HomeMy WebLinkAboutContractCAG-21-135
May 19th
(approved via email from Cheryl Beyer)
GEOTECHNICAL ENGINEERING x ENVIRONMENTAL ENGINEERING x CONSTRUCTION TESTING AND INSPECTIONS
With Offices Serving the Western United States
825 Center Street, Suite A, Tacoma, WA 98409 x Phone: (253) 939-2500 x Fax: (253) 939-2556 x www.krazan.com
April 27, 2021 KA Proposal No. T21225WAT
MR.ALAN J.WYATT Tel: 425-430-6571
CITY OF RENTON PARKS PLANNING &NATURAL RESOURCES Cell: 206-276-8833
1055 S Grady Way, 6th Floor Email: awyatt@rentonwa.gov
Renton, WA 98057
RE: CONSTRUCTION TESTING AND INSPECTION SERVICES FOR:
Thomas Teasdale Park Basketball Court Replacement
601 S 23rd Street
Renton, Washington
Dear Mr. Wyatt,
We greatly appreciate and thank you for the opportunity to submit this proposal and agreement for Testing and
Inspection services for the above referenced project.Attachment A includes our proposed anticipated budget
for the project. We are available immediately to support your project needs.Attachment B provides Terms and
Conditions.
Notes:
x Services will be performed on a “time and materials” basis. Any total estimates provided are merely
estimates and are not a guaranteed maximum price. A three (3) hour minimum charge applies to all
inspection services and all inspections performed will be billed on a portal to portal basis.
Services requested in addition to those listed in Attachment A will be billed at our current rates. Acceptance of
Krazan’s proposal in writing constitutes your agreement of Krazan commencing all work under our standard
General Terms and Conditions, attached and incorporated in full by this reference.
If you have any questions, or if we can be of further assistance, please do not hesitate to call our office at (253)
939-2500. We look forward to working with you.
The following items are included as an Attachment:
Attachment A– Anticipated Budget
Attachment B– Terms and Conditions
Respectfully submitted,
KRAZAN & ASSOCIATES, INC.
William B. Throne
Operations Manager
Email:billthrone@krazan.com
EXHIBIT A
DESCRIPTION VISITS RATE COST
Soil Compaction Verification 2 8 hours $70.00 $560.00
Proctor Analysis (ASTM D1557) 2 each $225.00 $450.00
Sieve Analysis (ASTM D422) 2 each $125.00 $250.00
Asphalt Compaction Testing 1 4 hours $70.00 $280.00
Asphalt Rice Density (ASTM ) 1 each $150.00 $150.00
Asphalt Extraction/Gradation (ASTM ) 1 each $350.00 $350.00
Court Surface Application Verification 4 16 hours $70.00 $1,120.00
Trip Charge (round trip mileage) 7 each $30.00 $210.00
Project Administration 3.5 hours $105.00 $367.50
$3,737.50
NOTES:This cost estimate is based on the scope of work and assumptions outlined in our proposal number
T21225WAT dated April 27, 2021 which are inclusive by reference. A three-hour minimum charge, portal-to-
portal charge applies to all inspections. Twelve (12) hours notice of cancellation required on all jobs. Costs for
construction testing and inspection services are highly dependent on contractors schedule; weather, overlapping
of work and other factors. Therefore the quantities listed in our cost estimate should be considered
approximate. Krazan & Associates does not control the work or production rate. Therefore, the estimate
provided above does not imply a lump sum fee, not-to-exceed fee or guaranteed maximum price. This cost
estimate does not include overtime, retests, or change in conditions or schedule. Project Administration services
will be invoiced at 0.5 hours for each site visit.
TOTAL
KA Proposal No. T21225WAT
April 27, 2021
Thomas Teasdale Park Basketball Court Replacement
601 S 23rd Street
Attachment A
CONSTRUCTION MATERIAL TESTING & INSPECTION SERVICES
UNITS
Renton, Washington
Krazan Associates, Inc.
With Offices Serving the Western United States
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AGREEMENT FOR ENGINEERING CONSULTING SERVICES,
CONSTRUCTION OBSERVATION AND MATERIALS TESTING SERVICES
THIS AGREEMENT is made by and between KRAZAN & ASSOCIATES, INC., hereinafter referred to as “Consultant”, and CITY OF RENTON PARKS
PLANNING & NATURAL RESOURCES, 1055 S Grady Way, 6th Floor, Renton, WA 98057 , hereinafter referred to as “Client.” This Agreement between the
parties consists of the TERMS AND CONDITIONS (below), the attached PROPOSAL titled “Thomas Teasdale Park Basketball Court Replacement,” file number
T212225WAT, dated April 27, 2021 (“PROPOSAL”), and any exhibits or attachments cited in the PROPOSAL, which are incorporated in full by this reference.
