HomeMy WebLinkAboutHoward R. Green Co.-Professional Services Agreement-08.06.2007 (2) Howard R. Green Company
Project No: 722930J36 n20 �o �QQ�7 �6
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SCOPE OF SERVICES
PROJECT: PHASE I DEMOLITION PLANS, SPECIFICATIONS AND CONTRACT
DOCUMENTS
FORMER CHAMBERLAIN MANUFACTURING PROPERTY
550 ESTHER STREET
WATERLOO, IOWA
I. BACKGROUND AND PURPOSE
The City of Waterloo (City) intends to proceed with the award of contract(s) for the phased
demolition of selected buildings and other related structures and utilities located on the
former Chamberlain Manufacturing Property (Chamberlain) located at 550 Esther Street in
Waterloo, Iowa. The site is a former manufacturing facility with numerous structures built
between 1919 and the early 1990's. 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 EPA Brownfield grants, the City has completed Phase I
and Phase II Environmental Site Assessments (ESAs) on the Chamberlain site in order to
address environmental contamination.
The City would like to make the site ready for redevelopment with the ultimate goal being the
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. The initial effort toward this goal is for the City to award contract(s)
for multiple phases of demolition of selected buildings and related structures and utilities.
Included in the initial, or Phase I demolition project will be a select number of buildings
(possibly buildings 5, 6, and 7)with others (possibly buildings 4 and/or 8) as potential owner
options. The number of buildings demolished in this initial phase, and in subsequent phases,
will be dependent on the nature and complexity of the demolition work, on the availability of
City funding for the project, and based in part on the Engineering Opinion of Probable Cost
for the initial and subsequent phases of demolition.
This Scope of Services is for consulting engineering services for the Phase I demolition
project, and includes; (1), the preparation of plans, specifications and contract documents for
selected demolition work, including pre-demolition asbestos abatement; (2), providing
assistance to the City in the award and execution of contract(s)for the defined asbestos
abatement and demolition work; and (3), assistance to the City in the implementation of the
contract(s) for the initial phase of asbestos abatement and demolition of selected existing
buildings and related structures and utilities, all in association with the former Chamberlain
property identified above.
The City previously commissioned an asbestos inventory survey for the former Chamberlain
property. The resulting report (NESHAPS Asbestos Inspection Report, Advanced
Environmental Testing and Abatement, Inc., (not dated)) identifies the suspected presence of
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Project No: 722930J36
asbestos-containing material (ACM) at various locations on the property, including in
association with buildings 4, 5, 6, 7, and 8. This Scope of Services also includes a review of
the report, and a non-intrusive visual observation of the subject buildings and related
structures and utilities to determine if the subject demolition project is impacted by the
identified presence of ACM that is to be considered as Regulated Asbestos-Containing
Material (RACM). This Scope of Services also includes the design and specification effort
necessary to include the required associated RACM abatement work, including specifications
for the required air monitoring and asbestos disposal effort, and incorporation of the asbestos
abatement design into the demolition plans, specifications and contract documents. The
project design for abatement of the RACM will be prepared by a Certified Asbestos Project
Designer. All associated RACM abatement work will be defined as work to be performed by
a certified abatement contractor, working as a subcontractor to the prime demolition
contractor.
The demolition of selected buildings and related structures and utilities may be impacted by
the presence of existing materials other than ACM or RACM, including those that may be
classified as hazardous waste or hazardous materials. This Scope of Services includes a
review of previously conducted survey(s) and related report documents, and a non-intrusive
visual observation of the subject buildings and related structures and utilities to determine if
the subject demolition project is impacted by the identified presence, or visually-observed
likely presence of waste or material, other than ACM or RACM, that may be classified as
hazardous. If the project is determined to be impacted, this Scope of Services will be
amended to include (1), the necessary sampling and laboratory analysis of visually-observed
waste or material not already confirmed hazardous by previous analysis and (2), the design
and specification effort necessary to include the required associated work related to the
removal, cleanup and disposal of hazardous waste or hazardous material, including
necessary associated confirmation sampling and laboratory analysis, into the plans,
specifications and contract documents.
All associated hazardous waste and/or hazardous material removal, cleanup, confirmatory
sampling and laboratory analysis and disposal work will be defined as work to be performed
by a qualified contractor, working as a subcontractor to the prime demolition contractor.
