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HomeMy WebLinkAboutR-1992-D6091 Gray & OsborneRESOLUTION NO. D 6091 A RESOLUTION authorizing the execution of an agreement for professional services with Gray and Osborne, Inc. to design and construct industrial flow meters. WHEREAS, the City of Yakima in its 1992 budget specifi- cally designated funds in the amount of $58,000.00 for project management and coordination of industrial waste flow metering facilities design and construction for installations located at Del Monte Corporation, Hops Extract of America, and Indian Summers/American Foods to replace the present flow meters which are inoperable; and WHEREAS, Gray and Osborne, Inc. is the most qualified firm to provide overall project management, flow metering facilities design, and engineering services during construc- tion; and WHEREAS, Gray and Osborne was selected from the list of qualified engineering consultants prepared by the City Engi- neer and such selection complied with Chapter 39.80 RCW; and WHEREAS, Gray and Osborne, Inc. is willing to undertake the project for a fair and reasonable price, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF TBE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute an agreement with Gray and Osborne, Inc. for the purpose mentioned above, a true copy of which agreement, entitled "Agreement Between City of Yakima, Washington and Gray and Osborne, Inc. for Professional Services" is attached hereto and by reference made a part hereof. ADOPTED BY THE CITY COUNCIL this 71--- day of 1992. Mayor ATTEST: ATTEST: City Clerk (res/osborne.jw) AGREEMENT BETWEEN CITY OF YAKIMA, WASHINGTON AND GRAY AND OSBORNE, INC. FOR PROFESSIONAL SERVICES • THIS AGREEMENT, made and entered into on this / 6 day of , 1992, by and between the City of Yakima, Washington with prif(cipal offices at 129 N. Second Street, Yakima, Washington 98901, hereinafter referred to as "CITY", and GRAY AND OSBORNE, INC., with office at 107 S. 3rd Street, Yakima, Washington 98901 and which corporation and its personnel performing this Agreement are licensed and registered to do business in the state of Washington, hereinafter referred to as "CONSULTANT", for City of Yakima Industrial Waste Flowmeters herein called the "PROJECT". WITNESSETH: RECITALS WHEREAS, CITY desires to retain the CONSULTANT to provide for design and construction of industrial flowmeters as described in this Agreement and Amendments thereto; and WHEREAS, CONSULTANT represents that it has available and offers to provide personnel with expertise 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. Page 1 Gray & Osborne Contract 2.1 BASIC SERVICES CONSULTANT agrees to perform those planned tasks described in Exhibit A, entitled "City of Yakima Industrial Waste Flowmeters" which is 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 incidental work related to 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". 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, an equitable contract price and/or completion time adjustment shall be made and this Agreement shall be modified in writing accordingly 2.2.2 Compensation for each such request for Additional Services will be negotiated by the CITY and the CONSULTANT according to the provisions set forth in Exhibit B which is part of this Agreement as if fully set forth herein, 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 receipt by the CONSULTANT of the written notification of change or of providing services related to an asserted change, whichever is earliest. 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 that may result in hazardous conditions at the work site(s). Page 2 Gray And Osborne Contract 4/1/92 3.2 ACCESS TO FACILt'1'ihS AND PROPERTY The CITY will make its facilities accessible to CONSULTANT as required for CONSULTANT'S performance of its services and will provide labor and safety equipment as required by CONSULTANT for such access. CITY will perform, at no cost to CONSULTANT, such tests of equipment, machinery, pipelines, and other components of the CITY'S facilities as may be required in connection with CONSULTANT'S services, unless otherwise agreed to. CITY will be responsible for all acts of CITY'S personnel. 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. 3.4 PROMPT NOTICE The CITY will give prompt written notice to CONSULTANT whenever CITY observes of becomes aware of any development that affects the scope or timing of CONSULTANT'S services, or any defect in the work of the CONSULTANT or construction contractors. 