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HomeMy WebLinkAbout2023-07-28 D02 DuraEdge Consulting AgreementAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: July 28, 2023 AGENDA ITEM:Consideration of approval of a resolution approving a consulting agreement between the City of Waukee and DuraEdge Products Inc. FORMAT:Resolution SYNOPSIS INCLUDING PRO & CON: DuraEdge Products Inc. will provide onsite supervision by a DuraEdge Project Manager for 30 days providing field evaluations at each field to determine how much material is needed for positive surface drainage to meet original design. A preliminary report will be provided to explain the tonnage needed on each individual field to achieve positive surface drainage as per design plan of 0.75% slope. The report will also determine how far out the existing sod will need to be removed and replaced to carry the grade out a minimum of 10 feet. As-built reports of each infield will be provided at the completion of the work. DuraEdge will provide training to all City staff on proper grade maintenance of DuraEdge Infield Mix. DuraEdge Project Manager will provide direction to Iowa Sports Turf employees as to processes and procedures of the work being completed. The City of Waukee will pay $4,000 per field for a minimum of 12 fields for the services. The City of Waukee will be required to pay 25% of the total compensation upon the execution of this agreement, and the remainder will be invoiced to the City of Waukee upon delivery of the As-built reports. The total cost of these services is $48,000 and will be paid out of the contingency funds left in the project budget. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Approve Resolution RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. Consulting Agreement PREPARED BY: Matt Jermier REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: D2 THE CITY OF WAUKEE, IOWA RESOLUTION 2023- APPROVING A CONSULTING AGREEMENT BETWEEN THE CITY AND DURAEDGE PRODUCTS, INC. IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal Organization; AND, WHEREAS, the City of Waukee desires to retain the services of DuraEdge Products Inc. as a consultant regarding the construction and drainage of the 12 baseball fields located at Triumph Park. NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council that the proposed Consulting Services Agreement between DuraEdge Products Inc. and the City of Waukee is approved. Passed by the City Council of the City of Waukee, Iowa, and approved this the 28th day of July, 2023. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman Pierce R. Charles Bottenberg Chris Crone Larry R. Lyon Ben Sinclair 1 SCHEDULE I – CONSULTING AGREEMENT THIS SCHEDULE I - CONSULTING AGREEMENT (the “Agreement”) is entered into effective as of July 19th, 2023 (the “Effective Date”) by and between: CLIENT CONSULTANT City of Waukee DuraEdge Products, Inc. 805 University Avenue 149 South Broad Street Waukee, IA 50263 Grove City, PA 16127 Phone: Phone: (724) 870-4250 Email: Email: gmcknight@duraedge.com (the “Client”) (the “Consultant”) BACKGROUND A.The Client operates twelve (12) ballfields located at: Triumph Park, 700 NW Douglas Parkway, Waukee, IA 50263 (the “Property”). B.The Client desires to retain the services of the Consultant and the Consultant desires to provide such consulting services to the Client on the terms and subject to the conditions set forth in this Agreement. NOW THEREFORE , in consideration of the mutual promises, covenants and conditions hereinafter set forth, and other good and valuable consideration, the receip t and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows : SERVICES PROVIDED  The Client hereby agrees to engage the Consultant to provide the Client with the following consulting services (collectively, the “Services”): -Onsite supervision by the DuraEdge Project Manager, Cameron Toone for 30 days; - Field evaluations performed at each field to determine how much material is needed for positive surface drainage to meet design plan; - All grades will be adjusted from design specs to conical finish grade; - Additional grade shots to determine the existing elevation of drainpipe along backstop; - A preliminary report will be provided to explain the tonnage needed on each individual field to achieve positive surface drainage as per design plan of 0.75% slope. The report will also determine how far out the existing sod will need to be removed and replaced to carry the grade out a minimum of 10 feet; - As-built reports of each infield after new infield mix has been installed; -Training on proper grade maintenance of DuraEdge Infield Mix; - Complete construction schedule/timeline; and - Any other services or tasks which the Parties may agree upon from time to time during the Term. 2  The Consultant will have full control over working time, methods, and decision making in relation to provision of the Services provided under this Agreement. The Consultant will work autonomously and not at the direction of the Client. However, the Consultant will be responsive to the reasonable needs and concerns of the Client during the Term.  The Consultant will provide, at the Consultant’s expense, any and all equipment, software, materials, and other supplies necessary to provide the Services in accordance with the Agreement. TERM & TEERMINATION  The term of this Agreement (the “Term”) will begin on the Effective Date and will remain in full force and effect until the completion of the Services, subject to earlier termination as provided in Paragraphs 5 and/or 6 this Agreement. The Term may be extended with the written consent of the Parties.  Either party may terminate this Agreement without cause upon thirty (30) calendar days’ written notice to the other party to this Agreement. In the event of termination pursuant to this Paragraph 5, the Client shall pay the Consultant on a pro-rata basis any Compensation (defined below) then due and payable for any Services completed up to and including the date of such termination.  Either party may terminate this Agreement, effective immediately upon written notice to the other party to this Agreement, if the other party materially breaches this Agreement, and such bre ach is incapable of cure, or with respect to a material breach capable of cure, the other party does not cure such breach within ten (10) calendar days after receipt of written notice of such breach.  Upon the expiration or termination of this Agreement, the Consultant will return to the Client any property, documentation, records, or Confidential Information (defined below) which is the property of the Client. COMPENSATION & EXPENSES  As full compensation for the Services, the Client shall pay the Consultant a fixed fee of $4,000.00 per field for a minimum of 12 fields for the Services (the “Compensation”). There is a deduct of $300 per field if drainpipe elevation grade shots are not performed.  The Client will be invoiced for 25% of the total compensation upon the execution of this Agreement, and the remainder will be invoiced to the Client upon delivery of the As-built reports.  All invoices submitted by the Consultant to the Client shall be due within thirty (30) days of receipt, and all Compensation shall be payable in USD (US Dollars).  All permitting and submittal fees that are required by any and all state and/or local governmental agencies related to this project are the responsibility of the Client and are not included in this Agreement.  