II. ASBESTOS SURVEY
The City has previously commissioned an asbestos survey for the Chamberlain property, as
referenced in Article I. Therefore, as a part of this Scope of Services, Howard R. Green
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
buildings and related structures and utilities, as referenced above in Article I.
III. HAZARDOUS WASTE/HAZARDOUS MATERIAL SURVEY
As a part of this Scope of Services Howard R. Green Company will NOT perform a survey or
related work, or complete any sampling and analysis of any existing materials that may be
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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 buildings and related structures and utilities, as referenced above in Article I.
IV. PLANS, SPECIFICATIONS AND CONTRACT DOCUMENTS
1. Howard R. Green Company will contact Iowa One Call to locate public utilities that are
located on the Chamberlain property in the immediate area of the proposed demolition
project.
2. The locations of public utilities as identified and marked in the field by the Iowa One Call
process, and of private utilities identified and marked in the field by the City, will be
surveyed and documented by Howard R. Green Company land surveying staff.
3. Howard R. Green Company will prepare bid documents, including plans, specifications
and contract documents for asbestos abatement and disposal, and for demolition of the
selected buildings and related structures and utilities. Demolition, as defined herein, and
as will be described in the plans, specifications and contract documents, will consist of the
following effort by the prime contractor/sub-contractor(s).
a. Submittal by the prime contractor and sub-contractor(s) to the City of any required
Certifications or Qualifications to perform the defined work, including the submittal of
documentation of approved locations for the satisfactory disposal of all products
resulting from the demolition process, and safety plans and site monitoring required to
be completed in association with the defined abatement, demolition and associated
work.
b. Submittal by the prime contractor to the City of a Schedule of Work for the project.
c. Mobilization/demobilization by the selected contractor and associated sub-
contractors.
d. Completion of the abatement and demolition effort, as defined in the bid documents,
including any required abatement, removal, cleanup, sampling, laboratory analysis,
salvage, disposal and reporting/documentation work.
e. Perform required sampling and/or monitoring in association with the abatement and
demolition work, as a function of applicable federal, state and local codes, including
applicable sections of the Occupational Safety and Health Act.
The physical limits of the abatement and demolition will include the selected buildings and
related structures and utilities. Where the building or related structure currently sits on an at-
grade concrete slab, the abatement and demolition work will include all items to the surface
of the concrete slab. The concrete slab will remain in place, as is. Protruding associated
utility piping will be removed to the surface of the concrete slab, and the resulting "hole" will
be plugged with Portland cement concrete.
Where the selected buildings and related structures currently sit on a foundation that includes
a basement, vault or pit, the physical limits of demolition will include the removal of the slab
or other covering on the basement, vault or pit, the fracturing of the floor slab of the
basement, vault or pit, and the filling of same with sand or other approved soil material.
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Existing equipment and protruding associated utility piping will be removed to the surface of
the concrete floor slab of the basement, vault or pit, and the resulting "hole" will be plugged
with Portland cement concrete.
Miscellaneous work to be included in the project is the backfilling of the existing floor pit
located in building no. 15 using sand or other suitable material, and the repair/replacement of
the existing fence along selected areas of the perimeter of the site boundary.
4. Included in the Bid Documents (Project Manual) will be:
a. Engineer's Certification.
b. Project Manual Information.
c. Notice of Public Hearing.
d. Notice to Bidders.
e. Instructions to Bidders.
f. Supplemental Instructions to Bidders.
g. Bid Form, including Schedule of Prices, with Alternates, if applicable.
h. Bid Bond.
i. Tax Exempt Certificate.
j. Non-collusion Affidavit of Prime Bidder.
k. Non-collusion Affidavit of Sub-contractor.
I. Equal Opportunity Clause.
m. Contractor's or Subcontractor's Affirmative Action Program.
n. Items of Potential MBE/WBE Participation.
o. Letter of Intent to Bid (MBE/WBE Letter).
p. Subcontractor's Bid Request form.
q. Letter to be used when Soliciting for Subcontractor Quotes.
r. MBE/WBE Business Enterprise Pre-Bid Contract Information form.
s. MBE/WBE Business, Enterprise Pre-Bid Contract Information form instructions.
t. Certified MBE/WBE Contractors listing (City of Waterloo, Iowa).
u. Statement of Bidder(s) Qualifications.
v. Predetermined Wage Rate (Davis-Bacon Act) for State of Iowa.
w. Notice of Award.
x. Form of Contract.
y. Performance and Maintenance Bond.
z. Payment Bond.
aa. Notice to Proceed.
bb. General Specifications for Construction (City of Waterloo, Iowa).
cc. CC.Supplemental General Specifications for Construction (City of Waterloo, Iowa).
