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HomeMy WebLinkAboutMO #2195MUNICIPAL ORDER NO. 2195 A MUNICIPAL ORDER AUTHORIZING AN AGREEMENT WITH GARDNER ENGINEERING & CONSTRUCTION, PLLC, IN AN AMOUNT OF $32,000 FOR PROFESSIONAL ENGINEERING SERVICES RELATED TO THE DEMOLITION BID PACKAGE FOR THE KRESGE BUILDING LOCATED AT 318 BROADWAY, AND AUTHORIZING THE MAYOR TO EXECUTE ALL DOCUMENTS RELATED TO SAME BE IT ORDERED BY THE BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS: SECTION 1. The City hereby approves a Professional Services Agreement ("Agreement') between the City and Gardner Engineering & Construction, PLLC, ("Vendor") for services related to the demolition bid package for the Kresge Building, in substantially the form attached hereto as Exhibit A and made part hereof. It is further determined that it is necessary and desirable and in the best interest of the City to enter into this Agreement for the purposes therein specified. SECTION 2. The Mayor is hereby authorized to execute the Agreement, authorized in section 1 above. SECTION 3. This expenditure will be charged to the Kresge Building Demolition Project No. MR0073. SECTION 4. This Order shall be in full force and effect on and after the date as approved by the Board of Commissioners of the City of Paducah, Kentucky. Brandi Harless, Mayor ATTER T: P", say Parish, City 0erk Adopted by the Board of Commissioners, December 17, 201 E Recorded by Lindsay Parish, City Clerk, December 17, 2018 \mo\agree-Gardner Engineering — Kresge Demo Bid Package EXHIBIT A SHORT FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of 2018 ("Effective Date") between The City of Paducah, I(Y ("Owner") and Gardner Engineering & Consulting PLLC ("Engineer"). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Kresge Building Demolition Bid Package located at 318 Broadway, Paducah, KY ("Project"). Engineer's services under this Agreement are generally identified as follows ("Services"): 1. Provide the necessary professional engineering expertise and personnel to study the existing conditions of the Kresge Building and develop the necessary Demolition Scope of Work requirements for the Project. 2. Produce engineer certified Demolition Bid package for Owner's use in soliciting bids from qualified contractors. Bid package documents to include, as necessary, technical specifications, construction drawings, details and special requirements to accurately describe the Project scope and work items. 3. Provide opinion of probable cost for the Project, based on current industry data. 4. Attend public meetings, pre-bid meetings and the bid opening, as the Owner's representative. - 5. Provide responses to bidder questions. 6. Assist the Owner with evaluation of contractor's bids and contractor's qualifications. 7. Construction Administration Services are excluded from this Agreement, but can be provided as Additional Services, upon written request by the Owner. Such additional services are to be performed an an hourly -fee basis. Owner and Engi neer further agree as follows: 1.01 Basic Agreement and Period of Service A. Engineer shall provide or furnish the Services set forth in this Agreement. If authorized by Owner, or if required because of changes in the Project, Engineer shall furnish services in addition to those set forth above ("Additional Services"). B. Engineer shall complete its Services within sixty (60) calendar daysfrom the Effective Date. C. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer's Services is impaired, or Engineer's Services are delayed or suspended, then the time for completion of Engineer's Services shall be adjusted accordingly. 2.01 Payment Procedures A. Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and submit the invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. If Owner fails to make any payment due Engineer for Services, Additional Services, and expenses within 30 days EJCDC* E-520, Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright 02015 National society of professional Engineers, American Council of Engineering Companies, and American Seelety of Civil Engineers. All rights reserved. Pace 1 A. The obligation to continue performance under this Agreement maybe terminated: 1. Forcause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the Agreement's terms through no fault of the terminating party. Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. b. By Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer's responsibilities as a licensed professional; or EICDC® E-520, Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ©2015 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. after receipt of Engineer's invoice, then (1) the amounts due Engineer will be increased at the rate of 1.5% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day, and (2) in addition Engineer may, after giving seven days written notice to Owner, suspend Services under this Agreement until Engineer has been paid in full all amounts due for Services, Additional Services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. B. Payment As compensation for Engineer providing or furnishing Services and Additional Services, Owner shall pay Engineer as set forth in Paragraphs 2.01, 2.02 (Services), and 2.03 (Additional Services). If Owner disputes an invoice, either as to amount or entitlement, then Owner shall promptly advise Engineer in writing of the specific basis for doing so, may withhold only that portion so disputed, and must pay the undisputed portion. 2.02 Basis of Payment—Hourly Rates Plus Reimbursable Expenses A. Owner shall pay Engineer for Services as follows: 1. An amount equal to the cumulative hours charged to the Project by each class of Engineer's employees times standard hourly rates for each applicable billing class, plus reimbursement of expenses incurred In connection with providing the Services and Engineer's consultants' charges, if any. 2. Engineers Standard Hourly Rates are attached as Appendix 1. 3. The total compensation for Services and reimbursable expenses is estimated to be no more than ' Thirty-two Thousand Dollars ($32,000.00). 