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+ CHANGE Contract Transactions +
+ Contract Number 4422 +
+ +
+Vendor Name MILES YANICK & CO +
+Subject SKATEPARK DESIGN +
+Department PARKS +
+Status Code PRO +
+ Amount $44000.00 +
+ Begin Date 04/13/2004 +
+ Insurance End Date 12/31/2005 +
+ Type Amount Review Date 02/15/2008 +
+ GL $2000000.00 +
+ AL $1000000.00 +
+ E&O $1000000.00 +
+ Insurance Total $4000000.00 +
+ Insurance Review Date 11/01/2005 +
+ +
+ Comments VAULT 01/01/2008 +
+ +
+ +
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PROFESSIONAL SERVICES AGREEMENT
Skatepark Design
The City of Bremerton ("City") and Miles Yanick & Co. ("Consultant"), referred to
collectively as the "Parties," enter into the following Agreement for professional services:
I. Scope: The Consultant agrees to perform the services more specifically described in the
Scope of Work, dated March 2, 2004, including any attachments thereto, attached hereto as
Exhibit A, which is incorporated by reference herein. The Scope of Work may be modified only
pursuant to Section VII.H. of this Agreement. If the Scope of Work provides for unspecified
additional services such services shall only be performed upon the express written request of the
City. Consultant further represents that the services furnished under this Agreement will be
performed in accordance with generally accepted professional practices in effect at the time such
services are performed.
II. Term: The City and the 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 in a mutually agreed time frame in order to support
grant applications and construction; provided however, that additional time shall be granted by
the City for excusable delays or extra work as provided for in section IX (A) of this agreement.
III. Compensation: In consideration of the services provided pursuant to this Agreement, the
City shall pay Consultant in an amount not to exceed forty-four thousand ($44,000).
Consultant's charges and bills shall conform to the fee schedule attached hereto as contained in
Exhibit B and incorporated herein by this reference.
The Consultant shall submit regular billing statements detailing work performed and
amount charged on each task or portion thereof. The descriptions shall conform to and fall
within the categories set out in the Scope of Work and/or Fee Schedule. Upon receipt of a
conforming billing statement, the City shall promptly process payment. PROVIDED,
HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay
work tasks under the time fi.me set forth in Section II herein. The Consultant's labor rates and
billing fees shall be as delineated in Exhibit B.
Consultant shall not perform work beyond the Scope of Work,' nor shall be compensated
for such work, unless the Scope of Work or amount of compensation is modified pursuant to this
Agreement. Consultant shall only be compensated for additional services if requested pursuant
to Section I and, if not otherwise provided, such compensation shall be in accordance with
Exhibit B.
If a billing statement does not conform to this Agreement, the City may withhold
payment until the statement is brought into compliance. Such withholding does not relieve
Consultant of its obligations under this Agreement.
Bremerton/Miles Yanick & Co.
Skatepark Design
Page I of 7
IV. Relationship of Parties: Consultant represents that it is skilled in the matters addressed
in the Scope of Work and is performing independent functions and responsibilities within its
field of expertise. Consultant and its personnel are independent Consultants and not employees
of the City. Consultant and its personnel have no authority to bind the City or to control the
City's employees and other Consultants. 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-Consultants 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-Consultants during the performance of
this Agreement. The City may, during the term of this Agreement, engage other independent
Consultants to perform the same or similar work.
As an independent Consultant, Consultant is responsible for its own management. The
City's administration and enforcement of this Agreement shall not be deemed an exercise of
managerial control over Consultant or its personnel.
As an independent Consultant, Consultant is responsible for payment of all taxes and
licensing fees necessary to perform its obligations under this Agreement. These taxes and fees
include but are not limited to State industrial insurance, Business & Occupation, State
professional licensing, and City business licensing. If any taxes or fees due the City have been
declared delinquent, the City may withhold the delinquent amount, plus any additional charges
arising from the delinquency, from any payments due Consultant.
V. Indenmification: Consultant shall defend, indemnify and hold the City, its officers,
officials, employees, agents and volunteers harmless from any and all claims, injuries, damages,
losses or suits, including all legal costs and attorney fees, arising out of or in connection with the
performance of this Agreement, except for that portion of the injuries and damages caused by the
City's sole negligence.
The City's review or acceptance of any of the 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.
Bremerton/Miles Yanick & Co.
Skatepark Design
Page 2 of 7
VI. 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-Consultants.
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 general 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. Excess Liability insurance with limits not less than 1,000,000 limit per occurrence and
aggregate.
4. Professional Liability insurance with limits no less than $1,000,000 limit per
occurrence/claim.
Any payment of deductible or self insured retention shall be the sole responsibility of the
Consultant.
All required policies shall be provided on an "occurrence" basis except professional
liability insurance (if required), which may be provided on a "claims-made" basis.
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 an
endorsement that is acceptable to the City, which names the City as an 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 and endorsements. The City further reserves the right to reject
any unacceptable policies and/or endorsements.
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 notice by certified mail, retum receipt requested, of
any cancellation, suspension or material change in coverage.
The City also reserves its unqualified right to require at any time and for any reason,
proof of coverage in the form of a duplicate of the insurance policy with all endorsements as
evidence of coverage.
