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HomeMy WebLinkAbout2006-052 - Professional Services Agreement with Terracon Consultants for Engineering ServicesBILL N0.2006-52 ORDINANCE NO.2006-52 AN ORDINANCE APPROVING THE FORM OF, AND AUTHORIZING THE MAYOR TO COMPLETE AND EXECUTE, AN AGREEMENT FOR PROFESSIONAL SERVICES BY AND BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND TERRACON CONSULTANTS, INC. FOR THE PROVISION OF ENGINEERING SERVICES WHEREAS, the City of Riverside, Missouri (the "City") has negotiated with Terracon Consultants, Inc. ("Terracon"), for the provision of professional engineering services related to review of work completed in connection with the Briazcliff Grading Project within the City of Riverside Missouri. WHEREAS, the City and GBA have reached an agreement concerning the provision of payment for such services. NOW, THEREFORE, be it ordained by the Board of Aldermen oft e City of Riverside, Missouri, as follows: Section 1. The City of Riverside shall enter into an Agreement, to be s bstantially in the form attached hereto as Exhibit A, with GBA, whereby GBA will provide professionals 'ces, and as consideration for such services the City shall pay GBA a total amount not to exceed On Thousand and No/100 Dollars ($1,000) (the "Agreement"). Section 2. The execution and delivery of the Agreement, with such add' 'ons and modifications deemed necessary by the Mayor to complete the same, is approved, and the Ma or is authorized to execute the Agreement and to take such other actions reasonably necessary to carry o the intent of this Ordinance on behalf of the City, the execution of the Agreement being conclusive evidenc of such approval. Section 3. This Ordinance shall be in full force and effect from and after its assage and approval. Passed this ~~day of April, 2006. ~ Mayor Pro Tem A E ' City Clerk AGREEMENT FOR SERVICES This AGREEMENT is between The City of Riverside Missouri ("Client") and Terrawn Consultants, Inc. ("Consultant") for Services to be provided by Consultant for Client on the Review of Kleinfelder Report for Briarwood Development Project ("Project"). Consultant's understanding of Project is described in Exhibit A of this Agreement. The effective date of this Agreement is 4/1/2006 1. Scope of Services. The scope of Consultant's services is described in Exhibit B to this Agreement, which is incorporated into this Agreement. Portions of the Services may be subcontracted. Consultant's Services do not incude the investigation or detection of, nor do recommendations in Consultant's reports address the presence or prevention of biological pollutants (e.g., mold, fungi, bacteria, viruses, or their byproducts) or occupant safety issues, such as vulnerability to natural disasters, terrorism, or violence. If Services include purchase of software, Client will execute a separate software license agreement. Consultant's findings, opinions, and recommendations are based soleVy upon data and information obtained by and furnished to Consultant at the time of the Services. 2. Acceptance. Client agrees that executon of this Agreement is a matedal element of the consideration Consultant requires to execute the Services, and if Services are initiated by Consultant prior to execution of this Agreement as an accommodation for Client at Client's request, both parties shall consider that commencement of Services constitutes formal acceptance of all terms and conditions of this Agreement. Additional terms and conditions may be added or changed only by written amendment to this Agreement signed by both parties. In the event Client uses a purchase order or other form to administer this Agreement, the use of such form shall be for convenience purposes only and any additional or conFlicting terms it contains are stricken. This Agreement shall not be assigned by either party without prior written consent of the other party. 3. Change Orders. Client may request changes to the Scope of Services by altering or adding to the Services to be performed. If Client so requests, Consultant will return to Client a statement (or supplemental proposal) of the change seriing forth an adjustment to the Services and fees for the requested changes. Following Client's review, Client shall provide written acceptance. If Client does not follow these procedures, but instead directs, authorizes, or permits Consultant to perform changed or additional work, Consultant will be paid for its work according to the fees stated or its curent fee schedule. If project conditions change materially from those observed at the site or described to Consultant at the 6me of proposal, Consultant is entitled to a change order equitably adjusting its Services and fee. 4. Compensation and Terms of Payment. Client shall pay compensation for the Services performed at the fees stated in Exhibit C to this Agreement, which is incorporated into this Agreement. Unless aProject-specific fee is described in Exhibit C, fees will be according to Consultant's curent fee schedule. Fee schedules are valid for the calendar year in which they are issued. Consultant may invoice Client at least monthly and payment is due upon receipt of invoice. Client shall notify Consultant in writing, at the address below, within 15 days of the date of the invoice if Client objets to any portion of the charges on Ote invoice, and shall promp0y pay the undisputed portion. Client shall pay a finance fee of 1.5% per month, but not exceeding the maximum rate allowed by law, for all unpaid amounts 30 days or older. Client agrees to pay all collection-related costs that Consultant incurs, inGuding attorney fees. Consultant may suspend Services for lack of timely payment. 