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WATER POLLUTION CONTROL SYSTEM INFRASTRUCTURE ASSESSMENT AND IMPLEMENTATION MASTER PLAN AGREEMENT FOR ENGINEERING SERVICES THIS AGREEMENT (Agreement) is by and between the City of Clearwater, Florida (Owner) and Black & Veatch Corporation (Engineer); WITNESSETH: WHEREAS, Owner intends to develop a Water Pollution Control System Infrastructure Assessment and Implementation Master Plan (the Project); WHEREAS, Owner requires certain engineering services in connection with the Project (the Services); and, WHEREAS, Engineer is prepared to provide the Services. NOW, THEREFORE, in consideration of the promises contained in this Agreement, Owner and Engineer agree as follows: ARTICLE l-EFFECTIVEDATE The effective date of this Agreement shall be r 2~J ,200S ARTICLE 2 - GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to the principles thereof relating to conflicts of law. ARTICLE 3 - SERVICES TO BE PERFORMED BY ENGINEER Engineer shall perform the Services described in Attachment A, Scope of Services. Engineer and Owner agree that the purpose of peer review is the identification and presentation of recommendations for 08/15/02 tJ;) ~dJ - ":"' (if) . -~ improvement of project or process value, for consideration by Owner and their professional advisors. Both parties to this Agreement understand that as a part of these services, Engineer does not develop the Assessment or Master Plan reports and makes no project decisions. ARTICLE 4 - COMPENSATION Payment shall be due and payable upon receipt by Owner to Engineer in accordance with Attachment B, Compensation. In the event Owner disputes any invoice item, Owner shall give Engineer written notice of such disputed item within ten (10) days after receipt of such invoice and shall pay to Engineer the undisputed portion of the invoice according to the provisions hereof. If Owner fails to pay any invoiced amounts when due, interest will accrue on each unpaid amount at the rate of one and one-half percent (1 ~%) per month, or the maximum amount allowed by law, if less, from the date due until paid according to the provisions of this Agreement. Interest shall not be charged on any disputed invoice item finally resolved in Owner's favor. Payment of interest shall not excuse or cure any default or delay in payment of amounts due. ARTICLE 5 - OWNER'S RESPONSIBILITIES Owner shall at such times as may be required by Engineer for the successful and expeditious completion of the Services: 5.1 Provide Engineer with project deliverables for which peer review and comments are desired. 5.2 Coordinate with engineer to determine mutually agreeable scheduling for meetings at which Engineer's attendance is desired. 5.3 Appoint an individual who shall be authorized to act on behalf of Owner, with whom Engineer may consult at all reasonable times, and whose instructions, requests, and decisions will be binding upon Owner as to all matters pertaining to this Agreement and the performance of the parties hereunder. ARTICLE 6 - STANDARD OF CARE Engineer shall exercise the same degree of care, skill, and diligence in the performance of the Services as is ordinarily possessed and exercised by a professional engineer under similar circumstances. NO 08/15/02 1 OTHER WARRANTY, EXPRESSED OR IMPLIED, IS INCLUDED IN THIS AGREEMENT OR IN ANY DRA WING, SPECIFICATION, REPORT, OR OPINION PRODUCED PURSUANT TO THIS AGREEMENT. ARTICLE 7 - LIABILITY AND INDEMNIFICATION 7.1 General. Having considered the potential liabilities that may exist during the performance of the Services, the benefits of the Project, and the Engineer's fee for the Services, and in consideration of the promises contained in this Agreement, Owner and Engineer agree to allocate and limit such liabilities in accordance with this Article. Indemnities against, releases from, and limitations on liability expressed in this Agreement shall apply even in the event of the breach of contract or warranty, tort (including negligence), strict liability or other basis of legal liability of the party indemnified or released, or of the party whose liability is limited. Such indemnities, releases, and limitations shall extend to the partners, licensors, subcontractors, vendors and related entities of such party, and all such parties' directors, officers, shareholders, employees, and agents. 7.2 Indemnification. Engineer agrees to defend, indemnify, and hold harmless the Owner, from and against legal liability for all claims, losses, damages, and expenses resulting from death or bodily injury to any person, damage or destruction to third-party property to the extent such claims, losses, damages, or expenses are caused by its negligent acts, errors, or omissions. In the event such claims, losses, damages, or expenses are caused by the joint or concurrent negligence of Engineer and Owner, they shall be borne by each party in proportion to its own negligence. 