HomeMy WebLinkAboutR-2010-077 Railroad Grade Separations Project Agreements with Berger/ABAM Engineers, Inc. and Haddad Drugan, LLC.A RESOLUTION
RESOLUTION NO. R- 2010-77
authorizing the City manager to execute the following agreements for
design and construction engineering and management for the Railroad
Grade Separations Project: A) Supplement No. 7 of the Professional
Services Agreement with Berger/ABAM Engineers, Inc. for design
completion of the Lincoln Avenue and Martin Luther King, Jr. Boulevard
(MLK) underpasses, and B) Professional Service Agreement with Haddad
Drugan, LLC, for developing plans and specifications for the fabrication
and installation of the aesthetic components of the project.
WHEREAS, the City of Yakima has previously selected Berger/ABAM Engineers, Inc.
and Haddad Drugan, LLC to provide consulting services for the design and development of the
Yakima Railroad Grade Separations Project ("Project"); and
WHEREAS, additional engineering and consulting services are required to proceed with
the Project, to complete the design of the Lincoln Avenue and MLK underpasses and to
complete the design, fabrication and installation of the aesthetic components; and
WHEREAS, it is requested that the City Manager have authority to A) execute an
additional (seventh) supplemental agreement with Berger/ABAM Engineers, Inc. for additional
engineering and consulting services to complete the design of the underpasses, and B) execute
a Professional Services Agreement for additional consulting services with Haddad Drugan, LLC
that will extend through July 31, 2015; and,
WHEREAS, the City Council deems it to be in the best interest of the City to authorize
the City Manager to A) execute an additional (seventh) supplemental agreement with
Berger/ABAM Engineers, Inc. for additional engineering and consulting services and B) execute
a Professional Services Contract with Haddad Drugan, LLC for additional consulting services
required for the fabrication and installation of the "Bins of Light" art piece, now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized to execute the following agreements to further
the design of the Railroad Grade Separations Project: A) Supplement No. 7 of the Professional
Services Agreement with Berger/ABAM Engineers, Inc. for design completion of the
underpasses, and B) Professional Services Agreement with Haddad Drugan, LLC, for
developing plans and specifications for the fabrication and installation of the "Bins of Light" art
piece.
ATTEST:
ADOPTED BY THE CITY COUNCIL this 15th day of June 2010.
sz cal
City Clerk
Micah Cawley, Mayor
•
•
Aft
ipWashington State
Department of Transportation
Su lemental A reement
pp g
Number 7
organization and Address
Berger/ABAB Engineers, Inc.
33301 Ninth Avenue South, Suite 300
Federal, Way, WA 98003
Phone: 206-431-2300
Original Agreement Number
LA - 4453
Project Number
STPX-NCPD-000S(062)
Execution Date
6/30/2010
Completion Date
7/31/2011
Project Title
Yakima Railroad Grade Separations
New Maximum Amount Payable
$ 4,179,244.00
Description of Work
Design work beyond the original scope of work to complete the bid documents for Martin Luther King, Jr.
Boulevard.
The Local Agency of City of Yakima
desires to supplement the agreement entered into with Berger/ABAM Engineers, Inc.
and executed on 6/20/2003 and identified as Agreement No.
LA - 4453
All provisions in the basic agreement remain in effect except as expressly modified by this supplement.
The changes to the agreement are described as follows:
1
Section 1, SCOPE OF WORK, is hereby changed to read:
See attached
11
Section IV, TIME FOR BEGINNING AND COMPLETION, is amended to change the number of calendar days for
completion of the work to read: Completion date is unchanged
111
Section V, PAYMENT, shall be amended as follows:
See attached
as set forth in the attached Exhibit A, and by this reference made a part of this supplement.
If you concur with this supplement and agree to the changes as stated above, please sign in the appropriate spaces
below and return to this office for final action.
By: Berg-r/ARAM Fngineers, Inc By: City of Yakima
DOT Form 140-063 EF
Revised 9/2005
Consultant Signature Approving Authority Signature
Date
SECTION 1I, SCOPE OF WORK
These Scope of Work Modifications add to and revise Exhibit B, Scope of Work, Phase 2 and/or the
Supplement No. 2, No.3, No. 4, and No.5 Scope of Work Modifications. Where conflicts occur between
these Scope of Work modifications and the original Scope of Work and/or the Supplement No. 2, No. 3,
No. 4, and No. 5 Scope of Work Modifications, these modifications will take precedence.
Completion of the bid documents for Martin Luther King, Jr. Boulevard (MLK) has required and/or will
still require out of scope effort to be completed. The following is a list of the out of scope work
required:
• Per the schedule for design in supplement no. 5, the 95% PS&E for MLK was due to be
completed in April 2009, but due to delays by BNSF, the 95% was notable to be completed until
January 2010. Bid documents will not be completed until at least fail of 2010, depending on
when the final construction funds are obtained. These schedule extensions lead to added
management and administration time, time to get staff back up to speed after prolonged
periods away from theproject, and salary escalation.
• Redesign of the MLK pump station and overflow discharge to the Front St. storm drain system
due to being moved from the west side of the tracks to the east side of the tracks when
agreement could not be reached with BNSF to move their maintenance facility.
• Additional signal needed at Lincoln Avenue and 2nd Avenue to provide a safe crossing of Lincoln
Avenue when it has two-way traffic during the detour around the MLK construction area.
• Rather than two types of walls on each side as envisioned in the original scope, there are four
types of walls on each side, -requiring more design and detailing. The reason for this is to save
construction cost by building Less complex wall types as the walls get shorter when the
roadways near existing grade at ft Avenue and 1st Street.
• The original budget was based on the plans for MLK being nearly identical to the plans for
Lincoln. However, as the detailed plans for MLK were prepared after the 60% PS&E, it became
apparent that while quite similar in basic design, many of the details were not the same.
Instead of needing to significantly rework about'''/ of the plans (about 45), about %: (90) of the
plans needed to be significantly reworked.
Supplment No. 7 Analysis of Costs - BERGER/ABAM
Direct Salary Cost (DSC)
PERSONNEL Hours Pay Rate Cost
Project Executive 0 $ 81.25 $ -
Project Manager 62 56.01 3,473
Project Engineer 315 39.42 12,417
Senior Engineer 4 65.24 261
Planner 0 28.56
Engineer/Technician 181 31.96 5,785
Graphics/CADD 502 33.00 16,566
Project Coordinator 0 27.16
Clerical 24 27.88 669
Direct Salary Cost Total 1088 $ 39,171
Salary Escalation 3% $1,175
Overhead Cost 158.23% of DSC $ 63,839
Net Fee 32.00% of DSC $ 12,535
SUBTOTAL $ 116,720
Reimbursables
5 Roundtrips at 300 miles each at $0.585/mile $ 878
REIMBURSABLES SUBTOTAL $ 878
Subconsultants:
Shannon and Wilson $ 1,531
Hanson Wilson $ 3,019
Huibregtse Louman $ 7,727
TRANSPO $ 24,022
Kennedy/Jenks $ 36,103
SUBCONSULTANTS SUBTOTAL $ 72,402
SUPPLEMENT NO. 7 TOTAL $. 190,000
Ldd7
Z003-53
448[,f -&'/O-77
LOCaI Agency
Standard Consultant
Agreement
Consultant/Address/Telephone
HADDAD DRUGAN, LLC
1941 1st Avenue S. Studio 3i
Seattle, WA 98134
❑ Architectural/Engineering Agreement
' Personal Services Agreement
Agreement Number ' '
Project Title And Work Description '
Yakima Railroad Grade Separations Project.
The artist shall develop plans and specifications for
the "Bins of Light" art piece and oversee the .
fabrication and installation of the art piece.
Federal Aid Number,
STPX-NCPD-000S(062)
Agreement Type (Choose one)
❑ Lump Sum'',
Lump Sum Amount $
❑ Cost Plus Fixed Fee
Overhead Progress Payment Rate
%
DBE Participation
Overhead Cost Method
❑ Actual',Cost
❑ Actual (''Cost. Not To Exceed
%
❑ Yes ►Z1 No
Federal ID Number or Social Security Number
061703404
❑ Fixed Overhead Rate
%
Do you require a.1099 for IRS?
'❑ Yes No
Completion Date
July 31, 2015
Fixed Fee $ 1
Specific Rates Of Pay
►5 Negotiated Hourly Rate
❑ Provisional Hourly Rate
❑ Cost Per Unit of Work
Total Amount Authorized $
Management Reserve Fund $
Maximum Amount Payable $
35,000.00
• 35,000.00
Index of Exhibits (Check all that apply):
Exhibit A-1 Scope; of Work
Exhibit A-2 Task Order Agreement
❑ Exhibit B-1 DBE Utilization Certification
❑ Exhibit C Electronic Exchange. of Data
❑ Exhibit D-1 Payment - Lump Sum
❑ Exhibit D-2 Payment - Cost Plus
® Exhibit D-3 Payment - Hourly Rate
❑ Exhibit D-4 Payment - Provisional
® Exhibit E-1 Fee - Lump/Fixed/Unit
Exhibit E-2. Fee 7. Specific Rates
® Exhibit F Overhead: Cost .
•® Exhibit G'Subcontracted'Nork
❑ Exhibit G-1.Subconsizltant Fee
❑ Exhibit G-2 Fee -Sub Specific Rates
❑ Exhibit G-3 Sub Overhead Cost
® Exhibit H Title VI Assurances
Z Exhibit.I Payment Upon Termination of Agreement
❑ Exhibit J Alleged Consultant Design Error Procedures
❑ Exhibit K Consultant Claim Procedures
❑ Exhibit L Liability Insurance Increase
Exhibit M -1a Consultant Certification
® Exhibit M -lb Agency Official Certification
® Exhibit M-2. Certification - Primary
❑ Exhibit M-3 Lobbying Certification
❑ Exhibit M-4 Pricing Data Certification
❑ App. 31.910 Supplemental Signature Page
THIS AGREEMENT, made and entered into this (4)-(3± day of 3UL'-k , Z01 O
between the Local Agency of City of Yakima , Washington, hereinafter called the "AGENCY" ,
and the above organization hereinafter called the "CONSULTANT".
DOTForm 140-089 EF
Revised 3/2008 .
Page 1 of 8
WITNESSETH THAT:
I �If
WHEREAS, the AGENCY desires to accomplish the above referenced project, and .
WHEREAS, the AGENCY does not have sufficient staff to meet the required commitment and therefore deems it
advisable and desirable to engage the assistance of a CONSULTANT to provide the necessary services for the PROJECT;
and
WHEREAS, the CONSULTANT represents that he/she is in compliance with the Washington State Statutes relating to
professional registration, if applicable, and has signified a willingness to furnish Consulting services to the AGENCY,
NOW THEREFORE, in consideration of the terms, conditions, covenants and performance contained herein, or attached
and incorporated and made a part hereof, the parties hereto agree as follows:
General Description of Work
The work under this'iAGREEMENT shall consist of the above described work and services as herein defined and
necessary to accomplish the completed work for this PROJECT. The CONSULTANT shall furnish all services, labor, and
related equipment necessary to conduct and complete the work as designated elsewhere in this AGREEMENT.
II Scope of Work
The Scope of Work and projected level of effort required for this PROJECT is detailed in Exhibit "A" attached hereto and
by this reference made a part of this AGREEMENT.
