HomeMy WebLinkAboutStanley Consultants - PSA - 3/11/19PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of March 11, 2019, between CITY OF WATERLOO (CLIENT) and
STANLEY CONSULTANTS, INC. (CONSULTANT). CLIENT intends to design Delane Avenue Stormwater
Detention Improvements (hereinafter called "project").
CLIENT and CONSULTANT agree:
1. Scope of Services. CONSULTANT shall perform professional services as stated in Exhibit 1.
2. Compensation. CLIENT shall compensate CONSULTANT for CONSULTANT's services as stated in
Exhibit 2.
3. Terms and Conditions. CONSULTANT shall provide professional services in accordance with the terms
and conditions stated in Exhibit 3. If client issues a purchase order or other document to initiate the
commencement of services hereunder, it is agreed that any terms and conditions appearing thereon shall
have no application and only the provisions of this Agreement shall automatically apply.
4. CLIENT has provided or shall provide for payment from one or more lawful sources of all sums to be paid
to CONSULTANT.
5. Following exhibits are attached to and made part of this Agreement:
Exhibit 1 - Scope of Services
Exhibit 2 - Compensation
Exhibit 3 - Standard Terms and Conditions
IN WITNESS WHEREOF, the parties below have executed this Agreement as of the day and year first above
written.
STANLEY CONSULTANTS, INC. CITY OF WATERLOO
By: J OMAQS 12'•
Attest:
Daniel R. Fullerton, P.E
Client Service Manag
Wendy Diekema
Address for giving notices:
100 COURT AVENUE
SUITE 300
DES MOINES, IA 50309-2200
By:.�.,,
Attest:
1.44
Address for giving notices:
715 MULBERRY STREET
WATERLOO, IOWA 50703
If CLIENT is a public body, attach evidence of authority to sign and resolution or other document authorizing
execution of AGREEMENT.'
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Stanley Consultants INC
EXHIBIT 1
SCOPE OF SERVICES
City of Waterloo
Delane Avenue Stormwater Detention Improvements
Project Background
The Delane Avenue neighborhood is located north of Waterloo Memorial Park Cemetery and West of
Devonshire Park. There is a small creek that flows between the cemetery and the park and then into a
60 -inch diameter pipe located under Delane Avenue.
There is a history of flooding in this area and potential improvements have been studied several times
over the past 30 years. A significant portion of the neighborhood is inside the FEMA Zone A (non -
detailed) regulatory floodplain, meaning these properties are valued lower than nearby properties outside
the floodplain and home owners are required to purchase flood insurance.
In 2012, JDE Engineering (JDE) analyzed and developed preliminary designs for a detention pond and
channel improvements surrounding the Devonshire Park and school property. CONSULTANT recently
completed a review of the JDE data and determined the survey data is adequate for use in proceeding with
preliminary and final design.
This Scope of Services includes advancing preliminary and final design and development of bid
documents for construction of the Delane Stormwater Detention Project as well as assisting the City of
Waterloo (CITY) during the bidding process. The preliminary design phase will use JDE's general
concept and include developing a drainage model to review sizing and flood reduction and then further
development of the detailed design elements. Preliminary design will be presented to the CITY, and
following CITY review a public information meeting will be held. Then upon CITY approval, final
design will proceed to develop bid documents for construction. CONSULTANT will assist the CITY in
obtaining regulatory approval and permits, as required from the U.S. Army Corps of Engineers (USACE),
Iowa Department of Natural Resources (DNR) and coordination with Federal Emergency Management
Agency (FEMA).
PART 1 — BASIC SERVICES
1. Project management
1.1. Project management and communications
1.1.1. Provide CITY bi-weekly progress reports.
1.1.2. Communicate with CITY on project issues and information requests.
1.1.3. Coordinate internal and external meetings, tasks, milestones, and deliverables.
2. Preliminary Design:
2.1. Project Initiation and Kickoff meeting
2.1.1. CITY to provide any additional information received on project area.
2.1.2. Conduct kickoff meeting with the CITY at City Hall. Review project objectives and scope,
project funding, and confirm overall project schedule.
2.1.3. Conduct a site visit following the kickoff meeting
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SCOPE OF SERVICES
• Conduct a walkthrough and review existing conditions with CITY staff.