5. Included in the Detailed Plans and Specifications will be:
a. Site and related building layout drawings illustrating the locations of the buildings to
be included in the abatement and demolition project.
b. Specifications for the asbestos abatement work for the buildings, related structures
and utilities.
c. Specifications for the demolition work for the buildings, related structures and utilities.
d. Photographic supplements.
e. Provisions for base bid abatement and demolition work (Buildings 5, 6 and 7).
f. Provisions for alternate bid abatement and demolition work (Buildings 4 and /or 8.
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g. Contractor(s)' qualification and/or certification requirements.
h. Site safety and monitoring requirements.
i. Contractor(s)' salvage rights and procedures.
j. Procedures for utilities terminations.
k. MBE/WBE-related work.
I. Clean-up requirements.
m. Disposal requirements.
n. Requirements for sampling, testing and reporting.
o. Requirements for Contractor(s)' final documentation.
V. BIDDING AND CONTRACT AWARD
Howard R. Green Company will assist the City in the solicitation of bids and award of
contract(s) for the demolition work by:
1. Placing Iowa Professional Engineer-Certified plans, specifications and contract
documents on file with the City.
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 City.
4. Printing and making available up to 25 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 mandatory pre-bid meeting and site tour.
7. Attending the public hearing and bid opening.
8. Evaluating the bids, and making a recommendation to the City regarding the award of
contract(s).
9. Preparing final contract documents for execution by the City and the successful bidder(s).
10. Preparing for and conducting a mandatory pre-construction meeting including, if
necessary, a site tour.
11. Assisting the City in reviewing contractors' and sub-contractors' Certification,
Qualification, schedule, disposal location documentation, safety plans and site monitoring
plans.
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VI. ASBESTOS ABATEMENT OBSERVATION and DEMOLITION OBSERVATION and
RELATED SERVICES
Howard R. Green Company will perform the following tasks associated with the asbestos
abatement and demolition work:
1. Make three site visits per week during abatement, removal, cleanup and demolition
activities for up to a maximum of 12 visits (4 weeks).
2. Answer Contractor questions that arise during abatement and demolition activities.
3. Prepare a weekly summary of site activities for distribution to the City.
4. Assist the City in the review of the contractor's periodic and final payment requests.
5. Assist the City in a final field observation of the project to assure substantial compliance
with the plans, specifications and contract documents.
6. Assist the City in the review of the contractor's documentation of field testing and
monitoring results, and of the final disposal of demolished and waste materials.
7. Assist the City in the preparation and submittal of required documentation to applicable
funding and regulatory agencies.
VII. SCHEDULE
Howard R. Green Company will commence with the design activities for Phase I related work
within 10 (ten)working days from receipt of written Notice to Proceed from the City. The
plans and specifications will be complete no later than 8 (eight) weeks after receipt of the
Notice to Proceed.
The schedule for subsequent phases of abatement/demolition work, and the engineering
effort associated with that work will be performed on a schedule as determined by the Owner,
and subject to available funding.
VIII. AMENDMENTS TO SCOPE OF SERVICES
1. Asbestos-Containing Material (ACM) and Regulated Asbestos-Containing Material
(RACM).
As noted in Article I above, (Background and Purpose) this Scope of Services includes a
review of the previously-commissioned asbestos survey report, and a non-intrusive visual
observation of the subject buildings and related structures and utilities for Phase I
demolition work, to determine if the subject demolition project is impacted by the identified
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presence of ACM or RACM. In the event the project area (i.e., the specific buildings
targeted for demolition) is determined to be impacted, this Scope of Services includes the
design and specification effort necessary to include the required associated RACM
abatement work, including required air monitoring and disposal effort, and incorporation of
the design into the plans, specifications and contract documents. The project design for
abatement of the RACM will be prepared by a Certified Asbestos Project Designer
All associated RACM work will be defined as work to be performed by a Certified
Abatement Contractor, working as a sub-contractor to the prime demolition contractor.
