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HomeMy WebLinkAboutHR Green Inc-3/12/2012Cri iU (1 1143 PROFESSIONAL SERVICES AGREEMENT For FORMER CHAMBERLAIN MANUFACTURING PLANT PHASE 3 DEMOLITION & CRUSHING Noel Anderson Community Planning and Development Director City of Waterloo 715 Mulberry Street Waterloo, IA 50703 Robin Husman Project Director HR Green, Inc. 8710 Earhart Lane SW Cedar Rapids, IA 52404 Project Number. 10110021 October 20, 2011 Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 1 of 15 TABLE OF CONTENTS 1.0 PROJECT UNDERSTANDING 2.0 SCOPE OF SERVICES 3.0 DELIVERABLES AND SCHEDULES INCLUDED IN THIS AGREEMENT 4.0. ITEMS NOT INCLUDED IN AGREEMENT/SUPPLEMENTAL SERVICES 5.0 SERVICES BY OTHERS 6.0 CLIENT RESPONSIBILITIES 7.0 PROFESSIONAL SERVICES FEE 8.0 TERMS AND CONDITIONS Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 2 of 15 THIS AGREEMENT is between CITY of WATERLOO (hereafter "CLIENT") and HR GREEN (hereafter "COMPANY"). 1.0 Project Understanding 1.1 The CLIENT intends to have the remainder of the former Chamberlain Manufacturing Plant located at 550 Esther Street in Waterloo, Iowa (hereafter "SITE") abated of footings, floor slabs, above ground storage tanks, and other debris as necessary. It is our understanding that the CLIENT would like to remove the existing structures, including underground utilities, to make this site ready for redevelopment. 2.0 Scope of Services The CLIENT agrees to employ COMPANY to perform the following services: 1. Site Reconnaissance / Assessment 2. Develop Opinion of Probable Cost / Investigate Recycling Opportunities 3. Project Design — Preparation of Plans, Specifications and Contract Documents 4. Bidding and Contract Award 5. Construction Observation / Project Closeout TASK 1 — Site Reconnaissance / Assessment The CLIENT intends to proceed with the award of contract(s) for the demolition and crushing of selected footings, floor slabs, other related structures and removal of above ground storage tanks, and debris located on the former Chamberlain Manufacturing Property (SITE) located at 550 Esther Street in Waterloo, Iowa. Historically, the buildings were used for manufacturing of metal wringer washers, projectile metal parts, aluminum awnings and refrigerator shelves. With the help of State of Iowa and US Environmental Protection Agency Brownfield grants, the CLIENT has completed Phase I and Phase II Environmental Site Assessments (ESAs) and Phase 1 and Phase 2 Demolition on the Chamberlain SITE to address environmental contamination and remove derelict buildings. The CLIENT would like to make the SITE ready for redevelopment with the ultimate goal being sale of the site to a party who will put it back into productive use for the community and return it to the tax rolls or for park and open space. The initial effort toward this goal is for the CLIENT to award contract(s) for the demolition/removal of remnant structures including foundations, footings, floors, basements, concrete berms and pits, utilities ASTs and associate structures, and possible water wells. The initial demolition projects (contract #741 and #762) succeeded with cleanup and demolition of the above surface portion of all the manufacturing building structures. The remaining surface and subsurface portions of manufacturing buildings along with some ancillary structures were let for future demolition/removal phases. The number of structures to be removed under the phase (Phase 3) will be dependent on CLIENT funding for the project relative to the engineering estimate for the demolition. Also, as a part of this effort the CLIENT wishes to either demolish or remove for reuse the two above -ground, vertical welded steel oil storage tanks located at the northeast comer of the site. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 3 of 15 The demolition and crushing of selected footings, floor slabs, and related structures and utilities may be impacted by the presence of existing materials that may be classified as hazardous waste or hazardous materials. All known hazardous materials have been removed during previous stages; however, with the removal of surface and subsurface structures there is the possibility to encounter un -documented hazardous material. This Scope of Services includes development of Hazardous Materials Management section. It is. not the purpose of this phase of work to remove hazardous materials. If hazardous materials are encountered, the contractor will be required to alert the CLIENT and COMPANY. The COMPANY will provide an Environmental Specialist to review the on-site hazardous material finding and discuss the findings with the CLIENT. The CLIENT with the COMPANY's assistance will report hazardous materials and conditions to the Iowa Department of Natural Resources (IDNR), EPA and Chamberlain. It is assumed that Chamberlain, as the responsible party, will conducted any assessment and removal/disposal actions required by the IDNR and EPA. This Scope of Services is for (1), the preparation of plans, specifications and contract documents for selected demolition and crushing work; (2), providing assistance to the CLIENT in the award and execution of contract(s) for the defined demolition work; and (3), assistance to the CLIENT in the implementation of the contract(s) for demolition of selected existing buildings and related structures and utilities, administration of grant funds for the project, assistance in all in association with the former Chamberlain property identified above. The CLIENT has previously commissioned an asbestos survey for the Chamberlain property which was removed under CLIENT contracts #741. and #762. Therefore, as a part of this