5. Third Party Reliance. This Agreement and the Services provided are for Consultant and Client's sole benefit and exclusive use with no third party beneficiaries intended. Reliance upon the Services and any work product is limited to Client, and is not intended for third parties. For a limited time pedod not to exceed three months from the date of the report, Consultant will issue additional reports to others agreed upon with Client, however Client understands that such reliance will not be granted until those parties sign and return Consultant's reliance agreement and Consultant receives the agreed-upon reliance fee. 8. LIMITATION OF LIABILITY. CLIENT AND CONSULTANT HAVE EVALUATED THE RISKS AND REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING CONSULTANT'S FEE RELATIVE TO THE RISKS ASSUMED, AND AGREE TO ALLOCATE CERTAIN OF THE RISKS SO, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF CONSULTANT (AND ITS RELATED COPORATIONS AND EMPLOYEES) TO CLIENT AND THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE GREATER OF $25,000 OR ITS FEE, FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF CONSULTANT'S SERVICES OR THIS AGREEMENT REGARDLESS OF CAUSE(S) OR THE THEORY OF LIABILITY, INCLUDING NEGLIGENCE, INDEMNITY, OR OTHER RECOVERY. THIS LIMITATION SHALL NOT APPLY TO THE EXTENT THE DAMAGE IS PAID UNDER CONSULTANT'S COMMERCIAL GENERAL LIABILITY POLICY. THIS LIMITATION SHALL NOT APPLY TO THE EXTENT THE DAMAGE IS PAID UNDER CONSULTANTS COMMERCIAL GENERAL LIABILITY POLICY. 7. Indemnity. Consultant and Client shall defend, indemnify, and hold harmless the other, their agents, and employees, from and against legal liability for all claims, losses, damages, and expenses to the extent such Gaims, losses, damages, or expenses are caused by their negligent acts, errors, or omissions. In the event such claims, losses, damages, or expenses are caused by the joint or concurrent negligence of Consultant and Client, they shall be borne by each party in proportion to its own negligence under comparative fault principles. 8. Warranty. Consultant will perform the Services in a manner wnsistent with that level of care and skill ordinarily exercised by members of the profession currenlly practicing under similar conditions in the same locale. CONSULTANT MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES AND CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 9. Insurance. Consultant represents that it now caries, and will continue to carry: (i) workers' compensation insurance in accordance with the laws of the states having jurisdiction over Consultant's employees who are engaged in the Services, and employer's liability insurance ($1,000,000); (ii) wmmercial general liability insurance ($1,000,000 OCC / $2,000,000 AGG); (iii) automobile liability insurance ($1,000,000 B.I. and P.D. combined single limit) ;and (iv) professional liability insurance ($1,000,000 claim /egg.) Certificates of insurance will be provided upon request. Client and Consultant shall waive subrogation against the other party on all general liability and property coverage. Agreement Reference Number (Terracon Proposal or Project Number):D0206150 1 ,~ ~, . T T ~~~rrlacon 10. CONSEQUENTIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS OR REVENUE; LOSS OF USE OR OPPORTUNITY; LOSS OF GOOD WILL; COST OF SUBSTITUTE FACILITIES, GOODS, OR SERVICES; COST OF CAPITAL; OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES. 11. Dispute Resolution. Client shall not be entitled to assert a Claim against Consultant based on any theory of professional negligence unless and until Client has obtained the written opinion from a registered, independent, and reputable engineer, architect, or geologist that Consultant has violated the standard of care applicable to Consultant's Performance of the Services. Client shall provide this opinion to Consultant and the parties shall endeavor to resolve the dispute within 30 days, after which Client may pursue its remedies at law. This Agreement shall be governed by and construed aaording to Kansas law. 12. Subsurface Explorations. Subsurface conditions throughout the site may vary from those depicted on logs of discrete borings, test pits, or other exploratory services. Client understands Consultant's layout of boring and test locations is approximate and that Consultant may deviate a reasonable distance from those locations. Consultant will take reasonable precautions to reduce damage to the site when performing Services; however, Client accepts that invasive services such as drilling or sampling may damage or alter the site. Site restoration is not provided unless specifically included in the Services. 13. Testing and Observations. Client understands that testing and observation are discrete sampling procedures, and that such procedures indicate conditions only at the depths, locations, and times the procedures were pertormed. Consultant will provide test results and opinions based on tests and field observations only for the work tested. Client understands that testing and observation are not continuous or exhaustive, and are conducted to reduce -not eliminate -project risk. Client agrees to the level or amount of testing pertormed and the assodated risk. Client is responsible (even if delegated to contractor) for notifying and scheduling Consultant so Consultant can perform these Services. Consultant shall not be responsible for the quality and completeness of contractor's work or their adherence to the project documents, and Consultant's performance of testing and observation services shall not relieve contractor in any way from its responsibility for defects discovered in its work, or create a warranty or guarantee. Consultant will not supervise or direct the work performed by contractor or its subcontractors and is not responsible for their means and methods. 