• Install level loggers near 60 -inch culvert entrance and upstream of the box culvert
that provides cemetery access over creek.
2.2. Hydrologic and Hydraulic Analysis
2.2.1. CITY to provide any dates and information related to prior flooding events to use in
correlation.
2.2.2. Use CITY provided GIS storm sewer network and LiDAR topography to delineate drainage
boundaries.
2.2.3. Develop drainage area parameters using Iowa Statewide Urban Design and Specifications
(SUDAS) methodology.
2.2.4. Develop existing conditions stormwater drainage model using survey data in XPSWMM
v2018.1.
2.2.5. Install, collect data, and remove two (2) level loggers which will provide 15 or 30 -minute
creek water level readings to use in XPSWMM calibration.
2.2.6. Use 24-hour rainfall depths from NOAA Atlas 14 and analyze
• 2 -yr, 10 -yr, 50 -yr, 100 -yr and simulated rainfall events
• Calibration event (level logger and nearby rain gage data)
2.2.7. Develop proposed condition stormwater drainage model as part of preliminary design to
evaluate detention volume and hydraulic structure sizing.
2.2.8. Summarize results as part of Preliminary Design Report.
2.3. Field Survey for acquisition plats or additional field survey.
2.3.1. Acquisition Plats — research, fieldwork, preparation, and submittal of up to three (3)
acquisition or easement plats for project construction.
2.3.2. Fieldwork — control, field survey, and post -processing of up to five (5) days of project
survey for any additional areas or elements required to develop project design and
drawings.
2.4. Design Elements
2.4.1. Develop CAD basemap of project area using prior survey data and supplemental field
survey provided by Helland Surveying.
2.4.2. Layout design elements and site grading in accordance with concept and findings from
H&H analysis.
2.4.2.1. Channel grading between West 4th Street and Delane Avenue.
2.4.2.2. Detention pond and surrounding area grading. Embankment design includes:
• Review and assessment of 2018 Terracon Geotechnical Report.
• Development of soil parameters based on Terracon soil borings.
• Slope and global stability analysis of proposed embankments.
• Seepage analysis of proposed embankments during flood condition.
Embankment slope design, seepage control, and subsurface drainage systems.
2.4.2.3. Hydraulic sizing of inflow and outflow channels/structures.
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• Structural and foundation design for overflow weir structure.
• Stormwater connection from Presley Circle.
2.4.3. Prepare opinion of probable Construction Cost.
2.4.4. Develop preliminary design drawings:
• Construction limits and access
• Plan views of overall design
• Profiles and/or sections of major features
• Temporary Construction Easements and Permanent Easements
2.5. Preliminary Design Report
• Narrative of design process and findings.
• Summary of H&H analysis, geotechnical analysis, and preliminary structural design.
• Regulatory requirements.
• Document any significant changes from JDE concept and/or additional information
required to advance detailed design.
• Estimate preliminary construction quantities.
• Opinion of probable construction cost.
• Preliminary design drawings.
• Recommendations for detailed design and construction.
2.6. City Reviews and Public Meeting
2.6.1. Hold teleconference with CITY staff prior to public meeting to discuss any questions or
concerns with preliminary design needing to be addressed prior to public meeting.
2.6.2. Once comments have been addressed, hold public meeting at location of CITY's choosing
to provide information on the project.
• Consultant will prepare, attend, and present a power point presentation or up to
three (3) poster exhibits and a single page handout and comment form for public
meeting.
• CITY will respond to public comments with technical input from CONSULTANT.
3. Regulatory Approvals and Permitting:
3.1. Joint Permitting Process: Project will be permitted through the joint USACE/DNR permit
application. Advance coordination will be conducted with both agencies to evaluate any issues
that need to be addressed prior to permit application submittal.
• Iowa DNR - Floodplain permitting: Advance coordination discussions with DNR and
provide meeting notes on modeling and documentation requirements during preliminary
design.
• USACE — Waters of the U.S.: Discuss potential for wetland or other habitat impacts that
need to be minimized or avoided to stay within Nationwide permit.
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• Develop and submit joint application permit for the project at 60% design level.
• Respond to regulatory agency comments and revise project plans and specifications as
required.
• Resubmit final draft to regulatory agency for approval.
