HomeMy WebLinkAboutPW1994-0174 - Original - EMCON Northwest, Inc. - Environmental Assessment at Highway 516 and Frager Road - 07/28/1994 CONSULTANT SERVICES CONTRACT
BETWEEN THE CITY OF KENT & EMCON NORTHWEST, INC.
THIS AGREEMENT is made by and between the City of Kent, a
Washington municipal corporation (hereinafter the "City") , and
EMCON NORTHWEST, INC. organized under the laws of the State of
Washington, located and doing business at 18912 NORTH CREEK
PARKWAY, BOTHELL, WA (hereinafter the "Consultant") .
Recitals
1. The City is presently engaged in the environmental
assessment of property located north of the intersection of Highway
516 and Frager Road and desires that the Consultant perform
services necessary to provide information to the City on potential
presence of hazardous substances; USTS; visual evidence, sample
analyses, or documentation of spills or leaks; hazardous waste
storage and disposal practices; and regulatory actions.
2 . The Consultant agrees to perform the services more
specifically described in the Scope of Work, dated June 3 , 1994,
including any addenda thereto as of the effective date of this
agreement, attached hereto as Exhibit A which is incorporated
herein by this reference as if fully set forth. Consultant shall
perform services consistent with skill and care ordinarily
exercised by other professional consultants under similar
circumstances at the time services are performed, subject to any
limitations established by the City as to degree of care, time, or
expense to be incurred or other limitations of this Agreement. No
other representation, warranty, or guaranty, express or implied, is
included in or intended by Consultant' s services, proposals,
agreements, or reports.
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NOW, THEREFORE, in consideration of the mutual promises set forth
herein, it is agreed by and between the parties as follows:
I. Description of Work
Consultant shall perform all work as described in Exhibit A.
II. Payment
A. The City shall pay the Consultant an amount based on time
and materials, an amount not to exceed Five Thousand
Eight Hundred Eighty One Dollars ($5, 881) for the
services described in Section I herein. This is the
maximum amount to be paid under this Agreement for Tasks
I-III in Exhibit A, and shall not be exceeded without the
prior written authorization of the City in the form of a
negotiated and executed supplemental agreement.
PROVIDED, HOWEVER, the City reserves the right to direct
the Consultant's compensated services under the time
frame set forth in Section IV herein before reaching the
maximum amount. The Consultant's billing rates shall be
as delineated in Exhibit A.
B. The Consultant shall submit monthly payment invoices to
the City after such services have been performed, and a
final bill upon completion of all the services described
in this Agreement. The City shall pay the full amount of
an invoice within forty-five (45) days of receipt. If
the City objects to all or any portion of any invoice, it
shall so notify the Consultant of the same within fifteen
(15) days from the date of receipt and shall pay that
portion of the invoice not in dispute, and the parties
shall immediately make every effort to settle the
disputed portion.
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C. In the event the Scope of Work is modified or changed so
that more or less work or time is required by the
Consultant, and such modification is reached by
mutual agreement of the parties to this contract,
the payment for services and maximum contract amount
shall be adjusted accordingly upon agreement of the
parties.
III. Relationship of Parties
The parties intend that an independent contractor-employer
relationship will be created by this Agreement. As Consultant is
customarily engaged in an independently established trade which
encompasses the specific service provided to the City hereunder, no
agent, employee, representative or sub-contractor of Consultant
shall be or shall be deemed to be the employee, agent,
representative or sub-contractor of the City. In the performance
of the work, Consultant is an independent contractor with the
ability to control and direct the performance and details of the
work, the City being interested only in the results obtained under
this Agreement. None of the benefits provided by the City to its
employees, including, but not limited to, compensation, insurance,
and unemployment insurance are available from the City to the
employees, agents, representatives, or sub-contractor of the
Consultant. Consultant will be solely and entirely responsible for
its acts and for the acts of Consultant's agents, employees,
representatives and sub-contractors during the performance of this
Agreement. The City may, during the term of this Agreement, engage
other independent contractors to perform the same or similar work
that Consultant performs hereunder. Nothing shall be construed or
interpreted as requiring Consultant to assume the status of owner,
operator, generator, person who arranges for disposal, transporter,
or storer, as those terms or any other similar terms are used in
any federal, state, or local statute, regulation, ordinance, or
order governing the treatment, handling, storage, or disposal of
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any toxic or hazardous substance or waste. Without limiting the
generality of the foregoing, the City specifically agrees that
Consultant is not responsible for any Loss under CERCLA, RCRA, or
any other similar federal, state, or local environmental
regulation, order, or ordinance, where such Loss arises out of or
relates to any preexisting actual or potential contamination and/or
Consultant's performance of services under this Agreement, but does
not arise out of Consultant' s willful misconduct or gross
negligence.
