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HomeMy Public PortalAbout166-2011 - Rose View - LWC Inc - professionalPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this _23rd day of _February 2011 and referred to as Contract No. 166-2011, by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and LWC, Incorporated, 4440 Garwood Place, Richmond, Indiana, 47374 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to provide professional architectural and engineering services in connection with the construction of a new Rose View Transit office building. Contractor's proposal, as referenced below, sets forth the scope of said architectural and engineering services which consist of but are not limited to Design Services, Cost Estimate Services, Procurement Services, Construction Administration Services, and Project Close Out Services. Request for Proposals were made May 6, 2011, which Request has been made available for inspection by City, are on file in the office of the Director of the Department of Metropolitan Development and Department of Finance for the City and are hereby incorporated by reference and made a part of this Agreement. Contractor agrees to abide by the same. The proposal and fee schedule of Contractor for said services is dated May 31, 2011 and August 25, 2011. Portions of Contractor's proposal are attached hereto as Exhibit "A," and consist of twelve (12) pages. Contractor's proposal is hereby incorporated by reference and made a part of this Agreement. Contractor shall perform the work and provide the services described on said Proposal. INDOT also requires additional provisions which are also attached as "Exhibit B" to this Agreement. Contractor agrees to comply with all provisions contained in Exhibit B. The INDOT approved fee justification worksheets are attached hereto as "Exhibit U to this Agreement. Contractor agrees that Contractor shall require the provisions, terms, and conditions contained in Exhibit B to be adhered to and made a part of any subcontracts that Contractor enters into with respect to the services Contractor provides pursuant to this Agreement. All Exhibits are incorporated herein by reference and made a part of this Agreement. Should any provisions, terms, or conditions contained in Exhibit A conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. Should any provisions, terms, or conditions contained in the May 6, 2011 Request for Proposals, or Exhibit B, conflict with this Agreement, those documents shall be controlling over this Agreement. Contractor shall perform all work herein in a timely manner, conforming to all applicable professional standards. Contract No. 166-2011 Page 1 of 6 The Contractor shall furnish all labor, material, equipment and services necessary for the proper completion of all work specified. No performance of services shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance; 2. The City is in receipt of any required affidavit signed by Contractor in accordance with Indiana Code 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. SECTION II. STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. SECTION III. COMPENSATION Contractor will be paid an amount not to exceed Thirty Thousand Three Hundred Sixteen Dollars and Zero Cents ($30,316.00) as a fixed fee for the A/E services based on the following work items: Schematic Design $3,608.00 Construction Documents $14,430.00 Cost Estimates $1,061.00 Energy/High Performance Analysis $2,122.00 Procurement Services $1,516.00 Construction Services $6,063.00 Project Closeout $1,516.00 Total $30,316.00 Additionally, Contractor will be paid for reimbursable expenses in the following fixed -fee amounts: Survey $2,300.00 Geotechnical $1,750.00 Printing $2,000.00 Permits $2,000.00 The total amount paid to Contractor for the above -described fixed fee A/E services and reimbursable expenses shall not exceed Thirty-eight Thousand Three Hundred Sixty-six Dollars and Zero Cents ($38,366.00) for the work items performed and completed under this Agreement. SECTION IV. TERM OF AGREEMENT This Agreement shall become effective when signed by all parties and shall continue in effect until the completion of the project, which completion shall be on or before April 1, 2013. Page 2 of 6 Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the following: a. failure, for any reason of the Contractor to fulfill in a timely manner and/or competent manner its obligations under this Agreement; b. ineffective or improper use of funds provided under this Agreement; c. suspension or termination of the grant funding to the City under which this Agreement is made; or d. unavailability of sufficient funds to make payment on this Agreement. In the event of such termination, the City shall be required to make prorated payment for all work performed prior to the date this Agreement is terminated, but shall be relieved of any other responsibility herein. This Agreement may also be terminated by either the City or the Contractor, in whole or in part, by mutual Agreement setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the Contractor's conduct or performance of this Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible. Coverage A. Worker's Compensation & Disability Requirements B. Employer's Liability C. Comprehensive General Liability Section 1. Bodily Injury Section 2. Property Damage Limits Statutory $100,000 $1,000,000 each occurrence $2,000,000 aggregate $1,000,000 each occurrence Page 3 of 6 D. Comprehensive Auto Liability Section 1. Bodily Injury Section 2. Property Damage E. Comprehensive Umbrella Liability $1,000,000 each person $1,000,000 each occurrence $1,000,000 each occurrence $1,000,000 each occurrence $1,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence $2,000,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. SECTION VII. PROHIBITION AGAINST DISCRIMINATION A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any sub -contractor shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; Page 4 of 6 That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. SECTION VIII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages. SECTION IX. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion, negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other action in any Page 5 of 6 alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other tribunals or in other venues. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees. In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Public Works and Safety By:_S/S Vicki Robinson Vicki Robinson, President By:_S/S Dian Lawson Dian Lawson, Member By:_S/S Anthony L. Foster Anthony L. Foster, II, Member Date: February 23, 2012 APPROVED: S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date: February 16, 2012 "CONTRACTOR" LWC INCORPORATED 4440 Garwood Place Richmond, IN 47374 By:_S/S Gary V. Turner Gary V. Turner Title: Partner Date: February 16, 2012 Page 6 of 6