HomeMy WebLinkAboutContract #: 1117 - From: 07-13-2018 To: - Isotrope, LLC - Community Development TOWN OF NORTH ANDOVER
CONTRACT
CONTRACT#
DATE: JULY 13,2018
This Contract is entered into on, or as of,this date by and between the Town of North Andover
(the"Town"), and
Contractor:
Address: _Isotrope,LLC
503 Main Street
Medfield,MA 02052
Telephone Number: 508 359 8833 (office)
617 448 8570(Maxson cell)
Fax Number: 508 906 5522
1. This is a Contract for the procurement of the following:
Expert witness services in the matter of VWI, LLC v.North Andover Planning Board,
Town of North Andover, which may include,research, conferences, consultations with Client,
reviewing documents, organizing documents, analysis,testing, responding to discovery
requests,report writing,testifying, investigating,reading and signing deposition transcripts,
local portal-to-portal travel,waiting time,preparing exhibits,preparing demonstrative aids, and
preparation time for testifying at deposition,trial,hearing, arbitration or other venues, and
giving and reviewing Expert's testimony under oath or affirmation in court or deposition.
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page I
2. The Contract price to be paid to the Contractor by the Town of North Andover is:
$225.00 an hour
$270.00 an hour for testifying under oath.
3. Payment will be made as follows:
30 day net invoice
4. Definitions
4.1 Acceptance: All Contracts require proper acceptance of the described goods or services
by the Town of North Andover. Proper acceptance shall be understood to include
inspection of goods and certification of acceptable performance for services by authorized
representatives of the Town to insure that the goods or services are complete and are as
specified in the Contract.
4.2 Contract Documents: All documents relative to the Contract including (where used)
Instructions to Bidders, Proposal Form, General Conditions, Supplementary General
Conditions, General Specifications, Other Specifications included in Project Manual,
Drawings, and all Addenda issued during the bidding period. The Contract documents are
complementary, and what is called for by any one shall be as binding as if called for by all.
The intention of the document is to include all labor and materials, equipment and
transportation necessary for the proper performance of the Contract.
4.3 The Contractor: The "other party" to any Contract with the Town. This term shall (as
the sense and particular Contract so require)include Vendor,Contractor,Engineer,or other
label used to identify the other party in the particular Contract. Use of the term"Contractor"
shall be understood to refer to any other such label used.
4.4 Date of Substantial Performance: The date when the work is sufficiently complete, the
services are performed, or the goods delivered, in accordance with Contract documents, as
modified by approved Amendments and Change Orders.
4.5 Goods: Goods, Supplies or Materials.
4.6 Subcontractor: Those having a direct Contract with the Contractor. The term includes
one who furnished material worked to a special design according to the Drawings or
Specifications of this work,but does not include one who merely furnishes material not so
worked.
4.7 Work: The services or materials contracted for, or both.
5. Term of Contract and Time for Performance
This Contract shall be fully performed by the Contractor in accordance with the provisions of the
Contract Documents on or before [subject to litigation schedule TBD], unless extended pursuant
to a provision for extension contained in the Contract documents at the sole discretion of the Town,
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page 2
a
and not subject to assent by the Contractor, and subject to the availability and appropriation of
funds as certified by the Town Accountant. The time limits stated in the Contract documents are
of the essence of the Contract.
6. Subject to Appropriation
Notwithstanding anything in the Contract documents to the contrary, any and all payments which
the Town is required to make under this Contract shall be subject to appropriation or other
availability of funds as certified by the Town Accountant. In the absence of appropriation, this
Contract shall be immediately terminated without liability for damages,penalties or other charges.
7. Permits and Approvals
Permits, Licenses,Approvals and all other legal or administrative prerequisites to its performance
of the Contract shall be secured and paid for by the Contractor.
8. Termination and Default
8.1 Without Cause. The Town may terminate this Contract on seven (7) calendar days notice
when in the best interests of the Town by providing notice to the Contractor,which shall be
in writing and shall be deemed delivered and received when given in person to the Contractor,
or when received by fax, express mail, certified mail return receipt requested, regular mail
postage prepaid or delivered by any other appropriate method evidencing actual receipt by
the Contractor. Upon termination without cause, Contractor will be paid for services
rendered to the date of termination.
