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HomeMy WebLinkAbout04-034 - Argus Pacific - Professional Services• • f�a+-cif ARGUS PACIFIC, INC. TERMS AND CONDITIONS 1. SERVICES TO BE PROVIDED. ARGUS PACIFIC, INC. (hereinafter referred to as "ARGUS PACIFIC") agrees to provide the CLIENT, for its sole benefit and exclusive use, the services set forth in ARGUS PACIFIC's Proposal, and the CLIENT and ARGUS PACIFIC agree to be bound by these terms and conditions. The Proposal and these Terms and Conditions are collectively referred to herein as the "Agreement." The parties agree that the services performed under this Agreement are of a commercial nature and are not of great importance to the general public. 2. STANDARD OF PERFORMANCE. ARGUS PACIFIC shall perform the services set forth in this Agreement in a manner consistent with that level of care and skill ordinarily exercised by members of the profession in the same locality under similar conditions, related to the nature of the work accomplished, at the time the services are performed. ARGUS PACIFIC MAKES NO EXPRESS WARRANTIES OR GUARANTEES IN CONNECTION WITH THE PERFORMANCE OF SUCH SERVICES. 3. PAYMENT AND CERTAIN EXPENSES. Invoices will be submitted monthly. Unless otherwise agreed by ARGUS PACIFIC in writing, payment will be due upon receipt. If the CLIENT fails to make payments when due to ARGUS PACIFIC, ARGUS PACIFIC may suspend its services under this Agreement until payment is made. Interest will be added to accounts in arrears at the rate of one and one-half percent (1 1/2%) of the arrears per each month of delinquency, but such rate shall not exceed the maximum percentage rate allowed by law. An amount owed is "in arrears" when it has not been paid within 30 days after the invoice has been sent to the CLIENT. All expenses incurred by ARGUS PACIFIC in collecting any past due amount shall be paid to ARGUS PACIFIC by the CLIENT. If at any time any state or local government assesses a sales or use tax upon ARGUS PACIFIC for any of the services performed by ARGUS PACIFIC and/or its subcontractors under this Agreement, then the CLIENT agrees to directly pay such taxes, or should ARGUS PACIFIC elect to pay such taxes directly then the CLIENT agrees to reimburse ARGUS PACIFIC in full. 4. RIGHT OF ENTRY. The CLIENT has responsibility for providing ARGUS PACIFIC a right of entry to any property on which ARGUS PACIFIC has agreed to provide services pursuant to the Proposal (the "Property"). Such right of entry shall allow ARGUS PACIFIC, its agents, subcontractors, and employees to enter the Property from time to time, as necessary to perform all acts, studies, and research needed pursuant to the agreed services. 5. INDEPENDENT CONTRACTOR STATUS. ARGUS PACIFIC shall perform the services hereunder as an independent contractor, using its own best judgment and control over the methods and procedures used to fulfill its contractual obligations. ARGUS PACIFIC may utilize any employees, subcontractors or agents in the fulfillment of its obligations pursuant to this Agreement. 6. SITE SAFETY RESPONSIBILITY. Other than the duty of ARGUS PACIFIC to provide services pursuant to Paragraph 1 of this Agreement, ARGUS PACIFIC does not assume any control of nor responsibility for the Property, the person in charge of the Property, nor the health or safety of persons not in ARGUS PACIFIC's employ. The CLIENT shall indemnify ARGUS PACIFIC for any liability in connection with the site safety and health of persons or entities not employed by ARGUS PACIFIC. 7. OWNERSHIP OF DOCUMENTS. Instructional materials such as but not limited to, books, manuals, electronic presentations, and handouts written or prepared by ARGUS PACIFIC are copyrighted by ARGUS PACIFIC but may be used by the CLIENT according to copyright restrictions provided, however, that (i) any use of the materials by the CLIENT or others for purposes outside the scope of this Agreement or any failure to follow ARGUS PACIFIC's recommendations shall be at the sole risk of the user of such materials; (ii) ARGUS PACIFIC shall have no liability in connection with such use; and (iii) the CLIENT shall indemnify ARGUS PACIFIC for any liability in connection with such use. 8. TIME FOR PERFORMANCE. ARGUS PACIFIC shall perform its services hereunder as expeditiously as is consistent with professional skill and care and the orderly progress of the services, provided that the CLIENT timely provides ARGUS PACIFIC with (i) proper notice to proceed and location, (ii) access to the location as set forth in Paragraph 4, and (iii) such other assistance as ARGUS PACIFIC may reasonably require. 9. LIMITATION OF LIABILITY. The CLIENT agrees that to the fullest extent permitted by law, its maximum aggregate recovery for claims against ARGUS PACIFIC, its' owners, employees, subcontractors, and agents concerning ARGUS PACIFIC's service, including claims for (i) negligence, (ii) breach of this Agreement, (iii) breach of warranty, or (iv) strict liability, shall be the amount of the fee paid by the CLIENT to ARGUS PACIFIC for it's services or $25,000 whichever is greater. In the event that the CLIENT requests a higher limitation of liability, TrngContractTemplate Revised 11/17/2003 x/1, lnl.-.din'. -45/ tmg_contract_2003. doc ENTD mg 0 5 2004 • • ARGUS PACIFIC will increase the limitation of liability for an increased fee that reflects consideration for the increased risk, and this paragraph shall be properly amended in accordance with Paragraph 22. 