Loading...
HomeMy WebLinkAboutContractAGREEMENT FOR ANNUAL MAINTENANCE OF PUBLIC ARTWORKS THIS AGREEMENT, dated for reference purposes only as October 28, 2020, is by and between the City of Renton (the “City”), a Washington municipal corporation, and Artech, Inc (“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 maintenance services for the City-owned public art collection 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 Work consisting 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 in Exhibit A or as otherwise mutually agreed by the Parties. 3.Time of Performance: Consultant shall commence performance of the Agreement pursuant to the schedule(s) set forth in Exhibit A . All Work shall be performed by no later than March 30, 2021 4.Compensation: A.Amount. Total compensation to Consultant for Work provided pursuant to this Agreement shall not exceed $25,081.13, 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 Work is performed, the Consultant shall submit a voucher or invoice in a form specified by the City, including a description of what Work has been performed, the CAG-20-500 PAGE 2 OF 10 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) 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 w ithout 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 City after 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 PAGE 3 OF 10 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 Standard Plans for Road, Bridge and 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 c laim 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: PAGE 4 OF 10 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 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 Indu strial 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. PAGE 5 OF 10 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 th is indemnification. The Parties 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: The 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: http://www.rentonwa.gov/cms/One.aspx?portalId=7922741&pageId=9824882 Information regarding State business licensing requirements can be found at: http://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 PAGE 6 OF 10 limit, if there will be any use of Consultant’s vehicles on the City’s Pr emises by or on behalf of the City, beyond normal commutes. 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 control occur, 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 Jessie Kotarski, Economic Development Specialist 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-7271 jkotarski@rentonwa.gov CONSULTANT Nicole Sachs Artech, Inc 865 Lind Ave SW Renton, WA 98057 Phone: (425) 264-0205 Nicoles@artechseattle.com PAGE 7 OF 10 17.Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Consultant agrees as follows: 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 PAGE 8 OF 10 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. 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 Jessie Kotarski. 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 PAGE 9 OF 10 other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. 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. PAGE 10 OF 10 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. 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: C.E. “Chip” Vincent CED Administrator Nicole Sachs Artech, Inc _____________________________ Date 12/18/20 Date Approved as to Legal Form By: __________________________ Shane Moloney Renton City Attorney Contract Template Updated 9/9/2020 12/23/2020 Approved by Leslie Clark via 11/20/2020 email COMPREHENSIVE SERVICES - TAILORED SOLUTIONS nicoles@artechseattle.com 09/30/2020 2145 Nicole Sachs CITY OF RENTON Jessie Kotarski 425-264-0205 Maintenance Proposal1055 S. GRADY WAY Renton WA 98055 JKotarski@Rentonwa.gov ESTIMATE # PROJECT MANAGER (PM)PM PHONE PM EMAIL DATE CLIENT CLIENT PHONE CLIENT EMAIL CLIENT NAME CLIENT BILLING ADDRESS PROJECT NAME 425-4307271 Ext SCOPE OF WORK Art Handling Annual maintenance for top priority public artworks Includes cleaning, waxing (where required), graffiti removal, and removal of debris Artech will monitor condition issues for future maintenance and make recommendations as necessary "Going Global," Benson Shaw "Untitled," Bonnie Branson "Home," Dawn Murin "Fountain," George Tsutakawa "Untitled," Glen Hunt "Icosahedron," Gregory Parsons "Benches," Hai Ying Wu "Untitled," Hai Ying Wu "We Are All In This Boat Together," Harold Balazs "Untitled," Harold Balazs "Chief Sealth," James A. Wehn "Summer Breeze," Jim Demetro "Homework Comes First," Martha Pettigrew "Interface," Phillip Levine "Stiltwalker," Ray Jensen "Equii," Renton Technical College. "Donkey Run Away to the Mines," Richard Beyer "Wolves at Indian Baskets," Richard Beyer "Nine Forms," Elizabeth Mapelli See attached page for list of object / artwork information This proposal and estimated costs (“Agreement”) is submitted by Artech, Inc. ("Artech") to the Client ("Client") for the proposed work described above (“Scope of Work”). All service fees are fixed bid, tightly estimated and generally will not change more than 10% unless