8.2 For Cause. If the Contractor is determined by the Town to be in default of any term or
condition of this Contract,the Town may terminate this Contract on seven(7)days notice by
providing notice to the Contractor, which shall be in writing and shall be deemed delivered
and received when given in person to the Contractor, or when received by fax, express mail,
certified mail return receipt requested,regular mail postage prepaid or delivered by any other
appropriate method evidencing actual receipt by the Contractor.
8.3 Default. The following shall constitute events of a default under the Contract:
1) any material misrepresentation made by the Contractor to the Town; 2) any failure to
perform any of its obligations under this Contract including, but not limited to the
following: (i)failure to commence performance of this Contract at the time specified in
this Contract due to a reason or circumstance within the Contractor's reasonable control,
(ii) failure to perform this Contract with sufficient personnel and equipment or with
sufficient material to ensure the completion of this Contract within the specified time
due to a reason or circumstance within the Contractor's reasonable control, (iii) failure
to perform this Contract in a manner reasonably satisfactory to the Town, (iv) failure to
promptly re-perform within a reasonable time the services that were rejected by the
Town as unsatisfactory, or erroneous, (v) discontinuance of the services for reasons not
beyond the Contractor's reasonable control, (vi) failure to comply with a material term
of this Contract, including, but not limited to, the provision of insurance and non-
discrimination, (vii) any other acts specifically and expressly stated in this Contract as
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page 3
constituting a basis for termination of this Contact, and(viii)failure to comply with any
and all requirements of state law and/or regulations,and Town bylaw and/or regulations.
9. The Contractor's Breach and the Town's Remedies
Failure of the Contractor to comply with any of the terms or conditions of this Contract shall be
deemed a material breach of this Contract, and the Town of North Andover shall have all the
rights and remedies provided in the Contract documents,the right to cancel,terminate, or suspend
the Contract in whole or in part,the right to maintain any and all actions at law or in equity or other
proceedings with respect to a breach of this Contract,including damages and specific performance,
and the right to select among the remedies available to it by all of the above.
From any sums due to the Contractor for services,the Town may keep the whole or any part of the
amount for expenses, losses and damages incurred by the Town as a consequence of procuring
services as a result of any failure, omission or mistake of the Contractor in providing services as
provided in this Contract.
10. Statutory Compliance
10.1 This Contract will be construed and governed by the provisions of applicable federal,state
and local laws and regulations; and wherever any provision of the Contract or Contract
documents shall conflict with any provision or requirement of federal, state or local law
or regulation, then the provisions of law and regulation shall control. Where applicable
to the Contract,the provisions of the General Laws are incorporated by reference into this
Contract, including,but not limited to, the following:
General Laws Chapter 30B—Procurement of Goods and Services.
10.2 Wherever applicable law mandates the inclusion of any term and provision into a
municipal contract,this Section shall be understood to import such term or provision into
this Contract. To whatever extent any provision of this Contract shall be inconsistent
with any law or regulation limiting the power or liability of cities and towns, such law or
regulation shall control.
10.3. The Contractor shall give all notices and comply with all laws and regulations bearing on
the performance of the Contract. If the Contractor performs the Contract in violation of
any applicable law or regulation,the Contractor shall bear all costs arising therefrom.
10.4 The Contractor shall keep itself fully informed of all existing and future State and National
Laws and Municipal By-laws and Regulations and of all orders and decrees of any bodies
or tribunals having jurisdiction in any manner affecting those engaged or employed in the
work, of the materials used in the work or in any way affecting the conduct of the work.
If any discrepancy or inconsistency is discovered in the Drawings, Specifications or
Contract for this work in violation of any such law,by-law, regulation, order or decree, it
shall forthwith report the same in writing to the Town. It shall, at all times, itself observe
and comply with all such existing and future laws, by-laws, regulations, orders and
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page 4
decrees; and shall protect and indemnify the Town of North Andover, and its duly
appointed agents against any claim or liability arising from or based on any violation
whether by him or its agents, employees or subcontractors of any such law, by-law,
regulation or decree.