Scope of Services, the COMPANY will NOT perform an asbestos survey or related work, other than the review of the previously -commissioned report, and the non -intrusive visual observation of the subject footings, floor slabs, and related structures and utilities, as referenced above. As a part of this Scope of Services the COMPANY will NOT perform a survey or related work, or complete any sampling and analysis of any existing materials that may be classified as hazardous waste or hazardous materials, other than the review of previously conducted survey(s) and related report documents, and a non -intrusive visual observation of the subject floor slabs, footings, and related structures and utilities, as referenced above. COMPANY will develop a site specific health and safety plan for this project. This plan will be utilized by all COMPANY personnel conducting work at this site throughout the project. Subcontractors, if utilized, will be required to have their own site specific health and safety plan. TASK 2 — Develop Opinion of Probable Cost / Investigate Recycling Opportunities COMPANY will develop an opinion of probable cost for the demolition/removal of remnant structures including foundations, footings, floors, basements, concrete berms and pits, utilities ASTs and associate structures, and possible water wells. This may be done by evaluating project costs on similar projects and obtaining project estimates from professionals in the demolition industry. COMPANY will research the possibility of reusing and recycling demolition materials during the planning stages of this project. Some of these practices may include salvaging aggregates reclaimed from crushed portland cement concrete or asphaltic cement concrete for use by the CLIENT or others at the direction of the CLIENT. This may be done through a crushing process on- site with storage of said crushed materials on-site until removal or use by the CLIENT. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 4 of 15 TASK 3 — Project Design — Prepare Plans, Specifications & Contract Documents COMPANY will prepare bid documents, including plans, specifications and contract documents for the demolition/removal of remnant structures including foundations, footings, floors, basements, concrete berms and pits, utilities ASTs and associate structures, and possible water wells. Bidders must be qualified by experience, have adequate bonding capability, and have required insurance in order to be considered for the work. This phase of the Scope of Services includes the design and specification effort necessary to include the required demolition and crushing specifications for the demolition effort, and incorporation into the demolition plans, specifications and contract documents. The physical limits of the demolition will include the selected footings, floor slabs and related structures and utilities. Where the selected footings and related structures currently sit on a foundation that includes a basement, vault or pit, contractor will excavate and dispose of all items to a depth determined by the CLIENT. Included in the Bid Documents (Project Manual) will be: a. Engineer's Certification. b. Project Manual Information. c. Notice of Hearing and Letting. d. Advertisement for Bids. e. Instructions to Bidders. f. Bid Form, including Schedule of Prices, with Altemates. g. Bid Bond: h. Non -collusion Affidavit of Prime Bidder. i. Non -collusion Affidavit of Sub -contractor. j. Equal Opportunity Clause. k. Affirmative Action Program. I. Statement of Bidder(s)Qualifications. m. Notice of Contract Award. n. Form of Contract. o. Performance Bond. p. Payment Bond. q. Notice to Proceed. r. CLIENT General Specifications for Construction. s. Supplementary General Specifications for Construction. t. CLIENT Contract Compliance Program. u. MBE/WBE Compliance Program requirements. v. Davis — Bacon Compliance requirements. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 5 of 15 Included in the Detailed Plans and Specifications will be: a. Site and related floor layout drawings illustrating the locations of the footings and floor slabs to be included in the demolition and crushing project. b. Specifications for the demolition crushing work for the footings, floor slabs, and related structures and utilities. c. Photographic supplements. d. Hazardous Materials caution and management. e. Provisions for base bid demolition and crushing work. f. Contractor(s)' qualification and/or certification requirements. g. Site safety and monitoring requirements. h. Contractor(s)' salvage rights and procedures. i. Procedures for utilities terminations. j. MBE/WBE-related work. k. Clean-up & Disposal requirements. I. Requirements for sampling, testing and reporting. m. Requirements for Contractor(s)' final documentation. TASK 4 — Bidding and Contract Award COMPANY will assist the CLIENT in the solicitation and evaluation of bids and award of contract(s) for the demolition and crushing work. Sub components of this phase include: 1. Placing Iowa Professional Engineer -Certified plans, specifications and contract documents on file with the CLIENT. 2. Preparing the Notice of Public Hearing, for subsequent action by the Waterloo City Council. 3. Preparing the Notice to Bidders form (Advertisement for Bids) for publication by the CLIENT. 4. Printing and making available up to 40 copies of the final plans, specifications and contract documents for distribution to prospective contractors, sub -contractors and area plan rooms. 5. Responding to prospective bidders' questions, and preparing and distributing required Addenda to the plans, specifications and contract documents. 