable to CONSULTANT the amount determined by the COUNTY as necessary to cure
the default, until the County Project Manager determines that such failure to perform has
been cured. Withholding under this clause shall not be deemed a breach entitling
CONSULTANT to termination or damages, provided that the COUNTY promptly gives notice
in writing to the CONSULTANT of the nature of the default or failure to perform, and in no
case more than ten (10) days after it determines to withhold amounts otherwise due. A
ATTACHMENT C Page 4
PERSONAL SERVICES AGREEMENT ATTACHMENT C
determination of the County Project Manager set forth in a notice to the CONSULTANT of
the action required and /or the amount required to cure any alleged failure to perform shall
be deemed conclusive, except to the extent that the CONSULTANT acts within the times
and in strict accord with the provision of the Disputes clause of this AGREEMENT. The
COUNTY may act in accordance with any determination of the County Project Manager
which has become conclusive under this clause, without prejudice to any other remedy
under the AGREEMENT, to take all or any of the following actions: (1) cure any failure or
default, (2) to pay any amount so required to be paid and to charge the same to the
account of the CONSULTANT, (3) to set off any amount paid or incurred from amounts due
or to become due the CONSULTANT. In the event the CONSULTANT obtains relief upon a
claim under the Disputes clause, no penalty or damages shall accrue to the CONSULTANT by
reason of good faith withholding by the COUNTY under this clause.
17. Rights and Remedies. The duties and obligations imposed by this AGREEMENT and the
rights and remedies available hereunder shall be in addition to and not a limitation of any
duties, obligations, rights and remedies otherwise imposed or available bylaw.
18. Consultant Commitments, Warranties and Representations. Any written commitment
received from the CONSULTANT concerning this AGREEMENT shall be binding upon the
CONSULTANT, unless otherwise specifically provided herein with reference to this
paragraph. Failure of the CONSULTANT to fulfill such a commitment shall render the
CONSULTANT liable for damages to the COUNTY. A commitment includes, but is not
limited to any representation made prior to execution of this AGREEMENT, whether or not
incorporated elsewhere herein by reference, as to performance of services or equipment,
prices or options for future acquisition to remain in effect for a fixed period, or warranties.
19. Patent /Copyright Infringement. CONSULTANT will defend, indemnify and save harmless
COUNTY, its appointed and elected officers, agents and employees from and against all loss
or expense, including but not limited to claims, demands, actions, judgments, settlements,
attorneys' fees and costs by reason of any and all claims and demands upon the COUNTY,
its elected or appointed officials or employees for damages because of the CONSULTANT's
alleged infringement on any patent or copyright. The CONSULTANT will pay those costs
and damages attributable to any such claims that are finally awarded against the COUNTY,
its appointed and elected officers, agents and employees in any action. Such defense and
payments are conditioned upon the following:
a) That CONSULTANT shall be notified promptly in writing by COUNTY of any notice of
such claim.
b) CONSULTANT shall have the right, hereunder, at its option and expense, to obtain for
the COUNTY the right to continue using the information, in the event such claim of
infringement, is made, provided no reduction in performance or loss results to the
COUNTY.
ATTACHMENT C Page 5
PERSONAL SERVICES AGREEMENT
20. Disputes:
ATTACHMENT C
a) General. Differences between the CONSULTANT and the COUNTY, arising under and
by virtue of the contract documents shall be brought to the attention of the COUNTY
at the earliest possible time in order that such matters may be settled or other
appropriate action promptly taken. The records, orders, rulings, instructions, and
decision of the County Project Manager shall be final and conclusive thirty (30) days
from the date of mailing unless the CONSULTANT mails or otherwise furnishes to the
County Administrator a written notice of appeal. The notice of appeal shall include
facts, law, and argument as to why the conclusions of the County Project Manager are
in error.
