HomeMy WebLinkAboutPSA_06-18_DesmanPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of June, 2024 (“Effective
Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal
corporation organized and existing under its Charter and the laws of the State of Montana, 121
North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT
59771, hereinafter referred to as “City,” and, DESMAN Inc., 7900 E Union Ave, Denver CO
80237, hereinafter referred to as “Contractor.” The City and Contractor may be referred to
individually as “Party” and collectively as “Parties.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Exhibit A and by this reference made
a part hereof.
2. Term/Effective Date: This Agreement is effective upon the Effective Date and
will expire upon the completion of the project, as outlined in Exhibit A, unless earlier terminated
in accordance with this Agreement.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City,
and will become an additional charge over and above the amount listed in the Scope of Services.
The City must agree in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
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and regulations that in any manner may affect cost, progress or performance of the Scope of
Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform the services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this
Agreement shall not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,
or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City for any purpose. Contractor is not subject to the terms and provisions of
the City’s personnel policies handbook and may not be considered a City employee for workers’
compensation or any other purpose. Contractor is not authorized to represent the City or otherwise
bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation
Act, Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of
Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage
for all members and employees of Contractor’s business, except for those members who are
exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time,
Contractor specifically agrees to take immediate steps, at its own expense and without expectation
of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The
specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however,
that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate
relief to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
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connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify,
and hold harmless the City, its agents, representatives, employees, and officers (collectively
referred to for purposes of this Section as the City) from and against any and all claims, demands,
actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and
consultants), losses, expenses, liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature connected therewith and without
limit and without regard to the cause or causes thereof or the negligence of any party or parties
that may be asserted against, recovered from or suffered by the City occasioned by, growing or
arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional
misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of
the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses,
and expenses, including reasonable defense attorney fees, to the extent caused by the negligence
or intentional misconduct of the Contractor or Contractor’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this
Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of
the City as indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right
to contribution from any insurance maintained by City.
Should the City be required to bring an action against the Contractor to assert its right to
defense or indemnification under this Agreement or under the Contractor’s applicable insurance
policies required below, the City shall be entitled to recover reasonable costs and attorney fees
incurred in asserting its right to indemnification or defense but only if a court of competent
jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to
indemnify the City for a claim(s) or any portion(s) thereof.
In the event of an action filed against the City resulting from the City’s performance under
this Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City, including the right
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of contribution for loss or damage to person or property arising from, growing out of, or in any
way connected with or incident to the performance of this Agreement except “responsibility for
[City’s] own fraud, for willful injury to the person or property of another, or for violation of law,
whether willful or negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain
any exclusion for liabilities specifically assumed by the Contractor in this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City. Contractor
shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers’ Compensation – statutory;
• Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City shall be endorsed as an
additional or named insured on a primary non-contributory basis on the Commercial General,
Employer’s Liability, and Automobile Liability policies. The insurance and required
endorsements must be in a form suitable to City and shall include no less than a thirty (30) day
notice of cancellation or non-renewal. Contractor shall notify City within two (2) business days of
Contractor’s receipt of notice that any required insurance coverage will be terminated or
Contractor’s decision to terminate any required insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor’s Fault:
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a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any
terms or conditions of this Agreement, the City may, by written notice, terminate this
Agreement and the Contractor’s right to proceed with all or any part of the work
(“Termination Notice Due to Contractor’s Fault”). The City may then take over the work
and complete it, either with its own resources or by re-letting the contract to any other third
party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement, the City may
terminate this Agreement by written notice to Contractor (“Notice of Termination for
City’s Convenience”). The termination shall be effective in the manner specified in the
Notice of Termination for City’s Convenience and shall be without prejudice to any claims
that the City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work,
incurring additional expenses or costs under this Agreement and shall immediately cancel
all existing orders or contracts upon terms satisfactory to the City. Contractor shall do only
such work as may be necessary to preserve, protect, and maintain work already completed
or immediately in progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of
the Notice of Termination for City’s Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
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Contractor for its performance of this Agreement. Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to
the claim. In the event Contractor fails to provide such notice, Contractor shall waive all
rights to assert such claim.
11. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be Nicholas Focken, Lead Parking Enforcement Officer, or such other
individual as City shall designate in writing. Whenever approval or authorization from or
communication or submission to City is required by this Agreement, such communication
or submission shall be directed to the City’s Representative and approvals or authorizations
shall be issued only by such Representative; provided, however, that in exigent
circumstances when City’s Representative is not available, Contractor may direct its
communication or submission to other designated City personnel or agents as designated
by the City in writing and may receive approvals or authorization from such persons.
b. Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be _____________________ or such other individual as
Contractor shall designate in writing. Whenever direction to or communication with
Contractor is required by this Agreement, such direction or communication shall be
directed to Contractor’s Representative; provided, however, that in exigent circumstances
when Contractor’s Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
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Stephen J Rebora
c. Notices: All notices required by this Agreement shall be in writing
and shall be provided to the Representatives named in this Section. Notices shall be
deemed given when delivered, if delivered by courier to Party’s address shown above
during normal business hours of the recipient; or when sent, if sent by email or fax (with a
successful transmission report) to the email address or fax number provided by the Party’s
Representative; or on the fifth business day following mailing, if mailed by ordinary mail
to the address shown above, postage prepaid.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13. Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City,
County, and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
15. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by
Contractor of persons performing this Agreement shall be on the basis of merit and qualifications.
The Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor
will not refuse employment to a person, bar a person from employment, or discriminate against a
person in compensation or in a term, condition, or privilege of employment because of race, color,
religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when the reasonable demands of
the position require an age, physical or mental disability, marital status or sex distinction. The
Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section
140, Title 2, United States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with
the requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal
Pay Act). Contractor must report to the City any violations of the Montana Equal Pay Act that
Contractor has been found guilty of within 60 days of such finding for violations occurring during
the term of this Agreement.
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Contractor shall require these nondiscrimination terms of its subcontractors providing
services under this Agreement.
16. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol
or illegal drugs, by any employee or agent engaged in services to the City under this Agreement
while on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the
U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing its employees and agents in safe work practices.
17. Modification and Assignability: This Agreement may not be enlarged, modified
or altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of the City. Any subcontractor or assignee will be
bound by all of the terms and conditions of this Agreement.
18. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that
the reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
19. Non-Waiver: A waiver by either party of any default or breach by the other party
of any terms or conditions of this Agreement does not limit the other party’s right to enforce such
term or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach.
20. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
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attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
21. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
22. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from
the date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
23. Survival: Contractor’s indemnification shall survive the termination or expiration
of this Agreement for the maximum period allowed under applicable law.
24. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
25. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
26. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
27. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
28. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
29. Counterparts: This Agreement may be executed in counterparts, which together
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constitute one instrument.
30. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part
of this Agreement by reference.
31. Consent to Electronic Signatures: The Parties have consented to execute this
Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act,
Title 30, Chapter 18, Part 1, MCA.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written or as recorded in an electronic signature.
DESMAN, INC.
By____________________________________
Steve Rebora, President and CEO
CITY OF BOZEMAN, MONTANA
By__________________________________
Chuck Winn, City Manager
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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Hoshi Engineer, Vice President
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
7900 E UNION AVE, SUITE 160, DENVER, CO 80237 www.DESMAN.com PHONE 303.740.1700 FAX 303.740.1703
BOSTON CHICAGO CLEVELAND DENVER FT. LAUDERDALE HARTFORD NEW YORK PITTSBURGH WASHINGTON D.C.
ARCHITECTS
STRUCTURAL ENGINEERS
PLANNERS PARKING CONSULTANTS RESTORATION ENGINEERS GREEN PARKING CONSULTING
April 12, 2024
Mr. Nic Focken
Interim Parking Manager
City of Bozeman
26 E Mendenhall St.
P.O. Box 1230
Bozeman, MT 59715
RE: Proposal for Construction Administration Services
Bridger Garage
Bozeman, MT
Dear Mr. Focken:
In response to your request, DESMAN is pleased to submit the enclosed proposal to the City of Bozeman
to provide construction administration services for the repair of the Bridger garage. Following is our scope
of services for this phase of the project.
