21-058.00 Donald Bender: City Hall Investigations Contract No.21-058
AGREEMENT FOR PROFESSIONAL SERVICES
Dr. Donald A. Bender, Ph. D., P.E.
THIS AGREEMENT is made by and between the City of Spokane Valley, a code City of the State of
Washington, hereinafter "City" and Dr. Donald Bender, hereinafter "Consultant," jointly referred to as
"Parties."
IN CONSIDERATION of the terms and conditions contained herein,the Parties agree as follows:
1.Work to Be Performed. Consultant shall provide all labor,services,and material to satisfactorily complete
the Scope of Services, attached as Exhibit B.
A. Administration. The City Manager or designee shall administer and be the primary contact for
Consultant. Prior to commencement of work, Consultant shall contact the City Manager or designee
to review the Scope of Services,schedule,and date of completion. Upon notice from the City Manager
or designee, Consultant shall commence work, perform the requested tasks in the Scope of Services,
stop work, and promptly cure any failure in performance under this Agreement.
B. Representations. City has relied upon the qualifications of Consultant in entering into this
Agreement. By execution of this Agreement, Consultant represents it possesses the ability, skill,and
resources necessary to perform the work and is familiar with all current laws, rules, and regulations
which reasonably relate to the Scope of Services. No substitutions of agreed-upon personnel shall be
made without the prior written consent of City.
Consultant represents that the compensation as stated in paragraph 3 is adequate and sufficient for the
timely provision of all professional services required to complete the Scope of Services under this
Agreement.
Consultant shall be responsible for the technical accuracy of its services and documents resulting
therefrom, and City shall not be responsible for discovering deficiencies therein. Consultant shall
correct such deficiencies without additional compensation except to the extent such action is directly
attributable to deficiencies in City-furnished information.
C. Standard of Care. Consultant shall exercise the degree of skill and diligence normally employed
by professional consultants engaged in the same profession, and performing the same or similar
services at the time such services are performed.
D.Modifications. City may modify this Agreement and order changes in the work whenever necessary
or advisable. Consultant shall accept modifications when ordered in writing by the City Manager or
designee, so long as the additional work is within the scope of Consultant's area of practice.
Compensation for such modifications or changes shall be as mutually agreed between the Parties.
Consultant shall make such revisions in the work as are necessary to correct errors or omissions
appearing therein when required to do so by City without additional compensation.
2. Term of Contract. This Agreement shall be in full force and effect upon execution and shall remain in
effect until completion of all contractual requirements have been met as determined by City. The Consultant
is being retained for consultant and expert services that are being used in conjunction with and to assist the
City with litigation. The Parties agree that such services shall continue until the litigation is resolved through
final order and judgment.
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Either Party may terminate this Agreement for material breach after providing the other Party with at least 10
days' prior notice and an opportunity to cure the breach. City may, in addition,terminate this Agreement for
any reason by 10 days' written notice to Consultant. In the event of termination without breach,City shall pay
Consultant for all work previously authorized and satisfactorily performed prior to the termination date.
3. Compensation. City agrees to pay Consultant an agreed upon hourly rate up to a maximum amount of
$25,000.00 as full compensation for everything done under this Agreement, as set forth in Exhibit C.
Consultant shall not perform any extra, further, or additional services for which it will request additional
compensation from City without a prior written agreement for such services and payment therefore.
4. Payment. Consultant shall be paid monthly upon presentation of an invoice to City. Applications for
payment shall be sent to the City Finance Department at the below-stated address.
City reserves the right to withhold payment under this Agreement for that portion of the work(if any) which
is determined in the reasonable judgment of the City Manager or designee to be noncompliant with the Scope
of Services,City standards,City Code,and federal or state standards.
5. Notice. Notices other than applications for payment shall be given in writing as follows:
TO THE CITY: TO THE CONSULTANT:
Name: Christine Bainbridge, City Clerk Name: Dr. Donald A. Bender, Ph. D.
Phone: (509)720-5000 Phone: 208-596-5333
Address: 10210 East Sprague Avenue Address: 2236 Arborcrest Rd
Spokane Valley,WA 99206 Moscow, ID 83843
6.Applicable Laws and Standards. The Parties,in the performance of this Agreement,agree to comply with
all applicable federal, state, and local laws and regulations. Consultant states that its designs, construction
documents,and services shall conform to all federal, state,and local statutes and regulations.