3.2. Wetland Delineation (if required) — If USACE requests evaluation of potential wetland impacts.
CONSULTANT will perform a wetland delineation on the west side of Devonshire Park to
demonstrate minimal impact. Includes site visit, delineation by certified wetland delineator,
electronic shapefile of wetland extents, and documenting report.
3.3. FEMA — A Letter of Map Revision (LOMR) is required to officially modify the FEMA flood
insurance map and remove properties from the floodplain. Because the LOMR follows
construction, that task will be defined by a separate Supplemental Agreement to this contract.
A CLOMR (Conditional Letter of Map Revision) will be applied for during design to obtain FEMA
review and conditional approval of modeling, design, and floodplain modification during the
design phase to reduce the risk of issues during LOMR approval. This task includes filling out
CLOMR forms, submitting ArcGIS mapping and H&H model files, developing public notification
language, and coordinating CLOMR approval with FEMA. The submittal will be online.
• CITY will pay the $7000 CLOMR fee to FEMA (it is not included in the contract fee).
• It is assumed the CITY will issue any public and individual property owner notifications
required.
3.4. NPDES Permit — Develop Storm Water Pollution Prevention Plan document for use by
contractor. CONSULTANT will submit online application for the General Permit No. 2.
4. Final Design
4.1. Detailed Design Kickoff Meeting: Teleconference with the CITY to discuss any changes to
overall project schedule, project goals and objectives, funding and review public meeting
comments to be incorporated in detailed design.
4.2. 60% Design
4.2.1. Analysis
• H&H: Update model per any design revisions.
• Geotech: Perform analysis of foundation/stability conditions for proposed weir
structure, update embankment design analysis from preliminary design phase.
• Structural: Perform Analysis of proposed concrete weir structure
• Civil: Update grading and construction quantities.
4.2.2. Drawings
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• Reflect 60% completion level with plan views, sections, work limits and details to
provide CITY enough information to review and for CONSULTANT to submit for Joint
Application USACE/DNR.
4.2.3. Specifications
• Review SUDAS specifications for applicability.
• Develop list of special provisions for items not covered by SUDAS.
4.2.4. Cost Estimate
• Prepare estimate of construction bid items and unit quantities using SUDAS format.
• Prepare opinion of probable construction cost.
4.2.5. 60% Design Submittal — submitted electronically, in PDF format and includes:
• 60% Construction drawings.
• List of special provisions, if needed.
• Opinion of probable construction cost.
• Location of temporary construction easements and permanent easements.
4.2.6. Review Meeting
• CITY to provide list or drawing markup of comments.
• CONSULTANT will provide comment responses and organize a teleconference review
meeting with the CITY to discuss and close comments.
4.3. 95% Design
4.3.1. Analysis
• H&H: Update per any design refinements.
• Geotech: Update per any design refinements.
• Structural: Develop rebar design.
• Civil: Update grading and construction quantities and site restoration plans and
details.
4.3.2. Drawings
• Reflect 95% completion level, generally with enough detail for construction.
4.3.3. Specifications
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EXHIBIT 1
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• Develop special provisions for items not covered by SUDAS.
4.3.4. Cost Estimate
• Update estimate of construction bid items and unit quantities using SODAS format.
• Update Opinion of Probable Construction Cost.
4.3.5. 95% Design Submittal — submitted electronically, in PDF format, includes:
• 95% Construction Drawings.
Special provisions, if needed.
• Opinion of probable construction cost.
4.3.6. 95% Review meeting
• CITY to provide list or drawing markup of comments.
• CONSULTANT will provide comment responses.
• CONSULTANT'S project manager and civil engineer will attend review meeting with
the CITY and workshop with CITY Council to present 95% and solicit final comments.
4.4. Final Design
4.4.1. Analysis
• H&H: Updated per any design refinements.
• Geotech: Updated per any design refinements.
• Structural: Updated per any design refinements.
• Civil: Updated per any design refinements.
4.4.2. Drawings
• Complete and ready for bidding.
4.4.3. Specifications
• Special provisions complete and ready for bidding.
4.4.4. Cost Estimate
• Update estimate of construction bid items and unit quantities using SUDAS format.
• Update opinion of probable construction cost.
4.4.5. Final Submittal — submitted electronically, in PDF format, includes:
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• Final construction drawings
• Final special provisions
• Final cost estimate
4.4.6. Final Review Meeting
• CITY to provide minor comments prior to bid issue.