This Agreement, executed in Tacoma, WA, is effective as of the date this Agreement is countersigned by Krazan & Associates, Inc, or the date on which
Consultant initiates services as scheduled by Client, whichever occurs earlier. The parties agree as follows:
1. DEFINITIONS
1.1. Contract Documents.Plans, specifications, and agreements between Client and Contractor, including amendments, supplementary instructions, and
change orders.
1.2. Contractor.The contractor or contractors, and including its/their subcontractors of every tier, retained to perform construction Work on the Project for
which Consultant is providing Services under this Agreement.
1.3. Day(s).Calendar day(s) unless otherwise stated.
1.4. Hazardous Materials.The term Hazardous Materials means any toxic substances, chemicals, radioactivity, pollutants or other materials, in whatever
form or state, known or suspected to impair the environment in any way whatsoever. Hazardous Materials include, but are not limited to, those substances
defined, designated or listed in any federal, state or local law, regulation or ordinance concerning hazardous wastes, toxic substances or pollution.
1.5. Services.The professional services provided by Consultant as set forth in this Agreement, as included in Consultant’s PROPOSAL and any written
Change Order, Task Order or amendment to this Agreement, and Consultant’s professional services as scheduled by Client’s contractor through oral or written
communication.
1.6. Work.The labor, materials, equipment and services of the Contractor required to complete the Work described in the Contract Documents.
1.7. Fee Schedule.Consultant’s standard annual fee schedule unless project specific fee schedule is provided.
1.8 Inspection (or Observation).Visual determination of conformance with specific or, on the basis of Consultant’s professional judgment, general
requirements.
1.9 Testing.Measurement, examination, performance of tests, and any other activities to determine the characteristics or performance of materials.
2. SCOPE OF SERVICES
2.1. Services Provided, Scheduling. Consultant will provide construction materials testing and inspection services as set forth in the PROPOSAL and any
additional services requested by Client by oral or written request (Scope of Services). Client or their designated agent shall cause all required tests and inspections
of the site, materials and work performed by their Contractor to be scheduled no less than one full work day prior to the time when Consultant is to perform their
scheduled tests or inspections. No claims for loss, damage or injury shall be brought against Consultant by Client or any third party for tests or inspections not
performed due to inadequate scheduling notice provided to the Consultant by Client.
2.2. Changes in Scope.Client may request changes in the scope of services indentified in the PROPOSAL. Such changes, including any additional types
of Work to be inspected and/or tested, or any change in Consultant’s compensation or time of performances, which may be requested in writing or orally and
which are mutually agreed upon by Consultant and Client, will be incorporated in this Agreement. All Services performed by Consultant on the Project are subject
to the terms and limitations of this Agreement. If Services are performed, but the parties do not reach agreement concerning modifications to the PROPOSAL,
Services or compensation, then the terms and limitations of this Agreement apply to such Services, except for the payment terms. The parties agree to resolve
disputes concerning modifications to scope or compensation pursuant to Section 15, “Disputes.”
2.3. Excluded Services.Consultant’s Services under this Agreement include only those Services specified in the PROPOSAL, and those services
subsequently requested by Client and agreed to by Consultant. Client expressly releases any claim against Consultant relating to any additional Services that
Consultant recommended or that the project designer or Building Official required, but that Client either did not authorize or instructed Consultant not to perform.
2.4. Authority of Consultant. Consultant will report observations and data to the Client and the General Contractor. Consultant will report any observed
work to the Client or Client’s representative, which, in Consultant’s opinion, does not conform with plans, specifications, and codes applicable to the Project.
Consultant has no right or responsibility to approve, accept, reject, or stop work of any agent of the Client.
2.5. Variation of Material Characteristics and Conditions.Observations and standardized sampling, inspection and testing procedures employed by
Consultant will indicate conditions of materials and construction activities only at the precise location and time where and when Services were performed. Client
recognizes that conditions of materials and construction activities at other locations may vary from those measured or observed, and that conditions at one
location and time do not necessarily indicate the conditions of apparently identical material(s) at other locations and times. Services of Consultant, even if
performed on a continuous basis, should not be interpreted to mean that Consultant is observing, verifying, testing or inspecting all materials on the Project.