IV. Duration of Work
The City and Consultant agree that work will begin on the tasks
described in Exhibit A immediately upon execution of this
Agreement. The parties agree that the work described in Exhibit A
is to be completed within 30 calendar days of the execution of this
Agreement; provided however, that additional time shall be granted
by the City for excusable delays or extra work, as described in
Section VI. (D) below.
V. Place of Work
The Consultant shall perform the work authorized under this
Agreement at its offices in Bothell, Washington. Meetings with the
City staff as described in Exhibit A, Scope of Work, shall take
place at the City' s offices at 400 West Gowe, Kent, Washington, or
at locations mutually agreed upon by the parties.
VI. Termination
A. Termination of Agreement
If the City receives reimbursement by any federal, state,
or other source for work described in Section I herein,
and that funding is withdrawn, reduced or limited in any
way, or the project is canceled or substantially reduced
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after the execution date of this Agreement and prior to
the completion of the work hereunder, the City may
summarily terminate this Agreement. Termination shall be
effective ten calendar days after Consultant's receipt of
the written notice by certified mail.
B. Termination for Failure to Provide Services Bargained
For.
The Consultant agrees that it was hired by the City based
on the Consultant's representation that employees
identified in the Scope of Work, attached hereto as
Exhibit A, will be available to perform the services
described in Section I for the duration of this
Agreement. If any of the employees identified in the
Scope of Work are unavailable to perform the services
bargained for, for any reason, the City of Kent reserves
the right to terminate this contract or renegotiate the
amount of consideration. The consultant must immediately
notify the City, in writing, if any employee identified
in the Scope of Work is unavailable to perform the
services described in Section I of this Agreement.
Nothing in the foregoing language will alter the
Consultant' s independent contractor status.
C. Termination for Failure to Prosecute Work or to Complete
Work Satisfactorily
If the Consultant refuses or fails to prosecute the work
with such diligence as will ensure its completion within
the time frames specified herein, or as modified or
extended as provided in this Agreement, or to complete
such work in a manner consistent with the standard of
care in Consultant' s profession, then the City may, by
written notice to the Consultant, give notice of its
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intention to terminate the Consultant's right to proceed
with the work. On such notice, the Consultant shall have
ten (10) calendar days to cure, to the satisfaction of
the City or its representative, or the City shall send
the Consultant a written termination letter which shall
be effective upon the Consultant's receipt of the written
notice by certified mail. Upon termination, the City may
take over the work and prosecute the same to completion,
by contract or otherwise, and Consultant shall be liable
to the City for any additional costs incurred by it in
the completion of the Scope of Work referenced as Exhibit
A and as modified or amended prior to termination.
"Additional Costs" shall mean all reasonable costs
incurred by the City beyond the maximum contract price
specified in II (A) , above.
D. Excusable Delays
The right of Consultant to proceed shall not be
terminated nor shall Consultant be charged with
liquidated damages for any delays in the completion of
the work due to: 1) any acts of the federal government
in controlling, restricting, or requisitioning materials,
equipment, tools, or labor by reason of war, national
defense, or other national emergency; 2) any acts of the
City, its consultants, or other public agencies causing
such delay; and 3) causes not reasonably foreseeable by
the parties at the time of the execution of the Agreement
that are beyond the control and without the fault or
negligence of the Consultant, including, but not
restricted to, acts of God, fires, floods, strikes, or
weather of unusual severity; and (4) negotiated and
executed supplemental agreements between the City and
Consultant for Consultant to perform extra work defined
as tasks not included in the Scope of Work referenced as
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Exhibit A. PROVIDED, HOWEVER, that the Consultant must
promptly notify the City within ten (10) calendar days in
writing of the cause of the delay. If, on the basis of
the facts and the terms of this Agreement, the delay is
properly excusable, the City shall, in writing, extend
the time for completing the work for a period of time
commensurate with the period of excusable delay.
E. Rights Upon Termination
In the event of termination, the City shall pay for all
services performed by the Consultant to the effective
date of termination, as described on a final invoice
submitted to the City. After termination, the City may
take possession of all records and data within the
Consultant' s possession pertaining to this project which
may be used by the City without restriction. Any such
use not related to the project which Consultant was
contracted to perform shall be without liability or legal
exposure to the Consultant.
