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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
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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.
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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)
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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
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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.
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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.
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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.
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