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AGREEMENT FOR PROFESSIONAL SERVICES RELATED TO RESTORATION OF 1912 HIGH SCHOOL BUILDING, MOSCOW, IDAHO /JQ THIS AGREEMENT, made and entered into this L> 1 day of !99 12, by and between CITY OF MOSCOW, IDAHO, a municipal cor 2 po-" a ti """onè o"':!fL th State of Idaho ("CITY"), and Tom Hudson Company ("FACILITATOR"). WITNESSETH WHEREAS, CITY has acquired clear title by Deed of the 1912 Moscow High School Building (hereinafter 1912 MHS Building); and WHEREAS, CITY now wishes to proceed with planning, financing, developing, and restoring the 1912 MHS Building ("the PROJECT"); and WHEREAS, CITY wishes to determine which uses are appropriate for such 1912 MHS Building; and WHEREAS, CITY wishes to develop the building in such a way as to most appropriately service its citizens and users of the 1912 MHS Building; and WHEREAS, CITY wishes to identify potential sources of funding in support of a very generous donation utilized for the restoration of the 1912 MHS Building; and WHEREAS, FACILITATOR has extensive experience regarding the identification of uses, restoration of historical buildings, and the like; and WHEREAS, FACILITATOR, has agreed to perform certain services identified herein for the benefit of CITY; NOW, THEREFORE, in consideration of the mutual covenants and pronuses between the parties hereto, it is agreed as follows SECTION I THIS AGREEMENT and the execution thereof by the parties, including the CITY's obligation to pay Facilitator's compensation is specifically conditioned upon the CITY's receipt of the full amount of Facilitator's compensation in the amount of one hundred nine thousand, three hundred forty dollars ($109,340) as a grant or donation from the CS Charitable Trust of Colorado Springs, Colorado. Agreement for Professional Services Related To Restoration Of 1912 High School Building, Moscow, Idaho Page I 98-(.S ---PAGE BREAK--- SECTION II SERVICES TO BE PROVIDED BY FACILITATOR FACILITATOR shall at all times be subject to the direction and supervision of CITY FACILITATOR shall furnish the following services and design for each Phase as set out in the Facilitator Scope of Work, Exhibit A attached hereto and incorporated by this reference. In no case shall Facilitator be authorized to expend funds on behalf of City. Authorization for expenditures of funds shall only be made by City. SECTION ill NO WARRANTY OR GUARANTEE OF FUNDING AMOUNTS CITY understands and agrees that FACILITATOR will make his best efforts to obtain any amount( s) targeted by CITY for the fundraising phase of this Agreement. However, FACILITATOR makes no warranties or guarantees that such amount( s) will actually be obtained. SECTION IV INDEPENDENT CONTRACTOR FACILITATOR warrants by his signature that no employer-employee relationship is established between FACILITATOR and CITY by the terms of this Agreement. It is understood by the parties hereto that FACILITATOR is an independent contractor and as such neither he nor his employees, if any, are employees of CITY for purposes of tax, retirement system, or social security (FICA) withholding, or for worker's compensation benefits. SECTION V FACILITATOR'S COMPENSATION FACILITATOR shall render services as described in Section II of this Agreement for the amount of One Hundred Nine Thousand Three Hundred Forty Dollars ($109,340) payable as follows Sixty Five Thousand Nine Hundred Dollars ($65,900) due at time of execution of this Agreement. Forty Three Thousand Four Hundred Forty Dollars ($43,440) due on or before January 31, 1999. Agn.:ement for Professional Services Related To Restoration Of 1912 High School Building, Moscow, Idaho Page2 ---PAGE BREAK--- CITY shall pay for costs incurred by FACILITATOR which are associated with a particular project set out in Facilitator Scope of Work, Exhibit A or related thereto where the particular project and its costs have been approved by CITY Examples of such costs include those related to mass mailings, production costs of promotional or documentary materials, long-distance travel, and the like. Expenses incidental to the performance of this Agreement and to the administration thereof, including but not limited to costs for meals, office equipment and supplies, photocopying, mailing, package and parcel delivery, telephone calls, facsimile transmissions, secretarial assistance and the like, shall be paid for by FACILITATOR. FACILITATOR shall also pay all expenses related to travel within a fifty (50) mile radius of Moscow, Idaho. SECTION VI TERMINATION OF AGREEMENT BY CITY It is agreed that FACILITATOR'S services are to be provided according to Section II in this Agreement FACILITATOR shall not proceed until authorized by CITY CITY and FACILITATOR may make modifications to Facilitator Scope of Work, Exhibit A by written mutual agreement. CITY may omit work previously ordered, without penalty, by written instructions to FACILITATOR. The provisions of this Agreement, shall apply to all additions and deletions. SECTION VII CHANGES TO BE IN WRITING This Agreement may be amended only by written instrument signed by both parties hereto. SECTION VIII QUALIFIED ESTIMATES OF COST Any estimates of cost for the PROJECT herein are to be coordinated by FACILITATOR through exercise of his experience and judgment in utilizing standard sources and applying presently available cost data; but it is recognized that FACILITATOR has no control over cost of labor and materials or over competitive bidding procedures and market conditions