there is a change to the Scope of Work. The Scope of Work may be modified by a change order (“Change Order”) signed by both parties. Any alteration of tasks from the above that involve additional costs will be executed only upon receipt of a signed Change Order. This Agreement is valid for up to 30 days from the date of this Agreement. All labor and materials provided by Artech shall be considered taxable. A deposit of 50% of the estimate total is required prior to the commencement of this Scope of Work. Cancellation within 1 business day of commencement of this Scope of Work will be invoiced to the Client at 100% of the estimate total detailed in this Agreement; cancellation within 2 business days will be billed at 50% of the total. DELIVERABLES & ESTIMATED COSTS $0.00Art Handling $3,705.04"Going Global," Benson Shaw Exhibit A COMPREHENSIVE SERVICES - TAILORED SOLUTIONS $618.88"Untitled," Bonnie Branson $618.88"Home," Dawn Murin $1,941.52"Fountain," George Tsutakawa $398.44"Untitled," Glen Hunt $1,059.76"Icosahedron," Gregory Parsons $9,587.60"Benches," Hai Ying Wu $618.88"Untitled," Hai Ying Wu $839.32"We Are All In This Boat Together," Harold Balazs $618.88"Untitled," Harold Balazs $398.44"Chief Sealth," James A. Wehn $398.44"Summer Breeze," Jim Demetro $343.33"Homework Comes First," Martha Pettigrew $1,280.20"Interface," Phillip Levine $453.55"Stiltwalker," Ray Jensen $343.33"Equii," Renton Technical College. $618.88"Donkey Run Away to the Mines," Richard Beyer $618.88"Wolves at Indian Baskets," Richard Beyer $618.88"Nine Forms," Elizabeth Mapelli $25,081.13 $25,081.13 $12,541.00 (applied to final invoice) Sub-total (Pre-Tax) State Sales Tax TOTAL Deposit Work to be conducted during normal business hours, Monday-Friday, 8:30am - 5:00pm. Assumes sites can be accommodate equipment for maintenance. All clearances and water access to be pre-determined. No delays beyond our control; full and unobstructed access to load, unload, install, and deinstall locations. Outside work schedule dependent on weather. All labor to be performed at prevailing wage rates per Washington State prevailing wage law, chapter 39.12 RCW and Chapter 296 -127 WAC. ASSUMPTIONS Please arrange for $0.00 of insurance coverage and invoice me for the premiums due. Customer Interest Insurance (up to $100,000, $10 minimum premium): If no amount is listed, it is assumed that the Client does not elect this coverage, it is represented by the Client that the object(s) are sufficiently insured by other insurance policies maintained independently by the Client. Art Handling: Domestic Shipping: International Shipping: Storage: $5.00/$1,000 covered $5.00/$1,000 covered $7.70/$1,000 covered $0.72/$1,000 covered COMPREHENSIVE SERVICES - TAILORED SOLUTIONS Submitted for ARTECH by: PM Signature Client Signature Your signature acknowledges that you are a duly authorized representative of the Client and have read, understand, and agree to the "Scope of Work" and estimate within this Agreement, subject to the Terms & Conditions set forth in Appendix A. Date Date Nicole Sachs Approved for Client by: CITY OF RENTON 09/30/2020 COMPREHENSIVE SERVICES - TAILORED SOLUTIONS COUNTWEIGHTDIMENSION (H x W x D)PACKAGINGDESCRIPTION Artwork Information : 1Benches - Hai Ying Wu - Terrazzo Benches 1Chief Sealth - James A. Wehn - bronze-finished drinking fountain 1Donkey Run Away to the Mines - Richard Beyer - Cast Aluminum 1Equii - Renton Technical College. The 1988 Humanities Class - welded steel rods 1Fountain , 1960 - George Tsutakawa 1Going Global - Benson Shaw - Casting Resin Globes on painted poles, mosaic 1Home - Dawn Murin - stainless steel sheets 1Homework Comes First - Martha Pettigrew - Bronze 1Icosahedron - Gregory Parsons - steel sculpture 1Interface - Phillip Levine - Bronze 1Nine Forms - Elizabeth Mapelli - Glass Covered Tile Seats 1Stiltwalker - Ray Jensen - Bronze Silicone 1Summer Breeze - Jim Demetro - Bronze 1The Duwamish People - Doug Kyes - stainless steel metal art 1Untitled - Bonnie Branson - Enamel on Steel panels 1Untitled - Glen Hunt. - Fountain 1Untitled - Hai Ying Wu - bronze and stone sculpture 1Untitled - Harold Balazs - enameled metal mural 1We Are All In This Boat Together - Harold Balazs - Stainless Steel 1Wolves at Indian Baskets - Richard Beyer - bronze COMPREHENSIVE SERVICES - TAILORED SOLUTIONS Appendix A Terms & Conditions 1. Effective.This proposal and estimated costs (“Agreement”) is submitted by Artech, Incorporated ("Artech") to the Client ("Client") for the proposed work described above (“Scope of Work”). All service fees are fixed bid, tightly estimated and generally will not change more than 10% unless there is a change to the Scope of Work. The Scope of Work may only be modified by a change order (“Change Order”) signed by both parties. Any alteration of tasks from the above that involve additional costs will be executed only upon receipt of a signed Change Order. This proposal will remain open for up to 30 days from the date of this estimate and thereafter, may expire without further notice to Client. This Agreement will be deemed accepted by Client upon the earlier of its signature, or by delivery or deposit of goods (“Objects”) with Artech. Artech will be deemed bound by this Agreement upon the earlier of Artech’s signing a copy that has been signed by Client or its acceptance of delivery or deposit of Client Objects. This Agreement is binding on the Client, its successors and assigns, and cannot be modified except by a written amendment signed by Artech . 