6. Preparing information for and conducting a pre-bid meeting and site tour to clarify bidding procedures, and to answer technical questions posed by prospective bidders. 7. Attending the public hearing and bid opening. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 6 of 15 8. Assisting the CLIENT in reviewing contractors'/sub-contractors' certification, qualification, evaluating the bids, and making a recommendation to the CLIENT regarding the award of contract(s).. 9. Preparing final contract documents for execution by the CLIENT and the successful bidder(s). 10. Preparing for and conducting a pre -construction meeting including, if necessary, a site tour. TASK 5 — Construction Observation & Project Closeout It is estimated that the primary demolition and crushing work will occur over a 10 to 16 week period. COMPANY will perform up to ten days of observation on the project to observe and document progress and to verify that requirements of the contract are being met. Observation days will be discussed with the CLIENT prior to scheduling. The following tasks will be completed during observation: 1. Review contractor's schedule, disposal location documentation, safety plans and site monitoring plans. 2. Address Contractor questions that arise during demolition activities. 3. Prepare a weekly summary of site activities for distribution to CLIENT staff via email. 4. Initiate any necessary correspondence with contractor regarding coordination of field orders and change orders. 5. Respond to requests for information. 6. Review, interpretation, and clarification of specifications. 7. Assist the CLIENT in a final field observation of the project to assess substantial compliance with the plans, specifications and contract documents. 8. Assist the CLIENT to prepare project closeout summary which will include tabulating final project cost for payment to the contractor. COMPANY will meet with CLIENT representatives following completion of the project to assist in the close-out of the project, including preparing and submitting required documentation reports. to the regulatory agencies, and tabulating final project cost for payment to the Contractor. 3.0 Deliverables and Schedules Included in this Contract COMPANY will begin upon receipt of signed contract. It is anticipated that Tasks 1 through 4 will take approximately 12 weeks to complete from notice to proceed. This . will include preparing bidding documents and allowing CLIENT one week to review them. It also includes a two or three week bidding period with one pre-bid meeting. Project completion date will be determined by the contract documents, but it is anticipated abatement and demolition activities will take approximately 10-16 weeks depending on scope of work. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 7 of 15 This schedule was prepared to include reasonable allowances for review and approval times required by the CLIENT and public authorities having jurisdiction over the project. This schedule shall be equitably adjusted as the project progresses, allowing for changes in the scope of the project requested by the CLIENT or for delays or other causes beyond the control of COMPANY. 4.0 Items not included in Agreement/Supplemental Services The following items are not included as part of this agreement: 1. COMPANY will not provide "means" or "methods" to the contractor. 2. COMPANY has budgeted up to ten days of observation for a field representative to be onsite during the abatement and demolition phases. A supplemental contract will be prepared for days in excess of ten. 3. Sampling of any building materials or sampling of any media on the property for analyses. COMPANY is relying on removal of all asbestos under Phase 1 and -2 on the SITE. Discovery of unknown asbestos or other hazardous material will require a supplemental contract. 4. State Historic Preservation Office (SHPO) compliance is not included with this scope of services. Any supplemental services not included in the agreement can be provided by COMPANY under separate agreement, if desired. 5.0 Client Responsibilities In conjunction with the subject asbestos abatement and demolition project, the CLIENT will: 1. Designate a representative of the CLIENT to work directly with COMPANY for the duration of the subject demolition project. This designated representative shall attend the Pre-bid and Pre -construction meetings. 2. Provide a knowledgeable representative of the Site and unrestricted access to the SITE. 3. If available, provide copies of all building plans, photos of the buildings and related structures, and of the SITE in general. 4. Provide locations of private utilities if available. 5. Provide copies of any previously -completed reports that may be pertinent to this project. 6. Provide sample copies of CLIENT standard contract forms for inclusion into the Project Manual (contract documents). Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 8 of 15 7. Confirm Method of Payment to the Contractor(s), including requirements for retainage from partial payment requests, Minority-owned Business Enterprises and Woman - owned Business Enterprises (MBE/WBE) participation requirements, Liquidated Damage requirements and Contractor(s)' Insurance requirements. 8. Promptly review draft plans, specifications and contract documents and provide comments for consideration by COMPANY. 9. Assist, when applicable, by answering questions of prospective bidders during the bidding process. 10. Conduct a Public Hearing on the Plans, Specifications, Form of Contract and Estimate of Cost. 11. Advertise for bids, award contract and review and confirm the adequacy of contractor(s)' Certificate(s) of Insurance. Assist, when applicable, by answering questions of contractor(s)/sub-contractors during the demolition process. 