7.3 Employee Claims. Engineer shall indemnify Owner against legal liability for damages arising out of claims by Engineer's employees. Owner shall indemnify Engineer against legal liability for damages arising out of claims by Owner's employees. 7.4 Consequential Damages. Notwithstanding any provision in this Agreement to the contrary, and to the fullest extent permitted by law, Engineer (including any of its related or affiliated companies) shall not be liable to Owner and Owner expressly waives all claims for loss of profits, revenue, use, opportunity, and goodwill; cost of substitute facilities, goods, and services; cost of capital; increased 08/15/02 2 . . operating costs; and for any special, indirect, incidental, consequential, punitive, or exemplary damages resulting in any way from the performance or non-performance of the Services whether arising under breach of contract or warranty, tort (including negligence), indemnity, strict liability or other basis of legal liability. 7.5 Limitations of Liabilitv. To the fullest extent permitted by law, Engineer's (including any of its related or affiliated companies) total liability to Owner for all claims, losses, damages, and expenses, whether arising under breach of contract or warranty, tort (including negligence), indemnity, strict liability or any other basis of legal liability, resulting in any way from the performance or non- performance of the Services shall not exceed the total compensation actually received by Engineer under this Agreement. 7.6 Survival. Upon completion of all Services, obligations, and duties provided for in this Agreement, or if this Agreement is terminated for any reason whatsoever, the terms and conditions of this Article shall survive. ARTICLE 8 - INSURANCE During the performance of the Services under this Agreement, Engineer shall maintain the following msurance: (1) General Liability Insurance, with a combined single limit of $1,000,000 for each occurrence and $1,000,000 in the aggregate. (2) Automobile Liability Insurance, with a combined single limit of $1 ,000,000 for each person and $1,000,000 for each accident. (3) Workers' Compensation Insurance in accordance with statutory requirements and Employers' Liability Insurance, with a limit of $500,000 for each occurrence. (4) Professional Liability Insurance, with a limit of$l,OOO,OOO annual aggregate. 08/15/02 3 Engineer shall, upon written request, furnish Owner certificates of insurance which shall include a provision that such insurance shall not be canceled without at least thirty days' written notice to Owner. If Owner purchases, or causes a contractor to purchase, a builders' risk or other property insurance policy for the Project, Owner shall require that Engineer be included as a named insured on such policy without liability for the payment of premiums. Owner assumes sole responsibility and waives all rights and claims against Engineer for all loss of or damage to property owned by or in the custody of Owner and any items at the job site or in transit thereto (including, but not limited to, construction work in progress), however such loss or damage shall occur, including the fault or negligence of Engineer. Owner shall require its insurers to waive all rights of subrogation against Engineer for claims covered under any property insurance that Owner may carry. Owner shall require all Project contractors under contract with Owner to include Owner and Engineer as additional insureds on their general, automobile, excess, and umbrella liability insurance policies. Further, Owner shall obtain and maintain for the benefit of Engineer the same indemnities, waivers of subrogation rights and insurance benefits obtained for the protection of the Owner from any construction contractor and subcontractor working on the Project and shall obtain from that contractor and subcontractor insurance certificates evidencing the required coverages. ARTICLE 9 - LIMITATIONS OF RESPONSIBILITY Engineer shall not be responsible for: (1) construction means, methods, techniques, sequences, procedures, or safety precautions and programs in connection with the Project; (2) the failure of any contractor, subcontractor, vendor, or other Project participant, not under contract to Engineer, to fulfill contractual responsibilities to the Owner or to comply with federal, state, or local laws, regulations, and codes; or (3) procuring permits, certificates, and licenses required for any construction unless such responsibilities are specifically assigned to Engineer in Attachment A, Scope of Services. 