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HomeMy WebLinkAbout2016-040 40th Avenue Sidewalk Surveying Agreement with Don Wilton SurveyingFor City of Yakima Use Only: Contract No. Project No. Resolution No. SOQ No. AGREEMENT BETWEEN CITY OF YAKIMA, WASHINGTON AND DON WILTON SURVEYING FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into on this day of 2017, by and between the City of Yakima, Washington, a municipal corporation with its princip I office at 129 North Second Street, Yakima, WA 98901, hereinafter referred to as "CITY", and Don Wilton Surveying, with its principal office at 2002 Englewood, Suite D, Yakima, WA 98902, hereinafter referred to as "CONSULTANT"; said corporation is licensed and registered to do business in the State of Washington, and will provide surveying services under this Agreement for 40th Avenue Sidewalk on behalf of the City of Yakima, Project No. 2_46 i' , herein referred to as the "PROJECT." WITNESSETH: RECITALS WHEREAS, CITY desires to retain the CONSULTANT to provide consulting services for design and construction of the PROJECT, as described in this Agreement and subsequent Amendments thereto; and WHEREAS, CONSULTANT represents that it has available and offers to provide personnel with knowledge and experience necessary to satisfactorily accomplish the work within the required time and that it has no conflicts of interest prohibited by law from entering into this Agreement; NOW, THEREFORE, CITY and CONSULTANT agree as follows: SECTION 1 INCORPORATION OF RECITALS 1.1 The above recitals are incorporated into these operative provisions of the Agreement. SECTION 2 SCOPE OF SERVICES 2.0.1 CONSULTANT agrees to perform those services described hereafter. Unless modified in writing by both parties, duties of CONSULTANT shall not be construed to exceed those services specifically set forth herein. 2.0.2 CONSULTANT shall use its best efforts to maintain continuity in personnel and shall assign, Don Wilton as Principal -in -Charge throughout the term of this Agreement unless other personnel are approved by the CITY. 2.1 Basic Services: CONSULTANT agrees to perform those tasks described in Exhibit A, entitled "49th Avenue Topography" (WORK) which is attached hereto and made a part of this Agreement as if fully set forth herein. 2.2 Additional Services: CITY and CONSULTANT agree that not all WORK to be performed by CONSULTANT can be defined in detail at the time this Agreement is executed, and that additional WORK related to the Project and not covered in Exhibit A may be needed during performance of this Agreement. CITY may, at any time, by written order, direct the CONSULTANT to revise portions of the PROJECT WORK previously completed in a satisfactory manner, delete portions of the PROJECT, or request that the CONSULTANT perform additional WORK beyond the scope of the PROJECT WORK. Such changes hereinafter shall be referred to as "Additional Services." Page 1 2.2.1 If such Additional Services cause an increase or decrease in the CONSULTANT'S cost of, or time required for, performance of any services under this Agreement, a contract price and/or completion time adjustment pursuant to this Agreement shall be made and this Agreement shall be modified in writing accordingly. 2.2.2 Compensation for each such request for Additional Services shall be negotiated by the CITY and the CONSULTANT according to the provisions set forth in Exhibit B — Schedule of Specific Hourly Rates, attached hereto and incorporated herein by this reference, and if so authorized, shall be considered part of the PROJECT WORK. The CONSULTANT shall not perform any Additional Services until so authorized by CITY and agreed to by the CONSULTANT in writing. 2.3 The CONSULTANT must assert any claim for adjustment in writing within thirty (30) days from the date of the CONSULTANT's receipt of the written notification of change. SECTION 3 CITY'S RESPONSIBILITIES 3.1 CITY -FURNISHED DATA: The CITY will provide to the CONSULTANT all technical data in the CITY'S possession relating to the CONSULTANT'S services on the PROJECT including information on any pre-existing conditions known to the CITY that constitute hazardous waste contamination on the PROJECT site as determined by an authorized regulatory agency. 3.2 ACCESS TO FACILITIES AND PROPERTY: The CITY will make its facilities reasonably accessible to CONSULTANT as required for CONSULTANT'S performance of its services and will provide labor and safety equipment as reasonably required by CONSULTANT for such access. 3.3 TIMELY REVIEW: The CITY will examine the CONSULTANT'S studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as CITY deems appropriate; and render in writing decisions required of CITY in a timely manner. Such examinations and decisions, however,, shall not relieve the CONSULTANT of any contractual obligations nor of its duty to render professional services meeting the standards of care for its profession. 