Any asbestos-related abatement design beyond that described above, or in association
with other buildings, structures or utilities subsequent to the Phase I demolition work
described herein, may require the amendment of this Scope of Services and an increase
in the compensation amount defined in Article IX.
2. Hazardous Waste/Hazardous Material
As noted in Article I above, the demolition of selected buildings and related structures and
utilities may be impacted by the presence of existing materials other than ACM, including
those that may be classified as hazardous waste or hazardous materials. This Scope of
Services includes a review of previously conducted survey(s) and related report
documents, and a non-intrusive visual observation of the subject buildings and related
structures and utilities to determine if the subject demolition project is impacted by the
identified presence , or visually-observed likely presence of waste or material, other than
ACM, that may be classified as hazardous. If the project is determined to be impacted,
this Scope of Services will be amended to include (1), the necessary sampling and
laboratory analysis of visually-observed waste or material not already confirmed
hazardous or non-hazardous by previous analysis and (2), the design and specification
effort necessary to include the required associated work related to the removal, cleanup
and disposal of hazardous waste or hazardous material, including necessary associated
confirmation sampling and laboratory analysis, into the plans, specifications and contract
documents. All associated hazardous waste and/or hazardous material removal,
cleanup, confirmatory sampling and laboratory analysis and disposal work will be defined
as work to be performed by a qualified contractor, working as a subcontractor to the prime
demolition contractor.
3. Future Phases of Work
The City of Waterloo intends to proceed with additional abatement and/or demolition
work, in phases, as funding becomes available. The engineering effort associated with
subsequent phases of the project will be performed as described herein for Phase I
engineering work, and under an amendment to this agreement. Compensation for
engineering effort associated with future phases of the project will be determined as
described in Article VIII.
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IX. COMPENSATION
The tasks outlined in Articles I through VI of this Scope of Services, in association with Phase
I work, are being offered on a cost-plus not to exceed basis, in accordance with Howard R.
Green Company's Standard Hourly Fee Schedule (attached), for a maximum fee of
$46,000.00.
The engineering effort associated with subsequent phase(s) of abatement/demolition work
will be performed by amendment to this agreement, at a fee to be determined at the time
each subsequent phase of the project is defined.
X. RESPONSIBILITIES OF THE CITY
In conjunction with the subject abatement and demolition project, the City will:
1. Designate a representative of the City to work directly with Howard R. Green Company
for the duration of the subject abatement and demolition project. This designated
representative shall attend the Pre-bid and Pre-construction meetings.
2. Provide a knowledgeable representative of the Site.
3. Provide unrestricted access to the Site.
4. Obtain building plans from previous owner, if available. Provide copies of available photos
of the buildings and related structures, and of the site in general.
5. Provide locations of private utilities. (This Scope of Services does not include a private
utility locator).
6. Provide a copy of any previously-completed ACM survey report.
7. Provide a copy of any previously-completed hazardous waste/hazardous material
survey report.
8. Provide sample copies of City standard contract forms for inclusion into the Project
Manual (contract documents), Article V, 4. A— CC. 9
9. Confirm Method of Payment to the Contractor(s), including requirements for retainage
from partial payment requests.
10. Confirm MBE/WBE participation requirements.
11. Confirm Liquidated Damage requirements.
12. Confirm Contractor(s)' Insurance requirements.
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13. Promptly review draft plans, specifications and contract documents and provide
comments for consideration by Howard R. Green Company.
14. Assist, when applicable, by answering questions of prospective bidders during the bidding
process.
15. Conduct a Public Hearing on the Plans, Specifications, Form of Contract and Estimate of
Cost.
16. Advertise for bids.
17. Award demolition and related contract(s).
18. Review and confirm the adequacy of contractor(s)' Certificate(s) of Insurance.
19. Provide required routine periodic observation of the demolition and related work.
20. Assist, when applicable, by answering questions of contractor(s)/sub-contractors during
the demolition process.
21. Process Contractor(s)' periodic and final payment requests.
22. Conduct a final field observation of the project to assure substantial compliance with the
plans, specifications and contract documents.
23. Complete a review of the contractor's documentation of field testing and monitoring
results, and of the final disposal of demolished and waste materials.
24. Prepare and submit required documentation to applicable funding and regulatory
agencies.