III General Requirements
All aspects of coordination of the work of this AGREEMENT with outside agencies, groups, or individuals shall receive
advance approval by'tthe AGENCY. Necessary contacts and meetings with agencies, groups, and/or individuals shall be
coordinated_ through the AGENCY. The CONSULTANT shall attend coordination, progress and presentation meetings
with the AGENCY and/or such Federal, State, Community, City or County officials, groups or individuals as may be
requested by the AGENCY. The AGENCY will provide the CONSULTANT sufficient notice prior to meetings requiring
CONSULTANT participation. The minimum required hours or days notice shall be agreed to between the AGENCY and
the'CONSULTANT Wand shown in Exhibit "A."
The CONSULTANT shall prepare a monthly progress report, in a form approved by the AGENCY, which will outline in
written and graphical form the various phases and the order of performance of the work in sufficient detail so that the
progress of the work:can easily be evaluated.
The CONSULTANT, and each SUBCONSULTANT, shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this contract. The CONSULTANT, and each SUBCONSULTANT, shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration of USDOT-assisted contracts. Failure by the
CONSULTANT to carry out these requirements is a material breach of this AGREEMENT that may result in the
termination of this AGREEMENT.
Participation for Disadvantaged Business Enterprises (DBE), if required, per 49 CFR Part 26, or participation of Minority
Business Enterprises i(MBE), and Women Business Enterprises (WBE), shall be shown on the heading of this
AGREEMENT. If D/M/WBE firms are utilized, the amounts authorized to each firm and their certification number will be
shown on Exhibit "B" attached hereto and by this reference made a part of this AGREEMENT. If the Prime
CONSULTANT is a DBE firm they must comply with the Commercial Useful Function (CUF) regulation outlined in the
AGENCY'S "DBE Program Participation Plan". The mandatory DBE participation goals of the AGREEMENT are those
established by the WSDOT'S Highway and Local Programs Project Development Engineer in consultation with the
AGENCY.
All Reports, PS&E materials, and other data furnished to the CONSULTANT by the AGENCY shall be returned. All
electronic files, prepared by the CONSULTANT, must meet the requirements as outlined in Exhibit "C."
All designs, drawings, specifications, documents, and other work products, including all electronic files, prepared by, the
CONSULTANT prior to completion or termination of this AGREEMENT are instruments of service for this PROJECT,
and are the property of the AGENCY. Reuse by the AGENCY 'or by others, acting through or on behalf of the AGENCY
of any such instruments of service, not occurring as a part of this PROJECT, shall be without liability or legal exposure to
the CONSULTANT. I'
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IV Time for Beginning and Completion
The CONSULTANT shall not begin any work under the terms of this AGREEMENT until authorized in writing by the
AGENCY.
All work under this AGREEMENT shall be completed by the date shown in the heading of this AGREEMENT under
completion date.
The established completion time shall not be extended because of any delays attributable to the CONSULTANT, but
may be extended by the AGENCY in the event of a delay attributable to the AGENCY, or because of unavoidable
delays caused by an act of GOD or governmental actions or other conditions beyond the control of the
CONSULTANT. A prior supplemental agreement issued by the AGENCY is required to extend the established
completion time. 1
V Payment Provisions
The CONSULTANT shall be paid by the AGENCY for completed work and services rendered under this
AGREEMENT as provided in Exhibit "D" attached hereto, and by reference made part of this AGREEMENT. Such
payment shall be full compensation for work'performed or services rendered and for all labor, materials, supplies,
equipment, and incidentals necessary to complete the work. The CONSULTANT shall conform to all applicable
portions of 48 CFR Part 31.
A post audit may be performed on this AGREEMENT. The need for a post audit will be determined by the State
Auditor, WSDOT External Audit Office and/or at the request "of the AGENCY'S PROJECT Manager. -
VI Sub -Contracting
The AGENCY permits sub -contracts for those items of work as shown in Exhibit "G" attached hereto and by this
reference made part I f this AGREEMENT.
Compensation for this sub -consultant work shall be based on the cost factors shown on Exhibit "G."
The work of the sub -consultant shall not exceed its maximum amount payable unless a prior written approval has been
issued by the AGENCY.•
All reimbursable direct labor, overhead, direct non -salary costs and fixed fee costs for the sub -consultant shall be
substantiated in the same manner as outlined in Section V. All sub -contracts shall contain all applicable provisions of
this AGREEMENT.
With respect to sub-consultant,payment, the CONSULTANT shall comply with all applicable sections of the Prompt
Payment laws as set forth in RCW 39.04.250 and RCW 39.76.011. •
The CONSULTANT shall not sub -contract for the performance of any work .under this AGREEMENT without prior
written permission of the AGENCY. No permission for sub -contracting shall create, between the AGENCY and sub-
contractor, any contract or any other relationship. A DBE certified sub -consultant is required to perform a minimum
amount of their sub -contracted agreement that is established by the ;WSDOT Highways and Local Programs Project
Development Engineer in consultation with the AGENCY.
VII Employment
The CONSULTANT%warrants that they have not employed or retained any company -or person, other than a bona fide •
employee working solely for the CONSULTANT, to solicit or secure this contract, and thatit has not paid or agreed to
pay any company or person, other than a bona fide employee workingsolely for the CONSULTANT, any fee,
commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or
making of this contract. For breach or violation of this warrant, the AGENCY shall have the right to annul this
AGREEMENT without liability or, in its discretion, to deduct from the AGREEMENT price or consideration or
otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee.
Any and -all employees of the CONSULTANT or other persons while engaged in the performance of any work or
services required of the CONSULTANT under this AGREEMENT, shall be considered employees of the
CONSULTANT only' and not of the AGENCY, and any and all claims that may arise under any Workmen's
Compensation Act on behalf of said employees or other persons while so engaged, and any and all claims made by a
Page 3 of 8
third party as a consequence of any act or omission on the part of the CONSULTANT'S employees or other persons.'
while so engaged on any of the work or services provided to be rendered herein, shall be the sole obligation and
responsibility of the CONSULTANT.
The CONSULTANT shall not engage, on a full- or part-time basis, or other basis, during the period of the contract, any
professional or technical personnel who are, or have been, at any time during the period of the contract, in theemploy
of the United States Depattalent of Transportation, or the STATE, or the AGENCY, except regularly retired
employees, without written consent of the public employer of such person.
VIII Nondiscrimination
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest agrees
to comply with the following laws and regulations:
Title VI of the Civil Rights Act of 1964
(42 USC Chapter 21 Subchapter V Section 2000d through 2000d -4a)
Federal -aid Highway Act of 1973
(23 USC Chapter 3 Section 324)
Rehabilitation Act of 1973
(29 USC Chapter 16 Subchapter V Section 794)
Age Discrimination Act of 1975
(42 USC Chapter 76 Section 6101 et seq.)
Civil Rights Restoration Act of 1987
(Public Law 100-259.)
American with Disabilities Act of 1990
(42 USC Chapter 126 Section 12101 et. seq.)
49 CFR Part 21
23 CFR Part 200
RCW 49.60.180
In relation to Title VI of the Civil Rights Act of 1964, the CONSULTANT is bound by the provisions of Exhibit "H"
attached hereto and by this reference made part of this AGREEMENT, and shall include the attached Exhibit "H" in
every sub -contract, including procurement of materials and leases of equipment, unless exempt by the Regulations or
directives issued pursuant thereto.
IX Termination of Agreement
The right is reserved by the AGENCY to terminate this AGREEMENT at any time upon ten (10) days written notice to
the CONSULTANT.
In the event this AGREEMENT is terminated by the AGENCY other than for default on the part of the
CONSULTANT, a final payment shall be made to the CONSULTANT as shown in Exhibit "I" for the type of
AGREEMENT used.
No payment shall be made for any work completed after ten (10) days following receipt by the CONSULTANT of the
Notice to Terminate. If the accumulated payment made to the CONSULTANT prior to Notice of Termination exceeds
the total amount that Would be due when computed as set forth herein above, then no final payment shall be due and the
CONSULTANT shall immediately reimburse the AGENCY for any excess paid.
If the services of the CONSULTANT are terminated by the AGENCY for default on the part of the CONSULTANT;
the above formula for payment shall not apply.
Page 4 of 8
In such an event, the amount to be paid shall be determined by the AGENCY with consideration given to the actual
costs incurred by the CONSULTANT in performing the work to the date of termination, the amount of work originally
required which was satisfactorily completed to date of termination, whether that work is in a form or a type which is,
usable to the AGENCY at the time of termination, the cost to the AGENCY of employing another firm to complete the
work required and the time which may be required to do so, and other factors which affect the value to the AGENCY
of the work performed at the time of termination.
Under no circumstances shall payment made under this subsection exceed the amount, which would have been made
using the formula set forth above.
If it is determined for any reason that the CONSULTANT was not in default or that the CONSULTANT'S failure to
perform is without the CONSULTANT'S or it's employee's default or negligence, the termination shall be deemed to
be a termination for the convenience of the AGENCY. In such an event, the CONSULTANT would be reimbursed for
actual costs in accordance with the termination for other than default clauses listed previously.
In the event of the death of any member, partner or officer of the CONSULTANT or any of its supervisory personnel
assigned to the PROJECT, or dissolution of the partnership, termination of the corporation, or disaffiliation of the
principally involved employee, the surviving members of the CONSULTANT hereby agree to complete the work under
the terms of this AGREEMENT, if requested to do so by the AGENCY. This subsection shall not be a bar to
renegotiation of the AGREEMENT between the surviving members of the CONSULTANT and the AGENCY, if the
AGENCY so chooses.
In the event of the death of any of the parties listed in the previous paragraph, should the surviving members of the
CONSULTANT, with the AGENCY'S concurrence, desire to terminate this AGREEMENT, payment shall be made as
set forth in the second paragraph of this section.
Payment for any part of the work by the AGENCY shall not constitute a waiver by the AGENCY of any remedies of
any type -it may have against -the CONSULTANT for any breach of this AGREEMENT by the CONSULTANT, or for
failure of the CONSULTANT to perform work required of it by the AGENCY. Forbearance of any rights under the
AGREEMENT will not constitute waiver of entitlement to exercise those rights with respect to any future actor
omission by'the CONSULTANT.
X Changes of Work
The CONSULTANT shall make such changes and revisions in the complete work of this AGREEMENT as necessary
to correct errors appearing therein, when required to do so by the AGENCY, without additional compensation thereof.
Should the AGENCY fmd it desirable for its own purposes to have previously satisfactorily completed work or parts
thereof changed or revised, the CONSULTANT shall make such revisions as directed by the AGENCY. This work
shall be considered as Extra Work and will be paid for as herein provided under Section XIV.
XI Disputes
Any dispute concerning questions of fact in connection with the work not disposed of by AGREEMENT between the
CONSULTANT and the AGENCY shall be referred for determination to the Director of Public Works or AGENCY
Engineer, whose decision in the matter shall be final and binding on the parties of this AGREEMENT; provided,
however, that if an action is brought challenging the Director of Public Works or AGENCY Engineer's decision, that
decision shall be subject to de novo judicial review. If the parties to this AGREEMENT mutually agree, disputes
concerning alleged design errors will be conducted under the procedures found in Exhibit "J", and disputes concerning
claims will be conducted under the procedures found in Exhibit "K".