11. Conflict of Interest
Both the Town and the Contractor acknowledge the provisions of the State Conflict of Interest
Law(General Laws Chapter 268A),and this Contract expressly prohibits any activity which shall
constitute a violation of that law. The Contractor shall be deemed to have investigated the
application of M.G.L. c.268A to the performance of this Contract; and by executing the Contract
documents the Contractor certifies to the Town that neither it nor its agents, employees, or
subcontractors are thereby in violation of General Laws Chapter 268A.
12. Certification of Tax Compliance
This Contract must include a certification of tax compliance by the Contractor, as required by
General Laws Chapter 62C, Section 49A (Requirement of Tax Compliance by All Contractors
Providing Goods, Services, or Real Estate Space to the Commonwealth or Subdivision).
13. Discrimination
The Contractor will carry out the obligations'of this Contract in full compliance with all of the
requirements imposed by or pursuant to General Laws Chapter 151B(Law Against Discrimination)
and any executive orders, rules, regulations, and requirements of the Commonwealth of
Massachusetts as they may from time to time be amended.
14. Assignment
Assignment of this Contract is prohibited,unless and only to the extent that assignment is provided
for expressly in the Contract documents.
15. Condition of Enforceability gainst the Town
This Contract is only binding upon,and enforceable against,the Town if: (1)the Contract is signed
by the Town Manager or its designee; and(2) endorsed with approval by the Town Accountant as
to appropriation or availability of funds; and(3) endorsed with approval by the Town Counsel as
to form.
16. Corporate Contractor
If the Contractor is a corporation, it shall endorse upon this Contract(or attach hereto) its Clerk's
Certificate certifying the corporate capacity and authority of the party signing this Contract for the
corporation. Such certificate shall be accompanied by a letter or other instrument stating that such
authority continues in full force and effect as of the date the Contract is executed by the Contractor.
This Contract shall not be enforceable against the Town of North Andover unless and until the
Contractor complies with this section.
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page 5
The Contractor, if a foreign corporation, shall comply with the provisions of the General Laws,
Chapter 181, Sections 3 and 5, and any Acts and Amendments thereof, and in addition thereto,
relating to the appointment of the Commissioner of Corporations as its attorney, shall file with the
Commissioner of Corporations a Power of Attorney and duly authenticated copies of its Charter or
Certificate of Incorporation; and said Contractor shall comply with all the laws of the
Commonwealth.
17. Liability of Public Officials
To the full extent permitted by law, no official, employee, agent or representative of the Town of
North Andover shall be individually or personally liable on any obligation of the Town under this
Contract.
18. Indemnification
The Contractor shall indemnify, defend and save harmless the Town, the Town's officers, agents
and employees, from and against any and all damages, liabilities, actions, suits, proceedings,
claims,demands,losses, costs,expenses,recoveries and judgments of every nature and description
(including reasonable attorneys' fees) that may arise in whole or in part out of or in connection
with the work being performed or to be performed,or out of any act or omission by the Contractor,
its employees, agents, subcontractors, material men, and anyone directly or indirectly employed
by any of them or anyone for whose acts any of them may be liable, regardless of whether or not
it is caused in part by any party indemnified hereunder.The Contractor further agrees to reimburse
the Town for damage to its property caused by the Contractor,its employees,agents,subcontractors
or material men, and anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable,including damages caused by his,its or their use of faulty,defective,
or unsuitable material or equipment,unless the damage is caused by the Town's gross negligence
or willful misconduct.The existence of insurance shall in no way limit the scope of the Contractor's
indemnification under this contract.
19. Workers Compensation Insurance
The Contractor shall provide by insurance for the payment of compensation and the furnishing of
other benefits under Chapter 152 of the General Laws of Massachusetts (The Worker's
Compensation Act)to all employees of the Contractor who are subject to the provisions of Chapter
152 of the General Laws of Massachusetts.