7. Certification Regarding Debarment, Suspension, and Other Responsibility Matters — Primary
Covered Transactions.
A.By executing this Agreement,the Consultant certifies to the best of its knowledge and belief that it
and its principals:
1. Are not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from covered transactions by any federal department or
agency;
2. Have not within a three-year period preceding this proposal been convicted of or
had a civil judgment rendered against them for commission of fraud or a criminal offense in
connection with obtaining,attempting to obtain,or performing a public(federal,state,or local)
transaction or contract under a public transaction;violation of federal or state antitrust statutes
or commission of embezzlement,theft,forgery,bribery,falsification or destruction of records,
making false statements,or receiving stolen property;
3. Are not presently indicted for or otherwise criminally or civilly charged by a
governmental entity (federal, state, or local) with commission of any of the offenses
enumerated in paragraph(A)(2)of this certification;and
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4. Have not within a three-year period preceding this application/proposal had one or
more public transactions(federal,state,or local)terminated for cause or default.
B. Where the prospective primary participant is unable to certify to any of the statements in this
certification,such prospective participant shall attach an explanation to this Agreement.
8. Relationship of the Parties. It is understood and agreed that Consultant shall be an independent contractor
and not the agent or employee of City, that City is interested in only the results to be achieved, and that the
right to control the particular manner,method,and means in which the services are performed is solely within
the discretion of Consultant. Any and all employees who provide services to City under this Agreement shall
be deemed employees solely of Consultant. The Consultant shall be solely responsible for the conduct and
actions of all its employees under this Agreement and any liability that may attach thereto.
9. Ownership of Documents. All drawings, plans, specifications, and other related documents prepared by
Consultant under this Agreement are and shall be the property of City, and may be subject to disclosure
pursuant to chapter 42.56 RCW or other applicable public record laws. The written, graphic, mapped,
photographic, or visual documents prepared by Consultant under this Agreement shall, unless otherwise
provided, be deemed the property of City. City shall be permitted to retain these documents, including
reproducible camera-ready originals of reports,reproduction quality mylars of maps,and copies in the form of
computer files, for the City's use. City shall have unrestricted authority to publish, disclose, distribute, and
otherwise use, in whole or in part, any reports, data, drawings, images, or other material prepared under this
Agreement, provided that Consultant shall have no liability for the use of Consultant's work product outside
of the scope of its intended purpose.
10. Records. The City or State Auditor or any of their representatives shall have full access to and the right
to examine during normal business hours all of Consultant's records with respect to all matters covered in this
Agreement. Such representatives shall be permitted to audit,examine,make excerpts or transcripts from such
records,and to make audits of all contracts,invoices,materials,payrolls,and record of matters covered by this
Agreement for a period of three years from the date final payment is made hereunder.
11. Insurance. Not applicable for this Agreement in consideration of the nature and type of services being
performed.
12. Indemnification and Hold Harmless. Not applicable for this Agreement in consideration of the nature
of the services being performed.
13. Waiver. No officer, employee, agent, or other individual acting on behalf of either Party has the power,
right, or authority to waive any of the conditions or provisions of this Agreement. A waiver in one instance
shall not be held to be a waiver of any other subsequent breach or nonperformance. All remedies afforded in
this Agreement or by law shall be taken and construed as cumulative and in addition to every other remedy
provided herein or by law. Failure of either Party to enforce at any time any of the provisions of this Agreement
or to require at any time performance by the other Party of any provision hereof shall in no way be construed
to be a waiver of such provisions nor shall it affect the validity of this Agreement or any part thereof.
14. Assignment and Delegation. Neither Party shall assign, transfer, or delegate any or all of the
responsibilities of this Agreement or the benefits received hereunder without prior written consent of the other
Party.
15. Subcontracts. Except as otherwise provided herein, Consultant shall not enter into subcontracts for any
of the work contemplated under this Agreement without obtaining prior written approval of City.
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16. Confidentiality. Consultant may, from time-to-time, receive information which is deemed by City to be
confidential. Consultant shall not disclose such information without the prior express written consent of City
or upon order of a court of competent jurisdiction.