Consultant is responsible only for those data, interpretations, and recommendations regarding the actual materials and construction activities observed, sampled,
inspected or tested, and is not responsible for other parties' interpretations or use of the information developed. Consultant may make certain inferences based
upon the information derived from these procedures to formulate professional opinions regarding conditions in other areas.
2.6. Sampling, Inspection & Test Locations.Unless specifically stated otherwise, the Services do not include surveying the Site or precisely identifying
sampling, inspection or test locations. Sampling, inspection and test locations will be based on field estimates and information furnished by Client and its
representatives. Unless stated otherwise in the report, such locations are approximate. Consultant will take reasonable precautions to limit damage to the Project
Site or Work due to the performance of Services, but Client understands that some damage may necessarily occur in the normal course of Services, and this
Agreement does not include repair of such damage unless specifically stated in the PROPOSAL.
2.7. Independent Contractor.Consultant will perform Services under this Agreement as an independent contractor.
3. PAYMENTS TO CONSULTANT
3.1. Basic Services.Consultant will perform its services on a time and materials basis unless alternate payment terms are specifically stated in the
PROPOSAL.
3.2. Additional Services.Any Services performed under this Agreement, including increased hours or units for those Services expressly identified in the
attached PROPOSAL, and any additionally requested inspection and/or testing tasks, will be provided on a time and materials basis at the rates established for
the project unless otherwise specifically agreed to in writing by both parties.
3.3. Estimate of Fees.Testing and Inspection services are highly dependent on contractors’ schedules, weather, overlapping of work and many other factors.
Client recognizes that changes in scope and schedule, and unforeseen circumstances, Contractor performance and production of the Work can all influence the
successful completion of Services within the estimated cost.
The provision of an estimate of fees or a cost estimate is not a guarantee that the Services will be completed for that amount; Consultant’s Services shall
continue on a time and materials basis to completion of the Services unless directed otherwise by Client. Furthermore, the provision of a “not to exceed” limitation
is not a guarantee that the Services will be completed for that amount; rather, it indicates that Consultant will not incur fees and expenses chargeable to Client
in excess of the “not to exceed” limitation amount without notifying Client in writing that the “not-to-exceed” amount has been reached and that Services will
continue on a time and materials basis unless directed by Client to discontinue any further Services. Consultant Project Manager charges are above and beyond
unit rates quoted.
3.4. Rates.Client will pay Consultant at the rates set forth in the PROPOSAL and Fee Schedule.
3.4.1. Billing Increments. A three (3) hour minimum, portal to portal charge per call, applies to all Consultants services. Services beyond the initial
minimum billing increment will be billed in increments of three (3) hour(s) for the first 8 hours and at increments of one hour thereafter for each day’s Services
for each assigned technician.
3.4.2. Billing Rate Premiums.Services initiated between the hours of 6:00 a.m. and 3:30 p.m. will be performed at the standard rates presented in the
PROPOSAL and Fee Schedule. Services initiated outside of these hours will be billed at the appropriate rate plus a premium of 12.5 percent. Additionally,
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services rendered on Saturdays or in excess of 8 hours on any week day will be billed at time and a-half the hourly rate. Services rendered on Holidays, Sundays,
or in excess of 8 hours on a Saturday or in excess of 12 hours on any weekday will be charged at double the hourly rate. Late cancellation may be subject to
reasonable charges if personnel cannot be appropriately reassigned.
3.4.3. Changes to Rates.Client and Consultant agree that the rates presented in the PROPOSAL and the Fee Schedule are applicable only through
December 31 of the year published, unless stated otherwise in the PROPOSAL, and are subject to periodic review and amendment, as appropriate to reflect
Consultant’s then-current fee structure. Unless otherwise provided for in the PROPOSAL, where projects are on-going beyond December 31 of the year the
services were initiated, the rates presented in the PROPOSAL and Fee Schedule are subject to an annual cost of living adjustment based on the consumer
price index for the geographic area where our services are being provided. Notwithstanding the foregoing, where Prevailing Wage regulations apply Consultant’s
labor rates are subject to revision based on determinations made by the governing agency. Where labor rates are increased during the course of the project
Consultant’s billing rates presented in the PROPOSAL and the Fee Schedule shall be increased proportionally with respect to any mandated labor and/or
benefits rate increases unless otherwise stipulated in the PROPOSAL. In the event that the cost of fuel increases 10 percent or more over the course of the
project a fuel surcharge may be imposed to recoup the added costs incurred by Consultant. Consultant will give Client at least 30 days advance notice of any
changes. Unless Client objects in writing to the proposed amended fee structure within 30 days of notification, the amended fee structure will be incorporated
into this Agreement and will then supersede any prior fee structure. If Client timely objects to the amended fee structure, and Consultant and Client cannot agree
upon a new fee structure within 30 days after notice, Consultant may terminate this Agreement and be compensated as set forth under Section 14, “Termination.”