13. Process Contractor(s)' periodic and final payment requests. 14. Conduct a final field observation of the project to assure substantial compliance with the plans, specifications and contract documents. 15. Complete a review of the contractor's documentation of field testing and monitoring results, and of the final disposal of demolished and waste materials. 16. Prepare and submit required documentation to applicable funding and regulatory agencies. 6.0 Professional Services Fee 6.1 Fees The fee for services will be based on COMPANY standard hourly rates for the year in which the services are conducted. These standard hourly rates are subject to change upon 30 days' written notice. Non salary expenses directly attributable to the project such as: (1) living and traveling expenses of employees when away from the home office on business connected with the project; (2) identifiable communication expenses; (3) identifiable reproduction costs applicable to the work; and (4) outside services will be charged in accordance with the rates current at the time the work is done. 6.2 Invoices Invoices for COMPANY's services shall be submitted, on a monthly basis. Invoices shall be due and payable upon receipt. If any invoice is not paid within 15 days, COMPANY may, without waiving any claim or right against the CLIENT, and without liability whatsoever to the CLIENT, suspend or terminate the performance of services. Accounts unpaid 30 days after the invoice date may be subject to a monthly service charge of 1.5% (or the maximum .legal rate) on the unpaid balance. In the event any portion of an account remains unpaid 60 days Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 9 of 15 after the billing, COMPANY may institute collection action and the CLIENT shall pay all costs of collection, including reasonable attorney's fees. 6.3 Extra Work Any work required but not included as part of this contract shall be considered extra work. Extra work will be billed on a Time and Material basis with prior approval of the CLIENT. 6.4 Exclusion This fee does not include attendance at any meetings or public hearings other than those specifically listed in the Scope of Services. These work items are considered extra and are billed separately on an hourly basis. 6.5 Payment The CLIENT AGREES to pay COMPANY on the following basis: Time and material basis with a Not to Exceed fee of $43,114.00 . An approximate fee breakdown for each phase is shown below. COMPANY may reallocate funds from one phase to another in order to efficiently complete the project. 1. Site Reconnaissance / Assessment - $5,000 2. Develop Opinion of Probable Cost / Investigate Recycling Opportunities - $3,000 3. Project Design - Preparation of Plans, Specifications & Contract Documents - $15,000 4. Bidding and Contract Award - $5,000 5. Construction Observation / Project Closeout - $15,114 Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 10 of 15 7.0 Terms and Conditions The following Terms and Conditions are incorporated into this AGREEMENT and made a part of it. 7.1 Standard of Care Services provided by COMPANY under this AGREEMENT will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing at the same time and in the same or similar locality. 7.2 Entire Agreement This Agreement, and its attachments, constitutes the entire understanding between CLIENT and COMPANY relating to professional engineering services. Any prior or contemporaneous agreements, promises, negotiations, or representations not expressly set forth herein are of no effect. Subsequent modifications or amendments to this Agreement shall be in writing and signed by the parties to this Agreement. If the CLIENT, its officers, agents, or employees request COMPANY to perform extra work or services pursuant to this Agreement, CLIENT will pay for the additional services even though an additional written Agreement is not issued or signed. 7.3 Time Limit and Commencement of Work This AGREEMENT must be executed within ninety (90) days to be accepted under the terms set forth herein. The work will be commenced immediately upon receipt of this signed Agreement. 7.4 Suspension of Services If the Project or the COMPANY'S services are suspended by the CLIENT for more than thirty (30) calendar days, consecutive or in the aggregate, over the term of this Agreement, the COMPANY shall be compensated for all services performed and reimbursable expenses incurred prior to the receipt of notice of suspension. In addition, upon resumption of services, the CLIENT shall compensate the COMPANY for expenses incurred as a result of the suspension and resumption of its services, and the COMPANY'S schedule and fees for the remainder of the Project shall be equitably adjusted. If the COMPANY'S services are suspended for more than ninety (90) days, consecutive or in the aggregate, the COMPANY may terminate this Agreement upon giving not less than five (5) calendar days' written notice to the CLIENT. If the CLIENT is in breach of this Agreement, the COMPANY may suspend performance of services upon five (5) calendar days' notice to the CLIENT. The COMPANY shall have no liability to the CLIENT, and the CLIENT agrees to make no claim for any delay or damage as a result of such suspension caused by any breach of this Agreement by the CLIENT. Upon receipt of payment in full of all outstanding sums due from the CLIENT, or curing of such other breach which caused the COMPANY to suspend services, the COMPANY shall resume services and there shall be an equitable adjustment to the remaining project schedule and fees as a result of the suspension. 