so that he cannot warrant that the PROJECT construction costs will not vary from such cost estimates as a result of these described factors. Nothing in this paragraph shall serve to release or relieve FACILITATOR from exercising skill, care and professional judgment exercised by similarly situated Facilitators conducting such work Agreement for Professional Services Related To Restoration Of 1912 High School Building, Moscow, Idaho Page 3 ---PAGE BREAK--- SECTION IX CITY'S RESPONSIBILITY FOR LICENSE AND PERMIT COSTS CITY shall pay for all costs for obtaining licenses and permits which may be required by local, state and federal authorities. SECTION X FAILURE TO PERFORM A. Upon any substantial failure to perform this Agreement by either party, the other party shall be entitled to the following remedy: 1. Immediately stop performing or accepting performance under this Agreement and stopping receipt of payment for the PROJECT until the matter is resolved to the satisfaction of such other party. 2. Obtain completion of the performance of the remaining balance of the PROJECT. B. Upon discovery of the problem or defect which the complaining party believes to be a breach of this Agreement, the complaining party shall mail a written description of such problem or defect to the other party, and: 1. If the defect can be cured, the complaining party shall demand specific remedial action, within a specified reasonable time; or 2. If the defect cannot be cured, the complaining party shall specifY any alternative performance which would be acceptable to the complaining party in lieu of the required performance and shall notifY the other party of a specified time within which the alternative performance is required; and 3. If, in the opinion of the parties, the defect cannot be cured and no alternative performance is acceptable, the parties may elect to submit to non-binding mediation to determine the respective rights of the parties. The mediator shall be chosen from the membership of the ADR Section of the Idaho State Bar and the mediator's fees and expenses shall be borne equally by the parties. 4. If such mediation is unsuccessful, the complaining party shall notifY the other party of the termination of this Agreement effective on a date certain and shall state in such notification whether a legal action for breach of contract will be brought. Agreement for Professional Services Related To Restoration Of !9!2 High School Building, Moscow, Idaho Page4 ---PAGE BREAK--- 5. In the event of termination of this Agreement by CITY for just cause, an applicable credit of a fair and reasonable amount for the work completed, based upon percentage of work completed to that date certain, shall be made to FACILITATOR. FACILITATOR shall be liable for repayment of all such fees previously paid to FACILITATOR which represent work not yet completed as of such date certain and shall repay all such fees to CITY 6. Cancellation of the PROJECT FACILITATOR'S performance shall termination of this AGREEMENT. for reasons unrelated to not quality as just cause for C. If the defect is not corrected or alternative performance completed within the time certain specified, the party alleging the breach may initiate legal action in the District Court of the Second Judicial District of the State ofldaho in the County of Latah. D. Delays due to factors out of FACILITATOR'S control or not of FACILITATOR'S making shall not constitute a basis for a breach of this Agreement. Such factors include but are not limited to natural disasters; inclement weather which substantially limits road travel or the usual and customary conduct of business; delayed approvals of interim reports or requests; delays in scheduling meetings; in review, approval or communications, and in supply of information required from CITY or participating/associated agencies. If such factors result in a suspension or delay (at the direction of CITY) of Facilitator's work, the amount of time elapsed during such suspension or delay shall be added as an extension to the contract time. SECTION XI INSURANCE I. FACILITATOR'S Additional Insurance FACILITATOR shall maintain automobile insurance and statutory worker's compensation insurance coverage (if applicable), employer's liability, and comprehensive general liability insurance coverage. The comprehensive general liability insurance required herein shall have a minimum limit of Five Hundred Thousand Dollars ($500,000) per claim and One Million Dollars ($1,000,000) aggregate, and FACILITATOR shall cause CITY to be named as an additional insured under said policy. FACILITATOR shall furnish CITY with policies or certificates of insurance to demonstrate that FACILITATOR has procured such insurance and that CITY has been named as an additional insured therein. Such policies or certificates shall contain the following provision: Agreement for Professional Services Related To Restoration Of 1912 High School Building, Moscow, Idaho Page 5 ---PAGE BREAK--- "It is agreed that City of Moscow, Idaho is added as additional insured under this policy and the coverage provided hereunder shall be primary insurance and not contributing with any other insurance available to City of Moscow, Idaho, under any other third party liability policy. It is further agreed that the 'other insurance' condition of this policy is amended to conform therewith." Such policies or certificates of insurance shall contain the covenant of the insurance carrier that thirty (30) days written notice shall be given