XII Venue, Applicable Law, and Personal Jurisdiction.
In the event that either party deems it necessary to institute legal action or proceedings to enforce any right or
obligation under this AGREEMENT, the parties hereto agree that any such action shall be initiated in the Superior
court of the State of Washington, situated in the county in which the AGENCY is located. The parties hereto agree that
all questions shall be resolved by application of Washingtonlaw and that the parties to such action shall have the right
of appeal from such decisions of the Superior court in accordance with the laws of the State of Washington. The
CONSULTANT hereby consents to the personal jurisdiction of the Superior court of the State of Washington, situated
in the county in which the AGENCY is located.
Page 5 of 8
XIII Legal Relations
The CONSULTANT shall comply with all Federal, State, and local laws and ordinances applicable to the work to be
done under this AGREEMENT. This contract shall be interpreted and construed in accordance with the laws of the
State of Washington
The CONSULTANT shall indemnify and hold the AGENCY and the STATE and its officers and employees harmless
from and shall process and defend at its own expense all claims, demands, or suits at law or equity arising in whole or
in part from the CONSULTANT'S negligence or breach of any of its obligations under this AGREEMENT; provided
that nothing herein shall require a CONSULTANT to indemnify the AGENCY or the STATE against and hold
harmless the AGENCY or the STATE from claims, demands or suits based solely upon the conduct of the AGENCY or
the STATE, their agents, officers and employees; and provided further that if the claims or suits are caused by or result
from the concurrent negligence of (a) the CONSULTANT'S agents or employees, and (b) the AGENCY or the
STATE, their agents; officers and employees, this indemnity provision with respect to (1) claims or suits based upon
such negligence (2) the costs to the AGENCY or the STATE of defending such claims and suits shall be valid and
enforceable only to the extent of the CONSULTANT'S negligence or the negligence of the CONSULTANT'S agents
or employees.
The CONSULTANT'S relation to the AGENCY shall be at all times as an independent contractor.
The CONSULTANTI shall comply with all applicable sections of the applicable Ethics laws, including RCW 42.23,
which is the Code of Ethics for regulating contract interest by municipal officers. The CONSULTANT specifically
assumes potential liability for actions brought by the CONSULTANT'S own employees against the AGENCY and,
solely for the purpose of this indemnification and defense, the CONSULTANT specifically waives any immunity under
the state industrial insurance law, Title 51 RCW.
Unless otherwise specified in the AGREEMENT, the AGENCY shall be responsible for administration of construction
contracts, if any, on the PROJECT. Subject to the processing of a new sole source, or an acceptable supplemental
-agreement, the CONSULTANT shall provide On -Call assistance to the AGENCY during contract administration. By
providing such assistance; the CONSULTANT shall assume no responsibility for: proper construction techniques, job
site safety, or any construction contractor's failure to perform its work in accordance with the contract documents.
The CONSULTANT shall obtain and keep in force during the terms of the AGREEMENT, or as otherwise required,
the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to
Title 48 RCW.
Insurance Coverage
A. Worker's compensation and employer's liability insurance as required by the STATE.
B. Commercial general liability and property damage insurance in an aggregate amount not less than two million
dollars ($2,000,000) for bodily injury, including death and property, damage. The per occurrence amount shall
not exceed one million dollars ($1,000,000).
C. Vehicle liabilityinsurance-forany automobile used in an amount not less than a one million dollar ($1,000,000)
combined single limit.
Excepting the Worker's Compensation Insurance and any Professional Liability Insurance secured by the
CONSULTANT, theAGENCY will be named on all policies as an additional insured. The CONSULTANT shall
furnish the AGENCY with verification of insurance and endorsements required by the AGREEMENT. The AGENCY
reserves the right to require complete, certified copies of all required insurance policies at any time.
All insurance shall be obtained from an insurance company authorized to do business in the State of Washington. The
CONSULTANT shall submit a verification of insurance as outlined above within fourteen (14) days of the execution of
this AGREEMENT to the AGENCY.
No cancellation of the foregoing policies shall be effective without thirty (30) days prior notice to the AGENCY.
The CONSULTANTS professional liability to the AGENCY shall be limited to the amount payable under this
AGREEMENT or one million ($1,000,000) dollars, whichever is the greater, unless modified by Exhibit "L". In no
case shall the CONSULTANT'S professional liability to third parties be limited in any way.
Page 6 of 8
The AGENCY will pay no progress payments under Section -V until the CONSULTANT has fully complied with this
section. This remedy is not exclusive; and the AGENCY and the STATE may take such other action as is available'to it
under other provisions of this AGREEMENT, or otherwise in law.
XIV Extra Work
A. The AGENCY may at any time, by written order, make changes within the general scope of the AGREEMENT in
the services to be performed.
B: If any such change causes an increase or decrease in the estimated cost of, or the time required for, performance of
any part of the work under this AGREEMENT, whether or not changed by the order, or otherwise affects any other
terms and conditions of the AGREEMENT, the AGENCY shall make an equitable adjustment in the (1) maximum
amount payable; (2) delivery or completion schedule, or both; and (3) other affected terms and shall modify the
AGREEMENT accordingly.
II
C. The CONSULTANT must submit any "request for equitable adjustment", hereafter referred to as "CLAIM", under
this clause within thirty (30) days from the date of receipt of the written order. However, if the AGENCY decides
that the facts justify it, the AGENCY may receive and act upon a CLAIM submitted before fmal payment of the
AGREEMENT. d -
D. Failure to agree to any adjustment shall be a dispute under the Disputes clause. However, nothing in this clause
shall excuse the CONSULTANT from proceeding with the AGREEMENT as changed.
E. Notwithstanding the terms and conditions of paragraphs (A) and (B) above, the maximum amount payable for this
AGREEMENT, shall not be increased or considered to be increased except by specific written supplement to this
AGREEMENT.
XV Endorsement of Plans -
If applicable, the CONSULTANT shall place their endorsement on all plans, estimates, or any other engineering data
furnished by them.
XVI Federal and State Review
The Federal Highway Administration and the Washington State Department of Transportation shall have the right to
participate in the review or examination of the work in progress.
XVII Certification of the Consultant and the Agency •
Attached hereto as Exhibit "M -1(a and b)" are the Certifications of the CONSULTANT and the AGENCY, Exhibit "M
-2" Certification Regarding Debarment, Suspension and Other -Responsibility Matters - Primary Covered Transactions,
Exhibit "M-3" Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying and Exhibit "M-4"
Certificate of Currenkost or Pricing Data. Exhibit "M-3" is required only in AGREEMENTS over $100,000 and
Exhibit "M-4" is required only in AGREEMENTS over $500,000.
XVIII Complete Agreement
This document and referenced attachments contain all covenants, stipulations, and provisions agreed upon by the
parties. No agent, or representative of either party has authority to make, and the parties shall not be bound by or be
liable for, any statement, representation, promise or agreement not set forth herein. No changes, amendments, or
modifications of the terms hereof shall be valid unless reduced to writing and signed by the parties as an amendment to
this AGREEMENT.
XIX Execution and Acceptance
This 'AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an
original having identical legal effect. The CONSULTANT does hereby ratify and adopt all statements, representations,
warranties, covenants,) and agreements contained in the proposal, and the supporting material submitted by the
CONSULTANT, and does hereby accept the AGREEMENT and agrees to all of the terms and conditions thereof.
Page 7 of 8
In witness whereof; the parties hereto have executed this AGREEMENT as of the day and year shown in the
"Execution Date" box on page one (1) of this AGREEMENT.
By
Consultant //A-AO/40/044/44j/ L.LG
DOT Form 140-089 EF
Revised 3/2008
By
Agency City of Yakima
Page 8 of 8
Exhibit A -1
Yakima Illuminations—Lincoln Avenue Corridor Art Project
Art Design Services Supplemental Scope of Work
HaddadjDrugan LLC, Artists
3/17/2010
Task 1
Task
- Art Supplemental Bid Preparation Design Services
Description
1.1
Prepare for and meet with KPFF and Berger/ABAM to discuss Art bid coordination, deliverables, and
schedule (inclds 1 meeting in Seattle)
1.2
Develop additional Art drawing details and definition to be included.in bid package drawing set
1.3
Develop Art drawing notes and clarifications for layout, dimensions, materials, and attachments
1.4
Prepare for and review art element drawings and notes with representatives of the City of Yakima
(inclds 1 meeting in Yakima)
1.5
Develop specification notes for Art fabrication and installation qualifications, for fabrication and
installation coordination with Artists, and for Artist reviews
1.6
Research and develop notes on Art elements to be put into Structural Engineer's technical
specifications'
1,7
Coordinate;with Structural Engineer to finalize bid package drawings and specifications
1.8
Coordinate with Electrical Engineer on Art (lighting drawings and notes
1.9
Revise Artwork drawing details and specifications based on City, Structural Engineer and Electrical
Engineer input
1.10
Develop written sole source justifications for art glass, light fixtures and light control equipment
1.11
Review Art Structural and Electrical Engineer's bid drawings and specifications
1.12
Project Management of Art Bid Preparation Design Services
Task 1.0 DELIVERABLES:
- Art drawing details of art portal, with dimensions (scan to .pdf)
- Art technical notes (.doc)
- Art sole source text for glass, lights, and control equipment (.doc) ,
- Art fabrication and installation qualification and coordination text (.doc)
Task
Task
2 - Art Bid, Fabrication, and Construction Coordination
Description!
2.1
Assist City in finalizing Art bid preparation and defining contract milestones for Art and Art lighting and
controls fabrication, construction, and installation ,
2.2
Respond to Bid questions and requests for clarifications from Art Bidders •
2.3
Coordinate and meet with selected Art Fabricator (assumes 5 meetings Seattle)
2.4
Coordinate and meet with selected Art Lighting and Electrical Contractor (assumes 3 meetings in
Seattle) '
2.5
Coordinate and meet with Lincoln Avenue General Contractor (assumes 1 meeting in Yakima)
6/9/2010
•
2.6
• ••-•.�•• ,, a-lyi QUI iy Au iu IGUll lUdi engineering and msallation plans provided by Art Electrical
Contractor
2.7
Provide final art fruit label graphics to Art Fabricator and coordinate production of lazer cutting
2.8
Assist Art Fabricator and Art lighting contractor with procurement of specialty Art elements including
custom artglass, art light fixtures, and art lighting control equipment
2.9
Coordinate and meet with Art Installation Contractor (assumes 2 meetings in Seattle)
2.10
Review fab°ricated structural base plates and structural frame (Seattle)
2.11
Review fabricated fruit label cut out panels (Seattle)
2.12
Review fab'ricated,conduit sleave for truss (Seattle)
2.13
Review installation of Art lighting and Art lighting electrical controls (Yakima)
2.14
Review final installation of Art (Yakima)
2.15
Review Art lighting electrical control timing in the field and direct adjustments to be performed by Art
Electrical Contractor (Yakima)
2.16
Gather andjconsolidate Art maintenance information.into one binder for City
2.17
Project Management of Art Bid, Fabrication and Construction Coordination
TASK 2.0 DELIVEIRABLES:
- Art Bid question and request responses (email and MS Word .doc)
- Art fabrication and submittal review and approval summaries (email and MS Word .doc)
- Art maintenance information (one 8.5" x 11" hard copy)
II
Task 3.0 Structural Engineering Bid Package and Services (KPFF)
Task
Description
Refine Structural and other drawing details, finalize drawings, and coordinate with artwork. (this
3.1 includes defining tolerance requirements)
3.2 Provide General Notes and Calcs appropriate for Bid set.
3.3 Provide Specifications (in WSDOT format). (one Division 5 spec only)
3.4 Art Specification (in WSDOT format) coordination and assistance.
3.5 Bid Services. Respond to questions from bidders. (this does not include meetings or site visits)*
ConstructionlIServices. Review contractor submittals, respond to RFI's, and perform one site visit.