VII. Discrimination
In the hiring of employees for the performance of work under this
Agreement or any sub-contract hereunder, the Consultant, its sub-
contractors, or any person acting on behalf of such Consultant or
sub-contractor shall not, by reason of race, religion, color, sex,
national origin, or the presence of any sensory, mental, or
physical disability, discriminate against any person who is
qualified and available to perform the work to which the employment
relates.
VIII. Indemnification
Consultant shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and
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all claims, injuries, damages, losses or suits, including all legal
costs and attorney fees, to the extent arising out of or in
connection with the negligent performance of this Agreement.
The City' s inspection or acceptance of any of Consultant's work
when completed shall not be grounds to avoid any of these covenants
of indemnification.
Should a court of competent jurisdiction determine that this
Agreement is subject to RCW 4. 24. 115, then, in the event of
liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent
negligence of the Consultant and the City, its officers, officials,
employees, agents and volunteers, the Consultant's liability
hereunder shall be only to the extent of the Consultant' s
negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER
OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR
THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER
ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER.
The provisions of this section shall survive the expiration or
termination of this Agreement.
I%. Insurance
The Consultant shall procure and maintain for the duration of the
Agreement, insurance against claims for injuries to persons or
damage to property which may arise from or in connection with the
performance of the work hereunder by the Consultant, its agents,
representatives, employees, sub-consultants or sub-contractors.
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Before beginning work on the project described in this Agreement,
the Consultant shall provide a Certificate of Insurance evidencing:
1. Automobile Liability insurance with limits no less than
$1, 000, 000 combined single limit per accident for bodily injury and
property damage; and
2 . Commercial General Liability insurance written on an occurrence
basis with limits no less than $1, 000, 000 combined single limit per
occurrence and $2, 000, 000 aggregate for personal injury, bodily
injury and property damage. Coverage shall include but not be
limited to: blanket contractual; products/completed
operations/broad form property damage; explosion, collapse and
underground (XCU) if applicable; and employer's liability; and
3 . Professional Liability insurance with limits no less than
$1, 000, 000 limit per occurrence.
Any payment of deductible or self insured retention shall be the
sole responsibility of the Consultant.
The City shall be named as an additional insured on the Commercial
General Liability insurance policy, as respects work performed by
or on behalf of the Consultant and a copy of the endorsement naming
the City as additional insured shall be attached to the Certificate
of Insurance. The City reserves the right to receive a certified
copy of all the required insurance policies.
The Consultant's Commercial General Liability insurance shall
contain a clause stating that coverage shall apply separately to
each insured against whom claim is made or suit is brought, except
with respects to the limits of the insurer's liability.
The Consultant's insurance shall be primary insurance as respects
the City and the City shall be given thirty (30) days prior written
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notice by certified mail, return receipt requested, of any
cancellation, suspension or material change in coverage.
X. Exchange of Information
The City warrants the accuracy of any information supplied by it to
Consultant for the purpose of completion of the work under this
Agreement. The parties agree that the Consultant will notify the
City of any inaccuracies in the information provided by the City as
may be discovered in the process of performing the work, and that
the City is entitled to rely upon any information supplied by the
Consultant which results as a product of this Agreement.
XI. ownership and Use of Records and Documents
Original documents, drawings, designs and reports developed under
this Agreement shall belong to and become the property of the City.
All written information submitted by the City to the Consultant in
connection with the services performed by the Consultant under this
Agreement will be safeguarded by the Consultant to at least the
same extent as the Consultant safeguards like information relating
to its own business. If such information is publicly available or
is already in Consultant's possession or known to it, or is
rightfully obtained by the Consultant from third parties,
Consultant shall bear no responsibility for its disclosure,
inadvertent or otherwise.
All data, documents and files created by Consultant under this
Agreement may be stored at Consultant's office in Bothell, WA.
Consultant shall make such data, documents, and files available to
the City upon its request at all reasonable times for the purpose
of editing, modifying and updating as necessary until such time as
the City is capable of storing such information in the City's
offices. Duplicate copies of this information shall be provided to
the City upon its request, and at reasonable cost.
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Any use or reuse of the documents, data and files created by
Consultant for the City on this project by anyone other than
Consultant on any other project shall be without liability or legal
exposure to Consultant.
%II. Recyclable Materials
Pursuant to City of Kent Ordinance No. 3066, The City of Kent
requires its contractors and consultants to use recycled and
recyclable products whenever practicable. A price preference may
be available for any designated recycled product.
XIII.City's Right of Inspection
Even though Consultant is an independent contractor with the
authority to control and direct the performance and details of the
work authorized under this Agreement, the work must meet the
approval of the City and shall be subject to the City's general
right of inspection to secure the satisfactory completion thereof.
