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HomeMy WebLinkAboutHoward Green Co.-Purchase Order-06.15.2009 Sitew,4) /5-69 12,t,, 4 Vo d - 54 HOWARD R. GREEN COMPANY PURCHASE ORDER THIS AGREEMENT, made this day of June , 2009 by and between, CITY OF WATERLOO, the CLIENT, and HOWARD R. GREEN COMPANY(hereafter"HRG"), for professional services concerning: Preparation of one DOE Energy Efficiency & Conservation Block Grant Application for $665,300 to fund several energy efficiency projects and assist in preparation of an Energy Efficiency Conservation Strategy.. HRG Project Number To be assigned, 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 a not-to-exceed fee of $10,000 • [ ] 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. Client: City of Waterloo HOWARD R. GREEN COMPANY Si nature: Signature: 4 .,,% � Printed Name:Tim Hurle Printed Name: Robin Husman Title: Mayor Title: Brownfields Group Manager Date: (o ^ 15 - Date: 6/10/09 Page 1 SCHEDULE OF FEES AND CONDITIONS HOWARD R. GREEN COMPANY A. FEES AND PAYMENT 1. The fee for services will be based on Howard 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 payment 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 added 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 times for examination by CLIENT at the corporate office of HRG. 2. INSURANCEIINDEMNIFICATIONIRISK 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. Page 2 (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 governmental 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. Page 3 of 4 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 fumished 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 por.ion 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 cf 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 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. 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 contractors 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. Page 3 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 construction 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 construction,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. Page 4 of 4 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 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. (b) 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$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. Page 4 SCOPE OF SERVICES PROJECT: DOE Energy Efficiency & Conservation Block Grant Application City of Waterloo, Iowa PROJECT SCOPE SERVICES: INTRODUCTION Howard R. Green Company will prepare a Department of Energy (DOE) Energy Efficiency & Conservation Block Grant (EECBG)Application (Application)for the City of Waterloo, Iowa. II. PROJECT TASKS Howard R. Green Company will complete the Application in accordance with the DOE's most current Proposal Guidelines for Energy Efficiency Block Grants. The Application will be for a Block Grant in the amount of $665,300 for several energy efficiency projects at various locations as determined by the City of Waterloo. The grant application will address required threshold criteria and ranking criteria as specified in DOE's most current Proposal Guidelines for EECBG Grants. Howard R. Green Company will assist in the preparation of an Energy Efficiency Conservation Strategy(EECS)for the City of Waterloo within 120 days after the EECBG submittal. Howard R. green will attend an informational meeting to present the City's objectives to the public and potential stakeholders. Howard R. Green Company staff will take part in conference calls as necessary during development of the Application and EECS. The City of Waterloo will subsequently submit the application to stated DOE State and Headquarter contacts. III. PROJECT BUDGET The tasks described in Section II of this Scope are being offered on a hourly basis with a maximum fee of$10,000. IV. PROJECT SCHEDULE Notice to Proceed June 15, 2009 Meet with City Staff to Discuss Project Ongoing Obtain City Council Resolution on Application June 22. 2009 Application submitted to DOE June 25, 2009 EECS submittal October 23, 2009 V. CLIENT RESPONSIBILITIES • Obtain a FedConnect registration • Obtain City Council Resolution for submitting application to DOE. • Submit final deliverables to DOE. • Provide facility for public meeting as necessary • Provide description of energy projects and savings that are available • iy;