3.6 (correction of non -conforming work is -outside this scope)
TASK 3.0 STRUCTURAL ENGINEERING DELIVERABLES:
- Bid Set drawings,land calculations for artwork (CAD .dwg or .pdf file only)
- Bid Set Specification Division 5 WSDOT format (MS Word .doc)
- Bid and RFI responses (email and MS Word .doc)
6/9/2010
2
Task
Task
4.0 Lighting & Electrical Bid Preparation Design Services
Description
4.1
Meet with Artists to discuss Art lighting and electrical designs (inclds 1 meeting)
4.2
Review codes, selected equipment, project drawings, and anticipated power needs of art related
electrical. Ensure equipment and locations will work and meet codes as anticipated by Artists, lighting
designer, bridge electrical engineers, and product manufacturers.
4.3
Coordinate with Artists, other Engineers, and City representatives as needed.
4.4
Confirm lighting design calculations/power requirements, and controls for fixtures.
4.5
Finalize design and provide Electrical Engineering for the operation of the artwork lighting and control,
and specify 'art related electrical system and associated equipment.
4.6 .
Provide Art permit and bid ready electrical engineering drawings showing layouts, diagrams, details,
and timer setting schedule
4.7
Provide Art related electrical, lighting, and lighting control specifications (in WSDOT-Specification
format)
4.8.
Provide responses to Bidder and Electrical Contractor questions and requests for information and
clarifications.
4,9
Provide energy use and maintenance information on lighting fixtures and controls.
TASK 4.0 ELECTRICAL ENGINEERING DELIVERABLES:
- Bid Set drawings and calculations for artwork (CAD .dwg or .pdf file only)
- Bid Set Specifications in WSDOT format (MS Word .doc) -
- Bid and RFI responses (email and MS Word .doc)
- Energy use and maintenance info (email and MS Word .doc)
NOTES: This scope of work is for design only and does not include any time or materials for fabrication
and installation of final artwork.
This scope of work assumes Specifications concerning.general requirements and other
information pertaining to contract, bid, and schedule shall be produced by the City. Artists and
their subconsultants shall only provide input on Art and its directly associated elements.
Documents to be provided to City in digital form only.
This scope of work assumes the fabrication and installation of the Art will be conducted by
qualified Art fabricators and installers, and that the custom art glass, lighting, and light controls
are as selected by Artist. If for any. reason the Art fabrication, installation, or materials and
equipment are not as defined by the Artist and their subconsultants, this scope.will need to be
amended.
3
6/9/2010.
ExhibitA-2
Yakima Illuminations- Lincoln Avenue Corridor Art Project HaddadlDrugan, LLC, Artists • 03/1
Art Design Services Supplemental Fee Schedule
Task S1.0 Art Supplemental Bid Prep Design Task Total Hrs Rate TOTAL
1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12
HADDAD/DRUGAN,LLC-(Artists) - Hours -
Tom Drugan, Partner 2.0 12.0 8.0 4.0 18.0 4.0 4.0 8.0 6.0 8.0 6.0 8.0
Laura Haddad, Partner 2.0 1.0 2.0 2.0 4.0 0.0 0.0 0.0 0.0 4.0 1.0 4.0
Task S2.0 Art Bid, Fabrication, and Const Coord Task
2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17
HADDAD/DRUGAN,LLC (Artists) Hours
Tom Drugan, Partner 4.0 . 6.0 10.0 6.0 6.0 4.0 0.0 8.0 4.0 4.0 2.0 2.0 8.0 8.0 4.0 4.0 8.0 88.0 $100
Laura Haddad, Partner 1.0 2.0 4.0 2.0 2.0 0.0 4.0 4.0 4.0 2.0 4.0 0.0 4.0 8.0 4.0 4.0 '. 4.0 53.0 $100
88.0 $100
20.0 $100
Task S3.0 Structural Eng Bid Package
KPFF (Structural Engineers)
John Hochwalt, Project Manager
Design Engineer
CAD Technician
Admin
Task
3.1 3.2 3.3 3.4 3.5 3.6
Hours
12.0
2.0
6.0
0.0
1.0
2.0
2.0
0.0
4.0
0.0
0.0
2.0
2.0
0.0
0:0
0.0
2.0
0.0
0.0
0.0
10.0
6.0
0.0
0.0
Task S4.0 Lighting & Electrical Bid Package Task
4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9
GLUMAC (Electrical Engineers) Hours
Project Manager 2.0 0.0 2.0 0.0 0.0 0.0 0.0 0.0 0.0
Design Engineer/ Energy Analyst 2.0 2.0 0.0 5.0 6.0 2.0 2 0 1.0 1.0
CAD Technician 0.0 0.0 0.0 0.0 3.0 3.0 0.0' 0.0 0.0
Estimated Reimbursable Expenses
CAD Prints/Copies
Postage/Shipping
CD Disks Graphic Files
Mileage (Seattle/Yakima rt 290mi @ $.585)
Mileage (Seattle Mtg rt 5mi @ $.585)
Travel Accomodations ($76/night )
Travel Meals ($10B, $12L; $17D)
Parking ($5/meeting)
Task Expense Subtotal
Task Fees Subtotal
Task Total
ja
TASK
1.0
2.0
3.0
4.0
• $20.00
$20.00
$20.00
$20.00
• $10.00
$10.00
$10.00
$10.00
$0.00
$5.00
$0.00
$0.00
$172.55
$690.20
$172.55
$172.55
$8.78
$8.78
$2.95
$2.95
$0.00
$152:00
$0.00
$0.00
$24.00
$130.00
$12.00
$12.00
$15.00
$15.00
$5.00
$5.00
$250.33
$1,080.98
$222.50
$222.50
$10,800.00
$14,100.00
$4,705.00
$3,585.00
$11,050.33
$15,1.90.98
$4,927.50
$3,807.50
$8,800.00
$2,000.00
$10,800.00
$8,800.00
$5,300.00
514,100.00
31.0 $111 $3,441.00
10.0 $65 $650.00
8.0 $65 $520.00
2.0- . $47 $94.00
$4,705.00
4.0 $120
21.0 $125
6.0 $80'
$480.00
$2,625.00
$480.00
$3,585.00
Fees Subtotal $33,190.00
$1,776.30
$33,190.00
$34,966.30
Exhibit D-3
Payment (Negotiated Hourly Rate)
The CONSULTANT shall be paid by the AGENCY for completed work and services rendered under this'
AGREEMENT as provided hereinafter. Such payment shall be full compensation for work performed or
services rendered and for all labor, materials, supplies, equipment, and incidentals necessary to complete the
work. The CONSULTANT shall conform to all applicable portions of 48 CFR Part 31.
1. Hourly Rates: The CONSULTANT shall be paid by the AGENCY for work done, based upon the
negotiated hourly rates shown in Exhibit "E" and "F" attached hereto and by this reference made
part of this AGREEMENT. The rates listed shall be applicable for the first twelve (12) month
period and shall be subject to negotiation for the following twelve (12) month period upon request
of the CONSULTANT or the AGENCY. If negotiations are not conducted for the second or
subsequent twelve (12) month periods within ninety (90) days after completion of the previous
period, the rates listed in this AGREEMENT, or subsequent written authorization(s) from the
AGENCY shall be utilized. The rates are inclusive of direct salaries, payroll additives, overhead,
and fee. The CONSULTANT shall maintain support data to verify the hours billed on the
AGREEMENT. -
2. Direct Non -Salary Costs: Direct Non -Salary Costs will be reimbursed at the Actual Cost to the
CONSULTANT. These charges may include, but are not limited to, the following items: travel,
printing, long distance telephone, supplies, computer charges and sub -consultant costs.
a. Air or train travel will be reimbursed only to economy class levels unless
otherwise approved by the AGENCY. The CONSULTANT shall comply with
the rules and regulations regarding travel costs (excluding air, train, and rental
car costs) in accordance with the AGENCY'S Travel Rules and Procedures.
However, air, train, and rental car costs shall be reimbursed in- . accordance with
48 .CFR Part 31.205-46 "Travel Costs."
b. The billing for Direct Non -Salary Costs shall include an itemized listing of
the charges directly identifiable with the PROJECT.
c. The CONSULTANT shall maintain the original supporting documents in their
office. Copies of the original supporting documents shall be supplied to the
AGENCY upon request.
d. All above charges must be necessary for the services provided under this
AGREEMENT.
3. Management Reserve Fund: The AGENCY may desire to establish a Management Reserve Fund to
provide the Agreement Administrator with the flexibility to authorize additional funds to the
AGREEMENT for allowable unforeseen costs, or reimbursing the -CONSULTANT for additional
work beyond that already defined in this AGREEMENT. Such authorization(s) shall be in writing _
and shall not exceed the lesser of $100,000 or 10% of the Total Amount Authorized as shown in the
heading of this AGREEMENT. The amount included for the Management Reserve Fund is shown
in the heading of this AGREEMENT. This fund may not be replenished. Any changes requiring:
additional costs in excess of the Management Reserve Fund shall be made in accordance with
Section XIV, "Extra Work.". .
DOT Form 140-089 EF Exhibit D-3
Revised 6/08
4. Maximum Total Amount Payable: The Maximum Total Amount Payable by the AGENCY to the
CONSULTANT under this AGREEMENT shall not exceed the amount shown in the heading of
this AGREEMENT. The Maximum Total Amount Payable is comprised of the Total Amount
Authorized, and the Management Reserve Fund. The Maximum Total Amount Payable does not
include payment for Extra Work as stipulated in Section XIV, "Extra Work.".No minimum
amount payable is guaranteed under this AGREEMENT.5. Monthly Progress Payments: Progress
payments may be claimed on a monthly basis for all costs authorized in 1 and 2 above. The
monthly billing shall be supported by detailed statements for hours expended at the rates
established in Exhibit "E", including names and classifications of all employees, and billings for
all direct non -salary expenses. To provide a means of verifying the billed salary costs for the
CONSULTANT'S employees, the AGENCY may conduct employee. interviews. These interviews
may consist of recording the names, titles, salary rates, and present duties of those employees
performing work on the PROJECT at the time of the interview.
6. Final Payment: Final Payment of any balance due the CONSULTANT of the gross amount earned
will be made promptly upon its verification by the AGENCY after the completion of the work
under this AGREEMENT, contingent upon receipt of all PS&E, plans, maps, notes, reports,
electronic data and other related documents which are required to be furnished under this,
AGREEMENT. Acceptance of such Final Paymentby the CONSULTANT shall constitute a
release of all claims for payment, which the CONSULTANT may have against the AGENCY
unless such claims are specifically reserved in writing and transmitted to the AGENCY by the
CONSULTANT prior to its acceptance. Said Final Payment shall not, however, be a bar to any
claims that the AGENCY may have against the CONSULTANT or to any remedies the AGENCY
may pursue with respect to such claims.
