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HomeMy Public PortalAboutProfessional Services Agreement for Coastal Engineering Services- 4-5-13PROFESSIONAL SERVICES AGREEMENT FOR COASTAL ENGINEERING SERVICES (duplicate originals) This Agreement is made this day of , 2013; by and between OLSEN ASSOCIATES, INC., a Florida for profit corporation (hereinafter "Consultant") and the City of Tybee Island, Georgia (hereinafter the "Client"). WITNESSETH: NOW THEREFORE, in consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, Consultant and the Client agree as follows: 1.0 TERM OF AGREEMENT This Agreement shall terminate absolutely and without obligation at the end of the calendar year of its execution and for every calendar year for which it may be renewed. The Agreement will be automatically renewed for a succeeding calendar year if the city has not provided notice of nonrenewal at least thirty (30) days before the close of the then calendar year. There may be a maximum of four (4) renewals and then the Agreement shall expire; however the parties may mutually agree to additional terms. Notwithstanding the aforesaid, this Agreement may be terminated in accordance with the provisions of Section 3.0 herein. 2.0 SERVICES TO BE RENDERED 2.1 General Scope of Work. Consultant is retained by the Client as a consulting engineer for purposes of providing professional coastal engineering services. The general scope of work for the services will encompass consultation on projects affecting the Client's shorefront or interests generally located in Chatham County, Georgia. Said projects may include but shall not be limited to beach restoration and nourishment, navigation project impacts, dune/berm construction, stabilizing structures, permit issues, beach disposal, inlet, creek or lagoon analyses, hydraulic studies and emergency beach erosion assistance, post disaster liaison and construction. The work may include beach management planning, feasibility studies, funding or grant assistance, sand searches, surveying, design, permitting, legal consultation services, construction bidding and management for specific projects. Services may also include assistance with public workshops and other related coastal engineering concerns on an as -needed basis. Work provided by the Consultant may include related services of qualified subcontractors with the written consent of the Client. Page 1 of 8 2.2 Task Orders and Compensation for Services. a) Specific tasks shall be determined by the issuance of Task Orders mutually agreed to by Consultant and the Client. The Task Orders shall define the scope -of -work and specify the compensation structure for the Work Task. b.) Depending upon the nature of the Task Order, compensation may be set on a lump sum, fixed fee, percentage of construction, Time and Materials, or other basis. An hourly rate schedule applicable to each calendar year shall be submitted to the Client annually upon the effective date of this Agreement and shall apply to the calendar year within which services are provided. 2.3 Billings/Payments. a) For each Task Order, Consultant shall submit detailed monthly bills to the Client which at a minimum identify the work performed, related reimbursable expenses, the individuals involved, and the Task Order authorizing the services. For services to be paid on a lump sum or other basis, Consultant shall also provide information sufficient for the Client to determine the percentage of the Task completed. b.) Upon verification of the work performed, the Client will pay Consultant the amount of the invoice within thirty (30) days of submission. c.) Where applicable, required travel, per diem, mileage, meals or lodging expenses shall be paid in accordance with mutually agreeable rates and conditions. d.) Where applicable, required direct expenses, including authorized subcontractor services, shall be invoiced at cost plus 15%. 2.4 Truth -in -Negotiation Certificate. Signature of this Agreement shall act as the execution of a truth -in -negotiation certificate stating that fees and other factual unit costs supporting the compensation for work performed under this Agreement are accurate, complete and current at the time of contracting and prior to commencing any work hereunder. The compensation for any work performed hereunder shall be adjusted to exclude any significant sums by which the Client determines the compensation was increased due to inaccurate, incomplete, or noncurrent fees and other factual unit costs. All such adjustments for specific Work Tasks shall be made within (1) year of completion of the Work Task. 2.5 Independent Contractor Status. Consultant acknowledges that it is an independent contractor and will at all times act as such in performing services under this Agreement. Consultant is not an employee, partner, or agent of the Client and has not authority to contract for or bind the Client in any manner. The parties agree that Consultant shall be responsible for and shall have full control over developing its own means and methods as it deems appropriate in proving the services and the Client is only interested in the results of the services. Consultant is not entitled to unemployment insurance benefits and is obligated to pay federal and state income tax on any monies paid pursuant to this Agreement. Page 2 of 8 3.0 TERMINATION OF SERVICES 3.1 Termination Without Cause. This Agreement may be terminated without cause by the Client or Consultant by giving thirty (30) written days notice of such to the other party. Upon receipt of such notice, Consultant shall discontinue its work on the date and to the extent specified in the notice. Consultant shall also make every reasonable effort to cancel, upon terms satisfactory to the Client, all orders or subcontracts related to the terminated work. 3.2 Termination for Cause. (a) If either party shall at any time commit any material breach of any covenant or warranty under this Agreement and (i) shall fail to cure such breach within thirty (30) days of written notice of such breach or (ii) if it is not curable within (30) days of written notice, shall fail to diligently commence to cure it within (30) days of written notice, the non -breaching party may at its option, and in addition to any other remedies to which it is entitled, terminate this Agreement by written notice. 3.3 Payment Upon Termination. In the event of termination, the Client shall pay Consultant for all services satisfactorily rendered, and for reimbursable expenses incurred, prior to the date of termination. 4.0 GENERAL PROVISIONS 4.1 General Responsibilities of Consultant. a) Consultant is responsible for the professional quality, technical accuracy, timely completion and coordination of all designs, drawings, specifications, reports and other services furnished by Consultant under this Agreement. Consultant is responsible for all assigned and accepted tasks as well as liability for any damages suffered by the Client as a result of non-performance to the extent encompassed under the indemnification provisions set forth in section 4.6 hereof. b) Consultant shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its designs, drawings, specifications, reports and other services which exist at the time of acceptance by the Client. This provision is not intended to limit the payment of compensation for the finalization or completion of draft documents or work products of evidence of an approved Task Order. c) Consultant's opinions of probable construction costs provided for under this Agreement are to be made on the basis of Consultant's experience and qualifications and represent Consultant's best judgment as an experienced and qualified professional engineer, familiar with the construction industry. Consultant does not guarantee that proposals, bids or actual construction costs will not vary from opinions of probable cost prepared by Consultant. d) Consultant represents that its services shall be performed, within the limits provided by the Client, in a manner consistent with the level of care and skill ordinarily exercised by other professional Consultants under similar circumstances at the time the services are performed. Page 3 of 8 4.2 General Responsibilities of the Client. a) The Client shall designate a preferred contact individual or contract representative with respect to the services to be rendered under this Agreement. b) The Client shall make available pertinent information including reports, certified engineering drawings, certified surveys and data related to the services to be rendered under this Agreement. c) The Client shall arrange for access to public and private property as required for Consultant to perform the service under this Agreement. d) The Client shall provide prompt notice to Consultant whenever the Client observes or otherwise becomes aware of any development that affects the scope or timing of Consultant's services, or any defect or nonconformance in the work of Consultant. 4.3 Assignment. This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered by Consultant, without the prior written consent of the Client. 4.4 Ownership of Documents. The Client shall be the owner of copyright or other intellectual property rights in reports, documents and deliverables produced under this Agreement and any such material may be reproduced and reused at the discretion of the Client. 4.5 Insurance. During the term of this Agreement, Consultant shall provide and maintain at its own expense the following kinds of insurance with limits of liability as set forth below: Insurance Limits of Liability Workman's Compensation Statutory Commercial General Liability $1,000,000 Professional Liability $1,000,000 Automobile Liability $ 500,000 Liability policies shall be underwritten on the occurrence basis, except the professional liability coverage which may be provided on a claims made basis. The Client shall be "additional insured" on all liability policies (except professional liability). Certificates of insurance shall be provided to the Client prior to commencement of work hereunder. Certificates shall reflect the additional inured status of the Client and shall provide for a minimum of thirty (30) days notice of cancellation. The Client shall also be a certificate holder. 4.6 Hold Harmless and Indemnification of Client. Consultant shall save and hold harmless and indemnify the Client against any and all liability, claims, judgments or costs of whatsoever kind and nature for injury to, or death of any person or persons and for the loss or damage to any property resulting from the use, service, operation or performance of work under the terms of this Agreement, resulting from the negligent acts of the Consultant, his subconsultant, or any of the employees, agents or representatives of the Consultant or subconsultant to the extent allowed by law. Page 4 of 8 4.7 Contingent Fees. Consultant warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Consultant to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm other than a bona fide employee working solely for Consultant, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. 