In connection with any appeal under this clause, the CONSULTANT and COUNTY shall
have the opportunity to submit written materials and argument and to offer
documentary evidence in support of the appeal. Oral argument and live testimony
will not be permitted. The decision of the County Administrator for the determination
of such appeals shall be final and conclusive. Reviews of the appellate determination
shall be brought in the Superior Court of Cowlitz County within fifteen (15) days of
mailing of the written appellate determination. Pending final decision of the dispute,
the CONSULTANT shall proceed diligently with the performance of this AGREEMENT
and in accordance with the decision rendered.
b) Notice of Potential Claims. The CONSULTANT shall not be entitled to additional
compensation or to extension of time for (1) any act or failure to act by the County
Project Manager or the COUNTY, or (2) the happening of any event or occurrence,
unless the CONSULTANT has given the COUNTY a written Notice of Potential Claim
within ten (10) days of the commencement of the act, failure, or event giving rise to
the claim, and before final payment by the COUNTY. The written Notice of Potential
Claim shall set forth the reasons for which the CONSULTANT believes additional
compensation or extension of time is due, the nature of the cost involved, and insofar
as possible, the amount of the potential claim. CONSULTANT shall keep full and
complete daily records of the work performed, labor and material used, and all costs
and additional time claimed to be additional.
c) Detailed Claim. The CONSULTANT shall not be entitled to claim any such additional
compensation, or extension of time, unless within thirty (30) days of the
accomplishment of the portion of the work from which the claim arose, and before
final payment by the COUNTY, the CONSULTANT has given the COUNTY a detailed
written statement of each element of cost or other compensation requested and of
all elements of additional time required, and copies of any supporting documents
evidencing the amount or the extension of time claimed to be due.
ATTACHMENT C Page 6
PERSONAL SERVICES AGREEMENT ATTACHMENT C
21. Ownership of Items Produced. All writings, programs, data, art work, music, maps, charts,
tables, illustrations, records or other written, graphic, analog or digital materials prepared
by the CONSULTANT and /or its consultants or subconsultants, in connection with the
performance of this AGREEMENT shall be the sole and absolute property of the COUNTY
and constitute "work made for hire" as that phrase is used in federal and /or state
intellectual property laws and CONSULTANT and /or its agents shall have no ownership or
use rights in the work; EXCEPTING, that COUNTY and CONSULTANT may agree in writing
that a specific item produced will not be considered a work made for hire under applicable
law, and that COUNTY may assign and transfer to CONSULTANT the entire right, title and
interest in and to all rights in the specific item and any registrations and copyright
applications relating thereto and any renewals and extensions thereof.
CONSULTANT shall not use or in any manner disseminate any items produced to any third
party, or represent in any way CONSULTANT ownership in any items produced, without the
prior written permission of COUNTY. CONSULTANT shall take all reasonable steps
necessary to ensure that its agents, employees, or Subcontractors shall not copy or
disclose, transmit or perform any items produced or any portion thereof, in any form, to
any third party.
22. Recovery of Payments to Consultant. The right of the CONSULTANT to retain monies paid
to it is contingent upon satisfactory performance of this AGREEMENT, including the
satisfactory completion of the project described in the Scope of Work (Attachment A). In
the event that the CONSULTANT fails, for any reason, to perform obligations required of it
by this AGREEMENT, the CONSULTANT may, at the County Project Manager's sole
discretion, be required to repay to the COUNTY all monies disbursed to the CONSULTANT
for those parts of the project that are rendered worthless in the opinion of the County
Project Manager by such failure to perform.
Interest shall accrue at the rate of 12 percent (12 %) per annum from the time the County
Project Manager demands repayment of funds.
23. Project Approval. The extent and character of all work and services to be performed under
this AGREEMENT by the CONSULTANT shall be subject to the review and approval of the
County Project Manager. For purposes of this AGREEMENT, the County Project Manager is.
Name:
Title:
Department:
Address:
Telephone:
E -mail:
Fax:
Ron Junker
Director
Public Works
1600 -13th Avenue South
Kelso, WA 98626
360) 577 -3030 ext. 6535
junkerr @co.cowlitz.wa.us
360) 636 -0845
ATTACHMENT C Page 7
PERSONAL SERVICES AGREEMENT ATTACHMENT C
In the event there is a dispute with regard to the extent and character of the work to be
done, the determination of the County Project Manager as to the extent and character of
the work to be done shall govern subject to the CONSULTANT's right to appeal that decision
as provided herein.