to CITY prior to modifications, cancellations or reduction in coverage of such insurance. SECTION XII INDEMNIFICATION FACILITATOR shall indemnify, hold harmless, and defend CITY, its subcontractors, agents, employees, heirs, and assigns against any claims, demands, suits, actions or proceedings of any kind of or by anyone for damages to property or injuries to or death of any person or persons, which arise solely as a result of FACILITATOR'S negligent acts, errors or omissions in connection with this Agreement. CITY shall indemnify, hold harmless, and defend FACILITATOR, his agents, employees, heirs, and assigns against any claims, demands, suits, actions or proceedings of any kind of or by anyone for damages to property or injuries to or death of any person or persons, which arise solely as a result of CITY'S negligent acts or omissions in connection with this Agreement. SECTION XIII COSTS AND ATTORNEY FEES In the event either party to this Agreement incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other related costs and expenses, whether the same are incurred with or without suit. SECTION XIV JURISDICTION AND VENUE It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. Agreement for Professional Services Related To Restoration Of 1912 High School Building, Moscow, Idaho Page6 ---PAGE BREAK--- SECTION XV BINDING OF SUCCESSORS CITY and FACILITATOR each bind themselves, their partners, successors, assigns and legal representatives to the other parties to this Agreement and to the partners, successors, assigns and legal representatives of such other parties with respect to all covenants of this Agreement. SECTION XVI MODIFICATION AND ASSIGNABILITY OF AGREEMENT This Agreement contains the entire agreement between the parties with respect to the PROJECT, and no statements, promises, or inducements made by either party, or agents of either party, are valid or binding unless contained herein. This Agreement may not be enlarged, modified or altered except upon written agreement signed by the parties hereto. FACILITATOR may not subcontract or assign his rights (including the right to compensation) or duties arising hereunder without the prior written consent and express authorization of CITY. Any such subcontractor or assignee shall be bound by all of the terms and conditions of this Agreement as if named specifically herein. SECTION XVII CITY'S REPRESENTATIVES CITY shall designate a representative authorized to act in behalf of CITY. The authorized representative shall examine the documents of the work as necessary, and shall render decisions related thereto in a timely manner so as to avoid unreasonable delays. SECTION XVIII CONFLICT OF INTEREST FACILITATOR covenants that he presently has no interest and will not acquire any interest, direct or indirect, in the PROJECT which would conflict in any manner or degree with the performance of his services hereunder. FACILITATOR further covenants that in performing this Agreement, FACILITATOR will employ no person who has any such interest. SECTION XIX CHANGES IN REGULATIONS FACILITATOR is to perform work in conformance with current federal, state and local laws and regulations in force and effect at the date of this Agreement. Agreement for Professional Services Related To Restoration Of 1912 High School Building, Moscow. ldnho Page 7 ---PAGE BREAK--- SECTION XX OWNERSHIP AND PUBLICATION OF MATERIALS All reports, information, data, and other materials prepared by FACILITATOR pursuant to this Agreement shall be the property of CITY which shall have the exclusive and unrestricted authority to release, publish or otherwise use them, in whole or in part. All such materials developed under this Agreement shall not be subject to copyright or patent in the United States or in any other country without the prior written approval and express authorization of CITY. SECTION XXI NONDISCRIMINATION FACILITATOR shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sexual orientation, gender, age, marital status, physical or mental handicap, or national origin. FACILITATOR will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, gender, sexual orientation, or national origin. Such action shall include, but not be limited to, the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. FACILITATOR agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. FACILITATOR TOM HUDSON COMPANY f \ \ . ' J ! • • • . " - By v Tom Hudson" CITY OF MOSCOW, IDAHO Gilbe\U' Myers •1 City Clerk Agreement for ProtCssional Services Related To Restoration Of 1912 High School Building, Moscow, Idaho Page 8 ---PAGE BREAK--- STATE OF IDAHO ) ACKNOWLEDGMENT )ss COUNTY OF LATAH ) On this£_ day of J/ec;..e..../oe.r , 199ff, before me, a Notary Public in and for said State, appeared Tom Hudson, a duly authorized agent for Tom Hudson Company, known to me to be the person named above and acknowledged to me that he executed the foregoing document Notary Public in and for the State of _ Residing at /-{os;cd My Commission Expires .4ZZ cidQ .c\greements',Professional Services for 1912 High School\tb Agreement for Professional Services Related To Restoration Of 1912 High School Building, Moscow, Idaho Page 9 ---PAGE BREAK--- EXHIBIT A FACILITATOR SCOPE OF WORK PHASE I PLANNING PHASE This phase will include the initial start-up of the Citizens Committee and the development of the public input process. The final work product of the phase will be a completed report to the City Council, including a description of the public input procedure utilized