3.4 CITY shall appoint a CITY'S Representative with respect to WORK to be performed under this Agreement. CITY'S Representative shall have complete authority to transmit instructions and receive information. CONSULTANT shall be entitled to reasonably rely on such instructions made by the CITY'S Representative unless otherwise directed in writing by the CITY, but CONSULTANT shall be responsible for bringing to the attention of the CITY'S Representative any instructions which the CONSULTANT believes are inadequate, incomplete, or inaccurate based upon the CONSULTANT'S knowledge. 3.5 Any documents, services, and reports provided by the CITY to the CONSULTANT are available solely as additional information to the CONSULTANT and will not relieve the CONSULTANT of its duties and obligations under this Agreement or at law. The CONSULTANT shall be entitled to reasonably rely upon the accuracy and the completeness of such documents, services and reports, but shall be responsible for exercising customary professional care in using and reviewing such documents, services, and reports and drawing conclusions there from. SECTION 4 AUTHORIZATION, PROGRESS, AND COMPLETION 4.1 In signing this Agreement, CITY grants CONSULTANT specific authorization to proceed with WORK described in Exhibit A. The time for completion is defined in Exhibit A, or as amended. SECTION 5 COMPENSATION 5.1 COMPENSATION ON A LUMP SUM BASIS: For the services described in Exhibit A, compensation shall be made by lump sum once all of the items listed in Exhibit A have been completed. Page 2 5.2 Unless specifically authorized in writing by the CITY, the total budgetary amount for this PROJECT shall not exceed Five Thousand One Hundred - Ten Dollars ($5,110). The CONSULTANT will make reasonable efforts to complete the WORK within the budget and will keep CITY informed of progress toward that end so that the budget or WORK effort can be adjusted if found necessary. The CONSULTANT is not obligated to incur costs beyond the indicated budget, as may be adjusted, nor is the CITY obligated to pay the CONSULTANT beyond these limits. When any budget has been increased, the CONSULTANT'S excess costs expended prior to such increase will be allowable to the same extent as if such costs had been incurred after the approved increase, and provided that the City was informed in writing at the time such costs were incurred. 5.3 The CONSULTANT shall submit to the City's Representative an invoice each month for payment for PROJECT services completed through the accounting cut-off day of the previous month. Such invoices shall be for PROJECT services and WORK performed and costs incurred prior to the date of the invoice and not covered by previously submitted invoices. The CONSULTANT shall submit with each invoice a summary of time expended on the PROJECT for the current billing period, copies of subconsultant invoices, and any other supporting materials determined by the City necessary to substantiate the costs incurred. CITY will use its best efforts to pay such invoices within thirty (30) days of receipt and upon approval of the WORK done and amount billed. CITY will notify the CONSULTANT promptly if any problems are noted with the invoice. CITY may question any item in an invoice, noting to CONSULTANT the questionable item(s) and withholding payment for such item(s). The CONSULTANT may resubmit such item(s) in a subsequent invoice together with additional supporting information required. 5.4 If payment is not made within sixty (60) days following receipt of approved invoices, interest on the unpaid balance shall accrue beginning with the sixty-first (61) day at the rate of 1.0% per month or the maximum interest rate permitted by law, whichever is less; provided, however, that no interest shall accrue pursuant to Chapter 39.76 RCW when before the date of timely payment a notice of dispute is issued in good faith by the CITY to the CONSULTANT pursuant to the terms of RCW 39.76.020(4). 5.5 Final payment of any balance due the CONSULTANT for PROJECT services will be made within forty-five (45) days after satisfactory completion of the services required by this Agreement as evidenced by written acceptance by CITY and after such audit or verification as CITY may deem necessary and execution and delivery by the CONSULTANT of a release of all known payment claims against CITY arising under or by virtue of this Agreement, other than such payment claims, if any, as may be specifically exempted by the CONSULTANT from the operation of the release in stated amounts to be set forth therein. 