2.03 Additional Services: For Additional Services, Owner shall pay Engineer an amount equal to the cumulative hours charged in providing the Additional Services by each class of Engineer's employees, times standard hourly rates for each applicable billing class; plus reimbursement of expenses incurred in connection with providing the Additional Services and Engineers consultants' charges, if any. Engineer's standard hourly rates are attached as Appendix 1. 3.01 Termination A. The obligation to continue performance under this Agreement maybe terminated: 1. Forcause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the Agreement's terms through no fault of the terminating party. Failure to pay Engineer for its services is a substantial failure to perform and a basis for termination. b. By Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer's responsibilities as a licensed professional; or EICDC® E-520, Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ©2015 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 2) upon seven days written notice if the Engineer's Services are delayed for more than 90 days for reasons beyond Engineer's control, or as the result of the presence at the Site of undisclosed Constituents of Concern, as set forth In Paragraph 5.01.1. c. Engineershail have no liabilityto Owneron accountof a termination forcause by Engineer. d. Notwithstanding the foregoing, this Agreement will not terminate as a result of a substantial failure under Paragraph 3.01.A.1.a if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of notice; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. FJCOC® E-520, Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ®2015 Material Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 2. For convenience, by Owner effective upon Engineer's receipt of written notice from Owner. B. In the event of any termination under Paragraph 3.01, Engineer will be entitled to invoice Owner and to receive full payment for all Services and Additional Services performed orfurnished in accordance with this Agreement, plus reimbursement of expenses incurred through the effective date of termination in connection with providing the Services and Additional Services, and Engineer's consultants' charges, if any. 4.01 Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 4.01.13 the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators, and legal representatives (and said assigns) of such other parry, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, money that is due or may become due) in this Agreement without the written consent of the other party, except to the extent that any assignment, subletting, or transfer is mandated by law. Unless specifically stated to the contrary in any written Consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise, nothing in this Agreement shall be construed to create, impose, or give rise to any duty awed by Owner or Engineer to any Constructor, other third -party individual or entity, or to any surety for or employee of any of them. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 5.01 General Considerations A. The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with any FJCOC® E-520, Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright ®2015 Material Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 services performed or furnished by Engineer. Subject to the foregoing standard of care, Engineer and its consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. 6. Engineer shall not at any time supervise, direct, control, or have authority over any Constructors work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any Constructor, or the safety precautions and programs incident thereto, for security or safety at the Project site, nor for any failure of a Constructor to comply with laws and regulations applicable to such Constructor's furnishing and performing of its work Engineer shall not be responsible forthe acts or omissions of any Constructor. C. Engineer neither guarantees the performance of any Constructor nor assumes responsibility for any Constructors failure to furnish and perform its work. D. Engineers opinions (if any) of probable construction cost are to he made on the basis of Engineers experience, qualifications, and general familiarity with the construction industry. However, because Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors' methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual construction cost will not va ryfrom opinions of probable construction cost prepared by Engineer. If Owner requires greater assurance as to probable construction cost, then Owner agrees to obtain an independent cost estimate. E. Engineershall not be responsible for any decision made regardingthe construction contract requirements, or any application, interpretation, clarification, or modification of the construction contract documents other than those made by Engineer or its consultants. F. All documents prepared or furnished by Engineer are instruments of service, and Engineer retains an ownership and property interest (including the copyright and the right of reuse) in such documents, whether or not the Project is completed. Owner shall have a limited license to use the documents on the Project, extensions of the Project, and for related uses of the Owner, subject to receipt by Engineer of full payment due and owing for all Services and Additional Services relating to preparation of the documents and subject to the following limitations: 1. Owner acknowledges that such documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; 2. any such use or reuse, or any modification of the documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner's sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and consultants; 3. Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and consultants from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from any use, reuse, or modification of the documents without written verification, completion, or adaptation by Engineer; and MCDC® E-520, Short Farm of Agreement Between Owner and Engineer for Professional services. Copyright ®2015 National society of Professional Engineers, American Council of Engineering Companies, and American society of Civil Engineers. All rights reserved. 