Bremerton/Miles Yanick & Co.
Skatepark Design
Page 3 of 7
VII. General Conditions:
A. Reports and Information: When requested by the City, Consultant shall furnish
periodic reports and documents on matters covered by this Agreement. Thc reports and
documents shall be furnished in thc time and form requested. Consultant shall maintain
accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to
substantiate all billed amounts.
B. Ownership and Usc of Records and Documents: Original documents, drawings,
designs and reports, including those in electronic format, developed under this Agreement arc thc
property of thc City. All written information submitted by the City to the Consultant in
connection with thc services performed by thc Consultant under this Agreement will be
safeguarded by the Consultant to at least the same extent as thc 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 Bainbridge Islan& Washington. Consultant shall make such data,
documents, and files available to the City upon its request at all reasonable times for thc purpose
of editing, modifying and updating as necessary until such time as thc Cio is capable of storing
such information in thc City's offices. Duplicate copies of this information shall be provided to
the City upon its request, and at reasonable cost.
All documents, including all reports, drawings, specifications, computer software or other
items prepared or furnished by Consultant pursuant to this Agreement, are instruments of service
with respect to the project and arc the property of the City. Any reuse by the City for other than
thc specific purpose intended will be at City's sole risk.
C. Consultant to Maintain Records to Support Independent Consultant Status: On the
effective date of this Agreement (or shortly thereafter), Consultant shall:
1. File a schedule of expenses with the Internal Revenue Service for the type of
business Consultant conducts;
2. 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, register to receive a unified business identifier number from the State
of Washington; and
3. 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.
BremertorffMiles Yanick & Co.
Skatepark Design
Page 4 of 7
D. Work Performed at Consultant's Risk: Consultant shall take all precautions necessary
and shall be responsible for the safety of its employees, agents, and sub-consultants 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.
E. Place of Work: The Consultant shall perform the work authorized under this
Agreement at its offices in Bainbridge Island, Washington. Meetings with the City staff as
described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations
mutually agreed upon by the parties.
F. Entire Agreement: This Agrec~ment and its Exhibits constitutes the entire agreement
between the Parties, and the Parties acknowledge that there are no other agreements, written or
oral, that have not been set forth in the text of this Agreement.
G. Severabilit¥: Should any part of this Agreement be found void, the balance of the
Agreement shall remain in full force and effect.
H. Modification: This Agreement may only be modified by written instrument signed by
both Parties.
I. Written Notices: All communications regarding this Agreement shall be sent to the
parties at the addresses listed below by registered or 1st class mail, or by personal service, 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.
City Address Consultant Address
City Clerk Miles Yanick
239 Fourth Street 600 Winslow Way E, #247
Bremerton, WA 98337 Bainbridge Island, WA 98110
J. Waiver: Failure to enforce any provision of this Agreement shall not be deemed a
waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be
deemed waiver of any other right or power.
K. 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.
L. Compliance with Laws: Consultant shall comply with all applicable Federal, State, and
local laws in performing its obligations under this Agreement.
Bremerton/Miles Yanick & Co.
Skatepark Design
Page 5 of 7
M. Choice of Law and Venue: This Agreement shall be interpreted according to the laws
of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement
shall be brought in Kitsap County Superior Court.
N. Attorneys' Fees: In the event of litigation to enforce any of the terms or provisions
herein, each party shall pay all its own costs and attorney's fees.
O. Assignment: Any assignment of this agreement by the Contractor without the written
consent of the City shall be void.
VIII. Nondiscrimination: Consultant shall not discriminate in employment or services to the
public on the basis of race, color, national origin, sex, religion, age, marital status, or disability,
except for employment actions based on bona fide occupational qualification.
IX. Termination: This Agreement may be terminated, at will, by either Party upon sixty (60)
days notice to the other Party. This Agreement may be immediately terminated for cause by a
Party if the other Party substantially fails to perform through no fault of the terminating Party,
and the non-performing Party does not commence correction of the failure of performance within
thirty (30) days of the terminating Party's sending notice to the non-performing Party. Notice by
Consultant shall include a report showing the status of all items listed in the Scope of Work
current through the termination date.
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
cancelled or substantially reduced after the execution date of this Agreement and prior to the
completion of the work, 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.
A. 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 govemment 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. 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.
B. 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
Bremerton/Miles Yanick & Co.
Skatepark Design
Page 6 of 7
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.
CITY OF BREMERTON CONSULTANT
Date: ~/j-~ Date, ~/~j/Oq
~Ap~ved as to fo~: ~.. A~~~
Bremerton/Miles Yanick & Co.
Skatepark Design
Page 7 of 7
EXHIBIT A
CITY OF BREMERTON
SKATEPARK DESIGN
MARCH 2, 2004
SCOPE OF WORK
GENERAL DESCRIPTION
The purpose of this Contract is for Miles Yanick & Co. to provide a complete design for
the Skatepark in Eastpark. The major elements of this effort include the following:
Pre Design
· Project Set-up, Mobilization, and Data Collection
· Programming/Project Definition
· Schematic Design
· Design Development
· Preparation of Construction Documents and Specifications
· Bidding Support
· Construction Support
A more definitive breakdown o£the elements shown above is contained in Exhibit B.
Page 1 of 1