24. Non Discrimination. The CONSULTANT shall not discriminate against any person on the
basis of race, creed, political ideology, color, national origin, sex, marital status, sexual
orientation, age, or the presence of any sensory, mental or physical handicap.
25. Subconsultantants. In the event that the CONSULTANT employs the use of any
Subconsultants, the contract between the CONSULTANT and the Subconsultant shall
provide that the Subconsultant is bound by the terms of this AGREEMENT between the
COUNTY and the CONSULTANT. The CONSULTANT shall insure that in all Subconsultants
entered into, Cowlitz County is named as an express third -party beneficiary of such
contracts with full rights as such.
26. Third Party Beneficiaries. This AGREEMENT is intended for the benefit of the COUNTY and
CONSULTANT and not for the benefit of any third parties.
27. Standard of Care. The CONSULTANT shall perform its duties hereunder in a manner
consistent with that degree of care and skill ordinarily exercised by members of the same
profession as CONSULTANT currently practicing under similar circumstances. The
CONSULTANT shall, without additional compensation, correct those services not meeting
such a standard.
28. Time is of the Essence. Time is of the essence in the performance of this contract unless a
more specific time period is set forth in either the Special Terms and Conditions or Scope of
Work.
29, Notice. Except as set forth elsewhere in the AGREEMENT, for all purposes under this
AGREEMENT, except service of process, any notices shall be given by the CONSULTANT to
the County Project Manager. Notice to the CONSULTANT for all purposes under this
AGREEMENT shall be given to the person executing the AGREEMENT on behalf of the
CONSULTANT at the address identified on the signature page.
30. Severability. If any term or condition of this contract or the application thereof to any
person(s) or circumstances is held invalid, such invalidity shall not affect other terms,
conditions or applications which can be given effect without the invalid term, condition or
application. To this end, the terms and conditions of this contract are declared severable.
31. Precedence. In the event of inconsistency in this AGREEMENT, unless otherwise provided
herein, the inconsistency shall be resolved by giving precedence in the following order:
ATTACHMENT C Page 8
PERSONAL SERVICES AGREEMENT ATTACHMENT C
a) Applicable federal, state and local statutes, ordinances and regulations;
b) Scope of Work (Attachment A) and Compensation (Attachment B);
c) Special Terms and Conditions (Attachment D); and
d) General Conditions (Attachment C).
32. Waiver. Waiver of any breach or condition of this contract shall not be deemed a waiver of
any prior or subsequent breach. No term or condition of this contract shall be held to be
waived, modified or deleted except by an instrument, in writing, signed by the parties
hereto.
33. Attorney Fees. In the event that litigation must be brought to enforce the terms of this
AGREEMENT, the prevailing party shall be entitled to be paid reasonable attorney fees.
34. Construction. This AGREEMENT has been mutually reviewed and negotiated by the parties
and should be given a fair and reasonable interpretation and should not be construed less
favorably against either party.
35. Survival. Without being exclusive, Paragraphs 4, 71 13 -1% 21 -22 and 31 -35 of these
General Conditions shall survive any termination, expiration or determination of invalidity
of this AGREEMENT in whole or in part. Any other Paragraphs of this AGREEMENT which,
by their sense and context, are intended to survive shall also survive.
36. Entire AGREEMENT. This written contract represents the entire AGREEMENT between the
parties and supersedes any prior statements, discussions or understandings between the
parties except as provided herein.
ATTACHMENT C Page 9
PERSONAL SERVICES AGREEMENT
SPECIAL TERMS AND CONDITIONS
ATTACHMENT D
1. Reporting. The CONSULTANT, if requested by the Department Director of Public Works
shall submit written progress reports with each request for payment.
