HomeMy WebLinkAbout25-174 - Contract - Restorical Research, LLC - Cost Recovery ServicesCity of Tukwila Contract Number: 25-174
Council Approval 5/5/25
• 6200 Southcenter Boulevard, Tukwila WA 98188
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is entered into between the City of Tukwila, Washington, hereinafter
referred to as "the City", and Restorical Research, LLC, hereinafter referred to as "the Consultant',
in consideration of the mutual benefits, terms, and conditions hereinafter specified.
1. Project Designation. The Consultant is retained by the City to perform Insurance
archaeology, forensic accounting and Claims management services in connection with
projects involving contamination, environmental investigation and remediation.
2. Scope of Services. The Consultant agrees to perform the services, identified on Exhibit "A"
attached hereto, including the provision of all labor, materials, equipment and supplies.
3. Duration of Agreement; Time for Performance. This Agreement shall be in full force and
effect for a period commencing upon execution and ending October 1, 2027, unless sooner
terminated under the provisions hereinafter specified. Work under this Agreement shall
commence upon written notice by the City to the Consultant to proceed. The Consultant shall
perform all services and provide all work product required pursuant to this Agreement no later
than October 1, 2027, unless an extension of such time is granted in writing by the City. The
parties may extend the duration of this Agreement consistent with the terms of Section 18
below.
4. Payment. The Consultant shall be paid by the City for completed work and for services
rendered under this Agreement as follows:
A. Payment for the work provided by the Consultant shall be paid on a contingency fee basis,
as detailed on Exhibit "B" attached hereto, provided that the total amount of payment to
the Consultant shall not exceed $300,000.00 without express written modification of the
Agreement signed by the City. In addition, City agrees to pay for all expenses related to
title document production not to exceed $600 per site and $10 for every preliminary
investigation and determination if a viable insurance policy and/or coverage exists.
B. The Consultant shall submit monthly invoices to the City after such services have been
performed and a "Recovery" (as defined in Exhibit B) has been received by the City, and
a final bill upon completion of all the services described in this Agreement. Such invoices
will be checked by the City and, upon approval thereof, payment shall be made to the
Consultant in the amount approved, within 30 days.
C. Payment as provided in this section shall be full compensation for work performed,
services rendered, and for all materials, supplies, equipment and incidentals necessary to
complete the work.
D. The Consultant's records and accounts pertaining to this Agreement are to be kept
available for inspection by representatives of the City and the state of Washington for a
period of three (3) years after final payments. Copies shall be made available upon
request.
5. Ownership and Use of Documents. All documents, drawings, specifications and other
materials produced by the Consultant in connection with the services rendered under this
Agreement shall be the property of the City whether the project for which they are made is
executed or not. The Consultant shall be permitted to retain copies, including reproducible
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copies, of drawings and specifications for information, reference and use in connection with
the Consultant's endeavors. The Consultant shall not be responsible for any use of the said
documents, drawings, specifications or other materials by the City on any project other than
the project specified in this Agreement.
6. Compliance with Laws. The Consultant shall, in performing the services contemplated by
this Agreement, faithfully observe and comply with all federal, state, and local laws, ordinances
and regulations, applicable to the services rendered under this Agreement.
7. Indemnification. The Consultant shall defend, indemnify and hold the City, its officers,
officials, employees and volunteers harmless from any and all claims, injuries, damages,
losses or suits including attorney fees, arising out of or resulting from the acts, errors or
omissions of the Consultant in performance of this Agreement, except for injuries and damages
caused by the sole negligence of the City.
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, 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. This waiver has been mutually negotiated by the parties. The provisions of
this section shall survive the expiration or termination of this Agreement.
This hold harmless/indemnity does not apply to any declaratory judgement between the City
and Insurers.
8. 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, or employees. Consultant's maintenance of insurance as required by the
agreement shall not be construed to limit the liability of the Consultant to the coverage provided
by such insurance, or otherwise limit the City's recourse to any remedy available at law or in
equity.