08/15/02 4 ARTICLE 10 - OPINIONS OF COST AND SCHEDULE Since Engineer has no control over the cost of labor, materials, or equipment furnished by others not under contract to Engineer, or over the resources provided by others not under contract to Engineer to meet Project schedules, Engineer's opinion of probable costs and of project schedules for construction shall be made on the basis of experience and qualifications as a professional engineer. Engineer does not guarantee that proposals, bids, or actual Project costs will not vary from Engineer's opinions of probable cost or that actual schedules will not vary from Engineer's projected schedules. ARTICLE 11 - REUSE OF DOCUMENTS All documents, including, but not limited to, drawings, specifications, and computer software prepared by Engineer pursuant to this Agreement are instruments of service in respect to the Project. They are not intended or represented to be suitable for reuse by Owner or others on extensions of the Project or on any other project. Any reuse without prior written verification or adaptation by Engineer for the specific purpose intended will be at Owner's sole risk and without liability or legal exposure to Engineer. Owner shall defend, indemnify, and hold harmless Engineer against all claims, losses, damages, injuries, and expenses, including attorneys' fees, arising out of or resulting from such reuse. Any verification or adaptation of documents will entitle Engineer to additional compensation at rates to be agreed upon by Owner and Engineer. Any files delivered in electronic media may not work on systems and software different than those with which they were originally produced. Engineer makes no warranty as to the compatibility of these files with any other system or software. Because of the potential degradation of electronic medium over time, in the event of a conflict between the sealed original drawings/hard copies and the electronic files, the sealed drawings/hard copies will govern. ARTICLE 12 - OWNERSHIP OF DOCUMENTS AND INTELLECTUAL PROPERTY Project specific engineering documents, drawings, and specifications prepared by Engineer as part of the Services shall become the property of Owner when Engineer has been compensated 08/15/02 5 , ' for all Services rendered, provided, however, that Engineer shall have the unrestricted right to their use. Engineer shall, however, retain its rights in its standard drawing details, specifications, data bases, computer software, and other proprietary property. Rights to intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of Engineer. ARTICLE 13 - TERMINATION This Agreement may be terminated by either party upon written notice in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement. The nonperforming party shall have fifteen calendar days from the date of the termination notice to cure or to submit a plan for cure acceptable to the other party. Owner may terminate or suspend performance of this Agreement for Owner's convenience upon written notice to Engineer. Engineer shall terminate or suspend performance of the Services on a schedule acceptable to Owner. Iftermination or suspension is for Owner's convenience, Owner shall pay Engineer for all the Services performed and termination or suspension expenses, including, but not limited to, demobilization, remobilization and cancellation charges. Upon restart, an equitable adjustment shall be made to Engineer's compensation. ARTICLE14-DELAYINPERFO~NCE Except for Owner's payment obligation, neither Owner nor Engineer shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing party. For purposes of this Agreement, such circumstances include, but are not limited to: unusually severe weather conditions; floods; earthquakes; fire; epidemics; war, riots, and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage; judicial restraint; and inability to procure permits, licenses, or authorizations from any local, state, or federal agency for any of the supplies, materials, accesses, or services required to be provided by either Owner or Engineer under this Agreement. 