Reports shall include any problems, delays or adverse conditions which will materially
affect the CONSULTANT's ability to meet project objectives or time schedules together with
a statement of action taken or proposed to resolve the situation. Reports shall also include
recommendations for changes to the Scope of Work, if any. Payments may be withheld if
reports are not submitted.
ATTACHMENT D Page 1
1T2 co&
Confidentiality Agreement
4SH1N °T 6# Confidential and Privileged County Information, Records and Documents
ter.— .-
This is a legal agreement executed in conjunction with an agreement between the County and the undersigned Contractor, who
will have access to "Confidential and Privileged County Information, Records and Documents" or identifiable information
extracted from such records, without first having obtained the County's specific and express written consent for such access.
Handwritten forms will not be accepted.
I. Contractor and Contract Information
Consultant/Contractor Name John F. Luth - The Futures Corporation
Consultant/Contractor Title President
Nature of Work Performed (type
Consultant Services - Strategic Planning, etc.
of services, etc., rendered
A. Which Count Department or Count Official is utilizing the Consultant or Contractor? Y p Y 9 one [X
y
one lx).
Department of Building and Planning
Facilities Department
Department of Health and Human Services
Department of Information Technology
Department of Public Works
Other 1 (specify):
For other, unlisted Commissioner departments and all other elected officials.
B. This Agreement covers the following activities and /or is incorporated into the followingggpg (check all that apply):
Markallth-
apPiylx).
County Personal Services Agreement - ATTCHMT A Scope of Work
County Personal Services Agreement - ATTCHMT B Compensation
County Personal Services Agreement - ATTCHMT C General Conditions
County Personal Services Agreement - ATTCHMT D Special Terms and Conditions
County Personal Services Agreement - ATTCHMT E Other
County Employment Agreement
Other Agreement (specify):
C. Each party acknowledges its acceptance of this Agreement by signature of its authorized officer on the
Agreement - the original of such Agreement being retained by County and a copy retained b Contractor.
II. CONFIDENTIALITY TERMS AND PROVISIONS
A. 1. To be protected under this Agreement, County must have generally identified in writing or other tangible form
such information and documents to be considered as "Confidential" within twenty (20) days of such oral and /or
visual disclosure. E -mail is one form of "written instrument" for the purpose stated in this paragraph.
2. The parties designate those individuals listed as approving and administering the Personal Services Agreement,
as the individuals authorized to disclose and to receive confidential information ("Cl") under the terms of this
Agreement. These individuals are aware of the terms and conditions of this Agreement and agree to be bound by
it, and are required to ensure that other officials, employees, agents and assigns are aware of the terms and
conditions of this Agreement and agree to be bound by it. Contractor agrees to receive and to hold all Cl acquired
from County in confidence and to disclose such information within its own organization only, and only to those listed
on Attachment A mentioned previously. Contractor shall use the same degree of care to safeguard the Cl acquired
from County that Contractor exercises in safeguarding its own confidential or proprietary information.
CNFDNTL AGRMT v.01 -13 -14 Page 1 of 3
3. Contractor agrees, to the maximum extent allowed by law, that it will not disclose or use Cl acquired from County
for any purposes other than in furtherance of the purpose stated previously in this Agreement. Without affecting the
generality of the foregoing, Contractor agrees that it will not disclose any such information to any third party, or use
it for its own benefit or for the benefit of any third party, without prior written approval by the County.
4. Contractor shall not be liable for disclosure or use of CI if such information: i) was known to Contractor prior to its
receipt from County; ii) becomes generally available to the public without breach of this Agreement; iii) was acquired
by Contractor from a third party that, to Contractor's knowledge, is not bound by a confidentiality agreement with
County prohibiting such disclosure; or iv) is required to be disclosed by law, court ruling or other legal or
administrative /regulatory process.