3.5 CITY'S REPRESENTATIVE CITY shall appoint a City's Representative with respect to work to be performed under this Agreement. The City's Representative shall have complete authority to transmit instructions, receive information, and interpret and define city's policies. CONSULTANT shall be entitled to reasonably rely on such representations 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 representations which the CONSULTANT believes are inadequate, incomplete or inaccurate based upon the CONSULTANT'S knowledge. Failure to provide prompt written notice shall not constitute a waiver of any of the CITY'S rights under this agreement. Page 3 Gray And Osborne Contract 4/1/92 3.6 CITY DOCUMENTS 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 therefrom. SECTION 4 AUTHORIZATION, PROGRESS, AND COMPLETION 4.1 NOTICE TO PROCEED In signing this Agreement, CITY grants CONSULTANT specific authorization to proceed with work described in Exhibit A. The time for completion shall be as set forth in Exhibit A and shall commence with the effective date of this Agreement, or as amended. SECTION 5 COMPENSATION 5.1 COMPENSATION For all services as more fully described in Exhibit A and for Additional Services as defined in Section 2, compensation shall be as set forth in Exhibit B. 5.1.1 DIRECT LABOR COST Direct Labor Cost shall be the total number of hours worked on the PROJECT by each employee multiplied by the regular time rate for such employee. Time rates shall be subject to adjustments. No overtime or premium rates of pay shall be paid by the CITY on the work and services performed by the CONSULTANT or their subconsultants without the prior written approval of the CITY 5.1.2 INDIRECT COST Indirect costs shall be the product of all direct labor costs multiplied by an overhead rate. The CONSULTANT shall submit accounting data justifying such overhead rate based on historical costs over the proceeding fiscal year. Proposed rates may be subject to audits of submitted data. Page 4 Gray And Osborne Contract 4/1/92 5.1.3 DIRECT EXPENSES Direct Expenses are those costs incurred on or directly for the PROJECT including, but not limited to, necessary transportation costs, including current rates for CONSULTANT'S vehicles; meals and lodging, laboratory tests and analyses; computer services; telephone, printing, binding and reproduction charges; all costs associated with outside consultants, subconsultants, and other outside services and facilities; special CITY -requested and PROJECT -related insurance and performance warranty costs; and other similar costs. Reimbursement for Direct Expenses will be on the basis of actual charges when furnished by commercial sources and on the basis of current rates when furnished by CONSULTANT. Estimated Direct Expenses are broken down in Exhibit B. 5.1.4 FIXED FEE If set forth in Exhibit B, the CITY shall pay Consultant a Fixed Fee. It is understood and agreed that that the Fixed Fee is a fixed amount which cannot be exceeded because of any difference between the actual costs of performing the work required by this Agreement, except as adjusted as provided herein. Exhibit B contains a Budget estimate for a level of effort for the tasks as currently defined. It is understood and agreed that the Fixed Fee is only due and payable for PROJECT work for which the CITY has given notice to proceed and which has been satisfactorily completed by the CONSULTANT. 5.1.5 The Fixed Fee will be prorated and paid monthly in proportion to the PROJECT satisfactorily completed. The proportion of work performed shall be documented by invoices and shall be determined by a ratio of the total costs to date compared to the estimated total cost of the entire PROJECT services less profit. A payment for an individual month shall include that portion of the Fixed Fee allocable to the PROJECT performed during said month and not previously paid. Any portion of the Fixed Fee not previously paid in the monthly payments shall be included in the final payment. 5.2 Unless specifically authorized in writing by the CITY, the total budgetary amount for this PROJECT shall not exceed that amount set forth in Exhibit B. 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. Page 5 Gray And Osborne Contract 4/1/92 5.3 The CONSULTANT will use its best efforts to submit to the City's Representative by the 10th day of each calendar month an invoice for payment for PROJECT services completed through the last day of the previous month. Such invoices shall be for PROJECT services 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 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. Copies of all invoices submitted by the authorized subcontractors, associates or subconsultants shall be submitted to CITY and will follow the same format as that of the CONSULTANT. 5.4 If payment is not made within thirty (30) days following receipt of approved invoices, interest on the unpaid balance shall accrue beginning with the thirty-first (31) 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 claims against CITY arising under or by virtue of this Agreement, other than such 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 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. Page 6 Gray And Osborne Contract 4/1/92 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 architectural and engineering standards. 