The payment of any billing will not constitute agreement as to the appropriateness of any item and
at the time of final audit, all required adjustments will be made and reflected in a final payment. In
the event that such final audit reveals an overpayment to the CONSULTANT, the
CONSULTANT will refund such overpayment to the AGENCY within thirty (30) days of notice
of the overpayment. Such refund shall not constitute a waiver by the CONSULTANT for any
claims relating to the validity of a finding by the AGENCY of overpayment. The CONSULTANT
has twenty (20) days after receipt of the final POST AUDIT to begin the appeal process to the
AGENCY for audit findings.
7. Inspection of Cost Records: The CONSULTANT and their sub -consultants shall keep available for
inspection by representatives of the AGENCY, STATE and the United States, for a period of three
(3) years after receipt of final payment, the cost records and accounts pertaining to this
AGREEMENT and all items related to or bearing upon these records with the following
exception: if any litigation, claim or audit arising out of, in connection with, or related to this
contract is initiated before the expiration of the three (3) year period, the cost records and accounts
shall be retained until such litigation, claim, or audit involving the records is completed.
Exhibit E-1
Consultant Fee Determination - Summary Sheet
(Lump Sum, Cost Plus Fixed. Fee, Cost Per Unit of Work)
Project: Yakima Railroad Grade Separations Project (Lincoln Avenue Underpass)
Direct Salary Cost (DSC):
Classification Man Hours Rate Cost
Artist 249.0 X 60.38 = $15,034.62
X =
X =
X =
X =
X =
X =
X =
X =
X =
X =
Total DSC = $15,034.62
Overhead (OH Cost -- including Salary Additives):
OH Rate x DSC of 40.61 % x $15,034.62 $6,105.56
Fixed Fee/Profit (FF):
FF Rate x DSC of 25.00 % x $15,034.62 $3,758.66
Reimbursables:
Itemized
Subconsultant Costs (See Exhibit G):
Grand Total
$1,776.30
$8,290.00
$34,965.13
Prepared By: B. Sheffield Date: 6/9/2010
Exhibit E-2
Consultant Fee Determination - Summary Sheet
(Specific Rates of Pay)
Fee Schedule
Discipline or Job Title
Hourly
Rate
Overhead
@ 40.61%
Profit
@ 25.00%
Rate
Per Hour
Artist
$60.38
$24.52
$15.10
$100.00
Exhibit F
Breakdown of Overhead Cost
.Account Title
$ Beginning Total
% of Direct Labor
Direct Labor
36,421.20
100.00%
Overhead Expenses: ,
FICA
3,492.79
9.59%
- Unemployment -
Health/Accident Insurance
925.10
.2.54%
Medical Aid & Industrial Insurance
HolidayNacation/Sick Leave
Commission/Bonus/Pension
Total Fringe Benefits
4,417.89
12.13%
General Overhead:
State B&O Taxes
630.09
1.73%
Insurance
1,285.67
3.53%
'Administration & Time Not Assignable
375.14
1.03%
Printing, Stationery & Supplies
608.23
1.67%
Professional Services
269.52
0.74%
Travel Not Assignable
1,879.33
5.16%
Telephone & Telegraph Not Assignable
58638
1.61%
Fees, Dues & Professional Meetings
54.63
0.15%
Utilities & Maintenance
298.65
'0.82%
Professional Development
Rent *
4,232.14
11.62%
Equipment Support
Office, Miscellaneous & Postage
152.97
0.42%
Total General Overhead
10,372.75
28.48%
Total Overhead (General +.Fringe)
14,790.64
' 40.61%
Overhead Rate (Total Overhead / Direct Labor)
40.61%
DOT Form 140-089 EF Exhibit F
Revised 6/05
Exhibit G
Subcontracted Work
The AGENCY permits subcontracts for the following portions of the work of this AGREEMENT:
1 Structural Engineering - To be performed by KPFF Consulting Engineers at specific rates of pay
not to exceed $4,705
7 Lighting Design - To he performed by GT,T TMAC at specific rates of pay not to exceed $,,5R5
DOT Form 140-089 EF'Exhibit G
Revised 6/05
Exhibit H
Title VI Assurances
During the performance of this AGREEMENT, the CONSULTANT, for itself, its assignees, and successors in
interest agrees as follows:
1. Compliance with Regulations: The CONSULTANT shall comply with the Regulations relative to non-
discrimination in federally assisted programs of the AGENCY, Title 49, Code of Federal Regulations, Part
21, as they may be amended from time to time (hereinafter referred to as the "REGULATIONS"), which
are herein incorporated by reference and made a part of this AGREEMENT.
2. Non-discrimination: The CONSULTANT, with regard to the work performed during the
AGREEMENT, shall not discriminate on the grounds of race, color, sex, or national origin in the selection
and retention of sub -consultants, including procurement of materials and leases of equipment. The
CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by
Section 21.5 of the REGULATIONS, including employment practices when the AGREEMENT covers a
program set forth in Appendix B of the REGULATIONS.
3. . Solicitations for. Sub -consultants, Including Procurement of Materials and Equipment: In all solicitations
either by competitive bidding or negotiations made by the CONSULTANT for work to be performed
under a sub -contract, including procurement of materials or leases of equipment, each potential sub -
consultant or supplier shall be notified by the CONSULTANT of the CONSULTANT'S obligations under
this AGREEMENT and the REGULATIONS relative to non-discrimination on the grounds of race, color,
sex, or national origin.
4. Information and Reports: The CONSULTANT shall provide all information and reports required by the
REGULATIONS or directives issued pursuant thereto, and shall permit access to its books, records,
accounts, other sources of information, and its facilities as may be determined by AGENCY, STATE or
the Federal Highway Administration (FHWA) to be pertinent to ascertain compliance with such
REGULATIONS, orders and instructions. Where any information required of a'CONSULTANT is in the
exclusive possession of another who fails or refuses to furnish this information, the CONSULTANT shall
so certify to the AGENCY, STATE or the FHWA as appropriate, and shall set forth what efforts it has
made to obtain the information.
5. Sanctions for Non-compliance: In the event of the CONSULTANT'S non-compliance with the non-
discrimination provisions of this AGREEMENT, the AGENCY shall impose such AGREEMENT
sanctions as it, the STATE or the FHWA may determine to be appropriate, including, but not limited to:
• Withholding of payments to the CONSULTANT under the AGREEMENT until the
CONSULTANT complies, and/or;
• Cancellation, termination, or suspension of the AGREEMENT, in whole or in part
DOT Form 140-089 EF Exhibit H
Revised 6/05
6. Incorporation of Provisions: The CONSULTANT shall include the provisions of paragraphs (1) through
(5) in every sub -contract, including procurement of materials and leases of equipment, unless exempt by
the REGULATIONS, or directives issued pursuant thereto. The CONSULTANT shall take such action
with respect to any sub -consultant or procurement as the AGENCY, STATE or FHWA may direct as a
means of enforcing such provisions including.sanctions for non-compliance.
Provided, however, that in the event a CONSULTANT becomes involved in, or is threatened with,
litigation with a sub -consultant or supplier as a result of such direction, the CONSULTANT may request
the AGENCY and the STATE enter into such litigation to protect the interests of the AGENCY and the
STATE and, in addition, the CONSULTANT may request the United States enter into such litigation to
protect the interests of the United States.
Exhibit 1
Payment Upon Termination of Agreement
By the Agency Other Than for
Fault of the Consultant.
(Refer to Agreement, Section IX)
Lump Sum Contracts
A final payment shall be made to the CONSULTANT which when added to any payments previously made shall
total the same percentage of the Lump Sum Amount as the work completed at the time of termination is to the
total work required for the PROJECT. In addition, the CONSULTANT shall be paid for any authorized extra
work completed.
Cost Plus Fixed Fee Contracts
A'final payment shall be made to the CONSULTANT which when added to any payments previously made, shall
total the actual costs plus the same percentage of the fixed fee as the work completed at the time of termination is
to the total work required for the Project. In addition, the CONSULTANT shall be paid for any authorized extra
work completed.
Specific Rates of Pay Contracts
A final payment shall be made to the CONSULTANT for actual hours charged at the time of termination of this
AGREEMENT plus any direct nonsalary costs incurred at the time of termination of this AGREEMENT.
Cost Per Unit of Work Contracts
A final payment shall be made to the CONSULTANT for actual units of work completed at the time of
termination of this AGREEMENT.
DOT Form 140-089 EF Exhibit'I
Revised 6/05
Exhibit M -1(a)
Certification Of Consultant
I hereby certify that I am 7//L0 vjam &t44 -r
representative of the firm of
Project No. 1818
Local Agency
HADDAD DRUGAN, LLC
and duly authorized
whose address is
fig/' ' CS S G i 7.9/Y/'
firm I here.represent has:
and that neither I nor the above
(a) Employed or retained for a commission, percentage, brokerage, contingent fee, or other
consideration, any firm or person (other than a bona fide employee working solely for me or the
above CONSULTANT) to solicit or secure the AGREEMENT;
(b) Agreed, as an express or implied condition for obtaining this contract, to employ or retain the
services of any firm or person in connection with carrying out this AGREEMENT; or
(c) Paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee
working solely for me or the above CONSULTANT) any fee, contribution, donation, or
consideration of any kind for, or in connection with, procuring or carrying out this AGREEMENT;
except as hereby expressly stated (if any);
I acknowledge that this certificate is to be available to the Washington State Department of
Transportation and the Federal Highway Administration, U.S. Department of Transportation in
connection with this AGREEMENT involving participation of Federal -aid highway funds, and is
subject to applicable State and Federal laws, both criminal and civil.
/0
/Date
Signature
DOT Form 140-089 EF Exhibit M -1(a)
Revised 6/05 .
Exhibit M -1(b)
Certification Of Agency Official
I hereby certify that I am the AGENCY Official of the Local Agency of City of Yakima
Washington, and that the consulting firm or its representative has not been required, directly or indirectly as an
express or implied condition in connection with obtaining or carrying out this AGREEMENT to:
(a) Employ or retain, or agree to employ to retain, any firm or person; or
(b) Pay, or agree to pay, to any firm, person, or organization, any fee, contribution, donation, or
consideration of any kind; except as hereby expressly stated (if any):
I acknowledge that this certificate is to be available to the Washington State Department of
Transportation and the Federal Highway Administration, U.S. Department of Transportation, in
connection with this AGREEMENT involving participation of Federal -aid highway funds, and is
subject to applicable State and Federal laws, both criminal and civil.
-7-CD- cO
Date
DOT Form 140-089 EF Exhibit M -1(b)
Revised 6/05
nature
Exhibit M-2
Certification Regarding Debarment, Suspension, and Other Responsibility
Matters -Primary Covered Transactions
I. • The prospective primary participant certifies to the best of its knowledge and belief, that it and its
principals:
A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from covered transactions by any federal department or agency;
B. Have not within a three-year period preceding this proposal been convicted of or had a civil
judgment rendered against them for commission or fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or
contract under a public transaction; violation of federal or state antitrust statues or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental
entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (I)
(B). of this. certification; and
D. Have not within a three (3) year period preceding this application/proposal had one or more
public transactions (federal, state, or local) terminated for cause or default.
II. Where the prospective primary participant is unable to certify to any of the statements in this
certification, such prospective participant shall attach an explanation to this proposal.
