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HomeMy WebLinkAbout5.721 Original Contract ,. ~'" 5. 7&.-] LETTER AGREEMENT SUBJECT: Letter Agreement for Consulting Services on Medic I Cost of Service. Dear Dan McKeen: The City of Port Angeles (Client) desires to retain HDR Engineering, Inc. (HDR) for financial planning services in connection with Medic I Cost of Service. ("Project") HDR will perform services related to the review ofthe Project for performance with analytical standards. Client will pay for HDR's services, after completion, as follows: A one time lump sum invoice not to exceed One Thousand Five Hundred Dollars ($1500). Said invoice shall be paid within 30 days of receipt. All services will be performed in accordance with generally accepted standards of professional care and in compliance with all applicable laws and regulations governed by the state of Washington. Client will indemnify, defend and hold HDR harmless from claims and losses arising out of the negligent performance of client's services. The terms ofthis letter, along with the standard terms and conditions attached, represent the entire understanding between The City and HDR concerning our services on the Project. This agreement may only be modified in writing, subject to authorization by approval by both parties. If the terms of this agreement are acceptable, please sign this letter in the space provided below and return it to me. Very truly yours, HDR Engineering, Inc. By: Nu,r-4,4r - Title: V"l ~ - P.re.5:dP-...v+ This Agreement is accepted this 13 day of April ,2005 . ::~~ Title: - 4_ - :' ~ t HDR Engineering, Inc. Terms and Conditions for Professional Services 1. STANDARD OF PERFORMANCE The standard of care for all professional engineering, consulting and related services performed or fumlshed by ENGINEER and Its employees under this Agreement will be the care and skill ordlnanly used by members of ENGINEER's profession practicing under the same or similar circumstances at the same time and in the same locality. ENGINEER makes no warranties, express or implied, under this Agreement or othelWlse, In connection WIth ENGINEER's services. 2. INSURANCE ENGINEER agrees to procure and maintain, at Its expense, Workers' Compensation Insurance as required by statute, Employer's liability of $250,000, Automobile Liability Insurance of $1,000,000 combined single limit for bodily injury and property damage covenng all vehicles, including hired vehicles, owned and non-owned vehicles; Commercial General Liability Insurance of $1,000,000 combined single limit for personal injUry and property damage; and ProfeSSional Liability Insurance of $1,000,000 per claim for protection against claims arising out of the performance of services under thiS Agreement caused by negligent acts, errors, or omissions for which ENGINEER is legally liable. Upon request, OWNER shall be made an additional Insured on Commercial General and Automobile Liability Insurance policies and certificates of Insurance will be fumished to the OWNER. ENGINEER agrees to indemnify OWNER for the claims covered by ENGINEER's insurance. 3. OPINIONS OF PROBABLE COST (COST ESTIMATES) Any opinions of probable project cost or probable construction cost provided by ENGINEER are made on the baSIS of information available to ENGINEER and on the basis of ENGINEER's experience and qualifications, and represents ItS judgment as an experienced and qualified professional engineer. However, since ENGINEER has no control over the cost of labor, materials, equipment or services fumished by others, or over the contractor(s') methods of determining prices, or over compellllve bidding or market conditions, ENGINEER does not guarantee that proposals, bids or actual project or construction cost WIll not vary from opinions of probable cost ENGINEER prepares 4. CONSTRUCTION PROCEDURES ENGINEER's observation or monitoring portions of the work performed under construction contracts shall not relieve the contractor from ItS responsibility for performing work In accordance with applicable contract documents. ENGINEER shall not control or have charge of, and shall not be responSible for, construction means, methods, techniques, sequences, procedures of construction, health or safety programs or precaullons connected with the work and shall not manage, supervise, control or have charge of construcllon. ENGINEER shall not be responSible for the acts or omissions of the contractor or other parties on the project. ENGINEER shall be entitled to review all construcllon contract documents and to require that no provisions extend the dulles or liabilities of ENGINEER beyond those set forth in this Agreement. OWNER agrees to include ENGINEER as an indemnified party In OWNER's construction contracts for the work, which shall protect ENGINEER to the same degree as OWNER. Further, OWNER agrees that ENGINEER shall be listed as an additional insured under the construction contractor's liability insurance poliCies. 