HomeMy WebLinkAboutContractAGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT, dated for reference purposes only as October 19, 2021, is by and between
the City of Renton (the “City”), a Washington municipal corporation, and Johnson Architects
(“Consultant”), a Washington Corporation. The City and the Consultant are referred to
collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement
is effective as of the last date signed by both parties.
1. Scope of Work: Consultant agrees to provide professional services as specified in Exhibit
A, which is attached and incorporated herein and may hereinafter be referred to as the
“Work.”
2. Changes in Scope of Work: The City, without invalidating this Agreement, may order
changes to the Workconsisting of additions, deletions or modifications.Any such changes
to the Work shall be ordered by the City in writing and the Compensation shall be
equitably adjusted consistent with the rates set forth inExhibitAor as otherwise mutually
agreed by the Parties.
3. Time of Performance: Consultant shall commence performance of the Agreement upon
execution of this Agreement. All Work shall be performed by no later than July 31, 2022.
4. Compensation:
A. Amount. Total compensation to Consultant for Work provided pursuant to this
Agreement shall not exceed $63,540, plus any applicable state and local sales taxes.
Compensation shall be paid based upon Work actually performed according to the
rate(s) or amounts specified in Exhibit A. The Consultant agrees that any hourly or flat
rate charged by it for its Work shall remain locked at the negotiated rate(s) unless
otherwise agreed to in writing or provided in Exhibit A. Except as specifically provided
herein, the Consultant shall be solely responsible for payment of any taxes imposed
as a result of the performance and payment of this Agreement.
B. Method of Payment. On a monthly or no less than quarterly basis during any quarter
in which Workisperformed, the Consultant shall submit a voucher or invoice in aform
specified by the City, including a description of what Work has been performed, the
name of the personnel performing such Work, and any hourly labor charge rate for
such personnel. The Consultant shall also submit a final bill upon completion of all
Work. Payment shall be made by the City for Work performed within thirty (30)
CAG-22-071
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calendar days after receipt and approval by the appropriate City representative of the
voucher or invoice. If the Consultant’s performance does not meet the requirements
of this Agreement, the Consultant will correct or modify its performance to comply
with the Agreement. The City may withhold payment for work that does not meet the
requirements of this Agreement.
C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by
the City of any remedies it may have against the Consultant for failure of the
Consultant to perform the Work or for any breach of this Agreement by the
Consultant.
D. Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for
payment under this Agreement for any future fiscal period, the City shall not be
obligated to make payments for Work or amounts incurred after the end of the
current fiscal period, and this Agreement will terminate upon the completion of all
remaining Work for which funds are allocated. No penalty or expense shall accrue to
the City in the event this provision applies.
5. Termination:
A. The City reserves the right to terminate this Agreement at any time, with or without
cause by giving ten(10) calendar days’ notice to the Consultant in writing. In the event
of such termination or suspension, all finished or unfinished documents, data, studies,
worksheets, models and reports, or other material prepared by the Consultant
pursuant to this Agreement shall be submitted to the City, if any are required as part
of the Work.
B. In the event this Agreement is terminated by the City, the Consultant shall be entitled
to payment for all hours worked to the effective date of termination, less all payments
previously made. If the Agreement is terminated by the Cityafter partial performance
of Work for which the agreed compensation is a fixed fee, the City shall pay the
Consultant an equitable share of the fixed fee. This provision shall not prevent the
City from seeking any legal remedies it may have for the violation or nonperformance
of any of the provisions of this Agreement and such charges due to the City shall be
deducted from the final payment due the Consultant. No payment shall be made by
the City for any expenses incurred or work done following the effective date of
termination unless authorized in advance in writing by the City.
6. Warranties And Right To Use Work Product: Consultant represents and warrants that
Consultant will perform all Work identified in this Agreement in a professional and
workmanlike manner and in accordance with all reasonable and professional standards
and laws. Compliance with professional standards includes, as applicable, performing the
Work in compliance with applicable City standards or guidelines (e.g. design criteria and
PAGE 3 OF 10
Standard Plans for Road, Bridgeand Municipal Construction). Professional engineers shall
certify engineering plans, specifications, plats, and reports, as applicable, pursuant to
RCW 18.43.070. Consultant further represents and warrants that all final work product
created for and delivered to the City pursuant to this Agreement shall be the original work
of the Consultant and free from any intellectual property encumbrance which would
restrict the City from using the work product. Consultant grants to the City a non-
exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and
display all final work product produced pursuant to this Agreement. The City’s or other’s
adaptation, modification or use of the final work products other than for the purposes of
this Agreement shall be without liability to the Consultant. The provisions of this section
shall survive the expiration or termination of this Agreement.