5. It is acknowledged and understood that as a subdivision of the state of Washington, County is subject to
Washington State laws and regulations including the Washington Public Records Act, RCW 42.56 et seq.
http: / /apps.leg.wa.gov /RCWn. If a Public Records Act request is made to view County's confidential or proprietary
information regarding the Contractor, and the County Public Records Coordinator(s) either determines that no
exemption to disclosure applies or is unable to determine whether an exemption to disclosure applies, County will
notify Contractor of the request and the date that such records will be released to the requestor unless Contractor
obtains a court order enjoining that disclosure. If fails to obtain a court order enjoining disclosure, County will
release the requested information on the date specified and Contractor acknowledges and agrees that it has given
up all rights to challenge the disclosure in any forum.
6. The furnishing of Cl under this Agreement shall not constitute or be construed as a grant of any express or
implied license or other right, under any of County's proprietary rights, copyrights or other intellectual property
rights.
7. This Agreement is in effect as of the date first written in the Agreement and shall continue for the term of the
Contractor's underlying Personal Services Agreement or other Agreement with the County with respect to any
disclosures of Cl. At such time, the Agreement shall expire, unless terminated earlier by either party, at any time,
on ten (10) days' prior written notice. Upon expiration or termination of this Agreement, Contractor shall
immediately cease any and all applications, disclosures, references or uses of Cl and, at County's request,
Contractor shall return promptly all Cl, including any copies, to County.
8. The obligation of Contractor with respect to disclosure and use of Cl acquired from County shall survive
expiration or termination of this Agreement and shall continue for a period of five (5) years thereafter or, with
respect to any specific, applicable portion of Cl, until the effective date of any of the events recited in Section
II.A.4, whichever occurs first.
9. This Agreement shall be governed and construed in accordance with the laws of the State of Washington and
the venue of any action brought hereunder shall be in the Superior Court of Cowlitz County.
10. This Agreement supersedes all previous and contemporaneous communications, transactions and
understandings, whether oral or written, and constitutes the sole and entire agreement pertaining to the subject
matter mentioned previously in this Agreement. No modification or addition of these terms shall be binding unless
made in writing and signed by an authorized representative of both parties.
B. Once the scope of work under the agreement(s) in Section 1.13 will have been accomplished, any Mark if
County confidential or privileged records or information, or links to such records or information shall be applies
returned or destroyed, or remain confidential in accordance with Section II.A of this Agreement, except:
1xI.
as to such records and information specifically identifed by County to remain confidential indefinitely.
CNFDNTL AGRMT v.01 -13 -14 Page 2 of 3
III. Breach of
The Contractor and County have mutually agreed that it is not possible to anticipate the potential damages which might arise
from a breach of this Agreement and mutually agreed that it is not possible to accurately ascertain what damages might arise
from a breach of the covenants hereunder. Contractor acknowledges that any failure by the Contractor or Contractor's
officials, employees, agents or assigns to abide by the terms of this Agreement may cause irreparable harm to the County
and that monetary damages may be inadequate to compensate the County for such breach. Accordingly, the Contractor
agrees that the County may, in addition to any other remedy available to County under Washington and any applicable
federal law, seek injunctive relief and /or liquidated damages of $1,000 for each unauthorized disclosure. If the County
suffers any losses, damages, liabilities, expenses, or costs (including, by way of example only, attorneys' fees and
disbursements) that are attributable, in whole or in part, to any failure by the Contractor or any of the Contractor's officials,
employees, agents or assigns to comply with the requirements of this Agreement, the Contractor shall hold harmless and
indemnify the County from and against any such losses, damages, liabilities, expenses, and /or costs.
IV. Authorized Signature
The signature below signifies that the commitments made in this document are hereby acknowledged and accepted.
Signature must be from a representative of Contractor legally authorized to bind Contractor, and on an original, in ink, and dated.
Stamped signatures, faxed signatures, and signatures by a designee will not be accepted. Printed name must include complete
first and last names, and must be legible.
Contractor Signature: -
Contractor Printed/Name: John F. Luthy Date Signed: % l
signed on be/h.6[f of
UNTY W SHO
or
Sig iature of author, ized County Department Representative or Official
Printed name
Original is returned to: designated County contract manager
Copy to: Contractor
f/
Date
Title
CNFDNTL AGRMT v.01 -13 -14 Page 3 of 3