3.4.4. Prevailing Wages. Unless Client specifically informs Consultant in writing that prevailing wage regulations cover the Project and Client provides
Consultant with the applicable Determination that includes Client’s Services, and the Scope of Services identifies it as covered by such regulations, Client will
reimburse, defend, indemnify and hold harmless Consultant from and against any liability resulting from a subsequent determination that prevailing wage
regulations cover the Project, including all costs, fines and attorneys’ fees.
3.5 Expenses.Miscellaneous out-of-pocket charges, such as parking, air fare, car/equipment rental, mailing, shipping, subcontractor charges, etc., will be
charged on a cost plus overhead basis. On remote jobs or at fabrication facilities, subsistence, when not furnished, will be a n additional charge.
3.6. Payment Timing; Late Charge.Consultant will submit invoices to Client periodically, but no more frequently than every two (2) weeks. All invoices are
due and payable upon receipt. Upon Consultant’s approval of Client for 30-day payment terms Client shall pay undisputed portions of each progress invoice
within thirty (30) days of the date of the invoice. The invoice amounts shall be presumed to be correct unless Client notifies Consultant in writing. If Client
objects to all or any portion of any invoice, Client will so notify Consultant in writing within fourteen (14) calendar days of the invoice date, identify the cause of
disagreement, and promptly pay when due that portion of the invoice not in dispute. The parties will immediately make every effort to settle the disputed portion
of the invoice. In the absence of written notification described above, the balance as stated on the invoice will be paid. Payment thereafter will first be applied
to accrued late payment charges interest on unpaid undisputed charges and then to the unpaid principal amount. Consultant reserves the right to apply payments
to Client’s outstanding invoices from oldest to most recent regardless of project or invoice designation on checks received. All amounts unpaid when due will
include a late payment charge from the date of the invoice, at the rate of 1-1/2% per month or the highest rate permitted by law on the unpaid balance from the
invoice date until the invoice is paid. Consultant reserves the right to require payment in full on any and all invoices on Client’s account regardless of project
prior to releasing field notes, laboratory test data, photographs, analyses and/or reports. All undisputed amounts due to Consultant by Client shall be paid in full
prior to Consultant’s release of final reports or other required forms of certified or verified reports. If the account becomes delinquent, the Client will reimburse
Consultant for all time spent and expenses (including fees of any attorney, collection agency, and/or court costs) incurred in connection with collecting any
delinquent amount. Consultant shall not be bound by any provision or agreement conditioning Consultant’s right to payment upon payment by a third party. In
the event of a legal action for invoice amounts not paid, attorneys’ fees, court costs, and other related expenses shall be paid to the prevailing party. Client’s
failure to pay Consultant when due the failure to pay will constitute a substantial failure of Client to perform under this Agreement and Consultant will have the
right to stop all current work and withhold letters, reports, or any verbal consultation until the invoice is paid in full. In the event that Client fails to pay Consultant
within sixty (60) days after any invoice is rendered, Client agrees that Consultant will have the right to consider the failure to pay Consultant's invoice as a breach
of this Agreement. If the Client requests back-up data or changes to the format of the standard invoice, an administrative fee of $100 per invoice may be charged
plus $1 per page of back-up data.
4. STANDARD OF PERFORMANCE; DISCLAIMER OF WARRANTIES
4.1 Professional Standards.Subject to the limitations inherent in the agreed Scope of Services as to the degree of care, the amount of time and expenses
to be incurred, and subject to any other limitations contained in this Agreement, Consultant will perform the Services consistent with that level of care and skill
ordinarily exercised by other professionals providing similar services in the same locale and under similar circumstances at the time the Services are performed.