7.5 Book of Account COMPANY will maintain books and accounts of payroll costs, travel, subsistence, field, and incidental expenses for a period of five (5) years. Said books and accounts will be available at all reasonable times for examination by CLIENT at the corporate office of COMPANY during that time. 7.6 Insurance COMPANY will maintain insurance for claims under the Worker's Compensation Laws, and from General Liability and Automobile claims for bodily injury, death, or property damage arising from the negligent performance by COMPANY's employees of the functions and services required under this Agreement. 7.7 Termination or Abandonment Either party has the option to terminate this Agreement. In the event of failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party, then the obligation to provide further services under this Agreement may be terminated upon seven days written notice. If any portion of the work is terminated or abandoned by CLIENT, the provisions of this Schedule of Fees and Conditions in regard to compensation and payment shall apply insofar as possible to that portion of the work not terminated or abandoned. If said termination occurs prior to completion of any phase of the project, the fee for services performed during such phase shall be based on COMPANY's reasonable estimate of the portion of such phase completed prior to said termination, plus a reasonable amount to reimburse COMPANY for termination costs. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 11 of 15 7.8 Waiver COMPANY's waiver of any term, condition, or covenant or breach of any term, condition, or covenant, shall not constitute a waiver of any other term, condition, or covenant, or the breach thereof. 7.9 Severability If any provision of this Agreement is declared invalid, illegal, or incapable of being enforced by any Court of competent jurisdiction, all of the remaining provisions of this Agreement shall nevertheless continue in full force and effect, and no provision shall be deemed dependent upon any other provision unless so expressed herein. 7.10 Successors and Assigns All of the terms, conditions, and provisions hereof shall inure to the benefit of and be binding upon the parties hereto, and their respective successors and assigns, provided, however, that no assignment of this Agreement shall be made without written consent of the parties to this Agreement. 7.11 Third -Party Beneficiaries Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the CLIENT or the COMPANY. The COMPANY's services under this Agreement are being performed solely for the CLIENTs benefit, and no other party or entity shall have any claim against the COMPANY because of this Agreement or the performance or nonperformance of services hereunder. The CLIENT and COMPANY agree to require a similar provision in all contracts with contractors, subcontractors, subconsultants, vendors and other entities involved in this project to carry out the intent of this provision. 7.12 Goveming Law and Jurisdiction The CLIENT and the COMPANY agree that this Agreement and any legal actions conceming its validity, interpretation and performance shall be governed by the laws of the State of Iowa without regard to any conflict of Taws provisions, which may apply the laws of other jurisdictions. It is further agreed that any legal action between the CLIENT and the COMPANY arising out of this Agreement or the performance of the services shall be brought in a court of competent jurisdiction in the State of Iowa. 7.13 Dispute Resolution Mediation. In an effort to resolve any conflicts that arise during the design or construction of the project or following the completion of the project, the CLIENT and COMPANY agree that all disputes between them arising out of or relating to this Agreement shall be submitted to non-binding mediation unless the parties mutually agree otherwise. The CLIENT and COMPANY further agree to include a similar mediation provision in all agreements with independent contractors and consultants retained for the project and to require all independent contractors and consultants also to include a similar mediation provision in all agreements with subcontractors, sub - consultants, suppliers or fabricators so retained, thereby providing for mediation as the primary method for dispute resolution between the parties to those agreements. Arbitration. In the event the parties to this Agreement are unable to reach a settlement of any dispute arising out of the services under this Agreement, involving an amount of less than $50,000, in Mediation, then such disputes shall be settled by binding arbitration by an arbitrator tobe mutually agreed upon by the parties, and shall proceed in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. If the parties cannot agree on a single arbitrator, then the arbitrator(s) shall be selected in accordance with the above -referenced rules. 7.14 Attorney's Fees If litigation arises for purposes of collecting fees or expenses due under this Agreement, the Court in such litigation shall award reasonable costs and expenses, including attorney fees, to the party justly entitled thereto. In awarding attorney fees, the Court shall not be bound by any Court fee schedule, but shall, in the interest of justice, award the full amount of costs, expenses, and attorney fees paid or incurred in good faith. 7.15 Ownership of Instruments of Service All reports, plans, specifications, field data, field notes, laboratory test data; calculations, estimates and other documents including all documents on electronic media prepared by COMPANY as instruments of service shall remain the property of COMPANY. COMPANY shall retain these records for a period of five (5) years following completion/submission of the records, during which period they will be made available to the CLIENT at all reasonable times. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 12 of 15 7.16 Reuse of Documents All project documents including, but not limited to, plans and specifications fumished by COMPANY under this project are intended for use on this project only. Any reuse, without specific written verification or adoption by COMPANY, shall be at the CLIENTs sole risk, and CLIENT shall defend, indemnify and hold harmless COMPANY from all claims, damages and expenses including attomey's fees arising out of or resulting therefrom. Under no circumstances shall delivery of electronic files for use by the CLIENT be deemed a sale by the COMPANY, and the COMPANY makes no warranties, either express or implied, of merchantability and fitness for any particular purpose. In no event shall the COMPANY be liable for indirect or consequential damages as a result of the CLIENTs use or reuse of the electronic files. 7.17 Failure to Abide by Design Documents or To Obtain Guidance The CLIENT agrees that it would be unfair to hold COMPANY liable for problems that might occur should COMPANY'S plans, specifications or design intents not be followed, or for problems resulting from others' failure to obtain and/or follow COMPANY'S guidance with respect to. any errors, omissions, inconsistencies, ambiguities or conflicts which are detected or alleged to exist in or as a consequence of implementing COMPANY'S plans, specifications or other instruments of service. Accordingly, the CLIENT waives any claim against COMPANY, and agrees to defend, indemnify and hold COMPANY harmless from any claim for injury or losses that results from failure to follow COMPANY'S plans, specifications or design intent, or for failure to obtain and/or follow COMPANY'S guidance with respect to any alleged errors, omissions, inconsistencies, ambiguities or conflicts contained within or arising as a result of implementing COMPANY'S plans, specifications or other instruments of services. The CLIENT also agrees to compensate COMPANY for any time spent and expenses incurred remedying CLIENTs failures according to COMPANY'S prevailing fee schedule and expense reimbursement policy. 7.18 Opinion of Probable Construction Cost COMPANY shall submit to the CLIENT an opinion of probable cost required to construct work recommended, designed, or specified by COMPANY. COMPANY is not a construction cost estimator or construction contractor, nor should COMPANY'S rendering an opinion of probable construction costs be considered equivalent to the nature and extent of service a construction cost estimator or construction contractor would provide. This requires COMPANY to make a number of assumptions as to actual conditions that will be encountered on site; the specific decisions of other design professionals engaged; the means and methods of construction the contractor will employ; the cost and extent of labor, equipment and materials the contractor will employ; contractor's techniques in determining prices and market conditions at the time, and other factors over which COMPANY has no control. Given the assumptions which must be made, COMPANY cannot guarantee the accuracy of his or her opinions of cost, and in recognition of that fact, the CLIENT waives any claim against COMPANY relative to the accuracy of COMPANY'S opinion of probable construction cost. 7.19 Design Information in Electronic Form Because electronic file information can be easily altered, corrupted, or modified by other parties, either intentionally or inadvertently, without notice or indication, COMPANY reserves the right to remove itself from of its ownership and/or involvement in the material from each electronic medium not held in its possession. CLIENT shall retain copies of the work performed by COMPANY in electronic form only for information and use by CLIENT for the specific purpose for which COMPANY was engaged. Said material shall not be used by CLIENT or transferred to any other party, for use in other projects, additions to this project, or any other purpose for which the material was not strictly intended by COMPANY without COMPANY's expressed written permission. Any unauthorized use or reuse or modifications of this material shall be at CLIENTS sole risk. Furthermore, the CLIENT agrees to defend, indemnify, and hold COMPANY harmless from all claims, injuries, damages, losses, expenses, and attomey's fees arising out of the modification or reuse of these materials. The CLIENT recognizes that designs, plans, and data stored on electronic media including, but not limited to computer disk, magnetic tape, or files transferred via email, may be subject to undetectable alteration and/or uncontrollable deterioration. The CLIENT, therefore, agrees that COMPANY shall not be liable for the completeness or accuracy of any materials provided on electronic media after a 30 day inspection period, during which time COMPANY shall correct any errors detected by the CLIENT to complete the design in accordance with the intent of the contract and specifications. After 40 days, at the request of the CLIENT, COMPANY shall submit a final set of sealed drawings, and any additional services to be performed by COMPANY relative to the submitted electronic materials shall be subject to separate AGREEMENT. The CLIENT is aware that differences may exist between the electronic files delivered and the printed hard -copy construction documents. In the event of a conflict between the signed construction documents prepared by the COMPANY and electronic files, the signed or sealed hard -copy construction documents shall govem. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 13 of 15 7.20 Information Provided by Others The CLIENT shall fumish, at the CLIENTs expense, all information, requirements, reports, data, surveys and instructions required by this AGREEMENT. The COMPANY may use such information, requirements, reports, data, surveys and instructions in performing its services and is entitled to rely upon the accuracy and completeness thereof. The COMPANY shall not be held responsible for any errors or omissions that may arise as a result of erroneous or incomplete information provided by the CLIENT and/or the CLIENTs consultants and contractors. COMPANY is not responsible for accuracy of any plans, surveys or information of any type including electronic media prepared by any other consultants, etc. provided to COMPANY for use in preparation of plans. The CLIENT agrees, to the fullest extent permitted by law, to indemnify and hold harmless the COMPANY from any damages, liabilities, or costs, including reasonable attorneys' fees and defense costs, arising out of or connected in any way with the services performed by other consultants engaged by the CLIENT. COMPANY is not responsible for accuracy of topographic surveys provided by others.. A field check of a topographic survey provided by others will not be done under this contract unless indicated in the Scope of Work. 7.21 Force Majeure The CLIENT agrees that the COMPANY is not responsible for damages arising directly or indirectly from any delays for causes beyond the COMPANY's control. CLIENT agrees to defend, indemnify, and hold COMPANY, its consultants, agents, and employees harmless from any and all liability, other than that caused by the negligent acts, errors, or omissions of COMPANY, arising out of or resulting from the same. For purposes of this Agreement, such causes include, but are not limited to, strikes or other labor disputes; severe weather disruptions or other- natural disasters or acts of God; fires, riots, war or other emergencies; failure of any govemment agency to act in timely manner, failure of performance by the CLIENT or the CLIENT'S contractors or consultants; or discovery of any hazardous substances or differing site conditions. Severe weather disruptions include but are not limited to extensive rain, high winds, snow greater than two (2) inches and ice. In addition, if the delays resulting from any such causes increase the cost or time required by the COMPANY to perform its services in an orderly and efficient manner, the COMPANY shall be entitled to a reasonable adjustment in schedule and compensation. 7.22 Job Site Visits and Safety Neither the professional activities of COMPANY, nor the presence of COMPANY'S employees and subconsultants at a construction site, shall relieve the General Contractor and any other entity of their obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all portions of the work of construction in accordance with the contract documents and any health or safety precautions required by any regulatory agencies. COMPANY and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. The CLIENT agrees that the General Contractor is solely responsible for job site safety, and warrants that this intent shall be made evident in the CLIENTs AGREEMENT with the General Contractor. The CLIENT also agrees that the CLIENT, COMPANY and COMPANY'S consultants shall be indemnified and shall be made additional insureds on the General Contractor's and all subcontractor's general liability policies on a primary and non- contributory basis. 7.23 Hazardous Materials CLIENT hereby understands and agrees that COMPANY has not created nor contributed to the creation or existence of any or all types of hazardous or toxic wastes, materials, chemical compounds, or substances, including asbestos, or any other type of environmental hazard or pollution, whether latent or patent, at CLIENTs premises, or in connection with or related to this project with respect to which COMPANY has been retained to provide professional engineering services. The compensation to be paid COMPANY for said professional engineering services is in no way commensurate with, and has not been calculated with reference to, the potential risk of injury or loss which may be caused by the exposure of persons or property to such substances or conditions. Therefore, to the fullest extent permitted by law, CLIENT agrees to defend, indemnify, and hold COMPANY, its officers, directors, employees, and consultants, harmless from and against any and all claims, damages, and expenses, whether direct, indirect, or consequential, including, but not limited to, attorney fees and Court costs, arising out of, or resulting from the discharge, escape, release, or saturation of smoke, vapors, soot, fumes, acid, alkalies, toxic chemicals, liquids gases, or any other materials, irritants, contaminants, or pollutants in or into the atmosphere, or on, onto, upon, in, or into the surface or subsurface of soil, water, or watercourses, objects, or any tangible or intangible matter, whether sudden or not. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 14 of 15 The CLIENT warrants that it has or shall retain appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove the asbestos or hazardous or toxic materials, and warrants that the job site is or shall be in full compliance with applicable laws and regulations. Nothing contained within this Agreement shall be construed or interpreted as requiring COMPANY to assume the status of a generator, storer, transporter, treater, or disposal facility as those terms appear within the Resource Conservation and Recovery Act, 42 U.S.C.A., §6901 et seq., as amended, or within any State statute goveming the generation, treatment, storage, and disposal of waste. 