5.6 Payment for any PROJECT services and WORK shall not constitute a waiver or release by CITY of any claims, right, or remedy it may have against the CONSULTANT under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by CITY of any failure or fault of the CONSULTANT to satisfactorily perform the PROJECT WORK as required under this Agreement. SECTION 6 RESPONSIBILITY OF CONSULTANT 6.1 The CONSULTANT shall be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all plans, design, drawings, specifications, reports, and other services furnished by the CONSULTANT under this Agreement. The CONSULTANT shall, without additional compensation, correct or review any errors, omissions, or other deficiencies in its plans, designs, drawings, specifications, reports, and other services. The CONSULTANT shall perform its WORK according to generally accepted consulting standards of care and consistent with achieving the PROJECT WORK within budget, on time, and in compliance with applicable laws, regulations, and permits. 6.2 CITY'S review or approval of, or payment for, any plans, drawings, designs, specifications, reports, and incidental WORK or services furnished hereunder shall not in any way relieve the CONSULTANT of responsibility for the technical adequacy, completeness, or accuracy of its WORK and the PROJECT WORK. CITY'S review, approval, or payment for any of the services Page 3 shall not be construed to operate as a waiver of any rights under this Agreement or at law or any cause of action arising out of the performance of this Agreement. 6.3 In performing WORK and services hereunder, the CONSULTANT and its subcontractors, subconsultants, employees, agents, and representatives shall be acting as independent contractors and shall not be deemed or construed to be employees or agents of CITY in any manner whatsoever. The CONSULTANT shall not hold itself out as, nor claim to be, an officer or employee of CITY by reason hereof and will not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of CITY. The CONSULTANT shall be solely responsible for any claims for wages or compensation by CONSULTANT employees, agents, and representatives, including subconsultants and subcontractors, and shall save and hold CITY harmless therefrom. 6.4 INDEMNIFICATION: (a) CONSULTANT agrees to defend, indemnify, and hold harmless the CITY, its elected and appointed officials, agents, officers, employees, and volunteers (hereinafter "parties protected") from (1) claims, demands, liens, lawsuits, administrative and other proceedings,(including reasonable costs and attorneys' fees) and (2) judgments, awards, losses, liabilities, damages, penalties, fines, costs and expenses of any kind claimed by third parties arising out of, or related to any death, injury, damage or destruction to any person or any property to the extent caused by any negligent act, action, default, error or omission or willful misconduct arising out of the consultant's performance under this Agreement. In the event that any lien is placed upon the City's property or any of the City's officers, employees or agents as a result of the negligence or willful misconduct of the CONSULTANT, the CONSULTANT shall at once cause the same to be dissolved and discharged by giving bond or otherwise. (b) CITY agrees to indemnify and hold the CONSULTANT harmless from loss, cost, or expense of any kind claimed by third parties, including without limitation such loss, cost, or expense resulting from injuries to persons or damages to property, caused solely by the negligence or willful misconduct of the CITY, its employees, or agents in connection with the PROJECT. (c) If the negligence or willful misconduct of both the CONSULTANT and the CITY (or a person identified above for whom each is liable) is a cause of such third party claim, the loss, cost, or expense shall be shared between the CONSULTANT and the CITY in proportion to their relative degrees of negligence or willful misconduct and the right of indemnity will apply for such proportion. (d) Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. 6.5 In any and all claims by an employee of the CONSULTANT, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligations under this Agreement shall not be limited in any way by any limitation on the amount or types of damages, compensation, or benefits payable by or for the CONSULTANT or a subcontractor under workers' or workmens' compensation acts, disability benefit acts, or other employee benefit acts. The CONSULTANT specifically and expressly waives its immunity under the Industrial Insurance Act, Title 51, RCW. Such waiver has been mutually negotiated by the CONSULTANT and the CITY. 6.6 It is understood that any consulting or inspection provided by CONSULTANT is for the purpose of determining compliance with the technical provisions of PROJECT specifications and does not constitute any form of guarantee or insurance with respect to the performance of a contractor. CONSULTANT does not assume