Loading...
HomeMy WebLinkAboutAGREEMENT TO PROVIDE PROFESSIONAL SERVICES TO ASSESS THE CONDITION OF ROOFS ON AUGUSTA-OWNED BUILDINGS TO TERRACON CONSULTANTS OF LAWRENCEVILLE, GA lierracon- Reference Number:PFS196015, rev 1 AGREEMENT FOR SERVICES This AGREEMENT is between City of Augusta,General Services Department("Client")and Terracon Consultants, Inc. ("Consultant")for Services b be provided by Consultant for aient on the Roof Condition Assessment project("Project"),as described in Consultant's Proposal dated 07/16/2019("Proposer), including but not limited to the Project Information section. 1. Scope of Services.The scope of Consultant's services is described in the Proposal, including but not limited to the Scope of Services section ("Services"). Portions of the Services may be subcontracted. Consultant's Services do not include the investigation or detection of, nor do recommendations in Consultant's reports address the presence or prevention of biological pollutants (e.g., mold, fungi, bacteria, viruses,or their byproducts)or occupant safety issues,such as vulnerability to natural disasters,terrorism,or violence.If Services include purchase of software,Client w ill execute a separate software license agreement.Consultant's findings,opinions,and recommendations are based solely upon data and information obtained by and furnished to Consultant at the time of the Services. 2. Acceptance/Termination.aient agrees that execution of this Agreement is a material element of the consideration Consultant requires to execute the Services,and if Services are initiated by Consultant prior to execution of this Agreement as an accommodation for Client at Client's request,both parties shall consider that commencement of Services constitutes formal acceptance of all terms and conditions of this Agreement.Additional teras and conditions may be added or changed only by written amendment to this Agreement signed by both parties.In the event aient uses a purchase order or other form to administer this Agreement,the use of such forms hall be for convenience purposes only and any additional or conflicting terms it contain are stricken.This Agreement shall not be assigned by either party without prior written consent of the other party. Ether party may terminate th's Agreement or the Services upon written notice to the other.In such case,Consultant shall be paid costs incurred and fees earned to the date of termination plus reasonable costs of closing the Project. 3. Change Orders.aient may request changes to the scope of Services by altering or adding to the Services to be performed. If aient so requests, Consultant w ill return to Client a statement(or supplemental proposal)of the change setting forth an adjustment to the Services and fees for the requested changes.Follow ing Client's review,Client shall provide written acceptance.If Client does not follow these procedures,but instead directs,authorizes,cc permits Consultant to perform changed or additional work,the Services are changed accordingly and Consultant w ill be paid for this work according b the fees stated or its current fee schedule.If project conditions change materially from those observed at the site or described to Consultant at the time of proposal,Consultant is entitled to a change order equitably adjusting its Services and fee. 4. Compensation and Terms of Payment.aient shall pay compensation for the Services performed at the fees stated in the Proposal, including but not limited to the Compensation section.If not stated in either,fees w ill be according to Consultant's current fee schedule.Fee schedules are valid for the calendar year in which they are issued.Fees do not include sales tax. aient w ill pay applicable sales tax as required by law.Consultant may invoice Client at least monthly and payment is due upon receipt of invoice.aient shall notify Consultant in writing,at the address below,within 15 days of the date of the invoice if aient objects to any portion of the charges on the invoice,and shall promptly pay the undisputed portion.aient shall pay a finance fee of 1.5%per month, but not exceeding the maximum rate allowed by law,for all unpaid amounts 30 days or older.aient agrees to pay all collection- related costs that Consultant incurs,including attorney fees.Consultant may suspend Services for lack of timely payment. It is the responsibility of Client to determine whether federal,state,or local prevailing w age requirements apply and to notify Consultant if prevailing w ages apply. If it is later determined that prevailing w ages apply,and Consultant was not previously notified by aient,aient agrees to pay the prevailing w age from that point forward,as w ell as a retroactive payment adjustment to bring previously paid amounts in line with prevailing w ages. aient also agrees to defend,indemnify,and hold harmless Consultant from any alleged violations made by any governmental agency regulating prevailing w age activity for failing to pay prevailing w ages,including the payment of any fines or penalties. 5. Third Party Reliance.This Agreement and the Services provided are for Consultant and Client's sole benefit and exclusive use with no third party beneficiaries intended.Reliance upon the Services and any work product is limited to Client, and is not intended for third parties other than those who have executed Consultant's reliance agreement,subject to the prior approval of Consultant and Client. 