7. Record Maintenance: The Consultant shall maintain accounts and records, which
properly reflect all direct and indirect costs expended and Work provided in the
performance of this Agreement and retain such records for as long as may be required by
applicable Washington State records retention laws, but in any event no less than six
years after the termination of this Agreement. The Consultant agrees to provide access
to and copies of any records related to this Agreement as required by the City to audit
expenditures and charges and/or to comply with the Washington State Public Records Act
(Chapter 42.56 RCW). The provisions of this section shall survive the expiration or
termination of this Agreement.
8. Public Records Compliance: To the full extent the City determines necessary to comply
with the Washington State Public Records Act, Consultant shall make a due diligent search
of all records in its possession or control relating to this Agreement and the Work,
including, but not limited to, e-mail, correspondence, notes, saved telephone messages,
recordings, photos, or drawings and provide them to the City for production. In the event
Consultant believes said records need to be protected from disclosure, it may, at
Consultant’s own expense, seek judicial protection. Consultant shall indemnify, defend,
and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim
or litigation related to a Public Records Act request for which Consultant has responsive
records and for which Consultant has withheld records or information contained therein,
or not provided them to the City in a timely manner. Consultant shall produce for
distribution any and all records responsive to the Public Records Act request in a timely
manner, unless those records are protected by court order. The provisions of this section
shall survive the expiration or termination of this Agreement.
9. Independent Contractor Relationship:
A. The Consultant is retained by the City only for the purposes and to the extent set forth
in this Agreement. The nature of the relationship between the Consultant and the City
during the period of the Work shall be that of an independent contractor, not
employee. The Consultant, not the City, shall have the power to control and direct the
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details, manner or means of Work. Specifically, but not by means of limitation, the
Consultant shall have no obligation to work any particular hours or particular
schedule, unless otherwise indicated in the Scope of Work or where scheduling of
attendance or performance is mutually arranged due to the nature of the Work.
Consultant shall retain the right to designate the means of performing the Work
covered by this agreement, and the Consultant shall be entitled to employ other
workers at such compensation and such other conditions as it may deem proper,
provided, however, that any contract so made by the Consultant is to be paid by it
alone, and that employing such workers, it is acting individually and not as an agent
for the City.
B. The City shall not be responsible for withholding or otherwise deducting federal
income tax or Social Security or contributing to the State Industrial Insurance
Program, or otherwise assuming the duties of an employer with respect to Consultant
or any employee of the Consultant.
C. If the Consultant is a sole proprietorship or if this Agreement is with an individual, the
Consultant agrees to notify the City and complete any required form if the Consultant
retired under a State of Washington retirement system and agrees to indemnify any
losses the City may sustain through the Consultant’s failure to do so.
10. Hold Harmless: The Consultant agrees to release, indemnify, defend, and hold harmless
the City, elected officials, employees, officers, representatives, and volunteers from any
and all claims, demands, actions, suits, causes of action, arbitrations, mediations,
proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees,
penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or
by any and all persons or entities, arising from, resulting from, or related to the negligent
acts, errors or omissions of the Consultant in its performance of this Agreement or a
breach of this Agreement by Consultant, except for that portion of the claims caused by
the City’s sole negligence.
Should a court of competent jurisdiction determine that this agreement is subject to RCW
4.24.115, (Validity of agreement to indemnify against liability for negligence relative to
construction, alteration, improvement, etc., of structure or improvement attached to real
estate…) then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of the
Consultant and the City, its officers, officials, employees and volunteers, Consultant’s
liability shall be only to the extent of Consultant’s negligence.
It is further specifically and expressly understood that the indemnification provided in
this Agreement constitute Consultant’s waiver of immunity under the Industrial
Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties
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have mutually negotiated and agreed to this waiver. The provisions of this section shall
survive the expiration or termination of this Agreement.
11. Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City
employees from soliciting, accepting, or receiving any gift, gratuity or favor from any
person, firm or corporation involved in a contract or transaction. To ensure compliance
with the City’s Code of Ethics and state law, the Consultant shall not give a gift of any kind
to City employees or officials. Consultant also confirms that Consultant does not have a
business interest or a close family relationship with any City officer or employee who was,
is, or will be involved in selecting the Consultant, negotiating or administering this
Agreement, or evaluating the Consultant’s performance of the Work.
12. City of Renton Business License: Unless exempted by the Renton Municipal Code, t
Consultant shall obtain a City of Renton Business License prior to performing any Work
and maintain the business license in good standing throughout the term of this
agreement with the City.