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. CITY'S review, approval or payment for any of the services 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 LIMITATION OF LIABILITY The CONSULTANT shall be and shall remain liable, in accordance with applicable law, for all damages to the CITY, except as provided herein, caused by the CONSULTANT'S negligent performance of any of the work and services furnished by the CONSULTANT or its subconsultants under this Agreement. To the maximum extent permitted by law, CONSULTANT'S liability for CITY'S damages, for any cause or combination of causes, will, in the aggregate, not exceed the compensation received by CONSULTANT under this AGREEMENT, except for damages resulting from the CONSULTANT'S willful misconduct or gross negligence. This Subsection takes precedence over any conflicting Subsection of this AGREEMENT or any document incorporated into it or referenced by it. Notwithstanding the foregoing, this Subsection shall not inure to the benefit of any insurer providing insurance as required by paragraph 10 of this agreement. This limitation of liability is a business understanding between the parties and applies to all different theories of recovery, including breach of contract warranty, tort including negligence, strict or statutory liability, or any other cause of action, except for willful misconduct or gross negligence. Parties means the CITY and the CONSULTANT, and their officers, employees, agents, affiliates, and subconsultants. The parties also agree that the CITY will not seek damages in excess of the limitations indirectly through suits with other parties who may join the CONSULTANT as a third -party defendant. Notwithstanding the foregoing, this Subsection shall not inure to the benefit of any insurer providing insurance as required by paragraph 10 of this agreement. Page 7 Gray And Osborne Contract 4/1/92 6.4 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. 6.5 INDEMNIFICATION (a) CONSULTANT agrees to indemnify, defend, and hold the CITY harmless from loss, cost, or expense of any kind claimed by third parties, including such loss, cost or expense resulting from injuries to persons or damages to property, caused solely by the negligence or willful misconduct of the CONSULTANT, its employees, officers, and subconsultants in connection with the PROJECT. In the event that any lien is placed upon the property of the CITY 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, defend and hold the CONSULTANT harmless from loss, cost, or expense of any kind claimed by third parties, including 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) The above indemnity is a business understanding between the parties and applies to all different theories of recovery, including breach of contract warranty, tort including negligence, strict or statutory liability, or any other cause of action. Page 8 Gray And Osborne Contract 4/1/92 6.6 Consultant's personal injury damage liability immunity created by RCW 51.24. is expressely waived and its indemnification obligations under this Agreement shall not be limited by such immunity only when the Consultant and the City are jointly and severally liable for the daimed damages. 6.7 It is understood that any resident engineering 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 the safety of construction work, or for compliance by contractors with laws and regulations. CITY shall use its best efforts to assure that the construction contract requires that the contractor(s) indemnify and name CITY and the CITY'S officers, principals, employees, agents, representatives, engineers, and CONSULTANTS as additional insureds on contractor's insurance policies covering PROJECT. 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 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. Page 9 Gray And Osborne Contract 4/1/92 7.2 The CONSULTANT shall upon request 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. 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 work products of the CONSULTANT are instruments or service of this PROJECT. Reuse, change or alternation by the CITY or others acting through or in behalf of the CITY without written permission of the CONSULTANT 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 alternation. 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. SECTION 9 AUDIT AND ACCESS TO RECORDS 9.1 The CONSULTANT, including it 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 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. Page 10 Gray And Osborne Contract 4/1 /92 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 insure that substantially the foregoing paragraphs are included in each subcontract for work on the Project. SECTION 10 INSURANCE 10.1 Prior to beginning work under this Agreement, the CONSULTANT shall provide Certificates of Insurance as evidence that policies providing the following coverage and limits of insurance are in full force and effect. The CITY and the CITY'S officers, principals, employees, representatives and agents shall be designated as additional insured on all such policies except for professional liability. Such insurance shall be primary and other insurance maintained or carried by the City shall be separate and distinct and shall not be contributing with the insurance listed hereunder. 10.1.1 Comprehensive general liability insurance, including personal injury liability, blanket contractual liability, and broad -form property damage liability coverage. The combined single limit for bodily injury and property damage shall be not less than $1,000,000. 10.1.2. Automobile bodily injury and property damage liability insurance covering owned, non -owned, rented, and hired cars. The combined single limit for bodily injury and property damage shall be not less than $1,000,000. 10.1.3. Statutory workers' compensation and employer's liability insurance as required by state law. 10.1.4. Professional liability insurance. The limit of liability shall be not less than $1,000,000. Failure of either or all of the additional insured to report a claim under such insurance shall not prejudice the rights of the CITY, its officers, employees, agents, and representatives thereunder. The CITY and the CITY'S officers, principals, employees, representatives and agents shall have no obligation for payment of premiums because of being named as additional insured under such insurance. None of the policies issued pursuant to the requirements contained herein shall be cancelled, allowed to expire, or changed in any manner so as to affect the rights of Page 11 Gray And Osborne Contract 4/1/92 the City thereunder until thirty (30) days after written notice of such intended cancellation, expiration, or change. SECTION 11 SUBCONTRACTS 11.1 CONSULTANT shall be entitled, to the extent determined appropriate by CITY, to subcontract any portion of the work to be performed under this Agreement. 11.2 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. The CONSULTANT shall be responsible for the architectural and engineering performance, acts and omissions of all persons and firms performing subcontract work. 11.3 CITY hereby authorizes the CONSULTANT to subcontract with the person(s) and/or firm(s) listed below: Patrick L. Conley, P.E. Consulting Engineer 11.4 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 12 ASSIGNMENT 12.1 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. SECTION 13 INTEGRATION 13.1 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 14 JURISDICTION AND VENUE Page 12 Gray And Osborne Contract 4/1/92 14.1 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 that 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 shall be Yakima County, State of Washington. SECTION 15 EQUAL EMPLOYMENT and NONDISCRIMINATION 15.1 In connection with the Services under this Agreement, CONSULTANT agrees to comply with the applicable provisions of State and Federal Equal Opportunity statutes and regulations. SECTION 16 SUSPENSION OF WORK 16.1 CITY may suspend, in writing, all or a portion of the work under this Agreement if unforeseen circumstances beyond CITY'S control make normal progress of the work impossible. CONSULTANT may request that the work be suspended by notifying CITY, in writing, of circumstances that are interfering with the normal progress of 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 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 17. SECTION 17 TERMINATION OF WORK 17.1 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 with the terminating party before termination. Notice shall be considered issued within twenty-four (24) hours of mailing by certified mail to the place of business of either party as set forth in this Agreement. Page 13 Gray And Osborne Contract 4/1/92 17.2 In addition to termination under subparagraph A 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. 17.3 If CITY terminates for default on the part of the CONSULTANT, an equitable adjustment in the contract price 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 direct, indirect or consequential, 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. 17.4 If the CONSULTANT terminates for default on the part of CITY or if CITY terminates for convenience, the equitable adjustment 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. 17.5 Upon receipt of a termination notice under subsections 17.1 or 17.2 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. 17.6 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 for the further work thereon. Page 14 Gray And Osborne Contract 4/1/92 17.7 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 equitable adjustment shall be determined as set forth in subparagraph 17.4 of this Section. 