17. Jurisdiction and Venue. This Agreement is entered into in Spokane County, Washington. Disputes
between City and Consultant shall be resolved in the Superior Court of the State of Washington in Spokane
County. Notwithstanding the foregoing, Consultant agrees that it may, at City's request, be joined as a party
in any arbitration proceeding between City and any third party that includes a claim or claims that arise out of,
or that are related to Consultant's services under this Agreement. Consultant further agrees that the
Arbitrator(s)'decision therein shall be final and binding on Consultant and that judgment may be entered upon
it in any court having jurisdiction thereof.
18. Cost and Attorney's Fees. The prevailing party in any litigation or arbitration arising out of this
Agreement shall be entitled to its attorney's fees and costs of such litigation(including expert witness fees).
19. Entire Agreement. This written Agreement constitutes the entire and complete agreement between the
Parties and supersedes any prior oral or written agreements. This Agreement may not be changed, modified,
or altered except in writing signed by the Parties hereto.
20. Anti-kickback. No officer or employee of City, having the power or duty to perform an official act or
action related to this Agreement shall have or acquire any interest in this Agreement, or have solicited,
accepted, or granted a present or future gift, favor, service, or other thing of value from any person with an
interest in this Agreement.
21. Business Registration. Not applicable for this Agreement in consideration of the nature of the services
being performed.
22. Severability. If any section,sentence,clause,or phrase of this Agreement should be held to be invalid for
any reason by a court of competent jurisdiction,such invalidity shall not affect the validity of any other section,
sentence,clause,or phrase of this Agreement.
23. Exhibits. Exhibits attached and incorporated into this Agreement are:
A. Assurance of compliance with applicable federal law.
B. Scope of Services
C. Fee Schedule
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The Parties have executed this Agreement this I ZJ day of April,2021.
C!iiOF SPOKAN VALLEY Consultant:
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Mark Calhoun,City Manager By: Dr. Donald A. Bender, Ph. D., P.E.
APPRO AS TO FORM:
Office the City Attorney
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Exhibit A—Assurance of Compliance with Applicable Federal Law
During the performance of this Agreement,the Consultant,for itself, its assignees,and successors in interest
(hereinafter referred to as the "Consultant")agrees as follows:
1.Compliance with Regulations: The Consultant shall comply with the federal laws set forth in Section 7 of
this Exhibit("Acts and the Regulations")relative to non-discrimination in federally-assisted programs of the
U.S. Department of Transportation, Washington State Department of Transportation(WSDOT), as they may
be amended from time-to-time,which are herein incorporated by reference and made a part of this Agreement.
2.Non-discrimination:The Consultant,with regard to the work performed by it during this Agreement,shall
not discriminate on the grounds of race,color,or national origin in the selection and retention of subcontractors,
including procurements of materials and leases of equipment. The Consultant shall not participate directly or
indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices
when the contract covers any activity,project,or program set forth in Appendix B of 49 CFR Part 21.
3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all
solicitations, either by competitive bidding, or negotiation made by the Consultant for work to be performed
under a subcontract,including procurements of materials,or leases of equipment,each potential subcontractor
or supplier shall be notified by the Consultant of the Consultant's obligations under this Agreement and the
Acts and the Regulations relative to non-discrimination on the grounds of race,color,or national origin.
4. Information and Reports: The Consultant shall provide all information and reports required by the Acts,
the Regulations,and directives issued pursuant thereto,and shall permit access to its books,records,accounts,
other sources of information,and its facilities as may be determined by the City or the WSDOT to be pertinent
to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of
Consultant is in the exclusive possession of another who fails or refuses to furnish the information, the
Consultant shall so certify to the City or the WSDOT, as appropriate, and shall set forth what efforts it has
made to obtain the information.
5. Sanctions for Noncompliance: In the event of a Consultant's noncompliance with the non-discrimination
provisions of this Agreement,the City will impose such contract sanctions as it or the WSDOT may determine
to be appropriate, including,but not limited to:
a.withholding payments to the Consultant under the Agreement until the Consultant complies; and/or
b. cancelling,terminating,or suspending the Agreement, in whole or in part.