Information regarding acquiring a city business license can be found at:
https://www.rentonwa.gov/Tax
Information regarding State business licensing requirements can be found at:
https://dor.wa.gov/doing-business/register-my-business
13. Insurance: Consultant shall secure and maintain:
A. Commercial general liability insurance in the minimum amounts of $1,000,000 for
each occurrence/$2,000,000 aggregate for the Term of this Agreement.
B. In the event that Work delivered pursuant to this Agreement either directly or
indirectly involve or require Professional Services, Professional Liability, Errors and
Omissions coverage shall be provided with minimum limits of $1,000,000 per
occurrence. "Professional Services", for the purpose of this section, shall mean any
Work provided by a licensed professional or Work that requires a professional
standard of care.
C. Workers’ compensation coverage, as required by the Industrial Insurance laws of the
State of Washington, shall also be secured.
D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired
or non-owned, with minimum limits of $1,000,000 per occurrence combined single
limit, if there will be any use of Consultant’s vehicles on the City’s Premises by or on
behalf of the City, beyond normal commutes.
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E. Consultant shall name the City as an Additional Insured on its commercial general
liability policy on a non-contributory primary basis. The City’s insurance policies shall
not be a source for payment of any Consultant liability, nor shall the maintenance of
any insurance required by this Agreement be construed to limit the liability of
Consultant to the coverage provided by such insurance or otherwise limit the City’s
recourse to any remedy available at law or in equity.
F. Subject to the City’s review and acceptance, a certificate of insurance showing the
proper endorsements, shall be delivered to the City before performing the Work.
G. Consultant shall provide the City with written notice of any policy cancellation, within
two (2) business days of their receipt of such notice.
14. Delays: Consultant is not responsible for delays caused by factors beyond the
Consultant’s reasonable control. When such delays beyond the Consultant’s reasonable
controloccur, the City agrees the Consultant is not responsible for damages, nor shall the
Consultant be deemed to be in default of the Agreement.
15. Successors and Assigns: Neither the City nor the Consultant shall assign, transfer or
encumber any rights, duties or interests accruing from this Agreement without the
written consent of the other.
16. Notices: Any notice required under this Agreement will be in writing, addressed to the
appropriate party at the address which appears below (as modified in writing from time
to time by such party), and given personally, by registered or certified mail, return receipt
requested, by facsimile or by nationally recognized overnight courier service. Time period
for notices shall be deemed to have commenced upon the date of receipt, EXCEPT
facsimile delivery will be deemed to have commenced on the first business day following
transmission. Email and telephone may be used for purposes of administering the
Agreement, but should not be used to give any formal notice required by the Agreement.
CITY OF RENTON
William Adams
1055 South Grady Way
Renton, WA 98057
Phone: (206) 775-6862
wadams@rentonwa.gov
CONSULTANT
Genevieve Theriault
100 NE Northlake Way, #200
Seattle, WA 98105
Phone: (206) 523-6150
gtheriault@johnstonarchitects.com
17. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational
qualification, the Consultant agrees as follows:
PAGE 7 OF 10
A. Consultant, and Consultant’s agents, employees, representatives, and volunteers
with regard to the Work performed or to be performed under this Agreement, shall
not discriminate on the basis of race, color, sex, religion, nationality, creed, marital
status, sexual orientation or preference, age (except minimum age and retirement
provisions), honorably discharged veteran or military status, or the presence of any
sensory, mental or physical handicap, unless based upon a bona fide occupational
qualification in relationship to hiring and employment, in employment or application
for employment, the administration of the delivery of Work or any other benefits
under this Agreement, or procurement of materials or supplies.
B. The Consultant will take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, creed,
color, national origin, sex, age, sexual orientation, physical, sensory or mental
handicaps, or marital status. 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.
C. If the Consultant fails to comply with any of this Agreement’s non-discrimination
provisions, the City shall have the right, at its option, to cancel the Agreement in
whole or in part.
D. The Consultant is responsible to be aware of and in compliance with all federal, state
and local laws and regulations that may affect the satisfactory completion of the
project, which includes but is not limited to fair labor laws, worker's compensation,
and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton
Council Resolution Number 4085.
18. Miscellaneous:The parties hereby acknowledge:
A. The City is not responsible to train or provide training for Consultant.
B. Consultant will not be reimbursed for job related expenses except to the extent
specifically agreed within the attached exhibits.
C. Consultant shall furnish all tools and/or materials necessary to perform the Work
except to the extent specifically agreed within the attached exhibits.
D. In the event special training, licensing, or certification is required for Consultant to
provide Work he/she will acquire or maintain such at his/her own expense and, if
Consultant employs, sub-contracts, or otherwise assigns the responsibility to perform
the Work, said employee/sub-contractor/assignee will acquire and or maintain such
training, licensing, or certification.