Consultant (Firm): HADDAD DRUGAN, LLC
6/1/f 0
(Date) (Signature) President or Authorized Official of Consultant
DOT Form 140-089 EF Exhibit M-2
Revised 6/05
•
•
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. �� f 7
For Meeting of June 15, 2010
ITEM TITLE: Consideration of a Resolution authorizing the City Manager to execute the
following agreements for design, construction engineering and management for the Railroad
Grade Separations Project: A) Supplement No. 7 of the Professional Services Agreement
with Berger/ABAM Engineers, Inc. for design completion of the Martin Luther King, Jr.
Boulevard (MLK) Underpass, and B) Personal Services Agreement with Haddad Drugan,
LLC, for developing plans and specifications for the fabrication and installation of the
aesthetic components of the project.
SUBMITTED BY<.. . Michael Morales, Director of Community and Economic Development
CONTACT PERSON/TELEPHONE: Doug Mayo, City Engineer — 576-6678
SUMMARY EXPLANATION:
A) The City has engaged Berger/ABAM to provide design and administrative services for the
development of the Lincoln Avenue and Martin Luther King, Jr. Boulevard (MLK) Grade
Separations Project. In July of 2009, the City Council approved Supplement No. 6, which added
project management, construction services and engineering support during construction to the
Scope of Services to be performed by Berger/ABAM. The design of Lincoln Avenue was
completed and an Invitation to Bid was published in November of 2009. Favorable bids were
received that were about $3 million beneath the Engineer's Estimate.
Supplement No. 7 will cover the additional costs required to complete the design of the MLK
Underpass. The. increased costs are a result of more extensive design changes and delays
required during BNSF negotiations that used more funds than anticipated. The work that will be
covered by Supplement No. 7 is detailed on the attached Scope of Work. This work was a
necessary component of the extended negotiations with BNSF for right of way on this project,
but was not included in the Berger/ABAM project scope of work duties at that time.
(continued on Page Two)
Resolution X Ordinance Contract X Other (Specify)
Funding Source:. Cumulative Reserve for Capital Improvements; Fund 392
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION:
Approve resolution authorizing the execution of
Supplement No. 7 for the Consultant Services Agreement
with Berger/ABAM, and authorizing the execution of the
Personal Services Contract with Haddad Drugan, LLC.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION:
COUNCIL ACTION:
Page Two
Berger/ABAM incurred these expenses in good faith on behalf of the City to facilitate the
alternative design required by BNSF for right of way for the project. The additional expense is
fully funded from the budget for the project. Altogether, including this amendment,
Berger/ABAM's professional services agreement amounts to $4,179,244. This amendment of
$190,000 is 4.5% of the total professional services agreement.
B) As part'; of the Yakima. Railroad Grade Separations Project, the City received authorization
from the Federal Highway Administration to use up to $750,000 of Federal Funds on project
aesthetics. In the summer of 2008, the City worked closely with Allied Arts Commission
(Commission) to select an artist to develop the project aesthetics. The Commission contacted
seven artists and requested designs from each. The top three were then invited to present to
the Commission their design concepts. The concept presented by HADDAD/DRUGAN, LLC,
was chosen by the Commission. As the Lincoln Avenue Underpass is fully funded and the
Martin Luther King, Jr. Boulevard underpass is pending full funding, only design for the Lincoln
Avenue Underpass, has been started, and only half of the funding ($375,000) can be used.
Since City 'Council approved a previous personal services contract with HADDAD/DRUGAN,
LLC, on August 5, 2008, Resolution R-2008-124, our consultant Berger/ABAM Engineers and
Allied Arts have been working closely with them over the past year and a half on the design of
theaesthetics for the Yakima Railroad Grade Separations Project. Recently, we were made
aware that since the artists themselves would not be fabricating the "Bins of Light" art piece, we
will be required to request bids from fabricators and installers for the "Bins of Light". This will
require a much more detailed set of plans and specifications than was included in the original
scope. It was also always intended that we would need to supplement the agreement for the
artist's guidance and expertise of the fabrication and installation of the art piece.
This second personal services agreement with Haddad Drugan, LLC will be for developing
plans and specifications for the fabrication and installation of the "Bins of Light" art piece. The
Personal Services Agreement will be for an amount not to exceed $35,000 and will lengthen the
agreement term to July 31, 2015, by which time the art work for both underpasses should be
completed.' Funds have already been invested to prepare the concrete beam that will support
the "Bins ofj;Light" art piece.
Agreements with Berger/ABAM for the Yakima Railroad Grade Separations Project
Item Description
Begin
Date
End
Date
Dollar
Amount
Accumulated
Amount Scope of work Description
Design Consultant Agreement
06/20/03
03/31/07
$1,250,000
Develop the design, acquire the necessary right of way and
prepare the environmental documentation for the Lincoln Ave.
$1,250,000 and MLK Blvd. grade separations.
Supplemental Agreement #2
08/30/05
03/31/07
$620,000
Compensation for additional efforts required to complete the
original scope of work, salary escalation for the project taking
longer than originally anticipated, and work outside of the
$1,870,000 original scope of work.
Supplemental Agreement #3
01/16/07
06/30/08
$177,284
Compensation for additional efforts required to complete the
original scope of work, salary escalation for the project taking
longer than originally anticipated, and work outside of the
$2,047,284 original scope of work.
Supplemental Agreement #4
06/30/08.
12/31/08
$210,989
Compensation for additional efforts required to complete the
original scope of work, salary escalation for the project taking
longer than originally anticipated, and work outside of the
original scope of work. Removal of certain items. of work that
$2,258,273 was originally scoped.
Supplemental Agreement #5
12/31/08
06/30/10
$217,912
$2,476,185 Out of scope work required to reach agreement with BNSF.
Supplemental Agreement #6
07/31/09
07/31/11
$1,513,059
Provide project management, inspection services and
engineering support during construction of the Lincoln Avenue
$3,989,244 Grade Separation Project.
Proposed Supplemental
Agreement #7
06/15/10
07/31/11
$190,000
Complete the design for the Lincoln Avenue Underpass. This
$4,179,244 amounts to 4.5% of the professional services agreement
.
Total Project Costs:
Consultant Engineering Services are 10.5% of the projected
$40,000,000 costs.
Agreements with Haddad Drugan for the Yakima Railroad Grade Separations Project
Item Description
Begin
Date
End
Date
Dollar
Amount
Accumulated
Amount
Scope of work Description
Professional Services Agreement
08/27/08
03/31/10
$83,000
$83,000
Develop an artistic concept design and design the aesthetics
for the Lincoln Avenue Underpass of the Yakima Railroad
Grade Separations Project.
Proposed Additonal Professional
Services Agreement
06/15/10
07/31/15
$35,000
$118,000
Develop plans and specifications for the fabrication and
installation of the "Bins of Light" art piece.
Washington State
Win
Department of Transportation
Supplemental Agreement
pp g
Number 1
Organization and Address
HADDAD DRUGAN, LLC
1941 1st Avenue S., Studio 3i
Seattle, WA 98134
Phone. 206-621-7333
Original Agreement Number
Project Number
STPX-NCPD-000S(062)
Execution Date
Completion Date
9/30/2016
Project Title
Yakima Railroad Grade Separations
New Maximum Amount Payable
$ 50,000.00
Description of Work
Haddad Drugan, LLC shall develop plans and specifications for the "Bins of Light" art piece and oversee its
fabrication and installation
The Local Agency of City of Yakima
desires to supplement the agreement entered into with Haddad Drugan, LLC
and executed on 7/6/2010 and identified as Agreement No
All provisions in the basic agreement remain in effect except as expressly modified by this supplement.
The changes to the agreement are described as follows
Section 1, SCOPE OF WORK, is hereby changed to read:
Additional work is required to modify the plans and specifications to meet the changs that have heen made in
technology.
11
Section IV, TIME FOR BEGINNING AND COMPLETION, is amended to change the number of calendar days for
completion of the work to read: All work shall he completed by September 3Q 7016
111
Section V, PAYMENT, shall be amended as follows:
The maximum amount payable is increased by S15,000, making the new maximum amount payable equal S50,000
as set forth in the attached Exhibit A, and by this reference made a part of this supplement.
If you concur with this supplement and agree to the changes as stated above, please sign in the appropriate spaces
below and return to this office for final action
By
Consultant Signature
CITY CONTRAC r NO: Df
y
RESOLUTION NO: �O/V - 0 -?-
DOT Form 140-063 EF
Revised 9/2005
By
pproving Authority Signature
g--) 9 -DM
Date
AGREEMENT FOR COMMISSIONED ARTWORK
THIS AGREEMENT is entered into by the CITY OF YAKIMA (the "City"), a municipal
corporation of the State of Washington, and HADDAD / DRUGAN, LLC (the "Artist"),
whose address is a limited liability company, with its principal office at 1941 1st Avenue
South, Suite 3i, Seattle, Washington 98134
The City desires to retain the Artist to perform artistic services described in this
Agreement for the "Bins of Light" artwork ("Artwork") to be fabricated, constructed and
installed by others (hereafter "third -party contractors" or "Contractors") on the Lincoln
Avenue overpass and grade separation, on behalf of the City of Yakima, Project No.
1818, herein referred to as the "Project."
I. Recitals
A. The City and Artist have previously entered into and performed an agreement for
the design of the Artwork.
B. The City has allocated funds for the construction and installation of the "Bins of
Light" Artwork Project, and has found and determined that Artist is the most qualified
firm to review, inspect, and provide clarifications to third -party Contractors performing
the fabrication, construction and installation of such Artwork Project to assure that such
construction and installation conforms to and meets the requirements set forth in Artist's
design specifications and drawings for such Artwork Project.
C. The Artist has been selected by the City based upon its creative skill and abilities
and consistent with the provisions of applicable state law and city codes.
D. The parties desire to enter into this Agreement for review and inspection of the
fabrication, construction and installation of the Project and to set forth the rights and
responsibilities of each party with regard to the performance of such work and the
completed Artwork.
II. Agreement
NOW, THEREFORE, in consideration of the mutual covenants, conditions, promises
and benefits herein, the parties do mutually agree as follows:
1
SECTION 1. DURATION OF CONTRACT
This Agreement shall commence on the date executed by the last party to sign below.
Except where specifically provided otherwise below, this Agreement shall terminate
upon completion of the Project, unless extended or terminated earlier pursuant to the
terms and conditions of this Agreement.
SECTION 2. SCOPE OF WORK
A. The Artist and its personnel will use its and their best efforts to perform the
services required under this Agreement in a satisfactory and competent manner. Should
the Artist employ or subcontract with any third persons in the performance of this
contract, the Artist agrees that all such third persons will be bound by the terms and
conditions of this Agreement.
B. Pursuant to a previous agreement between the parties, Artist has designed the
Artwork and has created plans and specifications to enable City to retain a qualified
Contractor (or Contractors) to fabricate, construct, and install such Artwork Project. City
retains the Artist upon the terms and conditions contained herein to perform the
services described below:
1. Advise the City as requested, and cooperate with the City in the selection of a
Contractor qualified to construct the Artwork Project.
2. Participate with City and the selected Contractor in pre -construction
meeting(s) as scheduled by and conducted by City. Such pre -construction
meeting(s) are intended to produce a coordinated construction effort in
accordance with a timeline for performance of construction services.