6. LIMITATION OF LIABILITY. CLIENT AND CONSULTANT HAVE EVALUATED THE RISKS AND REWARDS ASSOCIATED WITH THIS PROJECT, INCLUDING CONSULTANT'S FEE RELATIVE TO THE RISKS ASSUME), AND AGREE TO ALLOCATE CERTAIN OF THE ASSOCIATED RISKS. TO THE FULLEST EXTENT PERMITTED BY LAW,THE TOTAL AGGREGATE LIABILITY OF CONSULTANT (AND ITS RELATED CORPORATIONS AND EMPLOYEES) TO CLIENT AND THIRD PARTIES GRANTED RELIANCE IS LIMITED TO THE GREATER OF $50,000 OR CONSULTANT'S FEE, FOR ANY AND ALL INJURIES, DAMAGES,CLAIMS,LOSSES,OR EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF CONSULTANT'S SERVICES OR TI-IS AGREEMENT. PRIOR TO ACCEPTANCE OF THIS AGREEMENT AND UPON WRITTEN REQUEST FROM CLIENT, CONSULTANT MAY NEGOTIATE A HIGHER LIMITATION FOR ADDITIONAL CONSIDERATION IN THE FORM OF A SURCHARGE TO BE ADDED TO THE AMOUNT STATED IN THE COMPENSATION SECTION OF THE PROPOSAL. THIS LIMITATION SHALL APPLY REGARDLESS OF AVAILABLE PROFESSIONAL LIABILITY INSURANCE COVERAGE, CAUSE(S),OR THE THEORY OF LIABILITY,INCLUDING NEGLIGENCE, INDEMNITY, OR OTHER RECOVERY. THIS LIM ITATION SHALL NOT APPLY TO THE EXTENT THE DAMAGE IS PAID UNDER CONSULTANT'S COMMERCIAL GENERAL LIABILITY POLICY. 7. Indemnity/Statute of Limitations. Consultant and aient shall indemnify and hold harmless the other and their respective employees from and against legal liability for claims,losses,damages,and expenses to the extent such claims, losses,damages,or expenses are legally determined to be caused by their negligent acts,errors,or omissions.In the event such claims,losses,damages,or expenses are legally determined to be caused by the joint or concurrent negligence of Consultant and aient, they shall be borne by each party in proportion to its own negligence under comparative fait principles. Neither party shall have a duty to defend the other party,and no duty to defend is hereby created by this indemnity provision and such d uty is explicitly waived under this Agreement. Causes of action arising out of Consultant's Services or this Agreement regardless of cause(s)or the theory of liability, including negligence,indemnity or other recovery shall be deemed to have accrued and the applicable statute of limitations shall commence to run not later than the date of Consultant's substantial completion of Services on the project. 8. Warranty.Consultantw ill performthe Services in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions in the same locale. EXCEPT FOR THE STANDARD OF CARE PREVIOUSLY STATE), CONSULTANT MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, RELATING TO CONSULTANT'S SERVICES AND CONSULTANT DISCLAIMS ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE 9. Insurance.Consultant represents that it now carries,and will continue to carry:(i)workers'compensation insurance in accordance with the law sof the states having jurisdiction over Consultant's employees who are engaged in the Services,and employer's liability insurance($1,000,000);(ii)commercial general liability insurance($1,000,000 occ/$2,000,000 agg);(iii)automobile liability insurance($1,000,000 B.I.and P.D. combined single limit); and(iv) professional liability insurance($1,000,000 claim /agg). Certificates of insurance will be provided upon request.aient and Consultant shall waive subrogation against the other party on all general liability and property coverage. Page 1 of 2 Rev.5-19 • Ilerracon- Reference Number:PFS196015, rev 1 10. CONSEQUENTIAL DAMAGES. NETHER PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS OF PROFITS OR REVENUE; LOSS OF USE OR OPPORTUNITY; LOSS OF GOOD WILL;COST OF SUBSTITUTE FACILITIES,GOODS, OR SERVICES; COST OF CAPITAL;OR FOR ANY SPECIAL,CONSEQUENTIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES. 11. Dispute Resolution.aient shall not be entitled to assert a Claim against Consultant based on any theory of professional negligence unless and u nti Client has obtained the written opinion from a registered,independent,and reputable engineer,architect,or geologist that Consultant has violated the standard of care applicable to Consultant's performance of the Services.Client shah provide this opinion to Consultant and the parties shall endeavor b resolve the dispute within 30 days,after which aient may pursue its remedies at law.This Agreement shall be governed by and construed according b Georgia law. 12. Subsurface Explorations. Subsurface conditions throughout the site may vary from those depicted on logs of discrete borings,test pits,or other exploratory services.Client understands Consultant's layout of boring and test locations is approximate and that Consultant may deviate a reasonable distance from those locations. Consultant w ill take reasonable precautions to reduce damage to the site w hen performing Services;however,aient accepts that invasive services such as drilling or sampling may damage or alter the site.Site restoration is not provided unless specifically included in the Services. 