• Consultants will provide comment responses and update documents.
5. Bidding Services
5.1. CITY will provide base contract and bid advertisement forms. CONSULTANT will assist in
updating Bid Documents to reflect the project elements and schedule. CONSULTANT will
assemble Bid Documents that will include signed and sealed construction drawings, base
contract documents, and special provisions.
5.2. CITY will host the advertisement for bid on their website and CONSULTANT will coordinate
hosting of the Bid Documents at an outside plan room such as www.questcdn.com or similar.
5.3. Furnish 6 hard copies of Bid Documents for bidding purposes to be on file at City Hall.
5.4. Maintain record of prospective bidders to whom Bidding Documents have been issued.
5.5. Assist CITY in answering questions during bidding from prospective bidders regarding
clarification of design intent.
5.6. Assist CITY to prepare and issue addenda as appropriate to clarify, correct or change bid
documents.
5.7. Prepare Bid tabulation sheets and assist CLIENT in evaluating Bids or proposals and in awarding
contract for Work. Prepare Letter of Recommendation to Award and submit to CLIENT.
6. Design Methodology
6.1. Drawings
Drawings will be developed using CONSULTANT'S standard 11"x17" drawing size, title block,
format, CADD standards and symbology. Drawings will be developed using AutoCAD Civil 3D.
6.2. Specifications
The project will use the current version SUDAS. The CITY to provide any CITY supplemental
specifications to SUDAS for use on the project. CONSULTANT will prepare special provisions if
needed.
The CITY will provide base contract and bid advertisement forms.
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6.3. Cost Estimating
CONSULTANT will prepare an opinion of probable cost. Cost estimates will be prepared at the
preliminary design and updated with subsequent submittals.
Determination of construction costs will begin with quantifying the amount of materials and
equipment necessary for the project. Unit prices will then be applied to the quantities to
determine total cost. Prices will be based upon recent cost estimates and/or bid results from
similar projects. To a lesser extent, construction pricing will be based upon published
construction cost data with appropriate regional cost adjustments applied. An appropriate
contingency factor will be applied to account for design and construction unknowns.
6.4. Hydrologic and Hydraulic Design
An XPSWMM model will be developed of the upstream watershed and key stormwater
drainage storage and conveyance features for existing and proposed conditions. The resulting
peak flows will be compared to prior studies, USGS streamstats estimates, and calibrated to
actual rainfall/flow events using level logger and nearby hourly rain gauge data. This
information will be used to calibrate watershed parameters for representative peak flows. The
existing 100 -year flood elevation will be reviewed and compared to the FEMA delineated
floodplain for the existing condition. The proposed improvements will be developed to lower
the 100 -year flood elevation upstream of the Delane Avenue culvert and reduce flood risk. The
analysis and design will follow the current SUDAS design manual where feasible, but detention
will likely be offline with a primary goal of flood reduction — so the resulting peak discharge
reductions will be skewed towards higher flow events (i.e. 100 -yr)
6.5. Civil/Site Engineering
Civil engineering design and drawing development will illustrate the following:
• Drawing index, location, and vicinity maps and general plan
• Horizontal and vertical control
• Plan, profile, sectional, and detailed views of new construction
• Existing utility locations
• Integration of all engineering disciplines
Civil design for the project will include identifying access to the site, staging areas, bypass
designs, and work limits. The project will utilize the existing topographic survey (Auto -CAD file)
prepared by Helland Surveying and supplemental survey from Helland Surveying, as required.
6.6. Geotechnical Engineering
Geotechnical design for the project will include foundation conditions and embankment
stability and seepage analyses.
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Global and slope stability analyses will be completed in accordance with USACE EM1110-2-1902
using Geostudio SLOPE/W analysis software. Stability analyses will be completed at a critical
cross section of a permanent weir structure permanent structure and any proposed
embankments.
The project will utilize the existing 2018 Terracon Geotechnical Engineering Report. Additional
soil borings or laboratory testing are not included in this scope of work.
6.7. Structural Engineering
Structural design for the Project will include reinforced concrete, structural and embedded
steel, and sheet pile (if needed). Structural design will conform to USACE standards. Structural
and stability analyses will be performed using in-house computer analysis tools, such as
MathCAD and Excel and other structural engineering programs, as required.