A. Minimum Amounts and Scope of Insurance. Consultant shall obtain insurance of the
types and with the limits described below:
Automobile Liability insurance with a minimum combined single limit for bodily injury
and property damage of $1,000,000 per accident. Automobile Liability insurance
shall cover all owned, non -owned, hired and leased vehicles. Coverage shall be
written on Insurance Services Office (ISO) form CA 00 01 or a substitute form
providing equivalent liability coverage. If necessary, the policy shall be endorsed to
provide contractual liability coverage.
2. Commercial General Liability insurance with limits no less than $2,000,000 each
occurrence, $2,000,000 general aggregate. Commercial General Liability
insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall
cover liability arising from premises, operations, stop -gap independent contractors
and personal injury and advertising injury. The City shall be named as an
additional insured under the Consultant's Commercial General Liability insurance
policy with respect to the work performed for the City using an additional insured
endorsement at least as broad as ISO endorsement form CG 20 26.
3. Workers' Compensation coverage as required by the Industrial Insurance laws of
the State of Washington.
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4. Professional Liability with limits no less than $2,000,000 per claim and $2,000,000
policy aggregate limit. Professional Liability insurance shall be appropriate to the
Consultant's profession.
B. Public Entity Full Availability of Contractor Limits. If the Contractor maintains higher
insurance limits than the minimums shown above, the Public Entity shall be insured for the
full available limits of Commercial General and Excess or Umbrella liability maintained by
the Contractor, irrespective of whether such limits maintained by the Contractor are greater
than those required by this Contract or whether any certificate of insurance furnished to
the Public Entity evidences limits of liability lower than those maintained by the Contractor.
C. Other Insurance Provision. The Consultant's Automobile Liability and Commercial
General Liability insurance policies are to contain, or be endorsed to contain that they shall
be primary insurance with respect to the City. Any Insurance, self-insurance, or insurance
pool coverage maintained by the City shall be excess of the Consultant's insurance and
shall not be contributed or combined with it.
D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best rating of not less than A:VII.
E. Verification of Coverage. Consultant shall furnish the City with original certificates and a
copy of the amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of the Contractor
before commencement of the work. Upon request by the City, the Consultant shall furnish
certified copies of all required insurance policies, including endorsements, required in this
Agreement and evidence of all subcontractors' coverage.
F. Notice of Cancellation. The Consultant shall provide the City with written notice of any
policy cancellation, within two business days of their receipt of such notice.
G. Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the
insurance as required shall constitute a material breach of contract, upon which the City
may, after giving five business days notice to the Consultant to correct the breach,
immediately terminate the contract or, at its discretion, procure or renew such insurance
and pay any and all premiums in connection therewith, with any sums so expended to be
repaid to the City on demand, or at the sole discretion of the City, offset against funds due
the Consultant from the City.
9. Independent Contractor. The Consultant and the City agree that the Consultant is an
independent contractor with respect to the services provided pursuant to this Agreement.
Nothing in this Agreement shall be considered to create the relationship of employer and
employee between the parties hereto. Neither the Consultant nor any employee of the
Consultant shall be entitled to any benefits accorded City employees by virtue of the services
provided under this Agreement. The City shall not be responsible for withholding or otherwise
deducting federal income tax or social security or for contributing to the state industrial
insurance program, otherwise assuming the duties of an employer with respect to the
Consultant, or any employee of the Consultant.
10. Covenant Against Contingent Fees. The Consultant warrants that he has not employed or
retained any company or person, other than a bonafide employee working solely for the
Consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any
company or person, other than a bonafide employee working solely for the Consultant, any
fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon
or resulting from the award or making of this contract. For breach or violation of this warrant,
the City shall have the right to annul this contract without liability, or in its discretion to deduct
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from the contract price or consideration, or otherwise recover, the full amount of such fee,
commission, percentage, brokerage fee, gift, or contingent fee.