No other representation and no warranty or guarantee, express or implied, is included or intended by this Agreement or any report, opinion, document, or other
instrument of service.
4.2. Level of Service.Consultant offers different levels of construction observation, inspection and materials testing Services to suit the desires and needs
of different clients. Although the possibility of error can never be eliminated, more detailed and extensive Services yield more information and reduce the
probability of error, but at increased cost. Client must determine the level of Services adequate for its purposes. Client has reviewed the PROPOSAL and has
determined that it does not need or want a greater level of Services than that specifically identified in the PROPOSAL.
4.3. No Warranty.Client recognizes the inherent risks connected with site development and construction activities, and understands when signing that those
risks are not entirely eliminated through the services of Consultant. Consultant’s tests and observations of the Work are not a guarantee of the quality of Work
and do not relieve other parties from their responsibility to perform their Work in accordance with applicable plans, specifications and requirements. Therefore,
in signing this Agreement the Client understands that Consultant neither makes nor intends a warranty or guarantee, express or implied, of any type nor does it
create a fiduciary responsibility to Client by Consultant.
5. CONTRACTOR’S PERFORMANCE
Consultant is not responsible for Contractor’s means, methods, techniques or sequences during the performance of its Work. Consultant will not supervise or
direct Contractor’s Work, or be liable for any failure of Contractor to complete its Work in accordance with the Project’s plans, specifications and applicable
codes, laws and regulations. Client understands and agrees that Contractor, not Consultant, has sole responsibility for the safety of persons and property at the
Project Site. Consultant shall not be responsible for job site safety or the evaluating and reporting of job conditions concerning health, safety or welfare.
6. CLIENT’S RESPONSIBILITIES
In addition to payment for the Services performed under this Agreement, Client agrees to:
6.1. Access.Grant or obtain free access to the Project Site for all equipment and personnel necessary for Consultant to perform its Services under this
Agreement.
6.2. Relevant Information.Supply Consultant with all information and documents relevant to Consultant’s Services. Consultant is entitled to rely upon such
information without verifying its accuracy. Client will notify Consultant of any known potential or possible health or safety hazard regarding the materials to be
tested, including its intended use, chemical composition, relevant MSDS, manufacturers’ specifications and literature, and any previous test results.
6.3. Project Information.Client agrees to provide Consultant within 5 days after written request, a correct statement of the recorded legal title to the property
on which the Project is located and the Client and/or Owner’s interest therein, and the identity and address of any construction lender.
7. CHANGED CONDITIONS
If Consultant discovers conditions or circumstances that it had not contemplated at the commencement of this Agreement (“Changed Conditions”), Consultant
will notify Client in writing of the Changed Conditions. Client and Consultant agree that they will then renegotiate in good faith the terms and conditions of this
Agreement. If Consultant and Client cannot agree upon amended terms and conditions within 30 days after notice, Consultant may terminate this Agreement
and be compensated as set forth in Section 14, “Termination.”
8. ALLOCATION OF RISK
8.1. Limitation of Liability.The total cumulative liability of Consultant, its subconsultants and subcontractors, and all of their respective shareholders,
directors, officers, employees and agents (collectively “Consultant Entities”), to Client and its successors and all parties included as additional insured on
Consultant’s insurance policies and all of their respective shareholders, directors, officers, employees and agents (collectively “Client Entities”) arising from or
relating to Services under this Agreement, including attorney’s fees due under this Agreement, will not exceed the gross compensation received by Consultant
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under this Agreement or five thousand dollars ($5,000.00), whichever is greater; provided, however, that such liability is further limited as described below. This
limit is an aggregate limit with respect to all services on the project, whether provided under this, prior or subsequent agreements, unless modified in writing,
agreed to and signed by authorized representatives of the parties. This limitation applies to all lawsuits, claims or actions that allege errors or omissions in
Consultant’s Services, whether alleged to arise in tort, contract, warranty, or other legal theory. Upon Client’s written request, Consultant and Client may agree
to increase the limitation to a greater amount in exchange for a negotiated increase in Consultant’s fee, provided that they amend this Agreement in writing as
provided in Section 16. Consultant Entities and Client Entities also agree that the Client Entities will not seek damages in excess of the limitations indirectly
through suits with other parties who may join Consultant as a third-party defendant.