responsibility for methods or appliances used by a contractor, for a contractor's safety programs or methods, or for compliance by contractors with laws and regulations. CITY shall use its best efforts to ensure that the construction contract requires that the contractor(s) indemnify and name CITY, the CITY'S and the CONSULTANT'S officers, principals, employees, agents and representatives, as additional insureds on contractor's insurance policies covering PROJECT, exclusive of insurance for CONSULTANT professional liability. Page 4 6.7 SUBSURFACE INVESTIGATIONS: In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observation, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the CONSULTANT, to the extent that CONSULTANT has exercised the applicable and appropriate standard of professional care and judgment in such investigations. SECTION 7 PROJECT SCHEDULE AND BUDGET 7.1 The general PROJECT schedule and the budget for both the entire PROJECT and its component tasks shall be as set forth in this Agreement and attachments. The project schedule and performance dates for the individual tasks shall be mutually agreed to by the CITY and the CONSULTANT within fifteen (15) days after execution of this Agreement. The performance dates and budgets for tasks may be modified only upon written agreement of the parties hereto. The performance date for tasks and the completion date for the entire PROJECT shall not be extended, nor the budget increased because of any unwarranted delays attributable to the CONSULTANT, but may be extended or increased by the CITY in the event of a delay caused by special services requested by the CITY or because of unavoidable delay caused by any governmental action or other conditions beyond the control of the CONSULTANT which could not be reasonably anticipated. 7.2 Not later than the tenth (10) day of each calendar month during the performance of the PROJECT, the CONSULTANT shall submit to the CITY'S Representative a copy of the current schedule and a written narrative description of the WORK accomplished by the CONSULTANT and subconsultants on each task, indicating a good faith estimate of the percentage completion thereof on the last day of the previous month. Additional oral or written reports shall be prepared at the request of the CITY for presentation to other governmental agencies and/or to the public. SECTION 8 REUSE OF DOCUMENTS 8.1 All internal WORK products of the CONSULTANT are instruments or service of this PROJECT. There shall be no reuse, change, or alteration by the CITY or others acting through or on behalf of the CITY without written permission of the CONSULTANT, which shall not be unreasonably withheld and will be at the CITY's sole risk. The CITY agrees to indemnify the CONSULTANT and its officers, employees, subcontractors, and affiliated corporations from all claims, damages, losses, and costs including, but not limited to, litigation expenses and attorney's fees arising out of or related to such unauthorized reuse, change, or alteration; provided, however, that the CONSULTANT will not be indemnified for such claims, damages, losses, and costs including, without limitation, litigation expenses and attorney fees were caused by the CONSULTANT's own negligent acts or omissions. 8.2 The CONSULTANT agrees that ownership of any plans, drawings, designs, specifications, computer programs, technical reports, operating manuals, calculations, notes, and other WORK submitted or which are specified to be delivered under this Agreement or which are developed or produced and paid for under this Agreement, whether or not complete, shall be vested in the CITY. 8.3 All rights to patents, trademarks, copyrights, and trade secrets owned by CONSULTANT (hereinafter "Intellectual Property") as well as any modifications, updates or enhancements to said Intellectual Property during the performance of the WORK remain the property of CONSULTANT, and CONSULTANT does not grant CITY any right or license to such Intellectual Property. SECTION 9 AUDIT AND ACCESS TO RECORDS 9.1 The CONSULTANT, including its subconsultants, shall maintain books, records, documents and other evidence directly pertinent to performance of the WORK under this Agreement in accordance with generally accepted accounting principles and practices consistently applied. The CITY, or the CITY'S duly authorized representative, shall have access to such books, records, documents, and other evidence for inspection, audit, and copying for a period of three years after completion of the Page 5 PROJECT. The CITY shall also have access to such books, records, and documents during the performance of the PROJECT WORK, if deemed necessary by the CITY, to verify the CONSULTANT'S WORK and invoices. 9.2 Audits conducted pursuant to this section shall be in accordance with generally accepted auditing standards and established procedures and guidelines of the reviewing or auditing agency. 