13. Testing and Observations. aient understands that testing and observation are discrete sampling procedures,and that such procedures indicate conditions only at the depths,locations,and times the procedures were performed.Consultant w ill provide test results and opinions based on tests and field observations only for the work tested.aient understands that testing and observation are not continuous or exhaustive,and are conducted to reduce -not eliminate -project risk.aient shall cause all tests and inspections of the site,materials,and Services performed by Consultant to be timely and properly scheduled in order for the Services to be performed in accordance with the plans, specifications,contract documents,and Consultant's recommendations.No claims for loss or damage or injury shall be brought against Consultant by aient or any third party unless all tests and inspections have been so performed and Consultant's recommendations have been follow ed. Unless otherw ise stated in the Proposal, aient assumes sole responsibility for determining whether the quantity and the nature of Services ordered by aient is adequate and sufficient for Client's intended purpose. Client is responsible(even if delegated to contractor)for requesting services,and notifying and scheduling Consultant so Consultant can perform these Services.Consultant is not responsible for damages caused by Services not performed due to a failure to request or schedule Consultant's Services. Consultant shall not be responsible for the quality and completeness of Client's contractor's work or their adherence to the project documents,and Consultant's performance of testing and observation services shall not relieve Client's contractor in any w ay from its responsibility for defects discovered in its work,or create a w arranty or guarantee.Consultantw ill not supervise or direct the work performed by Client's contractor or its subcontractors and is not responsible for their means and methods. The extension of unit prices with quantities to establish a total estimated cost does not guarantee a maximum cost to complete the Services.The quantities,w hen given,are estimates based on contract documents and schedules made available at the time of the Proposal. Since schedule,performance,production,and charges are directed and/or controlled by others,any quantity extensions must be considered as estimated and not a guarantee of maximum cost. 14. Sample Disposition,Affected Materials,and Indemnity. Samples are consumed in testing or disposed of upon completion of the testing procedures(unless stated otherwise in the Services).aient shall furnish or cause to be furnished to Consultant all documents and information known or available to Client that relate to the identity, location, quantity, nature,or characteristic of any hazardous waste,toxic, radioactive,or contaminated materials ("Affected Materials")at or near the site,and shall immediately transmit new, updated,or revised information as it becomes available.aient agrees that Consultant is not responsible for the disposition of Affected Materials unless specifically provided in the Services,and that aient is responsible for directing such disposition. In no event shall Consultant be required to sign a hazardous waste manifest or take title to any Affected Materials.aient shall have the obligation to make all spill or release notifications to appropriate governmental agencies.The aient agrees that Consultant neither created nor contributed to the creation or existence of any Affected Materials conditions at the site and Consultant shall not be res ponsible for any claims,losses,or damages allegedly arising out of Consultant's performance of Services hereunder,or for any claims against Consultant as a generator,disposer,or arrangercf Affected Materials under federal,state,or local law or ordnance. 15. Ownership of Documents.Work product,such as reports,logs,data, notes, or calculations, prepared by Consultant shall remain Consultant's property.Proprietary concepts,systems,and ideas developed during performance of the Services shall remain the sole property of Consultant.Files shal be maintained in general accordance with Consultant's document retention policies and practices. 16. Utilities.Unless otherwise stated in the Proposal,Client shall provide the location and/or arrange for the marking of private utilities and subterranean structures.Consultant shall take reasonable precautions to avoid damage or injury to subterranean structures or utilities. Consultant shall not be responsible for damage to subterranean structures or utilities that are not called to Consultant's attention,are not correctly marked,including by a utility locate service,or are incorrectly shownon the plans furnished to Consultant. 17. Site Access and Safety. Client shall secure all necessary site related approvals,permits,licenses,and consents necessary to commence and complete the Services and w ill execute any necessary site access agreement.Consultant w ill be responsible for supervision and site safety measures for its own employees,but shall not be responsible for the supervision or health and safety precautions for any other parties,including Client, Client's contractors,sub• ntractors,or other parties present at the site. Consultant: TP racon 'l , ,nt ,Inc. Client: City of Augusta,General Services Depa ment _„„ogp/mrii►` By: Date: 8/30/2019 By: OP � Date: Name/Title: Michael Phifer Name/Tit l Mr.Hardie D; s, �: Address: 2701 WestportRoad Address: c � 535 Telfair Street 200 Charlotte,NC 28208 Augusta, iir Phone: 704-594-8951 Fax: Phone: gg �i �S V .,.MK 4. #J Email: michael.phiferi terracon.com Email: vfg 0. nk4. / i6 /. 1 �.€ r 4 ,./, /�� ' I *44EPage 2 of i '�RGIP� EfP.v.5-19 o Y.__.