Loading conditions, load factors, and required factors of safety will be determined from the
following U.S. Army Corps of Engineers publications:
• ETL 1110-2-256 - Sliding Stability for Concrete Structures
• EM 1110-2-2100 - Stability Analysis of Concrete Structures
• EM 1110-2-2104 - Strength Design for Reinforced - Concrete Hydraulic Structures
PART 2 — ADDITIONAL SERVICES
The following Additional Services are not included in Basic Services and are at CLIENT'S option. These
services, if exercised by CLIENT and agreed to by CONSULTANT, shall be paid for in addition to
compensation for Basic Services. CONSULTANT is not authorized to proceed with performance of any
Additional Services unless they are duly authorized, in writing, by CLIENT.
1. Perform additional geotechnical (subsurface investigations) and environmental investigations of
Project site.
2. Services required to hold additional review meetings, conduct additional Site trips or provide
additional copies of documents, over and above the number listed under Basic Services.
3. Services required during construction phase.
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EXHIBIT 2
COMPENSATION
Delane Avenue Stormwater Detention Improvements
City of Waterloo
COMPENSATION FOR BASIC SERVICES
CLIENT shall compensate CONSULTANT for CONSULTANT'S BASIC SERVICES included in
EXHIBIT 1 — SCOPE OF SERVICES on an Hourly basis for Labor plus Reimbursable Expenses a not -
to -exceed amount Two Hundred Ten Thousand Six Hundred dollars (210,600.00) in accordance with the
current "Hourly Fees and Charges Fiscal Year 2019-2020" (Form BC_C 19-20) subject to revision on or
after April 1 of each year unless other compensation is agreed upon prior to performance of the services.
The following table shows a breakdown of fees for completing each task for Basic Services
described in Exhibit 1 - Scope of Services:
Task Compensation
1. Project Management $10,400
2. Preliminary Design $61,700
Field Survey (as required) $16,200
3. Regulatory Approvals and Permitting $19,700
Wetland Delineation (as required) $5,400
4. Final Design $85,500
5. Bidding Services $11,700
TOTAL $210,600
COMPENSATION FOR ADDITIONAL SERVICES
Compensation for ADDITIONAL SERVICES performed by CONSULTANT shall be performed on an
Hourly basis for Labor plus Reimbursable Expenses in accordance with the current "Hourly Fees and
Charges Fiscal Year 2019-2020" (Form BC_C 19-20) subject to revision on or after April 1 of each year
unless other compensation is agreed upon prior to performance of the services.
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1. CLIENTS RESPONSIBILITIES
1.1 Name CLIENT's representative with authority to
receive information and transmit instructions for
CLIENT.
1.2 Provide CLIENT's requirements for project,
including objectives and constraints, design and
construction standards, bonding and insurance
requirements, and contract forms.
1.3 Provide available information pertinent to project
upon which CONSULTANT may rely.
1.4 Arrange for access by CONSULTANT upon public
and private property, as required.
1.5 Examine documents presented by CONSULTANT,
obtain legal and other advice as CLIENT deems
appropriate, and render written decisions within
reasonable time.
1.6 Obtain consents, approvals, licenses, and permits
necessary for project.
1.7 Advertise for and open bids when scheduled.
1.8 Provide services necessary for project but not
within scope of CONSULTANT's services.
1.9 Indemnify CONSULTANT, its employees, agents,
and consultants against claims arising out of
CONSULTANT's design, if there has been a deviation
from the design beyond the CONSULTANT's control or
failure to follow CONSULTANT's recommendation and
such deviation or failure caused the claims.
1.10 Promptly notify CONSULTANT when CLIENT
learns of contractor error or any development that
affects scope or timing of CONSULTANT's services.
1.11 Nothing in this agreement shall create a fiduciary
duty between the parties.
2. PERIOD OF SERVICE
2.1 CONSULTANT is not responsible for delays due
to factors beyond its control.
2.2 If CLIENT
compensation for
CONSULTANT's
appropriately.
requests changes in project,
and time of performance of
services shall be adjusted
3. CONSTRUCTION COST AND COST ESTIMATES
3.1 Construction Cost. Construction cost means
total cost of entire project to CLIENT, except for
CONSULTANT's compensation and expenses, cost of
land, rights-of-way, legal and accounting services,
insurance, financing charges, and other costs which
SC 3810 IA R6 1/18
Standard Terms and Conditions
Exhibit 3
are CLIENT's responsibility as provided in this
Agreement.