PAGE 8 OF 10
E. This is a non-exclusive agreement and Consultant is free to provide his/her Work to
other entities, so long as there is no interruption or interference with the provision of
Work called for in this Agreement.
F. Consultant is responsible for his/her own insurance, including, but not limited to
health insurance.
G. Consultant is responsible for his/her own Worker’s Compensation coverage as well as
that for any persons employed by the Consultant.
19. Other Provisions:
A. Approval Authority. Each individual executing this Agreement on behalf of the City
and Consultant represents and warrants that such individuals are duly authorized to
execute and deliver this Agreement on behalf of the City or Consultant.
B. General Administration and Management. The City’s project manager is William
Adams. In providing Work, Consultant shall coordinate with the City’s contract
manager or his/her designee.
C. Amendment and Modification. This Agreement may be amended only by an
instrument in writing, duly executed by both Parties.
D. Conflicts. In the event of any inconsistencies between Consultant proposals and this
Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to
this Agreement are incorporated by reference only to the extent of the purpose for
which they are referenced within this Agreement. To the extent a Consultant
prepared exhibit conflicts with the terms in the body of this Agreement or contains
terms that are extraneous to the purpose for which it is referenced, the terms in the
body of this Agreement shall prevail and the extraneous terms shall not be
incorporated herein.
E. Governing Law. This Agreement shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington and the City of
Renton. Consultant and all of the Consultant’s employees shall perform the Work in
accordance with all applicable federal, state, county and city laws, codes and
ordinances.
F. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared
by the joint efforts of the Parties and shall not be construed against one party or the
other as a result of the preparation, substitution, submission or other event of
negotiation, drafting or execution.
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G. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or
interpret this Agreement or any of its terms or covenants shall be brought in the King
County Superior Court for the State of Washington at the Maleng Regional Justice
Center in Kent, King County, Washington, or its replacement or successor. Consultant
hereby expressly consents to the personal and exclusive jurisdiction and venue of
such court even if Consultant is a foreign corporation not registered with the State of
Washington.
H. Severability. A court of competent jurisdiction’s determination that any provision or
part of this Agreement is illegal or unenforceable shall not cancel or invalidate the
remainder of this Agreement, which shall remain in full force and effect.
I. Sole and Entire Agreement. This Agreement contains the entire agreement of the
Parties and any representations or understandings, whether oral or written, not
incorporated are excluded.
J. Time is of the Essence. Time is of the essence of this Agreement and each and all of
its provisions in which performance is a factor. Adherence to completion dates set
forth in the description of the Work is essential to the Consultant’s performance of
this Agreement.
K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be
construed to give any rights or benefits in the Agreement to anyone other than the
Parties, and all duties and responsibilities undertaken pursuant to this Agreement will
be for the sole and exclusive benefit of the Parties and no one else.
L. Binding Effect. The Parties each bind themselves, their partners, successors, assigns,
and legal representatives to the other party to this Agreement, and to the partners,
successors, assigns, and legal representatives of such other party with respect to all
covenants of the Agreement.
M. Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s
failure to enforce any provision of this Agreement shall not be a waiver and shall not
prevent either the City or Consultant from enforcing that provision or any other
provision of this Agreement in the future. Waiver of breach of any provision of this
Agreement shall not be deemed to be a waiver of any prior or subsequent breach
unless it is expressly waived in writing.
N. Counterparts. The Parties may execute this Agreement in any number of
counterparts, each of which shall constitute an original, and all of which will together
constitute this one Agreement.
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IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date
last signed by the Parties below.
CITY OF RENTON
By:_____________________________
CONSULTANT
By:____________________________
Armondo Pavone
City of Renton Mayor
Jack Chaffin AIA
Partner
_____________________________
Date
_____________________________
Date
Attest
_____________________________
Jason A. Seth
City Clerk
Approved as to Legal Form
By: __________________________
Alex Tuttle
Senior Assistant City Attorney
Contract Template Updated 5/21/2021
11/03/2021
ANTT
__________________________________________________________________
haffifnnnnnnn AIAAAAAAAAAAA
3/16/2022
Approved by Alex Tuttle via 10/28/2021 email
Johnston Architects | 100 Northeast Northlake Way | Seattle, Washington | 206.523.6150
William Adams, P.E.