2. Services. All work will be done in a professional manner according to standard industry practices. Artech is not responsible for loss incurred due to circumstances beyond its control. All labor and materials provided by Artech shall be considered taxable and not included within the estimated fees and other charges described in this Agreement . 3. Ownership. Client represents and warrants to Artech that it is the legal owner or has lawful possession of the Objects and has the right and authority to direct the release and/or delivery of the Objects and has the legal right and authority to enter into this Agreement. Client agrees to defend, hold harmless, and indemnify Artech from and against any allegation or claim based on, or any loss, damage, settlement, cost, expense, and any other liability resulting from a breach of this Agreement .the reps and warranties made in this Section 3. 4. Payment Terms. Payments for invoiced charges are due within 30 days of the date of invoice. Late payments shall accrue interest at 1.5% per month or the highest rate allowed under applicable law. Artech may require Client to pay an advance deposit of 50% of the estimate total prior to commencing this Scope of Work. Clients located outside of the United States shall pay all charges in advance. 5. Default. Client shall be in default under this Agreement if Client fails to (a) pay amounts when due, or (b) to cure any other breach of this Agreement within 10 days of receipt of written notice from Artech. Upon any such breach, Artech shall have the right to terminate this Agreement and its obligations hereunder effective upon sending notice to Client. If Client’s Objects are not removed upon the termination of this Agreement, Artech may dispose of the Objects in accordance with applicable law, or exercise any other remedy available to it under the law, without limitation. Artech reserves all rights that it may have pursuant to any Warehouseman’s lien. The rights and remedies set forth in this Contract are not exclusive and are in addition to any other rights or remedies that exist in law or equity or by statute or otherwise. 6. Limitation of Liability.Artech shall not be liable, and Client hereby waives any claims, for loss or damage to Client’s Objects except to the extent that such loss or damage is directly attributable to Artech’s failure to exercise care as a reasonably careful person would exercise under like circumstances. Artech is not liable for any damages which could not have been avoided by the exercise of such care. Notwithstanding any provision to the contrary in this Agreement, Artech’s liability with respect to any claim for loss or damage arising from or relating to its performance under this Agreement shall not in any event exceed the fees paid to Artech under this Agreement for the 12 month period preceding the date of loss or damage. Any claim of damage arising under this Agreement must be presented to Artech in writing upon completion of the Scope of Work . No lawsuit or other action may be maintained by Client against Artech for loss or damage to the Objects unless a timely written claim has been given by Client as provided in the previous sentence and unless such lawsuit or other action is commenced no later than the earlier of nine months after completion of the Scope of Work . IN NO EVENT WILL ARTECH BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND WHATSOEVER AND HOWEVER ARISING, INCLUDING, WITHOUT LIMITATION, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN BY CLIENT OR ARTECH, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ARTECH’S AGGREGATE LIABILITY UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ARTECH’S LIABILITY UNDER SECTION 6 OF THIS AGREEMENT, EXCEED THE TOTAL OF THE AMOUNTS CLIENT PAID TO ARTECH FOR THE SERVICES UNDER THIS AGREEMENT. THE REMEDIES SET FORTH IN THIS SECTION 6 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND ARTECH’S ENTIRE LIABILITY FOR ANY BREACH OF ARTECH’S OBLIGATIONS. 7. Insurance. Client, at Client’s discretion, is responsible for insuring Client’s Objects at all times during this Agreement. Solely as a courtesy to Client , Client may choose to request Artech insure Object(s) with Client named as an additional insured, subject to such policy’s then -existing deductibles, limits, exclusions and other terms. The cost of insurance will be reflected in Artech’s regular invoice to the client. If Client exercises this option and the Client’s loss is covered by the applicable policy, then the liability cap in Section 6 shall be equal to the greater of the insurance coverage proceeds payable to Client or the amount set forth in Section 6 above. Client acknowledges that any insurance coverage under Artech’s policy may not be adequate to cover any loss or damage to the Objects . 