8.2. Indemnification.Client will indemnify, defend and hold harmless Consultant, its subconsultants and subcontractors, and all of their respective
shareholders, directors, officers, employees and agents (collectively “Consultant Entities”) from and against any and all claims, suits, liabilities, damages,
expenses (including without limitation reasonable attorney’s fees and costs of defense) or other losses (collectively “Losses”) except to the extent caused by the
sole negligence of Consultant. In addition, except to the extent caused by Consultant’s negligence, Client expressly agrees to defend, indemnify and hold
harmless Consultant Entities from and against any and all Losses arising from or related to the existence, disposal, release, discharge, treatment or transportation
of Hazardous Materials, or the exposure of any person to Hazardous Materials, or the degradation of the environment due to the presence, discharge, disposal,
release of or exposure to Hazardous Material.
8.3. Consequential Damages.Neither Client nor Consultant will be liable to the other for any special, consequential, incidental or penal losses or damages
of whatever nature including but not limited to losses, damages or claims related to the unavailability of property or facilities, shutdowns or service interruptions,
loss of use, loss of profits, loss of revenue, or loss of inventory, or for use charges, cost of capital, or claims of the other party and/or its customers, which may
arise directly or indirectly as a result of the Services provided by Consultant under this Agreement.
8.4. Continuing Agreement.The provisions of this Section 8, “Allocation of Risk,” will survive the expiration or termination of this Agreement. If Company
provides Services to Client that the parties do not confirm through execution of an amendment to this Agreement, the provisions of this Section 8 will apply to
such Services as if the parties had executed an amendment.
8.5. No Personal Liability. Client and Consultant intend that Consultant’s Services will not subject Consultant’s individual employees, officers or directors to
any personal liability. Therefore, and notwithstanding any other provision of this Agreement, Client agrees as its sole and exclusive remedy to direct or assert
any claim, demand or suit only against the business entity identified as “Consultant” on the first page of this Agreement.
9. INSURANCE
9.1. Consultant’s Insurance.Consultant carries Statutory Workers’ Compensation and Employer’s Liability Insurance; Commercial General Liability
Insurance for bodily injury and property damage; Automobile Lia bility Insurance, including liability for all owned, hired and non-owned vehicles; and Professional
Liability Insurance. Certificates of insurance can be furnished upon written request but may not be processed unless accompanied by a signed Agreement.
Client agrees not to withhold payment to Consultant for Client’s failure to make such a timely request and such requests may not be honored if made after final
completion of authorized Services. Additional charges may apply for Waiver of Subrogation and Additional Insured Endorsements. Consultant assumes the risk
of damage caused by Consultant’s personnel to Consultant’s supplies and equipment.
9.2. Contractor’s Insurance.Client shall require that all Contractors and subcontractors for the Project name Consultant as an additional insured under their
General Liability and Automobile Liability insurance policies. If Client is not the Project owner, Client will require the Project owner to require the owner’s
Contractor to purchase and maintain General Liability, Builder’s Risk, Automobile Liability, Workers’ Compensation, and Employer’s Liability insurance with limits
no less than as set forth above, and to name Consultant and its subcontractors and subconsultants as additional insureds on th e General Liability insurance.
Upon request, Client will provide Consultant with certificate(s) of insurance evidencing the existence of the policies required herein.
10. OWNERSHIP AND USE OF DOCUMENTS
10.1. Use of Documents. Documents prepared by Consultant are solely for use by Client and will not be provided by either party to any other person or
entity, other than the project Architect, Structural Engineer, General Contractor and Building Department, without Consultant’s prior written consent.
10.1.1. Use by Client.Client has the right to reuse the Documents for purposes reasonably connected with the Project for which the Services are
provided, including without limitation design and licensing requirements of the Project.
10.1.2. Use by Consultant.Consultant retains the right of ownership with respect to any patentable concepts or copyrightable materials arising from its
Services and the right to use the Documents for any purpose.
10.2. Electronic Media. Consultant may agree at Client’s request to provide Documents and information in an electronic format as a courtesy. However, the
paper original issued by Consultant will remain the final documentation of the Services.
10.3. Unauthorized Reuse.No party other than Client may rely, and Client will not represent to any other party that it may rely on Documents without
Consultant’s express prior written consent and receipt of additional compensation. Client will defend, indemnify and hold harmless Consultant from and against
any claim, action or proceeding brought by any party claiming to rely upon information or opinions contained in Documents provided to such person or entity,
published, disclosed or referred to without Consultant’s prior written consent.