Civil Engineer
Public Works Department
Airport Division
616 W Perimeter Rd Unit A
Renton, WA 98057
Date: September 28, 2021 Subject: Renton Airport BLDG 243 Reno
Dear Willaim,
Thank you for considering us for this project. Per our meeting on 9/202/2021 we
understand the project involves the renovation of 243 West Perimeter Rd. to house the
Renton Airport Administration offices currently residing in the base of the Control tower
at 616 West Perimeter Rd. The project goals include keeping most of the floor plan
intact but optimized to suit current needs. Finish upgrades throughout including
polished conc. floors, paint, restroom finishes, and window coverings. Need to do
update or relamp lighting as much as is economically feasible including potential ceiling
upgrades and cleanup. We will engage a Structural Engineer to evaluate the current
structure in regards to observed cracking in bearing walls and any minor changes
caused by the renovation (adding door openings etc.). We were able to meet on site
and visit the current offices.
The building at 243 West Perimeter Rd. is approximately 3,400 SF. The approximate
construction budget for this scope of work is $350,000.
We understand the project to include the following:
x Exterior work:
o painting of the building
o new or repaired deck outside of the lounge
o new window glazing where required
o minor landscape work adjacent to parking and at entry
o ADA ramp to entry
o Roofing and flashing restoration as necessary
x Program:
o Plan for 6 to 7 workstations. 5 will be for permanent employees,
2 for guests
o 4 offices in existing rooms. The public facing office to have the
guest workstations
x Secure reception area with storage at the entry with adjacent pilot
lounge.
x IT room.
x Restroom remodel: Convert the two back-to-back restrooms into an
ADA restroom.
x Review the potential to remodel the restroom in the director’s office
including a shower.
x Conference room:
o Remodel & reconfigure the wet bar into a kitchenette.
o Conference table to fit at least 10 people.
o Potential to host 20-person classes.
EXHIBIT A
Johnston Architects | 100 Northeast Northlake Way, Suite 200 | Seattle, WA | 206.523.6150
2
We understand the schedule to be approximately:
Design 10/12/2021 to 1/4/2022
Permit 1/4/2022 to 4/4/2022
Bid: 3/4/2022 to 4/4/2022
Construction: 4/4/2022 to 7/4/2022
For this project, we propose the following phases and the estimated hours.
Task Description: Hours
Task 1 – Discovery
Partner 8 @ $195
PA 40@ $135
Admin 2 @ $55
Reviewer 0 @ $135
$1,560
$5,400
$110
$0
Sub Total $7,070
Task 2 –Permit
Partner 4@ $195
PA 40 @ $135
Admin 0 @ $55
Reviewer 4 @ $135
$780
$5,400
$0
$540
Sub Total $6,720
Task 3 – Documentation
Partner 12 @ $195
PA 140 @ $135
Admin 0 @ $55
Reviewer 4 @ $135
$2,340
$18,900
$0
$540
Sub Total $21,780
Task 4 – Bidding
Partner 4 @ $195
PA 24 @ $135
Admin 0 @ $55
Reviewer 0 @ $135
$780
$3,240
$0
$0
Sub Total $4,020
Task 5 – Construction
Partner 8 @ $195
PA 60 @ $135
Admin 0 @ $55
Reviewer 0 @ $135
$1,560
$8,100
$0
$0
Sub Total $9,660
Architectural Total $49,250
Structural Total* $5,000
Cost Estimator Total* $4,290
Specification writer* $5,000
Grand Total $63,540
Individual proposals provided under separate cover.
*Total’s shown are estimated values. Work will be billed per approved hourly
rates.
We are excited to be involved in the project and look forward to working with
you. Please contact me if you have any questions or require further information
or corrections to this proposal.
Johnston Architects | 100 Northeast Northlake Way, Suite 200 | Seattle, WA | 206.523.6150 3
Sincerely,
Jack Chaffin, AIA
Partner
2021 SCHEDULE OF CONDITIONS PAGE 1 OF 3
CLIENT INITIALS _________
This proposal is good for a period of 60 days after which Malsam Tsang Structural Engineering Corporation reserves the right to modify the proposal. The
services and compensation of Malsam Tsang are based on the following:
1. SCOPE OF SERVICES
As outlined in proposal letter. Services not set forth in the proposal letter are expressly excluded from Malsam Tsang’s Scope of Services. The
description of services and fees set forth in the proposal letter is based on a mutually agreeable schedule, timely approvals by the Client, and clear
communications.