8. Confidentiality. Except as otherwise provided in this Agreement, Objects or information pertaining to Objects will not be released by Artech to any party other than the Client or those identified in writing by the Client as authorized to receive the Objects or information regarding the Objects, or as otherwise required by law or as reasonably necessary to Artech’s attorneys, advisors, accountants, insurers, and brokers. Client agrees that it will protect and keep confidential the terms and conditions of this Agreement and any other information obtained from Artech in connection with this Agreement that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary. 9. Storage Charges.If the Scope of Work includes storage services, Client shall enter into the Storage Receipt and Contract included herewith. Artech will provide a current fee schedule (“Fee Schedule”) for storage charges upon request. 10. Condition/Duty to Disclose/Inspect. Client shall disclose in writing to Artech any known damage and/or defects existing in the Objects prior to delivery to Artech for performance of the Scope of Work; provided that this list shall not be deemed a complete list of all existing damage and defects. Artech shall not be liable for any (a) damage to, or defects in, the Objects existing prior to delivery of the Objects to Artech, (b) ordinary wear and tear, or (c) perishable Objects. Upon completion of the Scope of Work, Client shall inspect the Objects for damage. 11. Attorney’s Fees and Costs.In the event of litigation arising out of this Agreement, or a claimed breach thereof, the substantially prevailing party shall be entitled to recover its reasonable attorneys’ fees and all costs and expenses . 12. Disputes.Disputes arising from this Agreement will be resolved in the state or federal courts located in King County, Washington, and Client consents to be subject to the jurisdiction of these courts. 13. Termination/Cancellation.Either party may terminate this Agreement for any reason without penalty or charge (except as provided in the following sentence), and require the removal of Objects stored with Artech, upon thirty (30) days’ written notice to the other party. If Client terminates within (1) business day of commencement of this Scope of Work, Artech will invoice to the Client 100% of the estimate total charges under this Agreement; and if such termination occurs within (2) business days, Artech will invoice 50% of the total charges. 14. Disclaimer. ARTECH DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 15. Force Majeure. Neither party will be liable for any loss or damage or be deemed to be in breach of this Agreement due to any event or circumstance beyond its reasonable control, including but not limited to war, invasion, civil unrest, electrical shortages, terrorist attacks, earthquakes, or other natural disasters. 16. Objects/Relocation/Other Services. Client will provide a description of the Objects, the condition of the Objects in the Client’s judgment, and the Client’s estimated value of Objects by the time of delivery or deposit of the Objects to Artech. Such information will be accurate, complete and sufficient to allow Artech to comply with all applicable laws and regulations regarding the storage, handling and transportation of the Objects. Artech assumes no responsibility for valuation. Any removal of Objects from storage, or addition of new Objects for storage, will be acknowledged in writing and a Change Order will be issued by Artech. Artech may, without notice to Client, relocate Objects within its facilities. If Client requests Artech engage the services of others with respect to the Objects, and Artech agrees to such request, it is agreed that Artech shall act as the agent of Client and shall not be liable for any loss or damage arising out of such services. 17. Additional Provisions. This Agreement, together with any corresponding Change Order, constitutes the entire agreement between the parties with respect to the subject matter hereof; provided, the terms of the Storage Receipt and Contract governs any storage services provided under the Scope of Work. No changes to the provisions of this Agreement shall be valid or enforceable without the express written acceptance by Artech. The parties may use standard business forms or other communications, but use of such forms is for convenience only and does not alter the provisions of this Agreement. Any notices under this Agreement must be in writing and delivered in person or sent by first class mail, overnight delivery by a nationally recognized carrier or facsimile to the address for the recipient set forth in this Agreement. Either party may give the other party notice of such change in address in accordance with this Section. This Agreement may be executed in counterparts and delivery of a signature page by email or facsimile shall have the same force and effect as delivery of an original signature page. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention, and remaining provisions of the Agreement will remain in full effect.