The Consultant agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in
the future become applicable to Consultant's business, equipment,
and personnel engaged in operations covered by this Agreement or
accruing out of the performance of such operations.
XIV. Consultant to Maintain Records to Support Independent
Contractor Status
On the effective date of this Agreement (or shortly thereafter) ,
Consultant shall:
A. File a schedule of expenses with the Internal Revenue
Service for the type of business Consultant conducts;
B. Establish an account with the Washington State Department
of Revenue and other necessary state agencies for the
payment of all state taxes normally paid by employers,
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register to receive a unified business identifier number
from the State of Washington; and
C. Maintain a separate set of books and records that reflect
all items of income and expenses of Consultant's
business, all as described in the Revised Code of
Washington (RCW) Section 51. 08 . 195, as required to show
that the services performed by Consultant under this
Agreement shall not give rise to an employer-employee
relationship between the parties which is subject to RCW
Title 51, Industrial Insurance.
Xv. Work performed at Consultant' s Risk
Consultant shall take all precautions necessary and shall be
responsible for the safety of its employees, agents, and
subcontractors in the performance of the work hereunder and shall
utilize all protection necessary for that purpose. All work shall
be done at Consultant' s own risk, and Consultant shall be
responsible for any loss of or damage to materials, tools, or other
articles used or held for use in connection with the work.
XVI. Non-Waiver of Breach
The failure of the City to insist upon strict performance of any of
the covenants and agreements contained herein, or to exercise any
option herein conferred in one or more instances shall not be
construed to be a waiver or relinquishment of said covenants,
agreements, or options, and the same shall be and remain in full
force and effect.
XVII. Resolution of Disputes and Governing Law
Should any dispute, misunderstanding, or conflict arise as to the
terms and conditions contained in this Agreement, the matter shall
first be referred to the City, and the City shall determine the
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term or provision's true intent or meaning. The City shall also
decide all questions which may arise between the parties relative
to the actual services provided or to the sufficiency of the
performance hereunder.
If any dispute arises between the City and Consultant under any of
the provisions of this Agreement which cannot be resolved by the
City's determination in a reasonable time, or if Consultant does
not agree with the City's decision on the disputed matter,
jurisdiction of any resulting litigation shall be filed in King
County Superior Court, King County, Washington. This Agreement
shall be governed by and construed in accordance with the laws of
the State of Washington. Each party shall be solely responsible
for its costs, expenses and reasonable attorney' s fees incurred in
any litigation arising out of the enforcement of this Agreement.
XVIII Written Notice
All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the
agreement, unless notified to the contrary. Any written notice
hereunder shall become effective upon the date of mailing by
registered or certified mail, and shall be deemed sufficiently
given if sent to the addressee at the address stated in this
Agreement or such other address as may be hereafter specified in
writing.
XIX. Assignment
Any assignment of this Agreement by the Consultant without the
written consent of the City shall be void. If the City shall give
its consent to any assignment, the terms of this agreement shall
continue in full force and effect and no further assignment shall
be made without the City's consent.
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8B. Modification
No waiver, alteration, or modification of any of the provisions of
this Agreement shall be binding unless in writing and signed by a
duly authorized representative of the City and Consultant.
%%I. Entire Agreement
The written provisions and terms of this Agreement, together with
any Exhibits attached hereto, shall supersede all prior verbal
statements of any officer or other representative of the City,
and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner
whatsoever, this Agreement or the Agreement documents. The entire
agreement between the parties with respect to the subject matter
hereunder is contained in this Agreement and any Exhibits attached
hereto, which may or may not have been executed prior to the
execution of this Agreement. All of the above documents are hereby
made a part of this Agreement and form the Agreement document as
fully as if the same were set forth herein. Should any language in
any of the Exhibits to this Agreement conflict with any language
contained in this 14-page Agreement, this Agreement shall prevail.
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IN WITNESS WHEREOF, the parties have executed this Agreement on
this 7LCw day of �'^�'�_ 1994 .
EMCON Northwest, Inc. THE CITY OF KENT
BY: BY:
Its Pr'ncipal Director of Public Works
Notices to be sent to:
Gregg Wagner Mr. Don Wickstrom, P.E.
CONSULTANT Director of Public Works
The City of Kent
EMCON Northwest, Inc. 220 Fourth Avenue South
Kent, Washington 98032
18912 North Creek Parkway, #100
Bothell WA 98011 APPROVED AS TO FORM:
Kent City Attorney
ATTEST:
Kent City Clerk
CONSULTK.pwk
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