and a prioritized recommendation of building uses. This phase will begin mid December 1998 and be completed by June 1, 1999, and will consist of the following elements: + Delineate process for obtaining public participation and input regarding potential uses including at least one meeting where citizens have the opportunity to comment about proposed building uses + Conduct public input process + Make interim presentations to City Council as requested (by March I, 1999) + Identify and assist in the selection of a design consultant to work with the Citizens Committee to prepare three or four different space allocation designs and alternatives based upon the Committee's preliminary use ideas + Work with design consultant to coordinate potential uses with actual site (including alternatives) + Present design/use report to Citizen's Committee + Obtain Citizen's Committee input on report + Adjust design/use report to reflect Citizen's Committee input + Obtain public input regarding design/uses including at least one meeting where citizens have the opportunity to comment on preliminary space allocation issues + Prepare recommended design/use report In addition to the aforementioned duties, the Facilitator's responsibilities shall include: + Work under the direction of the City Management Team + Provide the Citizen's Committee with necessary background information + Work with the Committee to identify potential building uses + Attend all meetings of Citizen's Committee, City Management Team + Assist Citizen's Committee to meet set time lines + Prepare and present progress and status reports as requested PHASE II- FUND RAISING AND CONSTRUCTION PLANNING PHASE This phase will consist of two concurrent functions. The fundraising function will include the total aspect of generation of sufficient funds for the restoration, renovation and construction of the building. The construction planning function will include the utilization of information gathered during the planning phase for the purpose of creating the plans and specifications which form the basis for the project bid. The fundraising element will begin in June I 999 and will continue throughout the term of the project. The construction planning element will be completed by February I, 2000. The phase will consist of the following elements ---PAGE BREAK--- Public Fund raising (i.e. Grants, Foundations, Etc.) + Identify parameters of fundraising + Identify potential sources of public funding + Present sources to City Management Team + Present Recommendations to City Council Committee + Develop Application for approved funding sources + Make presentation to City Council and obtain authorization for submittal + Development of application + Obtain Council authorization for submittal + Make Submittal + Provide Grant/Fund Administration According to Conditions of such funding + Prepare and present progress and status reports as requested Private Fundraising + Organize a volunteer fundraising committee, develop parameters, and obtain Council authorization + In conjunction with the committee, identify strategies, issues and timelines + Present strategy and issues to Management Team + Obtain City Council authorization for fundraising campaign + Conduct fundraising campaign + Make regular reports to City Management Team + Report results to Council as requested + Council to decide direction on development as a result of fundraising effort + Obtain direction by City Council to continue or conclude fundraising + Prepare and present progress and status reports as requested Construction Planning + Assist the City Management Team to identify a process to obtain qualifications and criteria to be used to retain a consultant to prepare construction documents utilizing the design/use plan approved by City council + Work with City Management Team to negotiate contract and scope of work with consultant + Work with Consultant and City Management Team to develop plans and specifications for submittal to Citizen's Committee + Work with a City Council appointed Citizen's Advising Committee to review plans, specifications, and construction related issues. + Assist in the development of plans and specifications. + Propose final plans and specifications to City Council + Bid project and identify successful bidder + Receive approval from the City Council to enter into agreement with contractor + Attend all meetings of Citizen's Committee and City Management Team + Prepare and present progress and status reports as requested 2 ---PAGE BREAK--- PHASE III- CONSTRUCTION PHASE This phase will include the supervision and oversight of the contractor performing construction services as per the approved plans and specifications. This phase is dependent upon the successful fundraising and will begin approximately March I, 2000 and extend through April 2001, and will consist of the following elements: + Work under direction of City Management Team + Attend all meetings of City Management Team + Assure compliance with conditions of all governmental regulations and conditions of donations and grants + Provide all grant administration services + Provide liaison services with Contractor as directed by City + Prepare and present progress and status reports as requested Any services extending beyond the completion date of Phase III (April I, 2001) or as amended by mutual agreement, will be negotiated between City and Facilitator as an additional service requiring additional compensation. 'iTburris\winword\Gary R\FACILITATOR SCOPE OF WORKdoc 3