Failure to provide and continue in force such insurance during the period of this Contract shall be
deemed a material breach of this Contract, shall operate as an immediate termination thereof, and
Contractor shall indemnify the Town for all losses, claims, and actions resulting from the failure
to provide the insurance required by this Article.
The Contractor shall furnish to the Town evidence of such insurance prior to the execution of this
Contract before the same shall be binding on the parties thereto, except if specifically waived by
the Town.
20. Documents,Materials,Etc.
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Any materials,reports,information, data,etc. given to or prepared or assembled by the Contractor
under this Contract are to be kept confidential and shall not be made available to any individual or
organization by the Contractor (except agents, servants, or employees of the Contractor) without
the prior written approval of the Town, except as otherwise required by law. The Contractor shall
comply with the provisions Chapter 66A of the General Laws of Massachusetts as it relates to
public documents, and all other state and federal laws and regulations relating to confidentiality,
security,privacy and use of confidential data.
Any materials produced in whole or in part under this Contract shall not be subject to copyright,
except by the Town, in the United States or any other country. The Town shall have unrestricted
authority to, without payment of any royalty, commission, or additional fee of any type or nature,
publicly disclose,reproduce, distribute and otherwise use, and authorize others to use,in whole.or
in part, any reports, data or other materials prepared under this Contract.
All data, reports, programs, software, equipment, furnishings, and any other documentation or
product paid for by the Town shall vest in the Town at the termination of this Contract. The
Contractor shall at all times, during or after termination of this Contract, obtain the prior written
approval of the Town before making any statement bearing on the work performed or data collected
under this Contract to the press or issues any material for publication through any medium.
21. Audit, Inspection and Recordkeeping
At any time during normal business hours, and as often as the Town may deem it reasonably
necessary, there shall be available in the office of the Contractor for the purpose of audit,
examination, and/or to make excerpts or transcript all records, contracts, invoices, materials,
payrolls, records of personnel, conditions of employment and other data relating to all matters
covered by this Agreement.
22. Payment
The Town agrees to make all reasonable efforts to pay to the Contractor the sum set forth in the
Contractor's bid or proposal within thirty (30) days of receipt of an invoice detailing the work
completed and acceptance from the Town of the work completed.
23. Waiver and Amendment
Amendments, or waivers of any additional term, condition, covenant, duty or obligation contained
in this Contract may be made only by written amendment executed by all signatories to the original
Agreement,prior to the effective date of the amendment.
To the extent allowed by law, any.conditions, duties, and obligations contained in this Contract
may be waived only by written Agreement by both parties.
Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver,
nor in any manner limit the legal or equitable remedies available to that party. No waiver by either
party of any default or breach shall constitute a waiver of any subsequent default or breach of a
similar or different matter.
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page 7
24. Forum and Choice of Law
This Contract and any performance herein shall be governed by and be construed in accordance
with the laws of the Commonwealth of Massachusetts. Any and all proceedings or actions relating
to subject matter herein shall be brought and maintained in the courts of the Commonwealth of
Massachusetts or the federal district court sitting in the Commonwealth of Massachusetts, which
shall have exclusive jurisdiction thereof. This paragraph shall not be construed to limit any other
legal rights of the parties.
25. Notices
Any notice permitted or required under the provisions of this Contract to be given or served by
either of the parties hereto upon the other party hereto shall be in writing and signed in the name
or on the behalf of the party giving or serving the same. Notice shall be deemed to have been
received at the time of actual service or three (3) business days after the date of a certified or
registered mailing properly addressed. Notice to the Contractor shall be deemed sufficient if sent
to the address set forth in the Contract and to the Town of North Andover by being sent to the
Town Manager,Town Hall, 120 Main Street,North Andover,Massachusetts 01845.
26. Binding on Successors
This Contract shall be binding upon the Contractor, its assigns, transferees, and/or successors in
interest(and where not corporate,the heirs and estate of the Contractor).
27. Complete Contract
This instrument,together with its endorsed supplements, and the other components of the contract
documents,constitutes the entire contract between the parties,with no agreements other than those
incorporated herein.
The endorsed supplement to this contract is attached hereto and entitled Scope of Services Expert
Witness Contract.