3. Provide Project inspection and review to assure construction of the Artwork
Project in accordance with Artwork plans, specifications and construction
timelines. (This does not include structural engineering or electrical
engineering inspections and analysis that may be required by City.) Artist will
provide City with written inspection reports regarding each Artwork inspection
or other service performed.
2
4. Artist will provide qualified personnel to perform Project inspection and
oversight, and will designate a person to serve as contact person for any
questions arising under Project construction. Artist hereby designates the
person named below as contact person:
Name: T" Px(1.44,
Phone: ?o G • 6 S'° • 71Z-9
Email: 1"- ^ t2.aLaI —dv'1q o� • C®iv`-
Address: / 7 yl ( 4 i ..S: f ST?/O/ a 3;
Mailing Address:
S44-fTi--S / v/4- 78/3X
Artist shall provide City and Contractor with the above contact information for
each person serving as contact person.
5. Artist shall provide supplemental drawings and drawing details for the Artwork
Project as deemed necessary and appropriate by City. Requests for
supplemental drawings and/or services beyond the drawings and
specifications already submitted per the stated scope of the prior Agreement
from 2010 and this Agreement will be considered "Additional Services" per
Section 3 below.
6. In the event of any dispute between City and any Contractor performing work
on the Artwork Project, Artist will cooperate with City in defense or pursuit of
any remedy deemed by City to be necessary or appropriate to secure full and
final performance of the Artwork construction, with a release of any liens or
claims against the City and/or the Project.
SECTION 3. ADDITIONAL SERVICES OF THE ARTIST
A. The City may request that the Artist provide extra services beyond those required
in the Scope of Work. These services, if required due to unusual and reasonably
unforeseeable circumstances causing the Artist extra work and expense, shall be
agreed by the parties, described in writing and appended to this Agreement, together
with the parties' agreed fee or compensation for the payment of such extra work.
3
Performance of any extra work shall be subject to City's authorization to Artist to
perform such extra work.
B. Payments for extra services shall be made on the basis of a fee determined prior
to City's authorization to Artist to perform the extra work.
SECTION 4. RESPONSIBILITY OF THE ARTIST
A. The Artist shall be responsible for providing the services described in this
Agreement.
B. The Artist shall notify the City of changes in its address, and failure to do so shall
be deemed a waiver of the City's responsibilities described in Sections 5 and 11.
C. The Artist shall give credit in the following form for any public showings of
reproduction of the Artwork: "From the City of Yakima, Washington."
SECTION 5. RESPONSIBILITY OF THE CITY
A. The City shall examine documents submitted by the Artist, render decisions, and
advise the Artist promptly to avoid any unreasonable delay in the progress of the Artist's
work.
B. The City shall provide to the Artist, at no expense to the Artist, a written program
of requirements for the Project, where applicable, a survey plan of the site including all
utility locations, engineering or architectural plans and specifications.
C. The City shall allow placement in the vicinity of the Artwork a display plaque
acceptable to the City identifying the Artist, the title of the Artwork, and the year of
completion of the Artwork, together with any designation of copyright notice in favor of
the Artist. Design, fabrication, and installation of a display plaque, if requested by the
City, shall be additional services per Section 3 of this agreement.
D. The City shall pay the Artist a sum equal to fifteen percent (15%) of the
appreciated value of the Artwork if the City sells the Artwork any time prior to December
31, 2030. On or after December 31, 2030, City shall have to obligation to pay any
amount to Artist in the event City sells the Artwork. For the purpose of this Agreement,
"appreciated value" shall mean the sales price of the Artwork, less the amounts paid by
4
the City for the completion of the Project and Artwork installation pursuant to this
Agreement and subsequent amendments. Nothing in this Agreement shall be
construed so as to impose any obligation on the part of the City as to the method of sale
or disposal and any determination relating to the method of sale or disposal.
E. The City shall keep a current record of the disposition and condition of the
Artwork and make that information available to the Artist upon request. If the Artwork is
materially damaged so as to mar the appearance of the finished Artwork or interfere
with the performance of the completed components of such Artwork, the City will notify
the Artist. The City will notify Artist if, for any reason, the work has to be removed or
moved to a new location, and the Artist will have the right to advise the City regarding
placement of the Artwork pursuant to Section 11.
SECTION 6. COMPENSATION
A. City shall compensate the Artist for satisfactory performance and completion of
the Scope of Work specified in this Agreement in accordance with the terms, schedule
and amounts set forth in the previously executed agreement between the parties dated
July 6, 2010 and Supplemental Agreement number 1, which agreement is incorporated
herein by this reference. In the event of any conflict between the provisions of this
Agreement for Commissioned Artwork and the previously executed agreement
referenced and incorporated above, the provisions of this Agreement for Commissioned
Artwork shall apply. The compensation set forth in this Section is inclusive of all
applicable state and federal taxes including any Washington State Sales Tax owed by
the City as a result of this Agreement. It is the responsibility of the Artist to remit the
sales taxes to the Washington State Department of Revenue.
B. The City shall have sole responsibility and authority to determine stages of
completion. It is understood that the City has no obligation regarding sales
commissions or any agreements with galleries or agents with whom the Artist may have
contracted.
C. Requests for payment submitted by Artist shall be accompanied by copies of
invoices and other documentation supporting such request for payment as deemed
necessary or appropriate by the City.
D. The Artist is entirely responsible for cost control of the scope of services set forth
in this Agreement and the previously executed agreement between the parties dated
July 6, 2010 and Supplemental Agreement number 1. No extra compensation or
5
payments will be allowed as a result of cost overruns unless such extra compensation
or payments are beyond the scope of this Agreement and specifically authorized as
Additional Services pursuant to Section 3 of this Agreement.
E. If the Artist fails to comply with any terms or conditions of this Agreement or to
provide in any manner the work or services agreed to herein, the City may withhold any
payment due the Artist until the City is satisfied that corrective action, as specified by
the City, has been completed. This right is in addition to and not in lieu of the City's
right to terminate this Agreement as provided in Section 13.
SECTION 7. WARRANTIES
A. The Artist warrants that the design and Artwork being commissioned is the
original product of its own creative efforts.
B. The Artist warrants that the Artwork is limited to an edition of one (1).
C. The Artist shall be responsible for a period of one year from the date of
completion of the Project and final acceptance thereof by the City for the integrity of the
design of the Artwork. Artist's liability from breach of this warranty shall be limited to the
cost of correction and repair of any element identified as a design defect of the Artwork.
The responsibility for the determination of the Artist's liability for faults or defects in the
design during the one-year period shall be through assessment by Artist and City, or by
an independent and qualified Art Conservator mutually agreeable to the City and the
Artist. Artist shall not be responsible for design modifications provided by Contractor
and its sub -contractors, engineers, or direction given from City representatives or
others. Nor shall Artist be responsible for issues arising from unforeseen circumstances
or site conditions, lack of maintenance, unauthorized maintenance or alteration,
damage, vandalism, accidents, extreme or unusual weather, acts of god, and other
force majeure. Artist also shall not be responsible for the integrity and working of any
products, equipment, and materials, nor for methods and workmanship of fabrication,
installation and construction provided by the Contractor. (Contractor warrants their
work independently with the City in a separate agreement between the City and the
Contractor.)
6
SECTION 8. HOLD HARMLESS AND INDEMNIFICATION
A. In providing services under this Agreement, the Artist is an independent
contractor, and neither its agents nor employees are employees of the City for any
purpose. The Artist shall make no claim of employment rights which may accrue to a
City employee under state or local law.
City assumes no responsibility for the payment of any compensation, wages, benefits,
or state and/or federal taxes by, or on behalf of, the Artist. The Artist shall protect,
indemnify and save harmless the City and its elected and appointed officials,
employees, agents and insurers from and against any and all claims, costs and/or
losses whatsoever occurring or resulting from (a) the Artist's failure to pay any
compensation, wages, benefits or taxes; and/or (b) the supplying to the Artist of work,
services, materials or supplies by Artist's employees or other suppliers in connection
with or support of the performance of the Agreement.
B. The Artist shall protect, defend, indemnify and save harmless the City and its
elected and appointed officials, employees, agents and insurers from any and all costs,
claims, judgments and/or awards of damages, arising out of or in any way resulting from
the negligent acts or omissions of the Artist, its employees or agents. The Artist agrees
that its obligations under this subparagraph extend to any claim, demand and/or cause
of action brought by or on behalf of any employees or agents. In the event the City
incurs any judgment, award and/or cost arising therefrom, including attorney's fees to
enforce the provisions of this article, all such fees, expenses and costs shall be
recoverable from the Artist.
City shall protect, defend, indemnify and save harmless the Artist, its officers,
employees and agents from any and all costs, claims, judgments and/or awards of
damages, arising out of or in any way resulting from the negligent acts or omissions of
the City, its elected and appointed officials, employees and/or agents. The City agrees
that its obligations under this subparagraph extend to any claim, demand and/or cause
of action brought by or on behalf of any employees or agents. In the event the Artist
incurs any judgment, award and/or cost arising therefrom, including attorneys' fees to
enforce the provisions of this article, all such fees, expenses and costs shall be
recoverable from the City.
C. Claims shall include, but not be limited to, assertions that use or transfer of
software, book, document, report, film, tape or sound reproduction or material of any
kind, delivered hereunder, constitutes an infringement of any copyright, patent,
trademark, trade name and/or otherwise results in unfair trade practice.
SECTION 9. INSURANCE
At all times during performance of the Services, Artist shall secure and maintain in effect
insurance to protect the City and the Artist from and against all claims, damages,
losses, and expenses arising out of or resulting from the performance of this
Agreement. Artist 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 higher limits are required
by City, the additional cost of insurance premium incurred by Artist to provide such
additional insurance shall be added to the contract amount. If Artist carries higher
coverage limits than the limits stated below, such higher limits shall be shown on the
Certificate of Insurance and Endorsements and Artist shall be named as an additional
insured for such higher limits.
A. Commercial General Liability Insurance. Before this Agreement is fully
executed by the parties, Artist 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 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 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.
B. Commercial Automobile Liability Insurance.
a. If Artist owns any vehicles to be used by Artist or its contractors in
the performance of this Agreement, before this Agreement is fully
executed by the parties, Artist 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.
8
b. If Artist 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 Two Million Dollars ($2,000,000.00)
combined single limit per occurrence (each accident).
c. Under either situation described above in Section 9(B)(a) and
Section 9(B)(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 officials, officers, agents, employees, and volunteers as
additional insureds. 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.
C. Workers Compensation. Statutory workers' compensation and
employer's liability insurance as required by state law.
D. Professional Liability Coverage. Artist shall secure and maintain proof
of Professional Liability Insurance for all design professionals (such as
engineers) applicable to the contractor's profession, who provide Artist with
signed stamped drawings or calculations. Such insurance shall have limits not
less than $1,000,000 each claim with respect to negligent acts, errors and
omissions. Artist or Artist's contractors shall obtain such insurance when Artist
contracts for any work from such a design professional, and prior to the submittal
to City of Construction Documents incorporating the drawings and/or calculations
of such contractor. Any design professional required to obtain professional
liability insurance shall name the Artist as an additional insured and shall
maintain such insurance and proof thereof for the term of the warranty set forth in
Section 7 above.
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 officials, officers, principals,
employees, representatives, 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.