11. SAMPLES
Consultant will dispose of all samples collected during the construction phase of the project immediately upon completion of testing. Upon request received
prior to the initiation of testing, Consultant will deliver samples to the Client or will store them for an agreed delivery or storage charge. All samples shall remain
the property of the Client and, in the absence of evidence of contamination, Consultant shall dispose of samples for the Client. Client shall be responsible for
and promptly pay for the removal and lawful disposal of all contaminated samples and hazardous materials and other hazardous substances, unless otherwise
agreed in writing.
12. ASSIGNMENT AND SUBCONTRACTS
During the term of this Agreement and following its expiration or termination for any reason, neither party may assign this Agreement or any right or claim
under it, in whole or in part, without the prior written consent of the other party, except for an assignment of proceeds for financing purposes. Any assignment
that fails to comply with this paragraph will be void and of no effect. Consultant may subcontract for the services of others without obtaining Client’s consent if
Consultant deems it necessary or desirable for others to perform certain Services.
13. SUSPENSION AND DELAYS
13.1. Procedures.Client may, at any time by 10 days written notice suspend performance of all or any part of the Services by Consultant. Consultant may
terminate this Agreement if Client suspends Consultant’s Services for more than 60 days and Client will pay Consultant as set forth under Section 14,
“Termination.” If Client suspends Consultant’s Services, or if Client or others delay Consultant’s Services, Client and Consultant agree to equitably adjust: (1)
the time for completion of the Services; and (2) Consultant’s compensation in accordance with Consultant’s then current Fee Schedule for the additional labor,
equipment, and other charges associated with maintaining its workforce for Client’s benefit during the delay or suspension, or charges incurred by Consultant
for demobilization and subsequent remobilization.
13.2. Liability.Consultant is not liable to Client for any failure to perform or delay in performance due to circumstances beyond Consultant’s control, including
but not limited to pollution, contamination, or release of hazardous substances, strikes, lockouts, riots, wars, fires, flood, explosion, “acts of God,” adverse
weather conditions, acts of government, labor disputes, delays in transportation or inability to obtain material and equipment in the open market.
14. TERMINATION
14.1. Termination for Convenience.Consultant and Client may terminate this Agreement for convenience upon 30 days written notice delivered or mailed
to the other party.
14.2. Termination for Cause.In the event of material breach of this Agreement, the non-breaching party may terminate this Agreement if the breaching party
fails to cure the breach within 5 days following delivery of the non-breaching party’s written notice of the breach to the breaching party. The termination notice
must state the basis for the termination. The Agreement may not be terminated for cause if the breaching party cures the breach within the 5-day period.
14.3. Payment on Termination.Following termination other than for Consultant’s material breach of this Agreement, Client will pay Consultant for Services
performed prior to the termination notice date, and for any necessary Services and expenses incurred in connection with the termination of the Project, including
but not limited to, the costs of completing analysis, records and reports necessary to document job status at the time of termination and costs associated with
termination of subcontractor contracts in accordance with Consultant’s then current Fee Schedule.
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15. DISPUTES
15.1. Mediation.All disputes between Consultant and Client, except those involving Client’s failure to pay undisputed invoices as provided herein and
excluding Consultant’s perfection of any mechanic’s lien, are subject to mediation. Either party may demand mediation by serving a written notice stating the
essential nature of the dispute, amount of time or money claimed, and requiring that the matter be mediated within 45 days of service of notice. The mediation
shall be administered by the American Arbitration Association or by such other person or organization as the parties may agree upon, in accordance with the
rules of the American Arbitration Association.
15.2. Precondition to Other Action.No action or suit, except those involving Client’s failure to pay undisputed invoices as provided herein and excluding
Consultant’s perfection of any mechanic’s lien, may be commenced unless the mediation did not occur within 45 days after service of notice; or the mediation
occurred but did not resolve the dispute; or a statute of limitation would elapse if suit was not filed prior to 45 days after service of notice. If the matter is referred
to arbitration, the arbitration shall be conducted in Pierce County, Washington. The arbitrator shall be appointed within 60 days of the arbitrators’ receipt of a
written request to arbitrate the dispute. The arbitrator shall be authorized to provide all recognizable remedies available in law or equity for any cause of action
that is the basis of the arbitration (to the extent such remedy is not otherwise precluded under this Agreement), provided that (i) the arbitrator shall not have the
authority to award punitive damages, and (ii) each party shall bear its own costs and attorney’s fees related to the arbitration.