9.3 The CONSULTANT agrees to the disclosure of all information and reports resulting from access to records pursuant to this section provided that the CONSULTANT is afforded the opportunity for an audit exit conference and an opportunity to comment and submit any supporting documentation on the pertinent portions of the draft audit report and that the final audit report will include written comments, if any, of the CONSULTANT. 9.4 The CONSULTANT shall ensure that the foregoing paragraphs are included in each subcontract for WORK on the Project. 9.5 Any charges of the CONSULTANT paid by the CITY which are found by an audit to be inadequately substantiated shall be reimbursed to the CITY. SECTION 10. INSPECTION AND PRODUCTION OF RECORDS 10.1 The records relating to the WORK shall, at all times, be subject to inspection by and with the approval of the CITY, but the making of (or failure or delay in making) such inspection or approval shall not relieve CONSULTANT of responsibility for performance of the WORK in accordance with this Agreement, notwithstanding the CITY'S knowledge of defective or non -complying performance, its substantiality or the ease of its discovery. CONSULTANT shall provide the CITY sufficient, safe, and proper facilities and equipment for such inspection and free access to such facilities. CONSULTANT'S records relating to the WORK will be provided to the CITY upon the CITY'S request. 10.2 CONSULTANT shall promptly furnish the CITY with such information and records which are related to the WORK of this Agreement as may be requested by the CITY. Until the expiration of six (6) years after final payment of the compensation payable under this Agreement, or for a longer period if required by law or by the Washington State Secretary of State's record retention schedule, CONSULTANT shall retain and provide the CITY access to (and the CITY shall have the right to examine, audit and copy) all of CONSULTANT'S books, documents, papers and records which are related to the WORK performed by CONSULTANT under this Agreement. 10.3 All records relating to CONSULTANT'S WORK under this Agreement must be made available to the CITY, and also produced to third parties, if required pursuant to the Washington Public Records Act, Chapter 42.56 RCW or by law. All records relating to CONSULTANT'S WORK under this Agreement must be retained by CONSULTANT for the minimum period of time required pursuant to the Washington State Secretary of State's record retention schedule. SECTION 11 INSURANCE 11.1 At all times during performance of WORK, CONSULTANT shall secure and maintain in effect insurance to protect the CITY and the CONSULTANT from and against all claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement. CONSULTANT shall provide and maintain in force insurance in limits no less than that stated below, as applicable. The CITY reserves the rights to require higher limits should it deem it necessary in the best interest of the public. If CONSULTANT carries higher coverage limits than the limits stated below, such higher limits shall be shown on the Certificate of Insurance and Endorsements and CONSULTANT shall be named as an additional insured for such higher limits. Commercial General Liability Insurance. Before this Agreement is fully executed by the parties, CONSULTANT shall provide the CITY with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property Page 6 damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. Subcontractors: If subcontractors will be used, the same terms and limits of coverage will apply and a certificate will be required per the instructions above. In lieu of a certificate, contractor may provide confirmation in writing from their insurance broker that their insurance policy does not contain a subcontract exclusion or one relating to the work of others. 11.1.2. Commercial Automobile Liability Insurance. a. If CONSULTANT owns any vehicles, before this Agreement is fully executed by the parties, CONSULTANT shall provide the CITY with a certificate of insurance as proof of commercial automobile liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply to "Any Auto" and be shown on the certificate. b. If CONSULTANT does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may be added to the commercial liability coverage at the same limits as required in that section of this Agreement, which is Section 11.1.1 entitled "Commercial General Liability Insurance". c. Under either situation described above in Section 11.1.2.a. and Section 11.1.2.b., the required certificate of insurance shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the CITY, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 11.1.3. Statutory workers' compensation and employer's