9
SECTION 10. MAINTENANCE, ALTERATIONS, RESTORATION AND/OR REPAIRS
OF THE ARTWORK OR TO THE SITE
A. Maintenance: Repairs and Restoration
1. The Artwork must be durable, taking into consideration that the site is an
unsecured public space that may be exposed to elements such as weather,
temperature variation, and considerable movement of people and equipment.
Artist must ensure that the Artwork's maintenance requirements will be
reasonable in terms of time and expense.
2. City and not Artist will provide for the maintenance of the Artwork. Artist
understands that City's maintenance of the Artwork will be limited and
determined in significant part by funding decisions of the City Council and
availability of funds from other organizations.
3. The Artist's design has included reasonable measures to protect or
preserve the integrity of the Artwork. Additional measures, such as the
application of additional protective anti -corrosion and anti -graffiti coatings could
be considered by City and provided by Contractor with the approval of Artist if
desired. Additional services and material costs for additional coatings would
need to be added to Contractor's scope of work.
4. The Artist warrants the design per Section 7 of this agreement that
foreseeable exposure to the elements and general wear and tear will not cause
the Artwork to fall below an acceptable standard of public display if the Artwork is
fabricated, constructed, and installed per Artwork drawings, specifications and
guidance, and if the Artwork and grade separation project on which the Artwork is
to be located is maintained by the City per the Artist's and manufacturer's
maintenance requirements and recommendations.
5. Prior to receipt of final payment, Artist shall provide a maintenance manual
with a description of all materials, products and fabrication methods used in the
Artwork and the required care and upkeep involved, including: (i) product data
sheets for any material or finish used, including electrical installations; (ii) the
names and contact information of relevant manufacturers or producers; and, (iii)
to the extent the Artwork incorporates products covered by a manufacturer's
warranty, Artist shall provide copies of such warranties. The Artist warrants that
reasonable maintenance of the Artwork will not require procedures substantially
in excess of those described in the recommended maintenance manual if the
Artwork is fabricated, constructed and installed per Artwork drawings,
specifications and guidance, and if the grade separation project on which the
Artwork is to be located is maintained as indicated by City.
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6. Repairs and restoration of the Artwork, if any, are to be distinguished from
maintenance of the Artwork, as addressed above. City, with the input of the
Artist, or Artist approved qualified art conservator, shall determine when and how
repairs and restoration to the Artwork will be made. However, at no cost to City
whatsoever, and to the extent practicable, the Artist will have the opportunity to
comment on and participate in all repairs and restoration that are made from the
effective date of this Agreement through December 31, 2030. City will give
written notice to the Artist prior to undertaking repairs or restoration of the
Artwork, and the Artist will have 30 days from the date that the notice is sent by
City to advise City, as specified in the notice, of the Artist's wish to so comment
and/or participate. Notice will only be sent by City to the address provided by
Artist, in keeping with the Notices provision of this Agreement in Section 19
where Artist is responsible for keeping City advised of Artist's current mailing
address. Artist understands that City's repairs and restoration of the Artwork will
be limited and determined in significant part by funding decisions of the City
Council and other organizations. If Artist is not available to participate in the
solution or execution of repairs or restoration, City agrees that any repairs and
restorations will reasonably retain the Artist's conceptual and formal intent as
advised by a qualified art conservator with experience in public art of a similar
scale and complexity.
The provisions of this Section 10 shall survive the termination of this Agreement.
SECTION 11. INTELLECTUAL PROPERTY: RIGHTS AND WAIVERS
A. Rights to Artwork; Copyright.
1. Ownership. The Artwork created under this Agreement shall be the
property of City. Ownership of the Artwork shall be transferred from the
Artist to City upon City's issuance of the notice of final acceptance. City
shall retain copies of the proposal and all written documentation regarding
the Artwork. Upon final acceptance, City shall have the right to a copy of
all plans, drawings, sketches, designs, and other work of Artist pertaining
to the Artwork for maintenance, repair, and historical documentation
purposes only, unless otherwise specified below.
2. Copyright. Artist shall retain all copyrights not otherwise granted to City
herein. Artist is responsible for registering the Artwork in its name with the
U.S. Register of Copyrights, at no additional cost to City.
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3. Reproductions.
a) By Artist. Artist shall not create or display three-dimensional
reproductions of the Artwork at any location other than City, nor
shall Artist grant permission for others to create or display three-
dimensional reproductions, except with written permission of City.
b) Exclusive License to City for Non -Commercial Reproductions. Artist
grants City the exclusive right to publicly display and reproduce
images of the Work by photographic, electronic, digital, mechanical,
or any other method that may become available following the
installation of the Work, for educational, procurement, public
relations, arts promotional, tourism, and other non-commercial
purposes. On any such reproductions, City will acknowledge the
Artist's authorship and provide copyright notification substantially in
the following form: Artist's name and date of publication. In the
event City wishes to use the Artwork for commercial purposes, City
shall contact Artist to negotiate a separate agreement.
c) Publicity. City shall have the right to use Artist's name, likeness,
and biographical information, in connection with the display or
reproduction and distribution of the Artwork. City shall make a
reasonable effort to have Artist's review and approve of likeness,
biographical information, and project descriptions that are to be
used for publicity to ensure their accuracy and validity.
d) Credits. Artist agrees that any reproduction of the Artwork made by
the Artist for publicity purposes shall refer to "City of Yakima,
Washington." City shall have the right to review and approve any
public announcements or press releases generated by the Artist or
Artist's sub -contractors regarding the artwork until the artwork has
been publicly dedicated and final acceptance has been issued.
e) Notice of Claims. Artist hereby agrees that the Artist shall give City
written notice prior to asserting any claim pertaining to the Artwork
which may arise relating to 17 U.S.C. §§ 101, et seq. City shall
have at least 90 days from the date of receipt of such notice in
which to evaluate and, if so decided by City, to cure such claim.
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f) Third Party Infringement. City is not responsible for any third party
infringement of Artist's copyrights, and is not responsible for
protecting the intellectual property rights of Artist.
B. VARA Rights; Safety Modification; Future Transfer and Relocation.
1. Artist and City acknowledge that the Artist may have certain rights
under the federal Visual Artists Rights Act of 1990 (VARA). Pursuant
to 17 USC Section 106A, Artist agrees that the rights reserved by City
as provided in this Subsection B shall not constitute a distortion,
mutilation, or other modification of the work which would be prejudicial
to his or her honor or reputation as contemplated by VARA.
2. To the extent that the Artwork is a Joint Work, this Agreement as it
pertains to VARA waives the rights of all authors of the Work.
3. Notwithstanding any other provision of this Agreement:
a. If City believes that the Artwork presents an imminent threat or
hazard to the public health or safety, City may authorize the
immediate relocation, removal, modification, or destruction of the
Work without providing the Artist prior notice or opportunity to buy
back the Work.
b. In the event that the Artwork comes into conflict with laws or
regulations, City may modify the Artwork so as to come into
compliance with such laws or regulations. City agrees that any
repairs and restorations will reasonably retain the Artist's conceptual
and formal intent.
4. Artist understands and agrees that City may remove, move, or destroy,
the Artwork, and City may sell, trade, or otherwise transfer the Artwork,
and that any such action by City may subject the Artwork to damage or
destruction, distortion, mutilation, or other modification but shall not
constitute a distortion, mutilation, or other modification of the work
which would be prejudicial to his or her honor or reputation as
contemplated by VARA.
a. However, in the event that City decides to take any such action,
City will first give the Artist an opportunity to buy back
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(purchase) the Artwork from City, by payment of the total
Compensation provided for by this Agreement or a price
mutually agreed upon by the parties. If Artist buys back the
Artwork, the Artist will be responsible for all costs associated
with the removal of the Artwork from the site, clean-up of the
site, and relocation of the Artwork.
b. City will give written notice to the Artist prior to taking such
action, and the Artist will have 30 days from the date that the
notice is sent by City to advise City, as specified in the notice,
that the Artist will buy back the Artwork. The Artist must then
provide full payment to City as requested by City to buy back the
Artwork. The Artist is responsible for keeping City, pursuant to
the Notices provision of this Agreement, advised of Artist's
current mailing address, and notice will only be sent by City to
the address provided by Artist.
5. Artist's right to buy back the Artwork pursuant to this Section is a
personal right which terminates December 31, 2030, and does not
extend to Artist's heirs, successors, or assigns.
6. Reputation. If City fails to maintain the Artwork in good condition, or if
any significant change occurs to the Artwork after its final acceptance
by City, whether such change is intentional, unintentional, or malicious,
and if the Artist makes a written request to City that Artist's Artwork no
longer be represented as the work of the Artist, then the Artwork will no
longer be represented as the work of the Artist. Artist may request that
all credits to the Artist be removed from the Artwork.
SECTION 12. SUSPENSION OF WORK
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. Artist may suspend, in writing by certified mail, all or a
portion of the work under this Agreement if unforeseen circumstances beyond Artist's
control are interfering with normal progress of the work. Artist 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
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granted the option to terminate work on the suspended portion of Project in accordance
with Section 13.
SECTION 13. TERMINATION OF WORK
A. 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.
B. In addition to termination under Subsection A of this Section, City may terminate
this Agreement for its convenience, in whole or in part, provided the Artist 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.
C. If City terminates for default on the part of the Artist, 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 Artist 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
Artist'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 Artist 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.
D. If the Artist 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 Artist reasonably incurs relating to commitments which had
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become firm before the termination, unless City determines to assume said
commitments.
E. Upon receipt of a termination notice under Subsections A or B above, the Artist
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 Artist or its sub -consultants may have accumulated or
prepared in performing this Agreement, whether completed or in progress, with the
Artist retaining copies of the same.
F. Upon termination under any subparagraph above, City reserves the right to
prosecute the work to completion utilizing other qualified firms or individuals; provided,
the Artist shall have no responsibility to prosecute further work thereon.
G. If, after termination for failure of the Artist to fulfill contractual obligations, it is
determined that the Artist 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 D of this Section.
H. If, because of death, unavailability or any other occurrence, it becomes
impossible for any key personnel employed by the Artist in Project work or for any
corporate officer of the Artist to render his services to the Project, the Artist 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 C
of this Section.
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 contract, 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 14. DISPUTE RESOLUTION
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 contract, 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
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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 15. ASSIGNMENT
This Agreement is binding on the heirs, successors and assigns of the parties hereto.
This Agreement may not be assigned by City or Artist 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 16. INTEGRATION
This Agreement represents the entire understanding of City and Artist 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 17. JURISDICTION AND VENUE
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 18. EQUAL EMPLOYMENT and NONDISCRIMINATION
During the performance of this Agreement, Artist and Artist's sub -consultants 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, and 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. Artist agrees to comply with the applicable
provisions of State and Federal Equal Employment Opportunity and Nondiscrimination
statutes and regulations.
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SECTION 19. NOTICE
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 North 2nd Street
Yakima, WA 98901
Attn: City Manager
ARTIST: HADDAD / DRUGAN, LLC
1941 1st Avenue South, Suite 3i
Seattle, Washington 98134
Attn: Laura Haddad
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 HADDAD / DRUGAN, LLC
Jef tier, Interim City Manager ura Haddad, Managing Off cer
Date: //4-//6
ATTEST:
Date:
Sonya Claar Tee, City Clerk
CITY CONTRAC r NO'tP
RESOLUTION Noel 0 C.)
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