3.2 Cost Estimates. Since CONSULTANT has no
control over cost of labor, materials, equipment or
services furnished by others, over contractors'
methods of determining prices, or over competitive
bidding or market conditions, its estimates of project
construction cost will be made on the basis of its
employees' experience and qualifications and will
represent their best judgment as experienced and
qualified professionals, familiar with the construction
industry. CONSULTANT does not guarantee that
proposals, bids, or actual construction cost will not vary
from its estimates of project cost.
4. GENERAL
4.1 Termination.
4.1.1 Either party may terminate their obligation to
provide further services upon twenty (20) days' written
notice, after substantial default by other party through
no fault of terminating party.
4.1.2 CLIENT may terminate CONSULTANT's
obligation to provide further services upon twenty (20)
days' written notice if project is abandoned. In such
event, progress payments due to CONSULTANT for
services rendered plus unpaid reimbursable to
expenses, shall constitute total compensation due.
4.2 Reuse of Documents.
4.2.1 All tangible items prepared by CONSULTANT
are instruments of service, and CONSULTANT retains
all copyrights. CLIENT may retain copies for
reference, but reuse on another project without
CONSULTANT's written consent is prohibited. CLIENT
will indemnify CONSULTANT, its employees, agents,
and consultants against claims resulting from such
prohibited reuse. Said items are not intended to be
suitable for completion of this project by others.
4.2.2 Submittal or distribution of items in connection
with project is not publication in derogation of
CONSULTANT's rights.
4.2.3 Confidentiality. Each party acknowledges that
in connection with this Agreement it may receive
certain confidential or proprietary technical and
business information and materials of the other party
("Confidential Information"). Each party, its agents and
employees shall hold and maintain in strict confidence
all Confidential Information, shall not disclose
Confidential Information to any third party, and shall not
use any Confidential Information except as may be
necessary to perform its obligations under the
agreement except as may be required by a court or
governmental authority. CLIENT and CONSULTANT
shall keep all information and communications related
to the project confidential in the same manner each
party protects its own confidential information, to the
extent that it is marked "proprietary" or "confidential or
with a similar label or which by the nature of the
information generally would be regarded as proprietary
or confidential. This clause shall not apply to
information that is previously known by either party,
lawfully becomes public knowledge, or is required to be
disclosed by law or a court order.
4.3 Payment.
4.3.1 CONSULTANT shall submit a monthly statement
for services rendered and reimbursable expenses
incurred. CLIENT shall make prompt monthly
payments.
4.3.2 If CLIENT fails to make payment within thirty (30)
days after receipt of statement, interest at maximum
legal rate or at a rate of 18%, whichever is less, shall
accrue; and, in addition, CONSULTANT may, after
giving seven (7) days' written notice, suspend services
until it has been paid in full all amounts due it.
4.3.3 CLIENT has provided or shall provide for
payment from one or more lawful sources of all sums
to be paid to CONSULTANT.
4.3.4 CONSULTANT's compensation shall not be
reduced on account of any amounts withheld from
payments to contractors.
4.3.5 If services performed by CONSULTANT are
subject to state or local sales taxes, said taxes will be
reflected in the invoices and remitted according to state
law. If CLIENT claims a status that would make the
transaction exempt, then CLIENT shall provide
appropriate proof of exempt status to CONSULTANT.
4.4 Controlling Law. Agreement shall be governed
by Iowa law, excluding its choice of law rules.
4.5 Successors and Assigns.
4.5.1 The parties bind themselves, their successors,
and legal representatives to the other party and to
successors and legal representatives of such other
party, in respect to all covenants and obligations of this
Ag reement.
4.5.2 Neither party shall assign, sublet, or transfer any
interest in this Agreement without written consent of
the other, provided CONSULTANT may employ such
independent consultants, associates, and
subcontractors as it may deem appropriate.
4.5.3 Nothing in this Agreement shall be construed to
give any rights or benefits to anyone other than the
parties.
SC 3810 IA R6 1/18
Standard Terms and Conditions
Exhibit 3
4.6 CONSULTANT's Accounting Records. Records
of CONSULTANT's personnel time, reimbursable
expenses, and accounts between parties shall be kept
on a generally -recognized accounting basis.