7.24 Certificate of Merit The CLIENT shall make no claim for professional negligence, either directly or in a third party claim, against COMPANY unless the CLIENT has first provided COMPANY with a written certification executed by an independent design professional currently practicing in the same discipline as COMPANY and licensed in the State in which the claim arises. This certification shall: a) contain the name and license number of the certifier, b) specify each and every act or omission that the certifier contends is a violation of the standard of care expected of a Design Professional performing professional services under similar circumstances; and c) state in complete detail the basis for the certifier's opinion that each such act or omission constitutes such a violation. This certificate shall be provided to COMPANY not less than thirty (30) calendar days prior to the presentation of any claim or the institution of any judicial proceeding. 7.25 Limitation of Liability The CLIENT agrees, to the fullest extent permitted by law, to limit the liability of COMPANY and COMPANY's officers, directors, partners, employees, shareholders, owners and subconsultants to the CLIENT for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys' fees and costs and expert witness fees and costs, so that the total aggregate liability of COMPANY and its officers, directors, partners, employees, shareholders, owners and subconsultants to all those named shall not exceed COMPANY'S total fee received for services rendered on this project or $50,000.00, whichever is less. It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by law. 7.26 Environmental Audits/Site Assessments Environmental Audit/Site Assessment report(s) are prepared for CLIENTs sole use. CLIENT agrees to defend, indemnify, and hold COMPANY, its consultants, agents, and employees harmless against all damages, claims, expenses, and losses arising out, of or resulting from any reuse of the Environmental Audit/Site Assessment report(s) without the written authorization of COMPANY. 7.27 Construction Observation Without Design It is agreed that the professional services of COMPANY are limited to a review and observation of the work of the contractor to ascertain that such work is proceeding in general accordance with the contract documents and that such contract documents have not been prepared by the COMPANY. Unless otherwise stated, the CLIENT warrants that any documents provided to COMPANY by the CLIENT or by the prior consultant may be relied upon as to their accuracy and completeness without independent investigation by the successor consultant and that the CLIENT has the right to provide such documents to COMPANY free of any claims of copyright or patent infringement or violation of any other party's rights in intellectual property. It is further agreed that the CLIENT will defend, indemnify and hold harmless COMPANY from any claim or suit whatsoever, including all payments, expenses or costs, arising from or alleged to have arisen from an error or omission in the plans, specifications or contract documents. COMPANY agrees to be responsible for its employees own negligent acts, errors or omissions in the performance of their professional services. 7.28 Design Without Construction Observation It is agreed that the professional services of COMPANY do not extend to or include the review or site observation of the contractor's work or performance and the CLIENT assumes all responsibility for interpretation of the contract documents and for construction observation. It is further agreed that the CLIENT will defend, indemnify and hold harmless COMPANY from any claim or suit whatsoever, including but not limited to all payments, expenses or costs involved, arising from the contractor's performance or the failure of the contractor's work to conform to the design intent and the contract documents. COMPANY agrees to be responsible for its employees negligent acts, errors or omissions. 7.29 Construction Observation COMPANY shall visit the project at appropriate intervals (as described in the scope of services) during construction to become generally familiar with the progress and quality of the contractors' work and to determine if Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 15 of 15 the work is proceeding in general accordance with the Contract Documents. The CLIENT has not retained COMPANY to make detailed inspections or to provide exhaustive or continuous project review and observation services. COMPANY does not guarantee the performance of, and shall have no responsibility for, the acts or omissions of any contractor, subcontractor, supplier or any other entity fumishing materials or performing any work on the project. If the CLIENT desires more extensive project observation or full-time project representation, the CLIENT shall request in writing such services be provided by COMPANY as Additional Services in accordance with the terms of the Agreement. Professional Services Agreement Former Chamberlain Manufacturing Plant Project October 20, 2011 Page 16 of 15 This AGREEMENT is approved and accepted by the CLIENT and COMPANY upon both parties signing and dating the AGREEMENT. Work cannot begin until COMPANY receives a signed agreement. The effective date of the AGREEMENT shall be the last date entered below. Sincerely, HR GREEN COMPANY Robin Husman Approved by: Printed/Typed Name: J : mes Halverson Title: Vice President Date: 10/20/11 City of Waterloo Accepted by: Printed/Typed Name: (�l, 114 ,.-1 +1 C r i Title: Date: