HomeMy Public PortalAbout145-2020 - Donohue Engineering - grading and railing designAGREEMENT
THIS AGREEMENT made and entered into this 3 day of N O*VR- V1 jg.P,ll', 2020, by and
between the City of Richmond, Indiana, a municipal corporation acting by and through its Board
of Sanitary Commissioners, 50 North 51h Street, Richmond, Indiana 47374 (hereinafter referred to
as the "City"), and Donohue & Associates, Inc., 101 West Ohio Street, Suite 1650, Indianapolis,
IN 46204 (hereinafter referred to as the "Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to perform the services of preparing and designing construction -
ready plans and specifications for a Grating and Railing Part 4 Project at the Wm. E. Ross
Wastewater Treatment Plant at the Richmond Sanitary District (hereinafter referred to as the
"District").
City requested a Request for a Proposal from Donohue & Associates, Inc. to provide
professional services to prepare and design construction -ready plans and specifications for a
grating and railing Part 4 Project at the District's Wm. E. Ross Wastewater Treatment Plant.
Contractor responded to City on October 5, 2020, along with a listing of its services, fees
and billing rates. Contractor's response, including its plans for the Grating and Railing Part 4
Project at the Wm. E. Ross Wastewater Treatment Plant and its billing rates, as set forth in
Exhibit "A", consisting of Ten (10) pages, and which is attached hereto and incorporated
herein by reference and made a part of this Agreement.
Should any provisions, terms, or conditions contained in any of the documents attached hereto
as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of
the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
The Contractor shall furnish all personnel and services necessary for the proper completion of
all work specified. Contractor's services shall be performed in accordance with the
standard of professional practice ordinarily exercised by the applicable profession
under similar circumstances at the same time and in the locality where the services are
performed. Professional services are not subject to, and Contractor does not provide, any
warranty or guarantee, express or implied.
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 H. 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.
Contract No. 145- 2020
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SECTION III. COMPENSATION
City shall pay Contractor a sum not to exceed Fifty -Seven Thousand Eight Hundred Dollars and
no cents ($57,800.00) for complete and satisfactory performance of the work required hereunder.
The monies paid to Contractor are based upon the bid amount set forth in Exhibit "A".
Contractor shall submit to City monthly statements or bills.
SECTION IV. TERM OF AGREEMENT
This Agreement shall become effective when signed by all parties and shall continue in effect
until completed.
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 thirty (30) 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
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to the City that is incorrect, incomplete, or does not meet reasonable.
professional standards in any material respect, provided that Contractor was notified
in writing of deficiencies, given ten (10) working days to cure deficiencies and
failed to remedy such deficiencies.
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make 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, in whole or in part, by mutual Agreement of the parties
by 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 to the extent caused by Contractor's negligent conduct or
performance or non-performance of this Agreement; 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 negligent operations under this Agreement; whether
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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 Limits
A. Worker's Compensation & Statutory
Disability Requirements
B. Employer's Liability $100,000
C. Comprehensive General Liability
Section 1. Bodily Injury $1,000,000 each occurrence
$2,000,000 aggregate
Section 2. Property Damage $1,000,000 each occurrence
D. Comprehensive Auto Liability (if applicable)
Section 1. Bodily Injury $1,000,000 each person
$1,000,000 each occurrence
Section 2. Property Damage $1,000,000 each occurrence
E. Comprehensive Umbrella Liability $1,000,000 each occurrence
$2,000,000 each aggregate
F. Errors & Omissions Insurance $1,000,000 per claim
$2,000,000 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. 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
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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 VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged
in investment activities in Iran. In the event City determines during the course of this
Agreement that this certification is no longer valid, City shall notify Contractor in writing of
said determination and shall give contractor ninety (90) days within which to respond to the
written notice. In. the event Contractor fails to demonstrate to the City that the Contractor has
ceased investment activities in Iran within ninety (90) days after the written notice is given to
the Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-
16.5. In the event the City determines during the course of this. Agreement that this
certification is no longer valid and said determination is not refuted by Contractor in the
manner set forth in IC 5-22-16.5, the City reserves the right to consider the Contractor to be
in breach of this Agreement and terminate the agreement upon the expiration of the ninety
(90) day period set forth above.
SECTION IX. 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;
3. 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
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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 X. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees or
agents of the same from all liability which may arise in the course of Contractor's performance of
its obligations pursuant to this Agreement. The City hereby agrees to release and hold harmless
the Contractor and all officers, employees or agents of the same from all liability which may arise
in the course of City's performance of its obligations pursuant to this Agreement.
SECTION XI. 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 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.
In the event of any breach of this Agreement by Contractor, and in addition to any remedies,
Contractor shall be liable for costs incurred by City in its efforts to enforce this Agreement,
including but not limited to, City's reasonable attorney's fees, to the proportionate extent that
Contractor is determined to be in breach of this Agreement.
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.
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Any person executing this Contract in a representative capacity hereby warrants that he or she has
authorization, in writing, by his or her principal to execute this Contract on behalf of the
Contractor and that such authorization has not been revoked or rescinded.
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
AG SOLUTIONS, LLC
by and through its Board of
Sanitary Commissioners
By:
Sue Miller, President
Amara akshi, Vice President
tiens, Member
Dated: 3 Z 0 Z(1
APPROVED:
avid S , Ma
City of Richm d, Indiana
Date: 1 6 G lmza
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"CONTRACTOR"
DONOHUE & ASSOCIATES, INC.
PIP
E d E � �' d 61 Pill N
Printed: Steven P. Gress, P.E.
Title: Vice -President
Dated: ZUZd
3D)DON0HUE
ENGINEERING SERVICES AGREEMENT
Wastewater Treatment Plant Grating and Railing Part 4 (Project)
This Amendment is by and between:
City of Richmond, Indiana (CITY)
By and through its Board of Sanitary Commissioners
2380 Liberty Avenue
Richmond, Indiana 47374
And,
Donohue & Associates, Inc. (Contractor)
101 West Ohio Street, Suite 1650
Indianapolis, IN 46204
Who agree as follows:
CITY hereby engages Contractor to perform the Services set forth in Part I for the compensation set forth
in Part III. Contractor will be authorized to commence the Services upon execution and receipt of this
Agreement from CITY. CITY and Contractor agree that this signature page, together with Parts I through
IV attached, constitute the entire agreement for this Project.
APPROVED FOR CITY APPROVED FOR CONTRACTOR
By: By:
Printed Name: Printed Name: Steven P. Gress, P.E.
Title: Title: Vice President
Date: Date: 10-05-2020
EXHIBIT'A' - Pagel of 10
PART
PROJECT DESCRIPTION/SCOPE OF SERVICES/TIMING
A. PROJECT DESCRIPTION
This Project will consist of the performance of Services in order to prepare and design construction -
ready plans and specifications for a Grating and Railing Part 4 Project at the Richmond, IN William E.
Ross Wastewater Treatment Plant (collectively the "Project"). To date, three similar small-scale
Grating and Railing Projects have been designed by Contractor. It is anticipated that the Part 4 Project
will be similar in scope and complexity as the Part 1, 2, or 3 Projects. After construction contractor
proposals for Grating and Railing Part 4 are received, Contractor will perform limited Construction
Related Services for the Project. Project improvements will be selected by the CITY from
recommendations made by Contractor in the May, 2019 Grating and Railing Plant -wide Assessment.
B. SCOPE OF SERVICES
Services to be provided by Contractor for this Project under this Agreement are as follows:
1.0 Project Management and Meetings
1.1 Prepare a Project work plan for the Project team identifying the Project background and
objectives, task -based Project scope, budget assignments, Project schedule, staffing plan, and
other information that may be appropriate.
1.2 Project meetings will be held virtually or at the Richmond Sanitary District Administration
Building when scheduled in conjunction with other Project meetings. The currently
anticipated meetings include:
1.2.1 Project Kickoff Meeting — Conduct a project kickoff Meeting to review scope,
schedule, and discuss CITY expectations and preferences.
1.2.2 Preliminary Engineering / 50% Design Review.Meeting- Review and discuss 50%
complete Grating and Railing Part 4 drawings. The submittal will include preliminary
design plans and include the engineer's preliminary opinion of probable
construction cost.
1.2.3 95% Design Review Meeting— Review and discuss 95% complete Grating and Railing
Part 4 drawings, technical specifications, proposal (or bidding) information, and
engineer's opinion of construction cost for CITY's review comments. The submittal
will include near final design documents for review.
1.3 Provide brief monthly progress reports to CITY to document Services performed and schedule
status. This task will be performed as part of the monthly Project invoicing routine.
2.0 Preliminary Engineering / 50% Design
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EXHIBIT'A' - Page 2 of 10
2.1 Review existing information including record drawings and the prior Grating and Railing Plant -
wide Assessment Report.
2.2 Conduct up to two (2) WWTP site visits to review field conditions. It is anticipated that site
visit(s) will be performed by structural and/or process engineers.
2.3 Prepare preliminary design drawings at 22" x 34" full-size for plotting on 11" x 17" half-size
sheets.
2.4 Prepare preliminary opinion of probable construction costs.
2.5 Perform quality control checks of the design at the preliminary design completion level, and
incorporate the review comments.
2.6 Furnish up to three (3) half -sized hardcopies and. one (1) digital PDF copy of the preliminary
design drawings (half-size) to the CITY for review and approval.
2.7 Conduct a Preliminary Engineering Review Workshop with CITY as described above.
3.0 Draft Final (95%) Design
3.1 Based on CITY review comments, advance the design to the final design (95%) stage by
showing the detailed design features and information. Complete design drawings for Grating
and Railing Part 4 by adding project notes, details and other information needed for a final
design. This drawing set will be considered the final design except for incorporating final
review comments from the CITY.
3.2 Draft final technical specifications will be prepared including proposal (or bidding)
information to conform to the agreed upon materials and information shown in the drawings.
Local standards, and preferred equipment and material specifications will be incorporated in
the technical specifications. Specifications will be prepared using EJCDC front-end documents
and 16 Division Contractor technical specifications utilizing the CSI 3-part format. Engineer .
will work with the CITY on incorporation of preferred front end specifications based on EJCDC
Standard General Conditions.
3.3 Prepare a draft final (95%) design stage updated opinion of probable construction costs.
3.4 Perform quality control checks of the design at the draft final (95%) design completion level.
3.5 Furnish up to three (3) half -sized hardcopies and one (1) digital PDF copy of the draft final
(95%) complete design to the CITYfor review and approval.
3.6 Conduct near Final Design Review Workshop with CITY as described above.
4.0 Final (100%) Design
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EXHIBIT'A' - Page 3 of 10
4.1 Incorporate draft final design comments from the CITY into the construction -ready final plans
and specifications.
4.2 Furnish three (3) half -sized hardcopies and one (1) digital PDF copy of the construction -ready
(100%) design plans and specifications to the CITY for bidding purposes.
5.0 Bid (or Proposal) Phase Engineering Services
5.1 Prepare a Notice to Bidders. If a bid Project, then submit it to the CITY to publish twice in a local
newspaper. The cost of publication will be paid by the CITY.
5.2 Assist CITY in conducting a pre -bid conference to describe project work and answer prospective
bidder questions. Prepare and issue meeting minutes.
5.3 Prepare addenda as appropriate to interpret, clarify or expand the bidding documents, and issue
the addenda to prospective bidders.
5.4 Assist CITY during bid phase on a limited as -needed basis.
6.0 Construction Phase Services
6.1 General Administration of Construction Contract. Consult with CITY and act as CITY's
representative as provided in the General Conditions of the Contract Documents included in
the Project Manual. The extent and limitations of the duties, responsibilities and authority of
Contractor as assigned in said General Conditions shall not be modified, except as Contractor
and CITY may otherwise agree in writing. All of CITY's instructions to the construction.
contractor will be issued through the Contractor, who shall have authority to act on behalf of
CITY in dealings with construction contractor to the extent provided in this Agreement and
said General Conditions except as otherwise provided in writing.
6.2 Pre -Construction Meeting. Conduct the .Pre -Construction Meeting with the CITY and
construction contractor. Contractor will prepare the meeting agenda and meeting notes
following the meeting.
6.3 Visits to Site and Observation of Construction. Perform the following services in connection
with observations of construction contractor's work in progress when attending construction
progress meetings and between construction progress meetings:
6.3.1 Make up to two visits to the Project Site in order to observe as an experienced and
qualified design/construction professional the progress and quality of the Work. One
of these two visits is intended for punchlist development near completion. Such visits
and observations by Contractor are not intended to be exhaustive or to extend to
every aspect of construction contractor's work in progress or to involve detailed
inspections of construction contractor's work in progress beyond the responsibilities
specifically assigned to Engineer in this Agreement and the Contract Documents, but
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EXHIBIT'A' - Page 4 of 10
rather are to be limited to spot checking, selective sampling, and similar methods of
general observation of the Work based on Contractor's exercise of professional
judgment. Based on information obtained during such visits and such observations,
Contractor will determine in general if construction contractor's work is proceeding
in accordance with the Contract Documents, and Contractor shall keep CITY informed
of the progress of the Work.
6.3.2 The purpose of Contractor's visits at the Project site will be to enable Contractor to
better carry out the duties and responsibilities assigned to.and undertaken by the
Engineer during the Construction Phase; and in addition, by the exercise of
Contractor's efforts as an experienced and qualified design/construction
professional, to provide for CITY a greater degree of confidence that the completed
Work will conform in general to the Contract Documents and that the integrity of the
design concept of the Project as a functioning whole as indicated in the Contract
Documents has been implemented and preserved by construction contractor.
Contractor shall not, during such visits or as a result of such observations of
construction contractor's work in progress, supervise, direct, or have.control over
construction contractor's work, nor shall Contractor have authority over or
responsibility for the means, methods, techniques, sequences, or procedures of
construction selected by construction contractor, for safety precautions and
programs incident to construction contractor's work, or for any failure of construction
contractor to comply with Laws and Regulations applicable to construction
contractor's furnishing and performing the Work. Accordingly, Contractor neither
guarantees the performance of construction contractor nor assumes responsibility
for construction contractor's failure to furnish and perform its work in accordance
with the Contract Documents.
6.3.3 Contractor intends to make a total of up to two (2) structural engineer and/or process
engineer or project manager site visits to observe construction progress.
6.4 Defective Work. Recommend to the CITY that construction contractor's work be disapproved
and rejected while it is in progress,'if on the basis of such observations, Contractor believes
that such work will not produce a completed project that conforms generally to the Contract
Documents or that it will prejudice the integrity of the design concept of the completed
Project as a functioning whole as indicated in the Contract Documents.
6.5 Clarifications and Interpretations, Request for Information Forms, and Field Orders. Issue
necessary clarifications and interpretations of the Contract Documents as appropriate to the
orderly completion of construction contractor's work. Contractor may issue Field Orders
authorizing minor variations from the requirements of the Contract Documents.
6.6 Change Orders, Work Change Directives and Request for Proposals. Prepare Change Orders,
Work Change Directives and Requests for Proposals and recommend Change Orders and
Work Change Directives to CITYfor approval by CITY as required. In addition, Contractor shall
prepare all documentation that appropriate governmental authorities having jurisdiction over
the project may require for review and approval of the Change Orders.
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EXHIBIT'A' - Page 5 of 10
6.7 Shop Drawings and Samples. Review and approve or take other appropriate action in respect
to Shop Drawings and Samples and other data that construction contractor is required to
submit, but only for conformance with the information given in the Contract Documents and
compatibility with the design concept of completed Project as a functioning whole as
indicated in the Contract Documents. Such reviews and approvals or other action will not
extend to means, methods, techniques, sequences or procedures of construction orto safety
precautions and programs incident thereto.
6.8 Disagreements between CITY and construction contractor. Render formal written decisions
on all claims of CITY and construction contractor relating to the acceptability of construction
contractor's work or the interpretation of the requirements of the Contract Documents
pertaining to the execution and progress of construction contractor's work. In rendering such
decisions, Contractor shall be fair and not show partiality to CITY or construction contractor,
and shall not be liable in connection with any decision rendered in good faith in such capacity.
6.9 Applicationsfor Payment. Based on Contractor's observations as an experienced and qualified
design professional and on review of applications for payment and accompanying supporting
documentation from construction contractor, Contractor shall assist the CITY with review of
construction contractor pay applications.
6.10 Substantial Completion. Promptly after notice from construction contractor that the
construction contractor considers the entire Work ready for its intended use, in company with
CITY and construction contractor, conduct an inspection to determine if the Work is
Substantially Complete. Contractor shall prepare a list of any observed deficiencies during
the inspection. At the direction of the CITY, Contractor shall prepare and deliver a certificate
of Substantial Completion to CITY and the construction contractor.
6.11 Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of construction contractor is acceptable so that Contractor may recommend,
in writing, final payment to construction contractor. Accompanying the recommendation for
final payment, Contractor shall also provide a notice that the Work is acceptable to the best
of Contractor's knowledge, information, and belief based on the extent of the services
provided by Contractor under its Agreement with the CITY.
6.12 Limitation of Responsibilities. Contractor shall not be responsible for the acts or omissions of
construction contractor, or of any of its subcontractors, suppliers, or of any other individual
or entity performing or furnishing any of the Work. Contractor shall not be responsible for
failure of construction contractor to perform or furnish the Work in accordance with the
Contract Documents.
6.13 No Resident Project Representative Services are proposed for this Project to review the work
on a daily basis. Contractor will perform the periodic site visits as described in this Agreement
and coordinate with the CITY's Project Manager for the status of construction work progress
when Contractor is not on site.
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EXHIBIT'A' - Page 6 of 10
C. PROJECT SCOPE ASSUMPTIONS
Contractor's scope of services and associated fees were developed with the assumptions :listed below.
Additional scope and level of effort may be added to this Agreement upon written authorization by the
CITY.
1. No survey or geotechnical investigation effort is included in this Scope of Services based on the
project scope requirements.
2. No HVAC, mechanical, electrical, or instrumentation and control effort is included in this Scope of
Services based on the project scope requirements.
D. PROJECT TIMING
1. Contractor shall be authorized to commence the Services set forth herein upon execution of this
Agreement. It is anticipated that design services will be completed no later than 5 months from
notice -to -proceed and that project construction will be completed no later than 14 months from
notice -to -proceed.
2. Contractor's design services under this Agreement will be considered complete when Contractor
has delivered to CITY the Construction Documents for project bidding as defined under Scope of
Services.
PART II
CITY RESPONSIBILITIES
A. In addition to other responsibilities of CITY set forth in this Agreement, CITY shall:
1. Identify a person authorized to act as the CITY's representative to respond to questions and make
decisions on behalf of CITY, accept completed documents, approve payments to Contractor, and
serve as liaison with Contractor as necessary for Contractor to complete its Services.
2. Furnish to Contractor copies of existing documents and data pertinent to Contractor's Scope of
Services, including but not limited to and where applicable: design and record drawings for
existing facilities; Specifications or Operation and Maintenance Manuals for existing equipment.
3. CITY shall be responsible for all requirements and instructions that it furnishes to Contractor
pursuantto this Agreement, and forthe accuracy and completeness of all reports, data, programs,
and other information furnished by CITY to Contractor pursuant to this Agreement. Contractor
may use and rely upon such requirements, instructions, reports, data, programs, and information
in performing or furnishing services under this Agreement, subject to any express limitations or
reservations provided by CITY applicable to the furnished items.
4. Provide to Contractor existing information regarding the existence and locations of utilities and
underground facilities.
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EXHIBIT'A' - Page 7 of 10
5. Provide Contractor safe access to premises necessary for Contractor to provide the Services.
6. Inform Contractor whenever CITY observes or becomes aware of a Hazardous Environmental
Conditions that may affect Contractor's Scope of Services or time for performance.
PART III
COMPENSATION, BILLING AND PAYMENT
A. Compensation for the work as defined in the Scope of Services (Part 1) of this Agreement shall be in
accordance with Contractor's attached standard charge -out rates in effect at the time the Services
are performed. Routine expenses will be billed at cost. No subconsultants are anticipated for this
Scope of Services. The total cost for these Services and expenses will not exceed $57,800.00.
B. Contractor will bill CITY monthly, with net payment due in 30 days.
C. Contractor will notify CITY if Project scope changes require modifications to the above -stated total
contract value. Services relative to scope changes will not be initiated without written authorization
from CITY.
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EXHIBIT'A' - Page 8 of 10
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Page 9 of 10
EXHIBIT'A'- Page 9 of 10
PART IV - STANDARD TERMS AND CONDITIONS
1. STANDARD OF CARE. Donohue's Services shall be performed in accordance with the
standard of professional practice ordinarily exercised by the applicable profession under
similar circumstances at the same time and in the locality where the Services are performed.
Professional services are not subject to, and Donohue does not provide, any warranty or
guarantee, express or implied. Any warranties or guarantees contained in any purchase
orders, requisitions, or notices to proceed issued by Owner are void and not binding upon
Donohue. Notwithstanding any other representations made elsewhere in this Agreement or
in the execution ofthe Project, this Standard of Care shall not be modified.
2. CHANGE OF SCOPE. The Scope of Services set forth in this Agreement is based on facts
known at the time of execution ofthis Agreement, including, if applicable, information
supplied by Owner. For some projects involving conceptual or process development services,
scope may not be fully definable during initial phases. As the Project progresses, facts
discovered may indicate that the scope must be redefined. Donohue will promptly provide
Owner with a written amendment to this Agreement to recognize such change.
3. HAZARDOUS ENVIRONMENTAL CONDITIONS. Unless expressly stated otherwise in the
Scope of Services (Part I) of this Agreement, Donohue's scope of services does not include
any services relating to a Hazardous Environmental Condition, including but not limited to
the presence at the Project site of asbestos, mold, PCBs, petroleum, hazardous substances or
any other pollutant or contaminant, as those terms are defined in pertinent federal, state,
and local laws. In the event Donohue or any other party encounters a Hazardous
Environmental Condition, Donohue may at its option suspend performance of services until
Owner: a) retains appropriate consultants or contractors to identify and remediate or
remove the Hazardous Environmental Condition; and b) warrants that the Project site is in
full compliance with all applicable environmental laws.
4. SAFETY. Unless specifically included as a service to be provided under this Agreement,
Donohue specifically disclaims any authority or responsibility for general job site safety, or
the safety ofpersons (otherthan Donohue employees) or property.
5. DELAYS. If performance of Donohue's Services is delayed through no fault of Donohue,
Donohue shall be entitled to an extension oftime equal to the delay and an equitable
adjustment in compensation.
6. TERMINATION/SUSPENSION. Either party may terminate this Agreement upon 30 days
written notice to the other party. Owner shall pay Donohue for all Services, including profit
relating thereto, rendered priorto termination, plus any expenses ortermination. If either
party defaults in its obligations under this Agreement (including Owners obligation to make
required payments), the non -defaulting party may, after giving seven days written notice,
suspend performance under this Agreement. The non -defaulting party may not suspend
performance ifthe defaulting party commences to cure such default within the seven-day
notice period and completes such cure within a reasonable period of time.
Donohue may terminate this Agreement upon seven days written notice if: a) Donohue
believes that Donohue is being requested by Owner to perform services contrary to law or
Donohue's responsibilities as a licensed professional; or b) Donohue's Services for the Project
are delayed, suspended, or interrupted for a period of at least 90 days for reasons not
attributable to Donohue's performance of Services; or c) Owner has failed to pay any amount
due and owing to Donohue for a period of at least 60 days. Donohue shall have no liability to
Owner on account of such termination.
7.OPINIONS OF CONSTRUCTION COST. Any opinion of construction costs prepared by
Donohue is supplied for the general guidance ofthe Owner only. Since Donohue has no
control over competitive bidding or market conditions, Donohue cannot guarantee the
accuracy ofsuch opinions as compared to contract bids or actual costs to Owner.
S. RELATIONSHIP TO CONTRACTORS. Donohue shall serve as Owner's professional
representative for the Services, and may make recommendations to Owner concerning
actions relating to Owner's contractors. Donohue specifically disclaims any authority to direct
or supervise the means, methods, techniques, sequences or procedures of construction
selected or used by Owner's contractors. Donohue neither guarantees the performance of
any construction contractor nor assumes responsibilityfor any contractor's failure to
perform in accordance with the construction contract documents.
9. CONSTRUCTION REVIEW. For projects involving construction, Owner acknowledges that
under generally accepted professional practice, interpretations of construction documents in
the field are normally required, and that performance of construction -related services by the
design professional forthe Project permits errors or omissions to be identified and corrected
at comparatively low cost. Performance of construction -related professional services by a
third party orthe Owner risks misinterpretation or alternate interpretation of the design
intent. Owner agrees to hold Donohue harmless from any claims resulting from performance
of construction -related professional services by persons other than Donohue.
10. BETTERMENT. If any item or component ofthe Project is required due to omission from
the construction documents, Donohue's liability shall be limited to the reasonable costs of
correction ofthe construction, less the cost to the Owner ifthe omitted item or component
had been initially included in the construction contract documents. It is intended by this
provision that Donohue will not be responsible for any cost or expense that provides
betterment, upgrade, or enhancement ofthe Project.
11. INSURANCE. Donohue will maintain Professional Liability, Commercial General Liability,
Automobile, Worker's Compensation, and Employer's Liability insurance coverage in
amounts in accordance with legal and Donohue's business requirements. Donohue shall pro-
vide to Owner certificates demonstrating such coverage upon request. For projects involving
construction, Owner agrees to protect Donohue's interests through appropriate property
and liability insurance, and to require its construction contractor, if any, to include Donohue
as an additional insured on Contractors policies relating to the Project. Donohue's coverages
referenced above shall, in such case, be excess over contractors primary coverage.
12. INDEMNIFICATION. To the fullest extent permitted by law, Owner and Donohue each
agree to indemnify the other party and the other party's officers, directors, partners,
employees, and representatives, but not defend, from and against losses, damages, and
judgments arising from claims by third parties, including reasonable attorneys' fees and
expenses recoverable under applicable law, but only to the extent they are found to be
caused by a negligent act, error, or omission ofthe indemnifying party or any of the
indemnifying party's officers, directors, members, partners, agents, employees, or
subconsultants in the performance of services underthis Agreement. If claims, losses,
damages, and judgments are found to be caused by the joint or concurrent negligence of
Owner and Donohue, they shall be borne by each party in proportion to its negligence.
To the fullest extent permitted by law, Owner shall indemnify and hold harmless Donohue,
its employees, agents, and representatives, and Donohue's subconsultants, from and against
any loss, liability, claims and damages caused by, arising out of, or resulting from the
presence at the Project site of asbestos, mold, PCBs, petroleum, hazardous substances, or
any other pollutant or contaminant, as those terms are defined in pertinent federal, state,
and local laws, except to the extent that the loss, liability, or damages are caused solely by
the willful misconduct or negligence of Donohue, its agents or employees.
13. LIMITATIONS OF LIABILITY. No owner, shareholder, principal, employee or agent of
Donohue shall have individual liabilityto Owner; and Owner covenants and agrees notto sue
any such individual in connection with the Services underthis Agreement.
Neither Donohue, Donohue's subconsultants, northeir agents or employees shall be jointly,
severally orindividually liable to the Owner in excess ofthe compensation to be paid
pursuant to this Agreement or two hundred fifty thousand dollars ($250,000), whichever is
greater, by reason of any act or omission, in tort or contract, including breach of contract,
breach of warranty or negligence. To the fullest extent permitted by Laws and Regulations,
Owner and Donohue waive against each other, and the others employees, officers,
directors, members, insurers, partners, and consultants, any and all claims for or entitlement
to special, incidental, indirect, or consequential damages arising out of, resulting from, or in
any way related to this Agreement or the Project, from any cause or causes.
14.OWNERSHIP AND REUSE OF PROJECT DOCUMENTS. All documents and other
deliverables, in all media, prepared by or on behalf of Donohue in connection with this
Agreement are instruments of service, and Donohue shall hold the copyright to and all other
ownership and property interests in such instruments of service. Upon payment for services
rendered, Donohue grants Owner a license to use instruments of Donohue's services forthe
purpose of constructing, occupying or maintainingthe Project. Owner shall not reuse any
such documents or other deliverables pertaining to the Project for any purpose otherthan
that for which such documents or deliverables were originally prepared. Owner shall not
cause or allowthe alteration ofsuch documents or deliverables without written verification
and approval by Donohue for the specific purpose intended, and any alteration by Owner
shall be atthe Owner's sole risk. Owner agrees to indemnify and hold harmless Donohue
from all claims, damages, and expenses (including reasonable attorneys' and consultants'
fees), arising out ofsuch reuse or alteration by Owner or others acting through Owner.
15. ELECTRONIC MEDIA. Copies of documents that may be relied upon by Owner are limited
to printed copies that are signed and sealed by Donohue. Files or information in electronic
media are furnished by Donohue to Owner solely for convenience of Owner. Because data
stored in electronic media format can deteriorate or be modified, the Owner agrees to per-
form acceptance tests within 60 days. Donohue will not be responsible to correct any errors
or for maintenance of documents in electronic media format after the acceptance period.
16. RECORDS RETENTION. Donohue shall retain on file, for a period of five years following
completion or termination of its services, copies of contract documents, final deliverables,
and accounting records related to Engineer's services under this Agreement. Upon Owner's
request, Donohue shall provide a copy of maintained item to Owner at cost.
17. AMENDMENT. This Agreement, upon execution by both parties hereto, can be amended
only by a written instrument signed by both parties.
18. SUCCESSORS, BENEFICIARIES AND ASSIGNEES. This Agreement shall be binding upon
and inure to the benefit ofthe owners, administrators, executors, successors, and legal
representatives ofthe Owner and Donohue. The rights and obligations ofthis Agreement
cannot be assigned by either party without written permission ofthe other parry. This
Agreement shall be binding upon and inure to the benefit of any permitted assignees.
19. NO THIRD -PARTY BENEFICIARY. Nothing contained in this Agreement, nor the
performance ofthe parties hereunder, is intended to benefit, norshall inure to the benefit
of, any third party, including Owner's construction contractors, if any.
20. STATUTE OF LIMITATION. To the fullest extent permitted by law, parties agree that,
except for claims for indemnification, the time period for bringing claims underthis
Agreement shall expire one year after Substantial Completion, as defined bythe construction
documents prepared by Donohue, or, if no construction documents are prepared, one year
after the submittal date of Donohue's most recent invoice for this Agreement. Any action not
brought within that one-year time period shall be barred, without regard to any other
limitations period set forth by law or statute.
21. DISPUTE RESOLUTION. Owner and Donohue shall provide written notice of a dispute
within a reasonable time and after the event giving rise to the dispute. Owner and Donohue
agree to negotiate any dispute between them in good faith for a period of 30 days following
such notice. Owner and Donohue may mutually agree to submit any dispute to mediation or
binding arbitration, but doing so shall not be required or a prerequisite to initiating a lawsuit
to enforce this Agreement.
22. CONTROLLING LAW. This Agreement is governed by the laws ofthe state in which the
Project is located.
23. NO WAIVER. No waiver by either party of any default by the other party in the perfor-
mance of any particular section ofthis Agreement shall invalidate any other section ofthis
Agreement or operate as a waiver of any future default, whether like or different in character.
24. SEVERABILITY. The various terms, provisions and covenants herein contained shall be
deemed to be separate and severable, and the invalidity or unenforceability of any ofthem
shall not affect or impairthe validity or enforceability ofthe remainder.
25. AUTHORITY. The persons signing this Agreement warrant that they have the authorityto
sign as, or on behalf of, the party for whom they are signing.
26. SURVIVAL. All express representations, indemnifications and limitations of liability
included in this Agreement will survive its completion ortermination for any reason.
EXHIBIT'A' - Page 10 of 10 Rev. April2016