17.8 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 17.3 of this Section. Section 18 Arbitration All claims, counterclaims, disputes and other matters in question arising out of, or relating to, this AGREEMENT or the breach thereof may be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining. Either CITY or CONSULTANT may initiate a request for such arbitration, but consent of the other party to such procedure shall be a necessary precondition to arbitration. No arbitration arising out of, or relating to, this AGREEMENT may include, by consolidation, joinder, or in any other manner, any additional party not a party to this AGREEMENT. (CONTINUED) Page 15 Gray And Osborne Contract 4/1/92 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. ATTEST CITY OF YAKIMA CITY CLERK STATE OF WASHINGTON ) ss. County of Yakima ) On this /6 day of , 1992, before me, the undersigned and Notary Public n and for the�� of Washin to , duly commissioned and sworn, personally appeared ern- , c0. �a ?''- known to me to be the individual described in and who executed the within and foregoing instrument, and acknowledged that signed the same as _.hu-- free and voluntary act and deed, for the uses and purposes therein mentioned. WITNESS by hand and official seal hereto affixed this day and year first written above. R.A. Zais, Tr. City Manager G Y AND OSBORNE,INC. Signature 1 Ino w,a5 . We -ma to Printed Name kvikicEv‘.5.txnee.v Title :err CJitTFACT T r Page 16 Gray And Osborne Contract 4/1/92 Notary Public in and for theate of Washington, residing at iib My commission expires: Notary commission expires 3/18/96 EXHIBIT A SCOPE OF WORK CITY OF YAKIMA INDUSTRIAL WASTE FLOWMETERS Consultant services to be provided under this Agreement shall include the following Tasks: 1. Overall project management and coordination of the industrial waste flowmetering facilities design for installations at the following three installations: Del Monte Corporation, Indian Summers/American Foods, and Hops Extract Corporation of America, all within the city limits of Yakima. 2. Conduct site surveys of the flowmeter installation locations. 3. Develop detailed conceptual designs for each of the flowmeter installations. 4. Prepare preliminary plans of the flowmeter installations for review by the city staff. 5. Prepare final design drawings for each of the flowmeter installations. 6. Prepare final technical specifications for the flowmeter installations. 7. Assist the city staff with with bidding and contract award. 8. Assist the city staff with the review of the contractor's shop drawings and submittals. 9. Provide engineering services during construction relative to answering questions on design intent or other questions which may arise. 10. Assist city staff with final review and project close-out. Time of Completion The time for completion for this work through Task 6 shall be 90 days. Page 17 Gray And Osborne Contract 4/1/92 EXHIBIT B METHOD OF COMPENSATION CITY OF YAKIMA INDUSTRIAL WASTE FLOWMETERS Services performed under this contract shall be compensated by method of COST PLUS FIXED FEE. COST shall be defined as the sum of Direct Labor Costs, Indirect Costs, and Direct Costs. For this project the Overhead Rate used to determine Indirect Costs shall be 1.23. As set forth on the attached table Titled EXHIBIT A - PART 2 TASK ORDER NO. 1 the Total Estimated Engineering Cost for this project shall not exceed $11,935 plus a Fixed Fee of $1,488. A total of $13,423. Page 18 Gray And Osborne Contract 4/1/92 EXHIBIT A - PART 2 TASK ORDER NO. 1 CITY OF YAKIMA - INDUSTRIAL FLOWMETERING FACILITIES ESTIMATED ENGINEERING COST Task PM DE EIT DM Survey CAD EE Project Management/ 8 Coordination Site Surveys 4 16 Design Development 4 16 8 4 Preliminary Drafting 2 4 16 16 2 Final Deign 4 8 8 4 Final Drafting Of Plans 2 4 4 24 16 2 Specifications 4 16 2 Bidding And Award 8 4 4 Shop Drawing Review 8 8 4 4 Other Construction 4 8 4 Engineering Final Review And 4 2 Project Close - Out Total Hours 48 72 24 40 16 32 28 Rate $26.00 $18.50 $13.50 $18.00 $29.00 $11.00 Amount $1,248 $1,332 $324 $720 $427 $352 Direct Labor Cost $4,448 Indirect Labor Cost(1.23) $5,471 Sub -total $9,919 Out-of-pocket Costs: Electrical Sub -consultant $1,820 G&o Overhead 146 Vehicle Millage 50 Sub -total $11,935 Fee (0.15) 1,488 Total Estimated Cost $13,423 NOTE: The fees listed above as "Estimated" are the best estimates of the parties at the time of the agreement execution. The fees to be paid engineer are dependent upon actual time required to accomplish each task. For this reason, the estimates listed above are subject to change and should only be used for general planning purposes. However, the total cost will not be exceeded without prior written approval by the City. Labor rates shown above are for personnel anticipated to be used on this project. Any other personnel utilized will be charged at their actual labor rates. Page 19