XI. ASSUMPTIONS
1. Water Supply Wells
No water supply wells are to be demolished or otherwise plugged and abandoned as a
part of the subject demolition project.
2. Utilities
No above ground or underground utilities are to be abandoned or removed as a part of
the subject demolition project, except as noted in Article IV, 3 above.
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HOWARD R. GREEN COMPANY
STANDARD HOURLY FEE SCHEDULE
Effective January 1, 2007 to December 31, 2007
CLASSIFICATION HOURLY RATE
Principal-In-Charge $177.00
Senior Project Manager 161.00
Senior Project Planner 141.00
Project Manager 135.00
Senior Project Architect 135.00
Senior Project Scientist 135.00
Senior Technical Advisor 135.00
Senior Project Engineer 118.00
Construction Manager 118.00
Project Architect 112.00
Project Planner 107.00
Project Scientist 107.00
Project Engineer 107.00
Project Associate 107.00
Staff Engineer 93.00
Staff Architect 70.00
Senior Engineering Technician 102.00
Engineering Technician II 93.00
Engineering Technician I 81.00
CADD Technician II 80.00
CADD Technician I 67.00
Registered Senior Land Surveyor 112.00
Registered Land Surveyor 97.00
1 -Person w/GPS or Robotic Equipment 102.00
2 - Person Crew 132.00
2 - Person Crew w/GPS or Robotic Equipment 149.00
Field Services Manager 102.00
Senior Field Technician 88.00
Field Technician II 83.00
Field Technician I 66.00
Administrative Assistant 60.00
REIMBURSABLE EXPENSES
1. All materials and supplies used in the performance of work on this project will be billed at cost plus 10%.
2. Auto mileage will be reimbursed per the standard mileage reimbursement rate established by the Internal
Revenue Service. Service vehicle mileage will be reimbursed on the basis of$0.80 per mile.
3. Charges for sub-consultants will be billed at their invoice cost plus 15%.
4. A rate of$6.00 will be charged per Howard R. Green labor hour for a technology and communication fee.
5. All other direct expenses will be invoiced at cost plus 10%.
Howard R.Green Company
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HOWARD R. GREEN COMPANY
PURCHASE ORDER
THIS AGREEMENT, made this day of Ztt,5j uST , 2007 by and between,
THE CITY OF WATERLOO, IOWA
, the CLIENT, and HOWARD R. GREEN
COMPANY (hereafter"HRG"),for professional services concerning:
Develop Plans, Specifications and Contract Documents for Phase I Demolition of selected buildings at the
former Chamberlain Manufacturing property, 550 Esther Street, Waterloo, Iowa
(Describe the Project).
HRG Project Number 722930-J36
The CLIENT agrees to employ HRG to perform the following services:
See attached Scope of Services dated July 16, 2007.
(Describe Services).
In consideration for these services,the CLIENT AGREES to pay HRG on the following basis: (Indicate Payment Method)
[ ] Lump sum in the amount of
[X] Per current Rate Schedule with an estimated fee of Forty-Six Thousand and no/100 Dollars
($46,000.00)
[ ] Other as stated here:
The Schedule of Fees and Conditions of HOWARD R. GREEN COMPANY(attached hereto)
are incorporated into this AGREEMENT and made a part of it.
CITY OF WATERLOO HOWARD R. GREEN COMPANY
Signature: Signature: 'C..4 / // /6624
Printed Name: Timothy . r ey Printed Name: Michael G. Fisher
Title: Mayor / Title: Vice President
Date: Date: July 16,2007.
Signature: �� --
Printed Name: Nancy Eckert
Title: City Clerk
Date: g- -O 7
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SCHEDULE OF FEES AND CONDITIONS
HOWARD R.GREEN COMPANY
A. FEES AND PAYMENT
1. The fee for services will be based on Howarc R.Green Company's(hereafter"HRG")standard hourly rates current at the time the work is done. 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.
2. Payment shall be due within thirty(30)days after date of monthly invoice describing the work performed and expenses incurred during the preceding
month.
3. CLIENT agrees that timely payment is a material term of this Agreement and that failure to make timely payment as agreed constitutes a breach hereof.