10. HOLD HARMLESS AND INDEMNIFICATION. ARGUS PACIFIC agrees to indemnify and hold the CLIENT harmless from and against any liabilities, damages and reasonable expenses, including court costs and reasonable attorneys' fees, arising out of the sole negligence of ARGUS PACIFIC, its employees, agents or subcontractors, in the performance of work and services provided in this Agreement. The CLIENT agrees to indemnify and hold ARGUS PACIFIC, its agents, subcontractors, owners and employees harmless from and against any liabilities, damages and reasonable expenses, including court costs and reasonable attorneys' fees, arising out of the sole negligence of the CLIENT. In the event of the concurrent negligence of ARGUS PACIFIC and the CLIENT, ARGUS PACIFIC and the CLIENT shall bear responsibility proportionate to the percentage of each party's negligence or that of its agents, employees, representatives and subcontractors. 11. UNFORESEEN OCCURRENCES. If unforeseen conditions or occurrences are encountered which, in ARGUS PACIFIC's sole judgment, significantly affect or may affect the recommended scope of work, then ARGUS PACIFIC will promptly notify the CLIENT. After such notification, ARGUS PACIFIC will complete the original scope of work only, or agree with the CLIENT to modify the Agreement, or terminate the Agreement pursuant to Paragraph 12. 12. TERMINATION. Either party may terminate ARGUS PACIFIC's services under this Agreement on not less than five (5) business days written notice to the other party. In the event that either party so terminates, the CLIENT will pay ARGUS PACIFIC (i) for all work performed up to such termination and for all expenses incurred or committed to that cannot be canceled, and (ii) for any presentation or administrative costs incurred by ARGUS PACIFIC. 13. CLIENT REPRESENTATIVE. The CLIENT shall appoint a representative having signature and decision- making authority for the CLIENT and upon whose authority and power ARGUS PACIFIC may rely. The name of such representative shall be set forth below the CLIENT's signature to this Agreement. The CLIENT may change its authorized representative at any time, but only by prior written notice to ARGUS PACIFIC. 14. SEVERABILITY AND SURVIVAL. If for any reason any portion of this contract shall be held to be invalid or unenforceable, the holding of invalidity or unenforceability of that portion shall not effect any other portion of this contract and the remaining portions of this contract shall remain in full force and effect; provided, however, that the CLIENT and ARGUS PACIFIC will in good faith attempt to replace any invalid or unenforceable provision with one that is valid and enforceable, and which comes as close as possible to expressing the intent of the original provision. All terms and conditions of this Agreement allocating liability between the CLIENT and ARGUS PACIFIC shall survive the completion of the services hereunder and the termination of this Agreement. 15. TIME BAR TO LEGAL ACTION. All legal actions by either party against the other related to this Agreement or the services provided hereunder shall be barred after the expiration of two (2) years from the date on which ARGUS PACIFIC completes its services. 16. DISPUTE RESOLUTION. All claims and disputes between the parties arising under or relating in any way to this Agreement (whether or not a contract claim) shall be submitted to mediation at the Seattle, Washington office of Judicial Dispute Resolution, Inc. ("JDR"), if ARGUS PACIFIC and the CLIENT agree to such mediation. In the event the parties do not agree to mediate such a claim or dispute, then the claim or dispute shall be submitted to binding arbitration at the Seattle, Washington office of JDR. In the event that the parties are not able to agree on a mediator or arbitrator, as the case may be, then (i) the parties may request that JDR supply them with a list of three (3) mediators or arbitrators, (ii) ARGUS PACIFIC and the CLIENT may each strike one name from such list, and (iii) the mediator or arbitrator whose name is left remaining shall decide such claim or dispute. Should the parties proceed to arbitration as provided herein, the award of the arbitrator may be enforced in any court of competent jurisdiction. 17. PRECEDENCE. These terms and conditions shall take precedence over any inconsistent or contradictory provisions contained in any proposal, contract, purchase order, requisition, notice to proceed or like document regarding ARGUS PACIFIC'S services. 18. GOVERNING LAW, JURISDICTION, AND VENUE. This contract shall be governed by the laws of the State of Washington. Jurisdiction over the parties and venue of any suit between the parties arising out of or related to this contract shall be exclusively in the state and federal courts sitting in King County, Washington. TrngContractTemplate 2 Revised 11/17/2003 trn g_contract_2003. doc • • • 19. WAIVER. The waiver by ARGUS PACIFIC of a breach of any provision of this contract by the CLIENT shall not operate or be construed as a waiver of any subsequent breach by the CLIENT. No waiver shall be valid unless in writing and signed by ARGUS PACIFIC. 20. ATTORNEY'S FEES AND COSTS. In the event of any dispute or controversy including, without limitation, suit or arbitration arising out of or related to this contract, the substantially prevailing party, shall be entitled to collect the cost and expenses of the suit, including reasonable attorney's fees, from other the party, including those incurred on appeal. 21. COUNTERPARTS. This Agreement may be signed in counterparts, including via telecopy, each of will constitute an original and all of which together will constitute one and the same agreement. 22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to this matter and supercedes all prior negotiations, representations and agreements. This Agreement may be modified only in a writing signed by the parties. By signing below, the CLIENT acknowledges that it has received and read a copy of the terms and conditions and agrees to abide by these terms and conditions. ARGUS PACIFIC, INC.: Date: Date: and razee res 'dent /(61/ TmgContractTemplate Revised 11/17/2003 3 CLIENT: By. Authorized C ien : s resentative OK( L,\ T�SSa art lt\N t.s7Yv e (Print Name and Title)) Date: trng_contract_2003 . do c