74. Sample Disposition, Affected Materials, and Indemnity. Samples are consumed in testing or disposed of upon completion of tests (unless stated otherwise in the Services). Client shall furnish or cause to be furnished to Consultant all documents and information known or available to Client that relate to the identity, location, quantity, nature, or charactedstic of any hazardous waste, toxic, radioactive, or contaminated materials ("Affected Materials") at or near the site, and shall immediately transmit new, updated, or revised information as it becomes available. Client agrees that Consultant is not responsible for the disposition of Affected Material unless specifically provided in the Services, and that Client is responsible for directing such disposition. In the event that test samples obtained during the performance of Services (i) contain substances hazardous to health, safety, or the environment, or (ii) equipment used during the Services cannot reasonably be decontaminated, Client shall sign documentation (if necessary) required to ensure the equipment andlor samples are transported and disposed of property, and agrees to pay Consultant the fair market value of this equipment and reasonable disposal costs. In no event shall Consultant be required to sign a hazardous waste manifest or take title to any Affected Materials. Client shall have the obligation to make all spill or release nofificetlons to appropriate governmental agencies. The Client agrees that Consultant neither created nor contdbuted to the creation or existence of any Affected Materials conditions at the site. Accordingly, Client waives any daim against Consultant and agrees to indemnity and save Consultant, its agents, employees, and related companies harmless from any daim, liability or defense cost, inducting attorney and expert fees, for injury or loss sustained by any party from such exposures allegedly arising out of Consultant's non-negligent performance of services hereunder, or for any daims against Consultant as a generator, disposer, or arcanger of Affected Materials under federal, state, or local law or ordinance. 15. Ownership of Documents. Work product, such as reports, logs, data, notes, or calculations, prepared by Consultant shall remain Consultant's property. Proprietary concepts, systems, and ideas developed during performance of the Services shall remain the sole properly of Consultant. Files shall be maintained in general accordance with Consultant's document retention policies and practices. 16. Utilitiaa. Client shall provide the location andlor arcange for the marking of private utilities and subterranean structures. Consultant shall take reasonable precautions to avoid damage or injury to subterranean structures or utilities. Consultant shall not be responsible for damage to subterranean structures or utilities that are not called to Consultant's ariention, are not correctly marked, including by a utility locate service, or are incorrectly shown on the plans furnished to Consultant. - 17. Site Access and Safety. Client shall secure all necessary site related approvals, permits, licenses, and consents necessary to commence and complete the Services and will execute any necessary site access agreement. Consultant will be responsible for supervision and site safety measures for its own employees, but shall not be responsible for the supervision or health and safety precautions for any other parties, including Client, Client's contractors, subcontractors, or other parties present at the site. 18. Termination. Either party may terminate [his Agreement or the Services upon written notice to the other. In such case, Consultant shall be paid costs incurted and fees earned to the date of termination plus reasonable costs of closing the project. Consultant: aco sultants, Inc. By: ~ Date: 4/1106 Name: Cra K Denny, Ph.~; .E. Title: Senior Principal Engineer Address: 13910 West 96'" Terrace Lenexa, Kansas 66215 Client: Cit~of Riverside, Missouri By' -,x~~G%KJ~ Date: ~~~4 Name: Raymond D . Beard Tiue: Manor Pro Tem_ Address: 2950 NIfYVivion Road Phone: 913-492-7777 Fax: 913-492.7443 Phone: Agreement Reference Number (Terracon Proposal or Project Number):D0206150 Page 2 Riverside, Missouri 64150 816.741.3993 Fax: 816-746-8349 ~I .,. l~~rracon EXHIBIT A -PROJECT INFORMATION Kleinfelder prepared a report of a Preliminary Geotechnical Exploration, Proposed Office/Condominium Project, Valley Lane and West PLatte Road, Kansas City, Missouri, Job No. 53255 for Briarcliff Development. The City of Riverside Missouri has requested that Terracon Consultants, Inc. (Terracon) provide an independent professional review of this April 1, 2005 report. EXHIBIT B -SCOPE OF SERVICES The independent professional review of this report will be conducted principally by Dr. Craig K. Denny, P.E., Senior Principal Engineer. Additional consultation may be provided by Mr. Lok Sharma, P.E., Principal Engineer. We expect to perform the following activities in conjunction with this technical review: Review the provided documents. Visit the site. Visit with Kleinfelder personnel who prepared the report, if necessary. Discuss opinions with City of Riverside personnel upon completion of our review. Prepare, review and submit a letter report expressing our professional opinions to the City of Riverside. EXHIBIT C -COMPENSATION These services will be performed on an hourly rate of $150.00 per hour for time expended by Dr. Denny and Mr. Sharma. Page 3 P' i t r