4.7 Separate Provisions. If any provisions of this
Agreement shall be held to be invalid or unenforceable,
remaining provisions shall be valid and binding.
4.8 Waiver. No waiver shall constitute a waiver of any
subsequent breach.
4.9 Warranty.
4.9.1 CONSULTANT shall use reasonable care to
reflect requirements of all applicable laws, rules, or
regulations of which CONSULTANT has knowledge or
about which CLIENT specifically advises in writing,
which are in effect on date of Agreement.
CONSULTANT INTENDS TO RENDER SERVICES IN
ACCORDANCE WITH GENERALLY ACCEPTED
PROFESSIONAL STANDARDS, BUT NO OTHER
WARRANTY IS EXTENDED, EITHER EXPRESS OR
IMPLIED, IN CONNECTION WITH SUCH SERVICES.
CLIENT's rights and remedies in this Agreement are
exclusive.
4.9.2 CONSULTANT shall not be responsible for
contractors' construction means, methods, techniques,
sequences, or procedures, or for contractors' safety
precautions and programs, or for contractors' failure to
perform according to contract documents.
4.9.3 The CONSULTANT believes that any computer
software provided under this Agreement is suitable for
the intended purpose, however, it does not warrant the
suitability, merchantability, or fitness for a particular
purpose of this software.
4.9.4 Subject to the standard of care set forth in
Paragraph 4.9.1, CONSULTANT and its
Subconsultants may use or rely upon design elements,
work, and information ordinarily or customarily
furnished by others, including, but not limited to,
CLIENT or his authorized representatives, public
record, specialty contractors, manufacturers,
suppliers, and publishers of technical standards.
4.9.5 If the Scope of Services include the review or
recommendation of available technologies or
recommendations of specific technologies or vendors
or systems, the CONSULTANT will conduct an
impartial review of such technologies, systems or
vendors. The CONSULTNT is not responsible for the
selection of same by the Client or for the usability, or
results of such technology, vendor or system.
4.10 Period of Repose. Any applicable statute of
limitations or repose shall commence to run and any
alleged cause of action shall be deemed to have
accrued not later than completion of services to be
performed by CONSULTANT.
4.11 Indemnification. To the fullest extent permitted
by law, CONSULTANT shall indemnify and hold
harmless CLIENT, CLIENT's officers, directors,
partners, employees, and agents from and against
any and all third party claims for bodily injury and for
damage to tangible property to the extent caused by
the negligent acts or omissions of CONSULTANT or
CONSULTANT's officers, directors, partners,
employees, agents, and CONSULTANT's consultants
in the performance and furnishing of CONSULTANT's
services under this Agreement. Any indemnification
shall be limited to the terms and amounts of coverage
of the CONSULTANT's insurance policies and Section
4.12, Limitation of Liability.
To the fullest extent permitted by law, CLIENT shall
indemnify and hold harmless CONSULTANT,
CONSULTANT's officers, directors, partners,
employees, and agents and CONSULTANT's
consultants from and against any and all third party
claims for bodily injury and for damage to tangible
property to the extent caused by the negligent acts or
omissions of CLIENT or CLIENT's officers, directors,
partners, employees, agents, and CLIENT's
consultants with respect to this Agreement on the
Project. In addition to the indemnity provided under
this section, and to the fullest extent permitted by law,
CLIENT shall indemnify and hold harmless
CONSULTANT and its officers, directors, partners,
employees, and agents and CONSULTANT's
consultants from and against all claims, 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, arising out of, or
relating to the presence, discharge, release, or escape
of asbestos, PCBs, petroleum, hazardous waste, or
radioactive material at, on, under, or from the Project
site.