2. HOURLY CHARGES FOR PERSONNEL
Personnel will be charged at the following hourly rates:
Marc Malsam $280 Jessica Moore $180 Enrique Islas $165
Ivan Tsang $280 Aiden Bernhardt $175 Kody Sanders $165
Scott Hufford $265 Nilea Edwards $175 Zach Shugart $165
Isaac Loebsack $255 Levi Gilbert $175 Dylan Steele $165
Warren Cent $250 Cooper Hjelm $175 Jesse Saunders $165
Russell Foisy $240 Johnson Jones $175 Dylan Edgington $140
Amanda Gehman $215 Quinn Mackenzie $175 TJ Hunt $140
Wes Isbell $215 Nate Moore $175 Robert Pack $135
Anthony Macklin $215 Blake Rassilyer $175 Contract Drafting $135
Ryan Gutierrez $180 Aaron Scott $175 Robert Clarke $130
Megan Isbell $180 Steven Winter $175 Jonathon Dunmyre $130
Joseph Marquez $180
The rates indicated above are in effect for the calendar year of the proposal. Billing rates are subject to increase effective January 1st next year.
3. REIMBURSABLE EXPENSES
(a) Plotting of CAD/PDF drawings will be billed at $2.50 per half-size sheet and $5.00 per full-size sheet.
(b) Delivery charges will be billed based on delivery distance and time.
(c) Travel mileage to meetings and site visits will be billed at $1.50 per mile.
(d) All other expenses and services not directly provided by Malsam Tsang will be charged at 1.15 x Cost.
Reimbursable expense items are in addition to compensation and are not included in the fee unless specifically noted in the proposal.
4. BILLING
Invoices will be issued monthly and are due within 30 days of issuance. All invoices not paid timely will accrue interest at a rate of 1.5% per month,
compounded monthly, from the date of invoice issuance, with a minimum finance charge of $35.00 per month per invoice. If payment of the full
amount of the invoice is not received within sixty (60) days of submission, Malsam Tsang shall have the right to suspend or terminate all work and
preparation of drawings may be stopped, at the discretion of Malsam Tsang. Should this occur, Malsam Tsang shall not be considered in breach of
contract or liable for damages or delays that may result. If the Client places the project on hold for sixty (60) days Malsam Tsang reserves the right to
terminate the contract or negotiate additional fees to restart the project.
5. RIGHT OF FIRST OPPORTUNITY
After construction of this project is completed, if Client plans on adding to the project, then to the extent permitted under applicable law, the Client
shall contract in good faith with Malsam Tsang for any work associated with any additions to this project.
6. VERIFICATION OF EXISTING CONDITIONS | RELIANCE ON INFORMATION
Inasmuch as the remodeling and/or rehabilitation of an existing building requires that certain assumptions be made regarding existing conditions, and
because some of these assumptions cannot be verified without expending additional sums of money, or destroying otherwise adequate or serviceable
portions of the building, the Client agrees that Malsam Tsang shall not be liable for any costs or damages incurred by any person or entity resulting
from concealed conditions in the existing building. Malsam Tsang shall be entitled to rely on the accuracy and completeness of all testing, services,
reports, data, drawings, and other information furnished by the Client or its other consultants and contractors.
7. CONTINGENCY RESERVE
The Client and Malsam Tsang acknowledge that changes may be required because of possible omissions, ambiguities or inconsistencies in the project
plans and specifications and, therefore, that the costs of the project as a result may exceed the construction contract sum negotiated between the
Client and its contractor or, if Client intends to act as its own contractor, from Client’s anticipated project costs and the sum of its trade subcontracts.
The Client agrees to establish a reasonable design contingency reserve (no less than 5% of anticipated construction costs), separate from any
construction contingency, to pay for any such project costs. The Client further agrees not to make any claim against Malsam Tsang with respect to any
payments made to any construction contractor(s) that fall within the limit of the design contingency reserve.
8. EXCLUSION OF CONSTRUCTION PHASE SERVICES
Construction drawings are diagrammatic and do not purport to show all details or conditions of construction. To the extent the Client intends to act as
its own general contractor on this project, in this Agreement, references to “Contractor” shall mean Client as it acts as the general contractor for this
project and any subcontractors contracting directly with Client as general contractor. In such case, Client shall have the same responsibilities to
Malsam Tsang as a contractor has to the Malsam Tsang as outlined in this agreement. Malsam Tsang normally provides clarifications and answers
2021 SCHEDULE OF CONDITIONS PAGE 2 OF 3
CLIENT INITIALS _________
questions raised by the contractor and others during construction phase services, which are a normal and customary part of the construction process.
Malsam Tsang will not be responsible for costs, delays, or damages related to errors or conflicts which occur when caused or exacerbated by its
exclusion from full participation in construction phase services.
The Client agrees to the fullest extent permitted by law, to release, indemnify and hold Malsam Tsang and its officers, partners, agents, employees and
subconsultants harmless from any and all claims, actions, causes of action, liabilities, expenses, damages, losses, and costs, including reasonable
attorneys’ fees and costs of defense or in the enforcement of the obligations under this indemnity provision, arising or allegedly arising from or
exacerbated by, exclusion from full or partial participation in Construction Phase Services, including but not limited to any issues that could have been
remedied, or remedied in a less costly fashion, during the Construction Phase, unless solely caused by Consultant’s negligence.