liability insurance as required by state law. 11.1.4. Professional Liability Coverage. Before this Agreement is fully executed by the parties, CONSULTANT shall provide the CITY with a certificate of insurance as proof of professional liability coverage with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per claim, and Two Million Dollars ($2,000,000.00) aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The insured shall not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this Agreement. Failure of either or all of the additional insureds to report a claim under such insurance shall not prejudice the rights of the CITY, its officers, employees, agents, and representatives there under. The CITY and the CITY'S elected and appointed officials, Page 7 officers, principals, employees, representatives, volunteers and agents shall have no obligation for payment of premiums because of being named as additional insureds under such insurance. None of the policies issued pursuant to the requirements contained herein shall be canceled, allowed to expire, or changed in any manner that affects the rights of the CITY until thirty (30) days after written notice to the CITY of such intended cancellation, expiration or change. SECTION 12 SUBCONTRACTS 12.1 CONSULTANT shall be entitled, to the extent determined appropriate by CONSULTANT, to subcontract any portion of the WORK to be performed under this Agreement. 12.2 Any subconsultants or subcontractors to the CONSULTANT utilized on this PROJECT, including any substitutions thereof, will be subject to prior approval by CITY, which approval shall not be unreasonably withheld. Each subcontract shall be subject to review by the CITY'S Representative, if requested, prior to the subconsultant or subcontractor proceeding with the WORK. Such review shall not constitute an approval as to the legal form or content of such subcontract. The CONSULTANT shall be responsible for the architectural and engineering performance, acts, and omissions of all persons and firms performing subcontract WORK. 12.3 CITY does not anticipate CONSULTANT subcontracting with any additional persons or firms for the purpose of completing this Agreement. 12.4 The CONSULTANT shall submit, along with its monthly invoices, a description of all WORK completed by subconsultants and subcontractors during the preceding month and copies of all invoices thereto. SECTION 13 ASSIGNMENT 13.1 This Agreement is binding on the heirs, successors and assigns of the parties hereto. This Agreement may not be assigned by CITY or CONSULTANT without prior written consent of the other, which consent will not be unreasonably withheld. It is expressly intended and agreed that no third party beneficiaries are created by this Agreement, and that the rights and remedies provided herein shall inure only to the benefit of the parties to this Agreement. SECTION 14 INTEGRATION 14.1 This Agreement represents the entire understanding of CITY and CONSULTANT as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This Agreement may not be modified or altered except in writing signed by both parties. SECTION 15 JURISDICTION AND VENUE 15.1 This Agreement shall be administered and interpreted under the laws of the State of Washington. Jurisdiction of litigation arising from this Agreement shall be in Washington State. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. Venue of all disputes arising under this Agreement shall be Yakima County, State of Washington. SECTION 16 EQUAL EMPLOYMENT and NONDISCRIMINATION 16.1 During the performance of this Agreement, CONSULTANT and CONSULTANT's subconsultants and subcontractors shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, or any other classification protected under federal, state, or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. CONSULTANT agrees to comply with the applicable Page 8 provisions of State and Federal Equal Employment Opportunity and Nondiscrimination statutes and regulations. SECTION 17 SUSPENSION OF WORK 17.1 CITY may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond CITY'S control are interfering with normal progress of the WORK. CONSULTANT may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond CONSULTANT's control are interfering with normal progress of the WORK. CONSULTANT may suspend WORK on PROJECT in the event CITY does not pay invoices when due, except where otherwise provided by this Agreement. The time for completion of the WORK shall be extended by the number of days WORK is suspended. If the period of suspension exceeds ninety (90) days, the terms of this Agreement are subject to renegotiation, and both parties are granted the option to terminate WORK on the suspended portion of Project in accordance with SECTION 18. SECTION 18 TERMINATION OF WORK 18.1 Either party may terminate this Agreement, in whole or in part, if the other party materially breaches its obligations under this Agreement and is in default through no fault of the terminating party. However, no such termination may be effected unless the other party is given: (1) not less than fifteen (15) calendar days written notice delivered by certified mail, return receipt requested, of intent to terminate; and (2) an opportunity for consultation and for cure with the terminating party before termination. Notice shall be considered issued within seventy-two (72) hours of mailing by certified mail to the place of business of either party as set forth in this Agreement. 