6. Incorporation of Provisions:The Consultant shall include the provisions of paragraphs one through six of
this Exhibit in every subcontract,including procurements of materials and leases of equipment,unless exempt
by the Acts, the Regulations and directives issued pursuant thereto. The Consultant shall take action with
respect to any subcontract or procurement as the City or the WSDOT may direct as a means of enforcing such
provisions, including sanctions for noncompliance. Provided, that if the Consultant becomes involved in, or
is threatened with litigation by a subcontractor or supplier because of such direction, the Consultant may
request that the City enter into any litigation to protect the interests of the City. In addition, the Consultant
may request the United States to enter into the litigation to protect the interests of the United States.
7. Pertinent Non-Discrimination Authorities: During the performance of this Agreement, the Consultant
agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
Title VI of the Civil Rights Act of 1964(42 U.S.C. §2000d et seq., 78 stat.252),(prohibits discrimination
on the basis of race,color,national origin);and 49 CFR Part 21;
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The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C.
§4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of
Federal or Federal-aid programs and projects);
Federal-Aid Highway Act of 1973,(23 U.S.C. §324 et seq.),(prohibits discrimination on the basis of sex);
Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. §794 et seq.), as amended, (prohibits
discrimination on the basis of disability);and 49 CFR Part 27;
The Age Discrimination Act of 1975,as amended,(42 U.S.C. §6101 et seq.), (prohibits discrimination on
the basis of age);
Airport and Airway Improvement Act of 1982, (49 USC §471, Section 47123), as amended, (prohibits
discrimination based on race,creed,color,national origin,or sex);
The Civil Rights Restoration Act of 1987,(PL 100-209),(Broadened the scope,coverage and applicability
of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the
Rehabilitation Act of 1973,by expanding the definition of the terms"programs or activities"to include all
of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such
programs or activities are Federally funded or not);
Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of
disability in the operation of public entities, public and private transportation systems, places of public
accommodation, and certain testing entities (42 U.S.C. §§12131-12189) as implemented by Department
of Transportation regulations at 49 C.F.R.parts 37 and 38;
The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. §47123) (prohibits
discrimination on the basis of race,color,national origin, and sex);
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations,which ensures Non-discrimination against minority populations by discouraging
programs,policies,and activities with disproportionately high and adverse human health or environmental
effects on minority and low-income populations;
Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and
resulting agency guidance, national origin discrimination includes discrimination because of Limited
English proficiency(LEP). To ensure compliance with Title VI,you must take reasonable steps to ensure
that LEP persons have meaningful access to your programs(70 Fed. Reg. at 74087 to 74100); and
Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating
because of sex in education programs or activities(20 U.S.C. §1681 et seq.).
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Exhibit B-Scope of Work
Dr.Bender will serve as a technical resource to the City of Spokane Valley to educate them and their
designees on the material and engineering science of structural glued-laminated timber,and the effects of
weather exposure on wood structural members as applicable. Dr.Bender will draw upon decades of
experience in teaching(university courses and private workshops),research,and codes and standards
development related to timber engineering.
Dr.Bender will not provide services as the engineer of record nor will he be responsible for the practice of
engineering including on-site inspections/measurements of glulam beams or determination of structural
adequacy and repairs. It is Dr.Bender's understanding that the City of Spokane Valley has contracted with a
firm to handle the engineering services.
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Exhibit C—Fee Schedule
DONALD A.BENDER,Ph.D.,P.E.
Wood Construction&Engineering Consultant
2236 Arborcrest Road
Moscow, ID 83843
Office:(509)335-2829 • Cell:(208)596-5333 • Email: bender.don@gmail.com
April 28,2020
Hourly Rate:
My fee for professional time, including travel time, is$425 per hour.
All out-of-pocket expenses needed for the specific project are required to be reimbursed.
Out of Office Work
When travel is involved for a deposition,trial,and other out of office work,the professional time for billing
purposes will be based on the actual time away from home based on an 8-hour day except for days when
travel time and/or work exceeds 8-hours. For a day that work and/or travel time exceed 8-hours,the total of
work hours and/or travel hours defines the day for billing purposes. (For example,a day that involves 4-
hours of consulting work and 6-hours of travel time will be billed as 10-hours.) Travel related expenses are
required to be reimbursed.
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