9. CONSTRUCTION
Client hereby expressly agrees that Malsam Tsang shall assume no responsibility for, control or right of control over any contractor, subcontractor or
supplier, their agents, employees, or others for whom they may be liable in connection with the means, methods, techniques, sequences, procedures
and equipment used or not used by such contractors, subcontractors, or suppliers in their performance of any phase of the work, for placing into
operation any plant or equipment, or for any safety precautions or programs related to the Project. Responsibility and control for all such activities
shall be solely and exclusively that of Client and such contractors, subcontractors, and suppliers. No acceptance or approval by Malsam Tsang of the
work of contractors (or Client acting as its own general contractor), subcontractors, or suppliers, whether express or implied, shall relieve contractors
(or Client acting as its own general contractor), subcontractors, or suppliers of their obligations to Client for the proper performance of their work.
At the time construction commences, the Client agrees to require the contractor to name Malsam Tsang and the Client as additional insureds on all
insurance carried during the project. If Client acts as its own general contractor, then it shall name Malsam Tsang as an additional insured on the
insurance it carries during the project. Malsam Tsang shall not be required to make exhaustive, extensive, or continuous on site or off site inspections
of the work. Malsam Tsang’s services to Client, during design and/or construction of the project, including the preparation of construction documents
and drawings, shall not create or be the basis of any obligation or duty owed by Malsam Tsang or its subconsultants to any contractor or subcontractor
or Client’s other consultants; and no contractor or subcontractor or Client’s other consultants shall be deemed a third party beneficiary of this
Agreement or any contract or agreement between Malsam Tsang and Client.
10. CONDOMINIUMS
The Client does not now foresee that the project will be converted into condominiums or involve a Homeowners Association. The Client acknowledges
that the design of multi-family projects may be incompatible or inconsistent with design requirements for condominiums. The Client acknowledges
that Malsam Tsang will not design this project for condominium ownership or involvement of a Homeowners Association, and acknowledges the risks
to Malsam Tsang inherent in condominium projects and the disparity between the Malsam Tsang’s fee and Malsam Tsang’s potential liability for
problems or alleged problems with such condominium or Homeowners Association projects. The Client understands that it does not have a license to
use Malsam Tsang’s instruments of service to convert the project into a condominium project. The Client agrees that, if the Client decides to convert
the project into condominiums or involve a Homeowners Association in the future and prior to the expiration of the applicable statute of repose, the
Client will, to the fullest extent permitted by law, release, defend, indemnify and hold harmless Malsam Tsang and the Malsam Tsang’s officers,
partners, agents, subconsultants and any of their employees from any and all claims, losses, damages and costs, including reasonable attorney’s fees
and defense costs, arising or allegedly arising in any manner whatsoever due to the conversion to condominium ownership or the involvement of a
Homeowners Association, except for the sole negligence or willful misconduct of Malsam Tsang. Furthermore, the Client agrees that the bylaws of the
Homeowners Association established, should this project be converted into a condominium project, will contain a requirement that the Association
will have performed the inspections recommended in the maintenance and inspection manual. The Owner further warrants that the bylaws will
contain provisions requiring the Homeowners Association to have performed necessary maintenance when recommended as a result of these
inspections or in accordance with the maintenance manual. The bylaws shall also contain an appropriate waiver and indemnity in favor of the Owner,
the architect, Malsam Tsang, and its and their subconsultants, and the contractor if the maintenance recommendations are not performed. Finally,
prior to use of Malsam Tsang’s instruments of service to convert the project into a condominium project, Client, or its assignee or successor in interest,
in addition to any additional fees for services to change or modify the instruments of services, Client shall pay a condominium conversion fee to
Malsam Tsang to obtain a license to use its instruments of service. Such fee shall be twenty percent (20%) of the amount set forth in the proposal and
is due to the increased risks and insurance costs associated with condominium projects. A twenty percent (20%) fee shall also be applied to each
invoice involving hourly charges for personnel. If the Client sells or otherwise transfers the project, Client agrees that any agreements with subsequent
purchaser of the Project or assignee of this Agreement shall contain the limitations and indemnity provisions set forth in this Section 10.
11. DISPUTE RESOLUTION
This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of Washington, without regard to its conflict of
laws principles. Client agrees that any appropriate state or federal district court located in Seattle, Washington shall have exclusive jurisdiction over
any case, controversy, or dispute arising under or in connection with this agreement and shall be a proper forum in which to adjudicate such dispute.
