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HomeMy Public PortalAbout103-2008 Sanitation - Donohue & Associates - SE basin SSO Survey DesignPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this 12th day of _August , 2008 and referred to as Contract No. 103-2008 by and between the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Sanitation Commissioners and its Board of Stormwater Management (hereinafter referred to as the "City") and Donohue and Associates, 101 West Ohio Street, Suite 820, Indianapolis, Indiana 46204 (hereinafter referred to as the "Consultant"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Consultant to provide professional engineering services for a sanitary sewer survey and design for sanitary sewer overflows in the Southeast Sewer Basin of the Richmond Sanitation Department's combined sewer system (the "Project"). A verbal Request for Proposals was made on July 15, 2008 and the response of Consultant to said Request for Proposals is attached hereto as "Exhibit A", which proposal was made July 24, 2008, consists of seven (7) pages, and is hereby incorporated by reference and made a part of this Agreement. Consultant shall perform all services described on "Exhibit A" and Consultant agrees to abide by same. 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 Consultant shall furnish all labor, material, equipment, and services necessary for the proper completion of all services. Consultant shall exercise the same degree of care, skill and diligence in the performance of its services as is ordinarily possessed and exercised by a member of the same profession, currently practicing, under similar circumstances. No other warranty, express or implied, is included in this Agreement or in any drawing, specification, report, opinion or other instrument of service, in any form or media, produced in connection with the services. No performance of services shall commence until the City is in receipt of any required certificates of insurance and until a purchase order has been issued by the Purchasing Department. SECTION II. STATUS OF CONSULTANT Consultant shall be deemed to be an independent Consultant and is not an employee or agent of the City of Richmond. The Consultant shall provide, at its own expense, competent supervision of its services. SECTION III. COMPENSATION City shall pay Consultant a sum not to exceed Three Hundred Thirty-nine Thousand Dollars and Zero Cents ($339,000.00), for the performance of all services described. Invoices shall be due and payable as set forth in Part III of "Exhibit A" attached to this Agreement and made a part hereof. Contract No. 103-2008 Page 1 of 5 SECTION IV. TERM OF AGREEMENT This Agreement shall become effective when signed by all parties and shall continue in effect until completion of the Project. 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 twenty (20) 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 Consultant 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 Consultant to the City that is incorrect, incomplete, or does not meet reasonable professional standards in any material respect; c. ineffective or improper use of funds provided under this Agreement. In the event of such termination, the City shall be required to make payment for all services performed and reimbursable expenses incurred prior to the date this Agreement is terminated. This Agreement may also be terminated by either the City or the Consultant, 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. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the nonperforming party. Consultant shall be granted a reasonable extension of time for any delay in its performance caused by any such circumstances. Should such circumstances occur, the nonperforming party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. SECTION V. INDEMNIFICATION AND INSURANCE Consultant agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or judgments to the extent caused by the Consultant's negligent acts, errors or omissions arising from its performance of its service under his Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Consultant liable for acts of the City, its officers, agents, or employees. Consultant 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 Consultant's operations under this Agreement, whether such operations by the Consultant or by any sub -Consultants or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Consultant may be held responsible. Page 2 of 5 Coverage Limits A. Worker's Compensation & Statutory Disability Requirements B. Comprehensive General Liability Section 1. Bodily Injury $300,000 each occurrence $300,000 aggregate Section 2. Property Damage $100,000 each occurrence C. Comprehensive Auto Liability Section 1. Bodily Injury $300,000 each person $300,000 each occurrence Section 2. Property Damage $100,000 each occurrence D. Malpractice/Errors & Omissions Insurance $500,000 per claim $500,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Consultant shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing performance under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Consultant has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Consultant is an out of state employer and therefore subject to another state's worker's compensation law, Consultant 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, Consultant, any sub -Consultant, or any person acting on behalf of Consultant or any sub -Consultant 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 Consultant agrees: That in the hiring of employees for the performance under this Agreement of any subcontract hereunder, Consultant, any sub -consultant, or any person acting on behalf of Consultant or any sub -consultant, 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; Page 3 of 5 2. That Consultant, any sub -consultant, or any person action on behalf of Consultant or any sub -consultant 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; 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. 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 Agreement 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, Consultant 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 Consultant may have to bring such suit in front of other tribunals or in other venues. Any person executing this Agreement in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Agreement. In the event of any breach of this Agreement by Consultant, and in addition to any other damages or remedies, Consultant 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. City represents that Consultant's use of any documents or other materials provided by City to Consultant will not infringe upon any third parties' rights and City will indemnify and protect Page 4 of 5 Consultant from any infringement claims arising from Consultant's use of such documents or other materials in the performance of its Services hereunder. IN WITNESS WHEREOF, the parties have executed this Agreement 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 Sanitation Commissioners and its Board of Stormwater Management BOARD OF SANITATION COMMISSIONERS By:_S/S Richard Bodiker Richard Bodiker, President Date: August 12, 2008 BOARD OF STORMWATER MANAGEMENT By:_S/S Richard Bodiker Richard Bodiker, President By:_S/S Gilbert Klose Gilbert Klose, Member R-A Greg Stiens, Member Date: August 12, 2008 APPROVED:_S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date: August 28, 2008 "CONSULTANT" DONOHUE AND ASSOCIATES By:_S/S James R. Miller Printed: ( James R. Miller Title: —Vice President Date:_ September 4, 2008 Page 5 of 5