The Consultant shall be reimbursed from time to time for reasonable and necessary expenses incurred by the Consultant and pre-approved by the Client in connection with providing the Services. CONFIDENTIALITY 3  The Client acknowledges that it will have access to information that is treated as confidential and proprietary by the Consultant including without limitation the existence and terms of this Agreement, trade secrets, technology, information pertaining to business operations and strategies, customers, pricing, marketing, finances, sourcing, personnel, or operations of the Consultant, its affiliates, or their suppliers or customers, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”). Any Confidential Information that you access or develop in connection with the Services, including but not limited to any Work Product, shall be subject to the terms and conditions of this Paragraph 13. The Client agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Consultant in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. The Client shall notify the Consultant immediately in the event you become aware of any loss or disclosure of any Confidential Information. This Paragraph 13 shall survive the expiration or termination of this Agreement.  Confidential Information shall not include information that: (a) is or becomes generally available to the public other than through the Client’s breach of this Agreement; or (b) is communicated to the Client by a third party that had no confidentiality obligations with respect to such information.  Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Client agrees to provide written notice of any such order to an authorized officer of the Consultant within three (3) business days of receiving such order, but in any event sufficiently in advance of making any disclosure to permit the Consultant to contest the order or seek confidentiality protections, as determined in the Consultant’s sole discretion. OWNERSHIP OF INTELLECTUAL PROPERTY  The Consultant is and will be the sole and exclusive owner of all right, title, and interest throughout the world in and to all the results and proceeds of the Services performed under this Agreement, including but not limited to the deliverables set out in Paragraph 1 (collectively, the “Deliverables”) and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of p erforming the Services or other work performed in connection with the Services or this Agreement (collectively, and including the Deliverables, “Work Product”) including all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively “Intellectual Property Rights”) therein. The Client agrees that the Work Product is hereby deemed “work made for hire” as defined in 17 U.S.C. § 101 for the Consultant and all copyrights therein automatically and immediately vest in the Consultant. If, for any reason, any Work Product does not constitute “work made for hire,” the Client hereby irrevocably assign to the Consultant, for no additional consideration, the Client’s entire right, title, and interest throughout the world in and to such Work Product, including all Intellectual Property Rights therein, including the right to sue for past, present, and future infringement, misappropriation, or dilution thereof.  As between the Client and the Consultant, the Consultant is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, 4 methodologies, software, and other materials provided to the Client by the Consultant (“Company Materials”), including all Intellectual Property Rights therein. The Client has no right or license to reproduce or use any Company Materials except solely during the Term to the extent necessary to perform its obligations under this Agreement. All other rights in and to the Company Materials are expressly reserved by the Consultant. The Client has no right or license to use the Consultant’s trademarks, service marks, trade names, logos, symbols, or brand name. RELATIONSHIP OF THE PARTIES  In providing the Services under this Agreement it is expressly agreed that the Consultant is acting as an independent contractor and not as an employee. The Consultant and Client acknowledge that th is Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service. The Client is not required to pay, or make any contributions to, any social security, local, state or federal tax, unemployment compensation, workers' compensation, insurance premium, profit-sharing, pension or any other employee benefit for the Consultant during the Term. The Consultant is responsible for paying, and complying with reporting requirements for, all local, state, and federal taxes related to payments made to the Consultant under this Agreement. INDEMNIFICATION  Each party agrees to indemnify, defend, and hold harmless the other party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns from and against any and all claims, actions, judgments, losses, damages, liabilities, penalties, punitive d amages, awards, expenses, reasonable attorneys’ fees, and costs of any kind or amount whatsoever, arising out of or resulting from (a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from such party’s acts or omissions; (b) such party’s breach of any obligation under this Agreement; or (c) any other act or omission of such party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This Paragraph 19 will survive the expiration or earlier termination of this Agreement MISCELLANEOUS  All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Paragraph). All Notices shall be deliv ered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email, facsimile or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if: (a) the receiving party has received the Notice and (b) the party giving the Notice has complied with the requirements of this Paragraph.  This Agreement and any related exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.  This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance. 5  The Client shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Consultant’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. The Consultant may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties hereto and their respective successors and assigns.  This Agreement, and all matters arising out of or relating to this Agreement and the Services provided hereunder, whether sounding in contract, tort, or statute for all purposes shall be governed by and construed in accordance with, the laws of the State of Iowa, without giving effect to any conflict of laws principles that would cause the application of the laws of any other jurisdiction other to apply. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in any state or federal court located in Dallas County Iowa. The Parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  This Agreement may be executed in multiple counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument. [SIGNATURE PAGE FOLLOWS.] [Signature Page to Schedule I – Consulting Agreement] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. CONSULTANT DURAEDGE PRODUCTS, INC By: ____________________________ Grant McKnight, President Date: ____________________________ CLIENT CITY OF WAUKEE By: ____________________________ Name: ____________________________ Title: ____________________________ Date: ____________________________