11. Discrimination Prohibited. Contractor, with regard to the work performed by it under this
Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin,
age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation,
the presence of any disability, or any other protected class status under state or federal law,
in the selection and retention of employees or procurement of materials or supplies.
12. Assignment. The Consultant shall not sublet or assign any of the services covered by this
Agreement without the express written consent of the City.
13. Non -Waiver. Waiver by the City of any provision of this Agreement or any time limitation
provided for in this Agreement shall not constitute a waiver of any other provision.
14. Termination.
A. The City reserves the right to terminate this Agreement for convenience, at any time by
giving ten (10) days written notice to the Consultant.
B. In the event that this Agreement is terminated by the City for convenience, the Consultant
shall continue to receive payment, for all Recovery received by the City, as outlined in
Exhibit B. But, if this Agreement is terminated by the City due to material breach of this
Agreement, the Consultant shall not be entitled to receive payment, for all Recovery
received by the City, as outlined in Exhibit B.
C. In the event of the death of a member, partner or officer of the Consultant, or any of its
supervisory personnel assigned to the project, 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 City. This section shall not be a bar to renegotiations of this Agreement between
surviving members of the Consultant and the City, if the City so chooses.
15. Applicable Law; Venue; Attorney's Fees. This Agreement shall be subject to, and the
Consultant shall at all times comply with, all applicable federal, state and local laws,
regulations, and rules, including the provisions of the City of Tukwila Municipal Code and
ordinances of the City of Tukwila. In the event any suit, arbitration, or other proceeding is
instituted to enforce any term of this Agreement, the parties specifically understand and agree
that venue shall be properly laid in King County, Washington. The prevailing party in any such
action shall be entitled to its attorney's fees and costs of suit. Venue for any action arising
from or related to this Agreement shall be exclusively in King County Superior Court.
16. Severability and Survival. If any term, condition or provision of this Agreement is declared
void or unenforceable or limited in its application or effect, such event shall not affect any other
provisions hereof and all other provisions shall remain fully enforceable. The provisions of this
Agreement, which by their sense and context are reasonably intended to survive the
completion, expiration or cancellation of this Agreement, shall survive termination of this
Agreement.
17. Notices. Notices to the City of Tukwila shall be sent to the following address:
City Clerk
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
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Notices to Consultant shall be sent to the following address:
Restorical Research, LLC
ATTN: Benjamin S. Pariser, Principal
8015 SE 28th Street, Suite 315
Mercer Island, WA 98040
18. Entire Agreement; Modification. This Agreement, together with attachments or addenda,
represents the entire and integrated Agreement between the City and the Consultant and
supersedes all prior negotiations, representations, or agreements written or oral. No
amendment or modification of this Agreement shall be of any force or effect unless it is in
writing and signed by the parties.
DATED this 20th day of May , 2025.
CITY OF TUKWILA
IfSigned by:
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Thomas McLeod, Mayor
ATTEST/AUTHENTICATED:
Signed by:
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Andy Youn-Barnett, City Clerk
APPROVED AS TO FORM:
Signed by:
Office of the City Attorney
CONSULTANT:
DocuSigned by:
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Benjamin Pkser, Principal - Visionary
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EXHIBIT A
SCOPE OF WORK
SCOPE OF SERVICES: The scope of services to be provided by Restorical Research
(hereinafter "Consultant") under this agreement will be referred to as the " Cost Recovery
Assistance," and will encompass two tasks: (Task 1) consulting services to assist City in
preparing and undertaking an insurance recovery action against insurers who owe City duties
of defense and indemnification for the costs of environmental investigation and remediation
of contamination on, beneath or potentially migrating to or from the property pursuant to
insurance policies; and (Task 2), a cost recovery/contribution action against third parties who
(i) have caused, contributed to, or exacerbated contamination on, beneath or potentially
migrating to or from the property, (ii), who may have insurance policies which address such
contamination, and (iii) who are liable to City for some or all of the costs of environmental
investigation and remediation. These actions collectively, or alone, are deemed the "Cost
Recovery Assistance". Cost Recovery Assistance shall consist of:
a. Performing such historical investigation of property records, transactional records, aerial
photographs, sanborn maps, and other similar historical documents to identify potentially
responsible persons.
b. Assist in managing the flow of information between the City, attorneys, and consultants.