15.3. Choice of Law; Venue.This Agreement will be construed in accordance with and governe d by the laws of the state of Washington. Except for actions,
such as for enforcement of mechanic's liens, which are required by statute to be brought in a specific venue, or unless the parties agree otherwise, any mediation
or other legal proceeding will occur in Pierce County, Washington. Client waives the right to have the suit brought, or tried in, or removed to, any other county
or judicial jurisdiction. The prevailing party will be entitled to recovery of all reasonable costs incurred, including court costs, reasonable attorney's fees, and
other claim related direct expenses.
15.4. Statutes of Limitations.Any applicable statute of limitations will be deemed to commence running on the earlier of the date of substantial completion
of Consultant’s Services under this Agreement or the date on which claimant knew, or should have known, of facts giving rise to its claims.
16. MISCELLANEOUS
16.1. Integration and Severability.This Agreement reflects the entire agreement of the parties with respect to its terms and conditions, and supersedes all
prior agreements, whether written or oral. If any portion of this Agreement is void or voidable, such portion will be deemed stricken and the Agreement reformed
to as closely approximate the stricken portions as the law allo ws. If any of the provisions contained in this Agreement are held illegal, invalid, or unenforceable,
the enforceability of the remaining provisions will not be impaired.
16.2. Modification of This Agreement.This Agreement may not be modified or altered, except by a written agreement signed by authorized representatives
of both parties and referring specifically to this Agreement.
16.3. Notices.Any and all notices, requests, instructions, or other communications given by either party to the other must be in writing and either hand
delivered to the recipient or delivered by first-class mail with return receipt (postage prepaid) or express mail (billed to sender) at the addresses given in this
Agreement.
16.4. Headings.The headings used in this Agreement are for convenience only and are not a part of this Agreement.
16.5. Waiver.The waiver of any term, conditions or breach of this Agreement will not operate as a subsequent waiver of the same term, condition, or breach.
One or more waivers of any term, condition or covenant by either party shall not be construed as a waiver of any other term, condition or covenant.
16.6. Survival. These terms and conditions survive the completion of the Services and/or the termination of this Agreement, whether for cause or for
convenience.
16.7. Warranty Of Authority To Sign, Personal Guarantee. The person signing this contract warrants that he/she has authority to sign on the behalf of the
Client for whose benefit Consultant’s services are rendered. If such person does not have such authority, he/she agrees that he/she is personally liable for
obligations under this Agreement and all breaches of this contract and that in any action against him/her for breach of such warranty, reasonable attorney’s fees
shall be included in any judgment rendered. Further, if Client fails to perform and is in breach of this Agreement the person signing this Agreement agrees that
he/she is personally liable for obligations under this Agreement and all breaches of this contract and that in any action against him/her for breach of such
warranty, reasonable attorney’s fees shall be included in any judgment rendered.
16.8. Precedence. These Terms and Conditions take precedence over any inconsistent or contradictory provisions contained in any other agreement term,
proposal, purchase order, requisition, notice to proceed, or other document regarding Consultant’s Services.
16.9. Incorporation of Provisions Required By Law.Each provision and clause required by law to be inserted in this Agreement is included herein, and
the Agreement should be read and enforced as though each were set forth in its entirety herein.
17. ENTIRE AGREEMENT
This Agreement between the parties consists of these Terms, the PROPOSAL by the Consultant, and any exhibits or attachments noted in the PROPOSAL.
Together, these elements will constitute the entire Agreement superseding any and all prior negotiations, correspondence, or agreements either written or oral.
The Parties have read the foregoing, understand completely the terms, and willingly enter into this Agreement. This Agreement was developed to be fair and
reasonable to both parties. The terms of this Agreement will prevail over any different or additional terms in Client’s purchase order or other forms provided by
Client to Consultant as part of the authorization process unless agreed in writing by Consultant. The parties acknowledge that there has been an opportunity to
negotiate the terms and conditions of this Agreement and agree to be bound accordingly. Consultant’s acceptance of this Agreement is pending credit review
and a retainer fee may be required.
Client: CITYOFRENTONPARKS
PLANNING & NATURALRESOURCES Consultant: K RAZAN &ASSOCIATES,INC.
Signature Date Signature Date
William B. Throne
Name (Please Print) Name (Please Print)
Operations Manager
Title Title