4.8 Nondiscrimination. Consultant warrants and represents that it does not and will not discriminate against anyone with regard to race, creed, color, religion, sex, national origin, age, disability, marital status, or sexual orientation. Consultant will comply with all federal, state, and local laws, ordinances, rules and regulations regarding discrimination. 4.9 Enforcement Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney's fees, court costs and all expenses even if not taxable as court costs (including without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party may be entitled. 4.10 Authority to Practice. Consultant hereby represents and warrants that it has and will continue to maintain all licenses and approvals required to conduct its business, and that it will at all times conduct its business activities in a reputable manner. Proof of such licenses and approvals shall be submitted to the Client upon request. 4.11 No Waiver. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by either party under this Agreement, shall impair any such right, power or remedy of either party; nor shall such delay or failure be construed as a waiver of any such breach or default, or any similar breach or default thereafter. 4.12 No Third Party Benefit. This Agreement is neither intended, nor shall it be construed, to grant any rights, privileges or interest in any third party without the mutual written agreement of the parties hereto. 4.13 Notices. All notices required or permitted to be made pursuant to this Agreement shall be in writing and delivered personally or sent by Registered or Certified Mail, Return Receipt Requested, to the parties at the respective addresses set forth below: Client: City of Tybee Island P.O. Box 2749 Tybee Island, GA 31328-2749 Attn: Diane Schleicher, City Manager Page 5 of 8 Consultant: Erik J. Olsen, P.E. Olsen Associates, Inc. 2618 Herschel Street Jacksonville, FL 32204 Notice shall be deemed given on the date of delivery, in the case of personal delivery, or on the delivery or refusal date, as specified on the return receipt, in the case of Registered or Certified Mail. Any party may change the address to which notices are to be sent by giving ten (10) days written notice of such change of address to the other party. 4.14 Conflict of Interest. The Consultant hereby certifies that it will completely disclose to the Client all facts bearing upon any possible conflicts, direct or indirect, with its performance which it believes that any officer, employee, or agent of the Consultant now has or will have. Said disclosure shall be made by the Consultant contemporaneously with the execution of this Agreement and at any time thereafter that such facts become known to the Consultant. The Consultant at all times shall perform its obligations under this Agreement in a manner consistent with the best interests of the Client. Failure to abide by this section shall result in the immediate termination of this Agreement. 4.15 Severability. Should any part of this Agreement for any reason be declared invalid or unenforceable by a court competent jurisdiction, such decision shall not affect the validity of any remaining portion(s), which remaining portions(s) shall remain in full force and effect as if this Agreement had been executed with the invalid portion(s) eliminated. 4.16 Governing Law. This Agreement shall be governed by the laws of the State of Georgia without regard to the conflicts of the laws and principles of such State. 4.17 Survival of Terms. The terms and conditions of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate. 4.18 Obligation Not Debt. Nothing in the Agreement shall be construed to require the governing body of the City to make any future appropriation of money of any amounts arising hereunder. All payments required to be made by the City hereunder constitute current expenses of the City and the City's obligations hereunder are from year to year only and shall not be construed as a future obligation beyond the then current year. The total obligation of the City in any one year shall not exceed the reasonable charges for time incurred and charged in that calendar year. 4.19 Entirety of Agreement. This Agreement and Task Orders issued hereunder represent the entire Agreement of parties. Any alterations, variations, changes, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing and signed by each of the parties hereto. Page 6 of 8 1N WITNESS WHEREOF, the parties hereto have made an executed this Agreement on the respective dates under each signature. OLSEN ASSOCIATES, INC. Witness By: -.4 Name: Erik J. Olse Witness (Printed or Type Its: President (Title) STATE OF FLORIDA COUNTY OF DUVAL The foregoing instrument was acknowledged before me this , ') -th day of ,4p r I / , 2013 by Ri K Qlse.r,as Pre s ol-thk for Olsen Associates, Inc., on behalf of said corporation. They areiSerson mown t or As identification, and did/did not take an oath. HEATHER KALKA Notary Public-- State of Florida My Comm.. Expires Feb 10. 2015 -.,,eoFf1 •` Commission # EE 63424 -•fix ea Not y Public, State of Florida at Large My Commission Expires: /Q re,br-va.n, 0?-015-- Commission 01SCommission Number: E. G 1,5,419 Page 7 of 8