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page 8
IN WITNESS WHEREOF the parties have hereto and to two other identical instruments set forth
their hands the day and year first above written.
THE TOWN THE CONTRACTOR
Isotrope, LLC
DivisionAepa rtm H d Company Name
s� �' Wv July 13, 2018_
TeAwn Manager Date Signature Date
_David Maxson,Member(CEO)_
Print Name&Title
Federal Identification
No.: 27-1413322.
APPROVED AS TO FORM:
own Counsel Date
CERTIFICATION AS TO AVAILABILITY OF FUNDS:
own c%ountant Date
(Rev 5-2007)Contract by and between Town of North Andover and Isotrope,LLC Page 9
Scope of Services Expert Witness Contract
1. Duties of Expert. The Expert's duties are:
a. To truthfully represent Expert's credentials.
b. To provide relevant and substantiated facts for the record.
c. To formulate with honesty and due care and truthfully express Expert's opinion(s)
in those areas (and only those areas)where Expert feels qualified to render an
opinion and where Client has requested an opinion. Client agrees that Expert's
opinion(s)are not preordained,might be contrary to Client's position, and are
subject to modification as a result of new or additional information.
d. To cease work on the underlying legal matter and promptly inform Client
whenever Expert has accrued unpaid fees and expenses totaling more than$5000.
In this event,Expert shall not perform further work on the underlying legal matter
until approval is given by Client.
e. Expert is under no duty to provide and express opinions if Expert is given time
deadlines or cost-based or other restrictions by Client that would not reasonably
allow Expert to in good faith formulate and express his opinions with reasonable
care.
f. Subject to paragraph 7.e.,to prepare a written report if Client requests one.
g. Subject to paragraph 7.e. and to circumstances beyond the Expert's control,to
meet all reasonable deadlines requested by Client.
h. To retain and preserve (during this engagement) all evidence provided to Expert
from the underlying legal matter unless Client gives written permission for
destructive testing or the like.
i. To be available on reasonable notice to testify.
j. To be available on reasonable notice to consult with Client. Expert's cellular
number is 617 448 8570.
k. To work exclusively with Client in the underlying legal matter unless the parties
mutually agree in writing otherwise.
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1. Upon receipt from Client of the list of attorneys and parties,to check for conflicts
of interest with due care and promptly to notify Client of any conflicts of interest
discovered that preclude Expert's further involvement in the underlying matter.
m. Any notice less than 24 hours prior to the scheduled appearance for testimony
shall constitute late notice, and Expert shall instead be entitled to the cancellation
and rescheduling fees of 25%of the time scheduled for the appearance for
testimony. In the event of any cancellation or rescheduling of testimony, Client
shall be responsible for all non-refundable out of pocket travel expenses incurred
by Expert such as mileage expenses and lodging.
2. Duties of Town. The Client's duties specifically include,but are not limited to:
a. Providing Expert with copies of or access to all non-privileged, arguably relevant
documents, evidence and other materials in the underlying legal matter.
b. Notifying Expert of all parties and attorneys in the case so that Expert can check
for conflicts of interest.
c. Where circumstances reasonably allow,providing Expert with prompt notice of
any Daubert motions,Frye motions,motions in limine, or other pre-trial motions
made by other parties or persons to restrict, exclude or in any way limit Expert's
testimony or Expert's participation in the underlying legal matter.
d. Obtaining Expert's advance approval (for accuracy) of the relevant portions of
any and all answers to interrogatories,motions, expert designations or other
documents which summarize Expert's qualifications,methodology, opinion(s)
and/or anticipated testimony.
e. Being available as reasonably requested to meet with Expert prior to anticipated
testimony.
3. Expert's Right of Withdrawal From Case. Expert shall have the absolute right to
withdraw,without any liability, from the case if Client violates any of the duties specified
in paragraph 2 above or if:
a. Expert discovers a conflict of interest which precludes Expert's further
involvement in the underlying legal matter.
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b. Expert discovers that because of legal restrictions Expert's involvement or
testimony in the case could reasonably be deemed to be practicing Expert's
profession without a required license.
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