City authorizes Consultant to be copied (including blind copy) on all correspondence
between City, attorneys and consultants. City authorizes Consultant to receive copies of
all invoices.
c. Performing such historical investigation of insurance records and related documents to
identify insurance carriers and policies that may provide insurance coverage for
contamination on, beneath or potentially migrating to or from the property that is the
subject of claims or demands by the City, by any governmental agency, or a third party.
Cost Recovery Assistance does not include:
a. Environmental investigation needed to fully delineate the nature and extent of contamination.
b. Environmental remediation needed to address such contamination.
c. Expert witness services in any cost recovery, contribution, or insurance coverage
litigation that City may hire counsel to initiate; and
d. Legal Services as City understands that Consultant does not perform legal services
or provide legal advice.
2. Consultant's scope of work for Task 2 includes providing all investigative results and
materials from Task 1 to the selected attorney and consultant will provide consultancy,
research and coverage support to the chosen attorney during the pendency of the claim.
Once coverage has been secured for the City, Consultant will manage the claim (under the
direction of the selected attorney) including but not limited to forensic accounting and tracking
of invoices and payments. Such support is a requisite part of Task 2 and the related
compensation.
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EXHIBIT B
SCHEDULE OF RATES AND EXPENSES
1. TASK 1: As compensation for services to conduct a preliminary investigation and determine if
a viable insurance policy and/or insurance coverage exists, Consultant shall receive $10.00.
Consultant shall present to City an invoice once this investigation is complete.
2. TASK 2: After review of the deliverables from TASK 1, City, in its sole discretion, may elect to
proceed to TASK 2. Task 2 involves the City hiring an attorney to pursue Cost Recovery
Contribution against any of the insurance identified by Consultant in Task 1. Restorical will
provide all investigative results and materials from Task 1 to the selected attorney and will
provide consultancy, research and coverage support to the chosen attorney during the
pendency of the claim. Such support is a requisite part of Task 2 and the related
compensation.
a. If City elects to proceed to TASK 2, as compensation for services to perform Cost
Recovery Assistance for City, Consultant shall receive a contingency fee of Ten
percent (10%) of "Recovery". Upon receipt of the Recovery, Consultant shall present
to City an invoice. City shall pay the full amount of invoice, net 30, after receipt of the
invoice.
b. The parties understand and agree that a material inducement for Consultant to enter
into this Agreement and perform the Task 1 services is the opportunity to pursue the
Task 2 services. If the City elects not to pursue the Task 2 services the City agrees (i)
it will not on its own, directly or indirectly, at anytime pursue any cost recovery
contribution against any of the insurance identified by Consultant in providing the
Task 1 services and (ii) that if the City pursues and Recovers any funds from the
insurance identified by Consultant in providing the Task 1 services the City will be
obligated to pay Consultant the Task 2 fee.
DEFINITION OF RECOVERY: The term "Recovery" as used herein are all payments, flowing
to the City directly or indirectly, monetary or otherwise, from any one or more of the insurers
of the City or of any potentially responsible party, whether by collection, settlement, judgment
or litigation, before consideration of any income tax matters. Recovery includes but is not
limited to payments for investigation and remediation work, sums attributable to interest,
punitive damages and attorney's fees.
4. EXPENSES: City agrees to pay for all expenses related to title document production not to exceed
$600 per site/project. Consultant will not charge for any additional expenses, including but not
limited to scanning, copying, travel and/or lodging.
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