08/15/02 6 Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Engineer shall be entitled to an equitable adjustment in schedule and compensation in the event such circumstances occur. ARTICLE 15 - PRE-EXISTING CONT AMINA TION Anything herein to the contrary notwithstanding, title to, ownership of, and legal responsibility and liability for any and all pre-existing contamination shall at all times remain with Owner. "Pre-existing contamination" is any hazardous or toxic substance, material, or condition present at the Project site or sites concerned which was not brought onto such site or sites by Engineer for the exclusive benefit of Engineer. Owner shall release, defend, indemnify, and hold Engineer harmless from and against any and all liability which may in any manner arise from or be in any way directly or indirectly caused by such pre-existing contamination except if, and then only to the extent, such liability is caused by Engineer's sole negligence or willful misconduct. ARTICLE 16 - COMMUNICATIONS Any communication required by this Agreement shall be made in writing to the address specified below: Engineer: Andy Westfall Project Manager Black & Veatch 4890 West Kennedy Boulevard, Suite 700 Tampa, Florida 33609 Owner: Rob Fahey Project Manager City of Clearwater 100 South Myrtle Avenue, Suite 220 Clearwater, Florida 33758 Nothing contained in this Article shall be construed to restrict the transmission of routine communications between representatives of Engineer and Owner. 08/15/02 7 ARTICLE 17 - WAIVER A waiver by either Owner or Engineer of any breach of this Agreement shall be in writing. Such a waiver shall not affect the waiving party's rights with respect to any other or further breach. ARTICLE 18 - SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. ARTICLE 19 - INTEGRATION This Agreement represents the entire and integrated agreement between Owner and Engineer. It supersedes.all prior and contemporaneous communications, representations, and agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may only be modified by a written amendment executed by both parties. ARTICLE 20 - SUCCESSORS AND ASSIGNS Owner and Engineer each binds itself and its directors, officers, partners, successors, executors, administrators, assigns, and legal representatives to the other party to this Agreement and to the directors, officers, partners, successors, executors, administrators, assigns, and legal representatives of such other party in respect to all provisions of this Agreement. 08/15/02 8 ARTICLE 21 - ASSIGNMENT Neither Owner nor Engineer shall assign any rights or duties under this Agreement without the prior written consent of the other party, except that Engineer may do so to any of its related, affiliated, or successor entities upon written notice to Owner of same. Unless otherwise stated in the written consent to an assignment, no assignment will release or discharge the assignor from any obligation under this Agreement. Nothing contained in this Article shall prevent Engineer from employing independent consultants, associates, and subcontractors to assist in the performance of the Services. ARTICLE 22 - TIDRD PARTY RIGHTS Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than Owner and Engineer. 08/15/02 9 ~.;. ., IN WITNESS WHEREOF, Owner and Engineer have executed this Agreement effective as of the date first written above. c } ~J of ~pPJp.7tR OWNER Black & Veatch Corporation ENGINEER By ~4?/--' ~ .. Printed Name/ll('c.J"o.el)J. a/l.kJ TitlJ, 'r",thr--oI- 6Y,l,e'!Y!) Date b~j-03 By~\J~~~ Printed Name: Andrew V. Petkash, P.E. Title: Senior Vice President Date ::11 J./V\.L 2... 2.G)d 3 ( 08/15/02 10 DRAFT Attachment A Scope of Services for Engineering Services for Peer Review for the Water Pollution Control System Infrastructure Assessment and Implementation Master Plan A.GENERAL Work under this Scope of Services generally involves the provision of peer review services associated with the Water Pollution Control System Infrastructure Assessment and Implementation Master Plan (the Project) which the Owner will have developed through services by third party engineering consultant (the Consultant). Services to be provided by the Engineer generally include the following: . Review of Consultant Scope of Services for the Project. . Meeting attendance. . Review of draft WPC System Assessment Report and draft WPC Master Plan Report deliverables. . Other peer review services such as review of interim submittals, memorandums, recommendations, and calculations; participation in workshops; and provision of other engineering services as needed toward the enhancement of the Project. Comments resulting from the Engineer's peer review services will be directed to the Owner, and the Owner may use the comments as they deem appropriate. It shall not be the Engineer's responsibility or authority to direct the activities of the Owner's Consultant performing the Project, nor shall the Engineer be responsible for the actual performance of the Project or the content of the resulting deliverables. It is understood that performance of these peer review services does not preclude the provision of future design services associated with the WPC System infrastructure by the Engineer. B. SCOPE OF WORK 1. Consultant Scope Review - Engineer will review and comment on the draft Scope of Services prepared by the Consultant for the Project. Review will be for purposes of identifying any task revisions or additions that the Owner may wish to consider in pursuit of efficient and comprehensive assessment and planning. 2. Meeting Attendance - Engineer will attend the project Kickoff Meeting and Review Meetings 1 through 5 as identified in the Consultant's Scope. Meetinglattendance shall be for the purpose of keeping informed on the progress and . . - DRAFT direction of system assessment and planning and to contribute ideas to the progress of the work, as appropriate. 3. Review of Draft WPC System Assessment Report - Engineer will review the draft Assessment report submitted to the Owner by the Consultant. The review will focus on the overall completeness, quality, and organization of the deliverable documents, and the application of sound engineering principals in the recommendations contained therein. The review will not focus on editorial aspects of the report. Comments resulting from the review will be provided to the Owner for consideration and use, as desired by the Owner. 4. Review of Draft WPC Master Plan Report - Engineer will review the draft Master Plan report submitted to the Owner by the Consultant. The review will focus on the overall completeness, quality, and organization of the deliverable documents, and the application of sound engineering principals in the recommendations contained therein. The review will not focus on editorial aspects of the report. Comments resulting from the review will be provided to the Owner for consideration and use, as desired by the Owner. 5. Supplemental Peer Review Services - Engineer will perform supplemental peer review services as the Owner deems necessary for thorough peer review of the planning process. Supplemental peer review services may include review of interim deliverables, recommendations, and memorandums; additional meeting/workshop attendance; engineering analyses; review of calculations / process modeling; and other engineering services needed for enhancement of the project. Engineer will provide supplemental services as authorized by the Owner and in the amount so authorized. The amount of supplemental services that can be provided under this Scope of Services shall be limited to the amount indicated in Attachment B, Compensation. " . DRAFT Attachment B Compensation for Engineering Services for Peer Review for the Water Pollution Control System Infrastructure Assessment and Implementation Master Plan A. COMPENSATION METHOD AND AMOUNT For work under Tasks 1 through 4, the Owner shall compensate the Engineer on a time and materials basis, in an amount not-to-exceed $15,640 for services provided and expenses incurred. For work under Task 5, the Owner shall compensate the Engineer on a time and materials basis, for services provided and expenses incurred in execution of supplemental peer review assignments requested by the City. The total compensation under Task 5 shall not exceed $10,000 unless a change order is issued to allow additional supplemental peer review services and corresponding compensation. B. HOURLY BILLING RATES The hourly billing rate for each personnel classification shall be as indicated in the table below. Costs for telephone, reproduction, postage, shipping, courier services, local travel (mileage), supplies, and computer / technology costs are included in the hourly billing rates and will not be invoiced for separately. If work continues beyond one year after the effective date of this agreement, a 4.0 % cost-of-living increase will be applied to the billing rates identified above, if so requested by the Engineer. A corresponding 4.0 % increase will be made on each subsequent anniversary of the effective date of the agreement, until the conclusion of the work. Personnel Classification Principal-in-Charge Project Manager Senior Project Engineer Project Engineer Staff Engineer Technician Administrative Assistant Clerical Billing Rate $190.00 $130.00 $130.00 $115.00 $100.00 $85.00 $76.00 $64.00 ~ ~ .II ... DRAFT c. ADDITIONAL AUTHORIZED EXPENSES If expenses beyond those covered in the above hourly billing rates (such as non-local travel costs), are authorized by the Owner and incurred by the Engineer, these costs shall be billed and compensated for separately at actual cost incurred. Signature page for Agreement for Engineering Services between City of Clearwater and Black & Veatch Corporation for Water Pollution Control System Infrastructure Assessment and Implementation Master Plan. Countersigned: CITY OF CLEARWATER, FLORIDA By: ~...;;UL..~ William B. Horne II City Manager Approved as to form: Attest: ~ !:FW4lt ..f#t/Cynthia E. Goudea . ~. City Clerk . _