Scope of Services
1. Participate in a pre-bid virtual meeting with the city and contractors to clarify questions and
issue an addendum for the responses, if required.
2. Participate in a pre-construction meeting virtually between DESMAN, the city, and the selected
contractor to clarify lines of communication and procedure for the routing of shop drawings,
product submittals, request for information, correspondences, etc.
3. Review shop drawings and product submittals for completeness, appropriateness and compliance
with the construction documents. Product submittal review will include product information,
certification reports, samples, colors, etc.
4. Respond to Requests for Information (RFI’s), product substitutions and contractor requests for
proposed minor modifications from construction documents.
5. Attend meetings with the city and/or contractor by phone as necessary.
6. Conduct a final site observation and a final punch list review of the work once the work is
substantially completed. Upon completion of the punch list work, we will verify that all work
within the scope of services of this contract is complete. The contractor will forward all
warranties, copies of shop drawings, submittals, etc. to the city upon project closeout.
Fee Proposal
DESMAN will perform the SCOPE OF SERVICES outlined herein for a lump sum fee of $9,200, which
excludes reimbursable expenses for travel for the final site observation, printing, reproduction, etc.
Expenses will be billed to the City of Bozeman at actual cost with no additional mark up. Other services
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not specifically described herein will be performed on an hourly basis in accordance with DESMAN’s hourly
rate schedule shown below:
Personnel Classification
Project Manager .................................................................................. $200/hour
Architect/Engineer ............................................................................... $185/hour
Note: Rates are effective through December 31, 2024.
Closure
On behalf of DESMAN’s team of professionals, we thank you for this opportunity to submit the enclosed
proposal. If you are in agreement with this proposal, please indicate acceptance and return one signed
original for our records. This will authorize DESMAN to proceed with the work. Should you have any
questions or concerns regarding this submission, please do not hesitate to contact me.
Sincerely,
DESMAN, Inc.
Hoshi Engineer, PE SE
Vice President
Proposal Accepted By:
City of Bozeman
(Signature)
(Printed Name)
(Title)
(Date)
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Acting City Manager
6/20/2024
Chuck Winn
Page 3 of 4
STANDARD TERMS AND CONDITIONS OF AGREEMENT
The engagement of DESMAN, Inc. (“DESMAN”) by the City of Bozeman (“Client”) is under the following
terms and conditions, as applicable, and is an integral part of the Agreement between Client and DESMAN.
1. Unless noted or otherwise requested, the fee estimate for the proposed Scope of Services is valid for
60 days from the date of Proposal.
2. All schedules set forth in the attached Scope of Services commence upon receipt of a signed
Agreement unless noted otherwise, and if requested, a retainer. All retainer amounts will be applied
to the last invoice. A RETAINER OF $ 0 IS REQUIRED BEFORE WORK CAN COMMENCE UNDER THE
AGREEMENT.
3. Before DESMAN shall be called upon to provide its services there under, the Client shall provide
DESMAN, in writing, with all necessary information to permit its proper performance of the services
to be provided. DESMAN shall be under no duty or obligation to verify the completeness or accuracy
of the information provided by the Client and shall be entitled to fully rely thereon.
4. Client shall provide the necessary access and right-of-entry for DESMAN to enter the Project site, and
to all shops and yards where materials are prepared or stored in order to allow DESMAN to perform
their services.
5. The Client shall provide DESMAN with sufficient advance notice of required service so as to allow
DESMAN a reasonable period of time to coordinate the assignment of its personnel. If DESMAN is
required to delay commencement of its work, or is required to stop or interrupt the progress of its
work due to action/inaction of Client, additional charges will be applicable and payable by the Client,
which must be documented.
6. DESMAN will not act to enforce the provisions of the contract drawings or specifications. Should
DESMAN, in the proposal, accept responsibility for site observations or monitoring, it remains the
responsibility of the Client to enforce the contract provisions and to effect corrections of any
contractual deficiencies, which are discovered by DESMAN. Desman shall not be liable for the
contractor’s failure to perform the work in accordance with the contract documents.