In the event payment for services rendered has not been made within thirty(30)days from the date of invoice,HRG may,after giving seven(7)days
written notice to CLIENT and without penalty or liability of any nature,and without waiving any claim against CLIENT,suspend all work on all authorized
services as set forth herein. Upon receipt of sayment in full for services rendered,plus interest charges,HRG will continue with all services not
inconsistent with Article C.4 herein. Payment of all compensation due HRG pursuant to this Agreement shall be a condition precedent to CLIENT using
any of HRG's professional services work products furnished under this Agreement.
4. In order to defray carrying charges resulting from delayed payments,simple interest at the rate of eighteen percent(18%)per annum(but not exceeding
the maximum rate allowed by law)will be adced to the unpaid balance of each invoice. The interest period shall commence thirty(30)days after date of
original invoice and shall terminate upon date of payment. Payments will be first credited to interest and then to principal. No interest charge will be
added during the initial thirty(30)day period following date of invoice.
B. COMMENCEMENT OF WORK, The work will be commenced immediately upon receipt of this signed purchase order. If after commencement of work the
project is delayed for any reason beyond the control of HRG for more than sixty(60)days,the terms and conditions contained herein are subject to revision.
Subsequent modifications shall be in writing and signed by the parties to this Agreement.
C. MISCELLANEOUS PROVISIONS
1. BOOKS OF ACCOUNT. HRG will maintain books and accounts of payroll costs,travel,subsistence,field,and incidental expenses. Said books and
accounts will be available at all reasonable tines for examination by CLIENT at the corporate office of HRG.
2. INSURANCE/INDEMNIFICATION/RISK ALLOCATION
(a) HRG 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 HRG's employees of the functions and services required under this
Agreement.
(b) HRG is skilled in the professional calling necessary to the services and duties proposed to be performed,and that it shall perform such services
and duties in conformance to and consistent with the standards generally recognized as being employed by professionals of HRG's same locality,
and to that end HRG agrees to purchase insurance for HRG,its officers,and employees from and against any and all liability,claims,suits,loss,
damages,costs,and expenses arising out of or resulting from any negligent acts,errors,or omissions of HRG,its officers and employees,in the
performance of their services and duties hereunder,but not from the negligence or willful misconduct of CLIENT,its officers,and employees.
Notwithstanding the existence of professional liability insurance,the total aggregate of HRG's,its employees,officers,directors,agents,or
consultants,liability to all parties related to this Agreement shall not exceed$25,000.00,or the amount of HRG's fee,whichever is less.
(c) CLIENT hereby understands and agrees that HRG 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,or any other type of environmental hazard or pollution,whether latent or patent,at
CLIENT's premises,or in connection with or related to this project with respect to which HRG has been retained to provide professional engineering
services, The compensation to be paid HRG 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 HRG,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.
(d) Nothing contained within this Agreement shall be construed or interpreted as requiring HRG 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 governing the generation,treatment,storage,and disposal of waste.
(e) Notwithstanding any provisions in this Agreement to the contrary,if this project involves construction,as that term is generally understood,and
HRG does not provide engineering services during construction,including,but not limited to,observation,site visits,shop drawing review,and
design clarifications,CLIENT agrees to defend,indemnify,and hold HRG,its consultants,agents,and employees harmless from any and all liability
arising out of this project or Agreement.
(f) HRG shall not be liable for damages arising out of or resulting from the actions or inaction of govemmental agencies,including,but not limited to,
permit processing,environmental impact reports,dedications,general plans and amendments thereto,zoning matters,annexations or
consolidations,use or conditional use permits,and building permits. CLIENT agrees to defend,indemnify,and hold HRG,its consultants,agents,
and employees harmless from any and all liability,other than that caused by the negligent acts,errors,or omissions of HRG,arising out of or
resulting from the same.
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3. DOCUMENTS
(a) The CLIENT acknowledges HRGs construction documents as instruments of professional service. Nevertheless,the plans and specifications
prepared under this Agreement shall become the property of the CLIENT upon completion of the work and payment in full of all monies due to
HRG. The CLIENT shall not reuse or make any modifications to the plans and specifications without the prior written authorization of HRG. The
CLIENT agrees,to the fullest extent permitted by law,to indemnify and hold HRG harmless from any claim,liability or cost(including reasonable
attorneys fees and defense costs)arising or allegedly arising out of any unauthorized reuse or modifications of the documents by the CLIENT or
any person or entity that acquires or obtains the plans and specifications from or through the CLIENT without the written authorization of HRG.