18.2 In addition to termination under subsection 18.1 of this Section, CITY may terminate this Agreement for its convenience, in whole or in part, provided the CONSULTANT is given: (1) not less than fifteen (15) calendar days written notice delivered by certified mail, return receipt requested, of intent to terminate; and (2) an opportunity for consultation with CITY before termination. 18.3 If CITY terminates for default on the part of the CONSULTANT, an adjustment in the contract price pursuant to the Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other WORK, and (2) any payment due to the CONSULTANT at the time of termination may be adjusted to the extent of any additional costs or damages CITY has incurred, or is likely to incur, because of the CONSULTANT'S breach. In such event, CITY shall consider the amount of WORK originally required which was satisfactorily completed to date of termination, whether that WORK is in a form or of a type which is usable and suitable to CITY at the date of termination and the cost to CITY of completing the WORK itself or of employing another firm to complete it. Under no circumstances shall payments made under this provision exceed the contract price. In the event of default, the CONSULTANT agrees to pay CITY for any and all damages, costs, and expenses whether directly, indirectly, or consequentially caused by said default. This provision shall not preclude CITY from filing claims and/or commencing litigation to secure compensation for damages incurred beyond that covered by contract retainage or other withheld payments. 18.4 If the CONSULTANT terminates for default on the part of CITY or if CITY terminates for convenience, the adjustment pursuant to the Agreement shall include payment for services satisfactorily performed to the date of termination, in addition to termination settlement costs the CONSULTANT reasonably incurs relating to commitments which had become firm before the termination, unless CITY determines to assume said commitments. 18.5 Upon receipt of a termination notice under subsections 18.1 or 18.2 above, the CONSULTANT shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2) deliver or otherwise make available to CITY all originals of data, drawings, specifications, calculations, reports, estimates, summaries, and such other information, documents, and materials as the CONSULTANT or its subconsultants may have accumulated or prepared in performing this Agreement, whether completed or in progress, with the CONSULTANT retaining copies of the same. Page 9 18.6 Upon termination under any subparagraph above, CITY reserves the right to prosecute the WORK to completion utilizing other qualified firms or individuals; provided, the CONSULTANT shall have no responsibility to prosecute further WORK thereon. 18.7 If, after termination for failure of the CONSULTANT to fulfill contractual obligations, it is determined that the CONSULTANT has not so failed, the termination shall be deemed to have been effected for the convenience of CITY. In such event, the adjustment pursuant to the Agreement shall be determined as set forth in subparagraph 18.4 of this Section. 18.8 If, because of death, unavailability or any other occurrence, it becomes impossible for any key personnel employed by the CONSULTANT in PROJECT WORK or for any corporate officer of the CONSULTANT to render his services to the PROJECT, the CONSULTANT shall not be relieved of its obligations to complete performance under this Agreement without the concurrence and written approval of CITY. If CITY agrees to termination of this Agreement under this provision, payment shall be made as set forth in subparagraph 18.3 of this Section. SECTION 19 DISPUTE RESOLUTION 19.1 In the event that any dispute shall arise as to the interpretation of this Agreement, or in the event of a notice of default as to whether such default does constitute a breach of the Agreement, and if the parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation as a means to resolve the dispute. If either of the afore mentioned methods are not successful then any dispute relating to this Agreement shall be decided in the courts of Yakima County, in accordance with