7. Testing results apply only to the material samples actually tested. Test specimens or samples will be
disposed immediately upon completion of the test, unless otherwise agreed.
8. Payment is due upon receipt of DESMAN’s invoices. Payment to DESMAN is the sole responsibility of
signatory of this Agreement and is not subject to third party agreements. If payment is not received
within thirty (30) days of receipt by Client, Client agrees to pay a finance charge on the principal
amount of the past due account to one and one half (1 1/2%) percent per month. The Client agrees
to pay DESMAN’s cost of collection of all amounts due and unpaid after sixty (60) days, including court
costs and reasonable attorney's fees.
9. Invoice payments must be kept current for work to continue. If the Client fails to pay any invoice due
to DESMAN within 45 days of the date of the invoice, DESMAN may, without waiving any other claim
or right against Client, suspend services under this Agreement until DESMAN has been paid in full all
amounts due DESMAN and/or any of its Consultants and Subcontractors.
10. DESMAN agrees to carry the following insurance during the term of this Agreement: Workmen's
compensation, General Liability, Professional Liability and Comprehensive Automobile Liability.
Certificates of insurance will be furnished upon request. If the Client requires insurance coverage or
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coverage limits in excess of DESMAN’s normal policy coverage, and if such coverage is available, Client
agrees to reimburse DESMAN for cost premiums to carry such additional coverage.
11. DESMAN’s liability for any damage on account of any error, omission, or other professional negligence
will be limited to a sum not-to-exceed the fee received under this Agreement. DESMAN, its agents and
employees shall not be liable for any lost profits or any claim or demand against Client by any other
party unless caused by negligence or wanton act or omission of DESMAN. In no event shall DESMAN
be liable for special, consequential or exemplary damages. This provision shall supersede any other
provision in this Agreement that may be deemed inconsistent with it. No action, regardless of form,
arising out of the service under this Agreement, may be brought by the Client more than one (1) year
after the act or omission-giving rise to a cause of action has occurred.
12. The Client shall indemnify, defend, and hold DESMAN, its officers, employees, and agents harmless
from any and all claims, suits, losses, costs, and expenses, including but not limited to, court costs and
reasonable attorney's fees arising or alleged to have arisen out of or to have resulted from the
performance of DESMAN’s work on or about the subject Project, and caused in whole or in part by
any negligent, willful, or wanton act or omission of the Client.
13. In the event that either party brings any claim, suit, cause of action, of counterclaim against the other,
to the extent that such party prevails upon such action, the non-prevailing party shall pay to the
prevailing party the costs expended by the prevailing party to defend against such action including
reasonable attorney's fees, witness fees, and other related expenses.
14. DESMAN shall not be responsible for failure to perform or for delays in the performance of work,
which arise out of causes beyond the control and without the fault or negligence of DESMAN.
15. In entering into this Agreement, Client has relied only upon the warranties or representations (a) set
forth in this Agreement; or (b) implied in law. No oral warranties, representations or statements shall
be considered a part of this Agreement or a basis upon which the Client relied in entering into this
Agreement. No statements, representations, warranties or understandings, unless contained herein,
exist between Client and DESMAN.
16. Either party upon seven (7) days prior written notice may terminate this Agreement. In the event of
termination without cause, DESMAN shall be compensated by the Client for (a) all services performed
up to and including the termination date, (b) reimbursable expenses and; (c) termination expenses.
17. DESMAN’s review associated with the Report shall be limited to the examination of the condition of
the structure/s as defined by the scope of work, for the sole purpose of determining work required.
This report shall be limited to an unaided visual examination and does not include destructive or non-
destructive testing, non-invasive investigation techniques.
18. DESMAN’s reports and/or documents defined by the scope of work shall not be construed to warrant
or guarantee the structure/s and/or any of its components under any circumstances. DESMAN shall
not be responsible for latent or hidden defects that may exist, nor shall it be inferred that all defects
will have been either observed or recorded. The review and/or report(s) is intended solely to identify
the general condition of the structure/s and the necessity for repairs. DESMAN’s review and/or
report(s) shall not constitute a detailed specification for repairs.
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