(b) All computer programs,work product,inventions,patents,copyrights,software,and other like data developed during the course of the project,are
and shall remain the sole property of HRG.
(c) HRG's liability to CLIENT for any computer programs,software products,or related data furnished hereunder is limited solely to the correction of
residual errors,minor maintenance,or update(s)as agreed. HRG makes no warranties of any kind,including any implied warranty of
merchantability or of fitness for any particular purpose,or against infringement,with respect to computer programs,software products,related data,
technical information,or technical assistance provided by HRG under this Agreement. In no event shall HRG,its officers,agents,or employees be
liable under or in connection with this Agreement under any theory of tort,contract,strict liability,negligence,or other legal or equitable theory for
incidental or consequential damage relating to any work performed or not performed,services,acts or omissions,computer programs,software
products,or related data furnished hereunder.
(d) Environmental Audit/Site Assessment report(s)are prepared for CLIENT's sole use. CLIENT agrees to defend,indemnify,and hold HRG,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 HRG.
4. TERMINATION OR ABANDONMENT.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 HRG's reasonable
estimate of the portion of such phase completed prior to said termination,plus a reasonable amount to reimburse HRG for termination costs.
5. ATTORNEY 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.
6. WAIVER. HRG'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. ENTIRE AGREEMENT. This Agreement,and its attachments,constitutes the entire understanding between CLIENT and HRG 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 HRG 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.
8. SUCCESSORS AND ASSIGNS. All of the tens,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.
9. OPINION OF PROBABLE CONSTRUCTION COSTS. Opinion of probable construction costs for the facilities considered and designed under this
Agreement are prepared by HRG through exercise of its experience and judgment in applying presently available cost data,but it is recognized that HRG
has no control over costs of labor and materials,or over the construction contractor's methods of determining prices,or over competitive bidding
procedures,market conditions,and unknown field conditions so that HRG cannot and does not guarantee that proposals,bids,or the project construction
costs will not vary from HRG's opinion of probable construction costs.
10. INJURY TO WORKERS. It is understood and agreed that HRG's fee is based on HRG being named as an Additional Insured on construction
contractors insurance policy for Comprehensive General Liability and Builders All Risk Liability,and CLIENT agrees to insert into all Contracts for
construction between CLIENT and construction contractor(s)arising out of this design a provision requiring the construction contractor(s)to defend,
indemnify,and hold harmless both CLIENT and HRG from any and all actions arising out of the construction project,including,but not limited to,injury to
or death of any worker on the job site,not caused by the sole negligence of CLIENT or HRG.
11. SITE VISITS. Visits to the construction site and observations made by HRG as part of services during construction under this Agreement shall not make
HRG responsible for,nor relieve the constructon contractor(s)of the obligation to conduct comprehensive monitoring of the work sufficient to ensure
conformance with the intent of the Contract Documents,and shall not make HRG responsible for,nor relieve the construction contractor(s)of the full
responsibility for all construction means,methods,techniques,sequences,and procedures necessary for coordinating and completing all portions of the
work under the construction contract(s),and for all safety precautions incidental thereto. Such visits by HRG are not to be construed as part of the
observation duties of the on-site observation personnel defined below.
12. ON-SITE OBSERVATION. When HRG provides on-site observation personnel as part of services during construction under this Agreement,the on-site
observation personnel will make reasonable efforts to guard CLIENT against defects and deficiencies in the work of the contractor(s),and to help
determine if the provisions of the Contract Documents are being fulfilled. Their day-to-day observation will not,however,cause HRG to be responsible for
those duties and responsibilities which belong to the construction contractor(s),including,but not limited to,full responsibility for the means,methods,
techniques,sequences,and progress of const-uction,and the safety precautions incidental thereto,and for performing the construction work in
accordance with the Contract Documents.
13. 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.
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14. DISPUTE RESOLUTION
(a) 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 HRG 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 HRG further agree to include a similar mediation provision in all agreements with
independent contractors and consultarts 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.
(b) Arbitration. In the event the parties to Ibis Agreement are unable to reach a settlement of any dispute arising out of the services under this
Agreement,involving an amount of less than$25,000,in accordance with Paragraph 14(a)Mediation,then such disputes shall be settled by
binding arbitration by an arbitrator to be 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.
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