the laws of Washington. If both parties consent in writing, other available means of dispute resolution may be implemented. SECTION 20 NOTICE 20.1 Any notice required to be given under the terms of this Agreement shall be directed to the party at the address set forth below. Notice shall be considered issued and effective upon receipt thereof by the addressee -party, or seventy-two (72) hours after mailing by certified mail to the place of business set forth below, whichever is earlier. CITY: City of Yakima 129 N. 2nd Street Yakima, WA 98901 Attn: Brett Sheffield CONSULTANT: Don Wilton Surveying 2002 Englewood, Suite "D" Yakima, WA 98902 Attn: Don Wilton Page 10 SECTION 21 SURVIVAL 21.1 The foregoing sections of this Agreement shall survive the expiration or termination of this Agreement in accordance with their terms. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their respective authorized officers or representatives as of the day and year first above written. CITY OF YAKIMA Cliff Moore Printed Name:. 0-1-1 Pe 1NA oiZ.e Title: City Manager Date: 10 -2- Attest (t),„_da- Signature Printed NameT 11- (A//(Tid Title: OW c7 itE e - -0-41 G 1 «-fl,/ 7c-, a -74/6' Date: City Clerk CITY CONTRACT NO: Q/ 7-'57 -1468.01.11RON NO: �0 1 to O y O 0 - Page 11 STATE OF WASHINGTON ) ss. COUNTY OF YAKIMA I certify that I know or have satisfactory evidence that fil rP is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the CITY MANAGER of the CITY OF YAKIMA, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Seal or Stamp Notary Public State of Washington KAARRE ALLYN MY COMMISSION EXPIRES January 12, 2020 • • (Signature) Title 1<et rA((L,f vl Printed Name My commission expires: 1 — 1 - O Page 12 STATE OF WASHINGTON ) ss. COUNTY OF YAKIMA I certify that I know or have satisfactory evidence that "Du,JkLp 4/ - Vfic7 or./ is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was to execute the instrument, and acknowledged it as the 1'3 n P V of \��� n 5u,Nfyl ✓nto be the free and voluntary act of such party for the uses and purposes m ntioned in the instrument. Dated: V 7 Seal or Stamp Printed Name My commission expires: � �j"I — \9 Page 13 EXHIBIT A SCOPE OF WORK 40th Avenue Sidewalk The work shall consist of performing a topographic survey on the east side of 40th Avenue from W. Walnut Street to 1,150 feet north of W. Walnut Street. The width of the survey shall be 25 feet. The topographic survey shall include the following: 1. Tie to existing subdivision corners, and City of Yakima benchmark 2. Field topography per RFP 3. Drafting 4. Transmit to City of Yakima a) PDF b) DWG c) XML This work shall be done for a Lump Sum Price of $5,110.00 The topography will be completed within 60 days of agreement signing. Page 14 EXHIBIT B SCHEDULE OF SPECIFIC HOURLY RATES Classification Hourly Rate Professional Land Surveyor $105.00 Field Survey Crew 2 man — GPS $240.00 2 man — Total Station $165.00 Draftsman/Survey Technician $85.00 Page 15 Don Wilton Surveying TM 5044548195 PO BOX 2275 Yakima, WA 98907 2002 Englewood, Suite "D" Yakima, WA 98902 Mr. Randy Tabert City of Yakima - Engineering Reference: 40th Avenue Topography Dear Randy, Don Wilton Surveying offers the following professional surveying services for your consideration. A) Topography (10+00 to 21+50) East of the east curb 1) Tie to existing subdivision corners, and City of Yakima benchmark 2) Field topography per RFP 3) Drafting 4) Transmit to City of Yakima a) PDF b) DWG c) XML B) Property Lines — All parcels abutting the area of topography 1) City to provide title report for each parcel 2) Calculate existing parcel boundaries 3) Draft and record property boundary survey if needed September 12, 2017 Lump Sum $ 5,110.00 Lump Sum $ 6,970.00 Work requested in addition to the above described services, will be performed at our current billing rates. The topography will be completed within 60 days of authorization Final billings will be made following the completion of work. Payment will be due within 30 days of the date of billing. A service charge of 1.5% per month will be applied to the unpaid balance, commencing 30 days after the date of billing. In the event that we retain an attorney, and/or a collection agency, to collect payment of these referred billings. You will pay our attorney fees and costs incurred in such collection activities, including court costs with venue in Yakima County, WA. Your signature and return of one executed copy of this letter will indicate your acceptance of this proposal. Please contact me if you have any questions. Sincerely, Donald H. Wilton, PLS ACCEPTED Date 1/2 17-095 2017 HOURLY RATE SCHEDULE Professional Land Surveyor Field Survey Crew 2 man — GPS 2 man — Total Station Draftsman / Survey Technician Rates effective through December 31, 2017 $ 105.00/hr 240.00/hr 165.00/hr 85.00/hr 2/2 17-095