5. CONTROLLING LAW ThiS Agreement IS to be govemed by the law of the state where ENGINEER's services are performed 6. SERVICES AND INFORMATION OWNER will provide all criteria and Informallon pertaining to OWNER's requirements for the project, including deSign objecllves and constraints, space, capaCity and performance requirements, fleXibility and expandablllty, and any budgetary limitations. OWNER WIll also proVide copies of any OWNER-fumlshed Standard Details, Standard Speclficallons, or Standard Bidding Documents which are to be Incorporated into the project. OWNER will fumlsh the services of soils/geotechnical engineers or other consultants that include reports and appropnate professional recommendations when such services are deemed necessary by ENGINEER The OWNER agrees to bear full responsibility for the technical accuracy and content of OWNER-fumlshed documents and services. In performing profeSSional engineering and related services hereunder, It IS understood by OWNER that ENGINEER is not engaged in rendering any type of legal, insurance or accounllng services, opinions or adVice Further, It IS the OWNER's sole responSibility to obtain the adVice of an attomey, insurance counselor or accountant to protect the OWNER's legal and finanCial interests. To that end, the OWNER agrees that OWNER or the OWNER's representative WIll examine all studies, reports, sketches, drawings, specifications, proposals and other documents, opinions or advice prepared or prOVided by ENGINEER, and WIll obtain the adVice of an attomey, Insurance counselor or other consultant as the OWNER deems necessary to protect the OWNER's Interests before OWNER takes action or forebears to take action based upon or relying upon the services prOVided by ENGINEER. 7. SUCCESSORS AND ASSIGNS OWNER and ENGINEER, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the covenants of thiS Agreement Neither OWNER nor ENGINEER WIll assign, sublet, or transfer any Interest In thiS Agreement or claims arising therefrom Without the WrItten consent of the other. 8. RE-USE OF DOCUMENTS All documents, Including all reports, draWings, speCifications, computer software or other items prepared or fumlshed by ENGINEER pursuant to thiS Agreement, are Instruments of selVlce WIth respect to the project. ENGINEER retains ownership of all such documents OWNER may retain copies of the documents for ItS Information and reference In connection With the project; however, none of the documents are 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 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, and OWNER Will defend, Indemnify and hold harmless ENGINEER from all claims, damages, losses and expenses, including attomey's fees, arising or resulting therefrom. Any such verification or adaptation WIll entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 9. TERMINATION OF AGREEMENT OWNER or ENGINEER may terminate the Agreement, In whole or in part, by giving seven (7) days WrItten notice, If the other party substantially fails to fulfill ItS obllgallons under the Agreement through no fault of the termlnallng party. Where the method of payment is "lump sum," or cost reimbursement, the final invoice WIll Include all services and expenses associated With the project up to the effective date of termlnallon. An eqUitable adjustment shall also be made to proVIde for termination settlement costs ENGINEER Incurs as a result of commitments that had become firm before termination, and for a reasonable profit for services performed. 10. SEVERABILITY If any provision of this agreement is held invalid or unenforceable, the remaining provisions shall be valid and binding upon the (10/2001) , ( I, I .'~ .. .. parties One or more waivers by either party of any provIsion, term or condition shall not be construed by the other party as a waiver of any subsequent breach of the same provision, term or condition 11. INVOICES ENGINEER Will submit monthly invoices for services rendered and OWNER Will make prompt payments In response to ENGINEER's inVOices. ENGINEER will retain receipts for reimbursable expenses in general accordance with Internal Revenue Service rules pertaining to the support of expenditures for income tax purposes Receipts will be available for Inspection by OWNER's auditors upon request If OWNER disputes any items in ENGINEER's InVOice for any reason, Including the lack of supporting documentation, OWNER may temporarily delete the disputed item and pay the remaining amount of the Invoice. OWNER Will promptly notify ENGINEER of the dispute and request c1anfication and/or correction. After any dispute has been settled, ENGINEER will Include the disputed item on a subsequent, regularly scheduled invoice, or on a speCial invoice for the disputed item only. OWNER recognizes that late payment of invoices results In extra expenses for ENGINEER. ENGINEER retains the nght to assess OWNER Interest at the rate of one percent (1 %) per month, but not to exceed the maximum rate allowed by law, on inVOices which are not paid Within forty-five (45) days from the date of the invoice. In the event undisputed portions of ENGINEER's invoices are not paid when due, ENGINEER also reserves the right, after seven (7) days pnor wntten notice, to suspend the performance of ItS services under this Agreement until all past due amounts have been paid In full. 12. CHANGES The parties agree that no change or modification to this Agreement, or any attachments hereto, shall have any force or effect unless the change IS reduced to wntlng, dated, and made part of this Agreement. The execution of the change shall be authonzed and Signed in the same manner as thiS Agreement. Adjustments