Client consents to such jurisdiction for all purposes (both personal and subject matter).
Causes of action between the parties to this agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable
statutes of limitation shall commence to run not later than either the date of substantial completion, as that term is defined in RCW 4.16.310, for acts
or failures to act occurring prior to substantial completion, or the date of issuance of the final payment for acts or failures to act that occur after
substantial completion; or, if this agreement is terminated, upon the date Malsam Tsang terminates services on the Project.
12. OWNERSHIP OF DOCUMENTS
Drawings, specifications, and calculations prepared by Malsam Tsang for this project, including images and ideas expressed therein, are instruments of
service and shall at all times remain the property of Malsam Tsang, whether the project is executed or not. Malsam Tsang shall retain all common law,
statutory and other reserved rights to such instruments of service. Malsam Tsang grants a limited non-exclusive license allowing the Client the right to
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use the instruments of service for this project, subject to payment by Client of all amounts due and owing in accordance with the terms of this
agreement. Malsam Tsang grants no other rights or licenses or warranties hereunder, express or implied or otherwise, except as set forth in the
preceding sentence. No instruments of services shall be modified or used for any other project or extensions of this project without agreement in
writing from Malsam Tsang. The Client shall release, hold harmless and indemnify Malsam Tsang against all losses, damages, and costs arising out of
any unauthorized use, alteration, or misuse of the instruments of service by the Client or its agents or assigns, not specifically authorized by Malsam
Tsang in writing.
13. RISK ALLOCATION/LIMITATION OF LIABILITY
The parties agree and understand that the provisions contained in this agreement, including without limitation the disclaimer of warranties and the
limitations on liability, represent an agreed allocation of risk which Malsam Tsang is relying upon, and “but for” such agreed allocation of risk, Malsam
Tsang could not have priced its services as described herein, as fees are based upon professional time and risk exposure. The Client recognizes and
assumes the inherent risks connected with development and construction. Malsam Tsang’s liability shall be governed by a local and reasonable
professional standard of care, not a “standard of perfection”. No warranty or other representation, either expressed or implied, is included or
intended in the agreement, proposal or any other documents.
The Client agrees that to the fullest extent permitted by law, the total, aggregate liability of Malsam Tsang to the Client, its assigns, or anyone claiming
by or through Client, for any and all injuries, claims, losses, expenses, damages or claims expenses arising out of this agreement, services rendered to
the Client, or from any cause or causes under any theory of law, shall be limited to (a) lesser of $250,000; or (b) the insurance then available to Malsam
Tsang to fund any settlement, award or verdict. Such liabilities include but are not limited to design professional’s negligence, errors, omissions, strict
liability, breach of contract, or breach of warranty. Client further agrees that, to the fullest extent permitted by law, no shareholder, officer, director,
partner, principal, or employee of Malsam Tsang shall have personal liability under any provision of the agreement, or for any matter in connection
with the professional services provided under the agreement.
Regardless of the presence or absence of insurance coverage, Malsam Tsang shall not be liable for and Client waives and releases claims of loss or
damage occasioned by delays beyond Malsam Tsang’s control, or for loss of earnings, or loss of use. Nor shall Malsam Tsang be liable for and Client
waives and releases claims of any other incidental, consequential, indirect, special or punitive damages of any kind, or other financial loss arising out of
or in connection with the professional services, whether based in contract, tort (including negligence) or any other theory, even if Malsam Tsang has
been advised of the possibility of such damages.
Notwithstanding any other provision contained within this agreement, nothing shall be construed as to void, vitiate or adversely affect any insurance
coverages held by either party to this agreement.
14. TERMINATION
This agreement may be terminated by either party upon seven (7) days written notice. In the event of termination by the Client that is not due to the
fault of Malsam Tsang, Malsam Tsang shall be compensated for all services performed to the termination date, along with any costs associated with
such termination.
15. ENTIRE AGREEMENT
This agreement contains the entire agreement and understanding of the parties with respect to the entire subject matter hereof and any and all
services provided by the Malsam Tsang in relation to the project, supersedes all prior discussions, negotiations, agreements, representations,
inducements, and understandings, and there are no representations, inducements, promises or agreements, oral or otherwise, not embodied herein.
In entering into this agreement, neither party has relied upon any statement, estimate, forecast, projection, representations, warranty, action, or
agreement of the other party except for those expressly contained in this agreement. This agreement may be changed only by written amendment
executed by both parties. There are no conditions precedent to the effectiveness of this agreement other than as stated herein, and there are no
related collateral agreements existing between the parties that are not referenced herein.