4.12 Limitation of Liability. TO THE FULLEST
EXTENT PERMITTED BY LAW, AND
NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, THE TOTAL LIABILITY, IN THE
AGGREGATE, OF THE CONSULTANT (INCLUDING
ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS AND SUBCONSULTANTS), TO CLIENT
AND ANYONE CLAIMING BY, THROUGH OR
UNDER CLIENT, FOR ANY AND ALL CLAIMS,
LOSSES, COSTS, OR DAMAGES WHATSOEVER
ARISING OUT OF, RESULTING FROM, OR IN ANY
WAY RELATED TO THE PERFORMANCE OF
SERVICES UNDER THIS AGREEMENT FROM ANY
CAUSES, INCLUDING BUT NOT LIMITED TO
NEGLIGENCE, PROFESSIONAL ERRORS OR
OMISSIONS, OR WARRANTEES EXPRESSED OR
IMPLIED, OF CONSULTANT OR CONSULTANT'S
CONSULTANTS, SHALL NOT EXCEED $300,000.00
SC 3810 IA R6 1/18
Standard Terms and Conditions
Exhibit 3
OR THE TOTAL COMPENSATION RECEIVED BY
CONSULTANT, WHICHEVER IS GREATER. THIS
LIMITATION INCLUDES LIABILITY UNDER
SECTION 4.11. IN NO EVENT SHALL CONSULTANT
BE LIABLE TO CLIENT FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OF ANY KIND
ARISING OUT OF OR RELATED TO THIS
AGREEMENT. CONSULTANT SHALL NOT BE
LIABLE FOR ANY CONSENQUENTIAL OR
INDIRECT DAMAGES THAT ARISE OUT OF ITS
PERFORMANCE ON THIS PROJECT.
4.13 Extent of Agreement. This Agreement
represents the entire agreement between the parties
and may be amended only by written instrument signed
by both parties.
4.14 INSURANCE. CONSULTANT shall purchase
and maintain insurance for the coverages and for not
less than the limits of liability set forth below:
(a) Workers' Compensation: workers' compensation
insurance as required by the laws of the states or
countries with jurisdiction of the services to be
performed, including employer's liability insurance,
with a limit of $1,000,000 per accident.
(b) Commercial General Liability: commercial general
liability, including coverage for all premises,
operations, operations of independent contractors,
products and completed operations, and contractual
liability. Coverage shall have limits of not less than
$1,000,000 for each occurrence and aggregate.
(c) Commercial Automobile Liability: commercial
automobile liability covering the use of all owned, non -
owned, and hired automobiles with minimum combined
single limits of $1,000,000.
(d) Professional Liability: professional liability
insurance for claims arising out of performance of
professional services caused by any negligent error,
omission, or act for which the insured is legally liable,
with a minimum limit of $1,000,000, to be kept in force
for two (2) years after completion of project.
CONSULTANT shall provide certificates or other
evidence from insurance carriers of the required
insurance coverages, if requested by CLIENT in writing
within 30 days of start of performance. All insurance
except workers' compensation and professional liability
shall designate CLIENT as additional insured.
(e) Cyber Liability: Data Breach and Privacy/Cyber
Liability Insurance in a limit of not less than $1,000,000
per occurrence.
4.15 Subrogation Waiver. The parties waive all rights
against each other, and against contractors,
consultants, agents, and employees of the other for
damages covered by any property insurance during
construction, and each shall require similar waivers
from their contractors, consultants, and agents.
4.16 Force Majeure. Parties will not be liable for
delays in delivery or for failure to perform obligations,
Standard Terms and Conditions
Exhibit 3
other than payment, due to causes beyond their
reasonable control, including, but not limited to,
product allocations, material shortages, labor disputes,
transportation delays, unforeseen circumstances, acts
of God, acts or omissions of other parties, acts or
omissions of civil or military authorities, government
priorities, fire, strikes, floods, epidemics, quarantine
restrictions, riots, terrorists acts, or war.
CONSULTANT's time for delivery or performance will
be automatically extended by the period of such delay
or CONSULTANT may, at its option, cancel any
services, in whole or in part, without liability by giving
notice to CLIENT.
4.17 EQUAL EMPLOYMENT OPPORTUNITY
CLAUSE. When applicable, the CONSULTANT and
SUBCONSULTANT shall abide by the requirements
of 41 CFR 60-1.4(a), 60-300.5(a), 60-741.5(a) and
Appendix A of Subpart A of 29 CFR 471. These
regulations prohibit discrimination against
qualified individuals based on their status as
protected veterans or individuals with disabilities,
and prohibit discrimination against all individuals
based on their race, color, religion, sex, or national
origin. Moreover, these regulations require that
covered prime CONSULTANTS and
SUBCONSULTANTS take affirmative action to
employ and advance in employment individuals
without regard to race, color, religion, sex, national
origin, protected veteran status or disability.
SC 3810 IA R6 1/18