In the period of services and in compensation shall be In accordance With applicable paragraphs and sections of thiS Agreement. Any proposed fees by ENGINEER are estimates to perform the services required to complete the project as ENGINEER understands It to be defined For those projects involving conceptual or process development services, activities often are not fully definable In the initial planning. In any event, as the project progresses, the facts developed may dictate a change in the services to be performed, which may alter the scope. ENGINEER will Inform OWNER of such situations so that changes In scope and adjustments to the time of performance and compensation can be made as reqUired If such change, additional services, or suspension of services results In an increase or decrease in the cost of or time required for performance of the services, an eqUitable adjustment shall be made, and the Agreement modified accordingly 13. CONTROLLING AGREEMENT 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. 14. EQUAL EMPLOYMENT AND NONDISCRIMINATION In connection with the services under thiS Agreement, ENGINEER agrees to comply with the applicable prOVISions of federal and state Equal Employment OpportUnity, and other employment, statutes and regulations. 15. HAZARDOUS MATERIALS OWNER represents to ENGINEER that, to the best of ItS knowledge, no hazardous materials are present at the project site However, In the event hazardous matenals are known to be T errns & Conditions for Professional Services present, OWNER represents that to the best of ItS knowledge It has disclosed to ENGINEER the eXistence of all such hazardous matenals, Including but not limited to asbestos, PCB's, petroleum, hazardous waste, or radioactive matenal located at or near the project Site, Including type, quantity and location of such hazardous materials. It is acknowledged by both parties that ENGINEER's scope of services do not include services related In any way to hazardous materials. In the event ENGINEER or any other party encounters undisclosed hazardous materials, ENGINEER shall have the obligation to notify OWNER and, to the extent required by law or regulation, the appropriate governmental offiCials, and ENGINEER may, at ItS option and without liability for delay, consequential or any other damages to OWNER, suspend performance of services on that portion of the project affected by hazardous matenals until OWNER: (I) retains appropnate speCialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remedlate, or remove the hazardous matenals; and (II) warrants that the project site is in full compliance with all applicable laws and regulations. OWNER acknowledges that ENGINEER is performing profeSSional services for OWNER and that ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous materials, as defined In the ComprehenSive EnVIronmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the project site In connection With ENGINEER's services under this Agreement. If ENGINEER's services hereunder cannot be performed because of the eXistence of hazardous materials, ENGINEER shall be entitled to terminate thiS Agreement for cause on 30 days written notice To the fullest extent permitted by law, OWNER shall indemnify and hold harmless ENGINEER, ItS officers, directors, partners, employees, and subconsultants from and against all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused by, an sing out of or resulting from hazardous materials, provided that (i) any such cost, loss, or damage IS attnbutable to bodily InJUry, sickness, disease, or death, or injury to or destruction of tangible property (other than completed Work), including the loss of use resulting therefrom, and (ii) nothing In thiS paragraph shall obligate OWNER to indemnify any IndiVidual or entity from and against the consequences of that individual's or entity's sole negligence or Willful misconduct. 16. EXECUTION This Agreement, Including the exhibits and schedules made part hereof, constitute the entire Agreement between ENGINEER and OWNER, supersedes and controls over all pnor wntten or oral understandings ThiS Agreement may be amended, supplemented or modified only by a wntten Instrument duly executed by the parties. 17. LIMITATION OF LIABILITY ENGINEER's and its employees' total liability to OWNER for any loss or damage, Including but not limited to special and consequential damages arising out of or in connection with the performance of services or any other cause, Including ENGINEER's and its employees' professional negligent acts, errors, or omiSSions, shall not exceed the greater of $50,000 or the total compensation received by ENGINEER hereunder, except as otherwise prOVided under this Agreement, and OWNER hereby releases and holds harmless ENGINEER and ItS employees from any liability above such amount 18. LITIGATION SUPPORT In the event ENGINEER is reqUired to respond to a subpoena, government InqUiry or other legal process related to the selVlces in connection with a legal or dispute resolution proceeding to which ENGINEER is not a party, OWNER shall reimburse ENGINEER for reasonable costs in responding and compensate ENGINEER at ItS then standard rates for reasonable time Incurred in gathering Information and documents and attending depOSitions, heanngs, and tnal 2 (10/2001 )