4. such limited license to Owner shall not create any rights in third parties. G. Owner and Engineer may transmit, and shall accept, Project -related correspondence, documents, text, data, drawings, information, and graphics, in electronic media or digital format, either directly, or through access to a secure Project website, in accordance with a mutually agreeable protocol. H. To the fullest extent permitted by law, Owner and Engineer waive against each other, and the other's employees, officers, directors, members, agents, 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 anyway related to this Agreement or the Project. I. The parties acknowledge that Engineer's Services do not include any services related to unknown or undisclosed Constituents of Concern. If Engineer or any other party encounters, uncovers, or reveals an unknown or undisclosed Constituent of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of Services on the portion of the Project affected thereby until such portion of the Project is no longer affected, or terminate this Agreement for cause if it is not practical to continue providing Services. 1. Owner and Engineer agree to negotiate each dispute between them in good faith during the 30 days after notice of dispute. If negotiations are unsuccessful in resolving the dispute, then the dispute shall be mediated. If mediation is unsuccessful, then the parties may exercise their rights at law. K. This Agreement is to be governed by the law of the state in which the Project is located. 1. The parties consent and agree that the McCracken Circuit Court shall be the exclusive, proper and convenient venue for any legal proceedings relating to this Agreement, and waive any defenses, whether asserted by motion or pleadings, that McCracken County, Kentucky, is an improper or inconvenient venue or that personal jurisdiction is lacking. L. Engineer's Services and Additional Services do not include: (1) serving as a "municipal advisor" for purposes of the registration requirements of Section 975 of the Dodd -Frank Wall Street Reform and Consumer Protection Act (2010) or the municipal advisor registration rules issued by the Securities and Exchange Commission; (2) advising Owner, or any municipal entity or other person or entity, regarding municipal financial products or the issuance of municipal securities, including advice with respect to the structure, timing, terms, or other similar matters concerning such products or issuances; (3) providing surety bonding or insurance -related advice, recommendations, counseling, or research, or enforcement of construction insurance or surety bonding requirements; or (4) providing legal advice or representation. M. Insurance Requirements; 1. Engineer shall carry the following insurance with the limits of liability setforth below at all times while performing under this agreement: a. Commercial General Liability: $1,000,000 each occurrence/ $2,000,000 aggregate. b. Automobile Liability: - $1,000,000 combined single limit. c. Workers Compensation: $1,000,000 statutory limit. EICDO E-520, ShortFarm of Agreement Between Owner and Engineer for Professional sendces. Copyright ®2015 National Society of Professional Engineers, American Council of Engineering companies, and American Society of Civil Engineers. All rights reserved. d. Professional Liability: $1,00O,o0D. 2. The Ownershall be named an additional insured on the Commercial General Liability policy. 3. Certificates of insurance and all applicable endorsements, as evidence of the insurance required by this Agreement, shall be furnished by Engineer to Owner before any work hereunder is commenced by Engineer, and before any payments are made by Owner to Engineer. The certificates of insurance _ shall provide that there will be no cancellation or reduction in coverage without thirty (30) days prior written notice to Owner. 4. Failure of the Owner to enforce in a timely manner any of the provisions herein shall not act as a waiver to enforcement of these provisions at a later date in the performance of this Agreement. S. Failure of Engineer to obtain and maintain, in full force and effect, insurance meeting the requirements setforth herein shall be a material breach ofthis Agreement. 6.01 Total Agreement A. This Agreement (including any expressly incorporated attachments), constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement mayoniy be amended, supplemented, modified, or canceled by a duly executed written instrument. 7.01 Definitions A. Constructor—Any person or entity (not including the Engineer, its employees, agents, representatives, and consultants), performing or supporting construction activities relating to the Project, including but not limited to contractors, subcontractors, suppliers, Owner's work forces, utility companies, construction managers, testing firms, shippers, and truckers, and the employees, agents, and representatives of any or all of them. B. Constituent of Concem—Asbestos, petroleum, radioactive material, polychlorinated biphenyls (PCBs), hazardous waste, and any substance, product, waste, or other material of any nature whatsoever that is or becomes listed, regulated, or addressed pursuant to ja) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U,S.C. §§9601 et seq. ("CERCLA"); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§5101 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et,seq. ("RCRA"); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 at seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; or (g) any other federal, State, or local statute, law, rule, regulation, ordinance, resolution, code, order,or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 8.01 Attachments: Appendix 1, Engineer's Standard Hourly Rates EICDC° E-520, Short Form of Agreement Between owner and Engineer for Professional services. Copyright ©2015 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. page 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: City of Paducah Engineer: Gardner Engineering& Consulting PLLC By: By: Print name: Print name: Kelly B. Gardner, PE Title: Title: Principal Engineer - Date Signed: Date Signed: Address for Owner's receipt of notices: Engineer License or Firm's Certificate No. (if required): 22832 State of: Kentucky Address for Engineers receipt of notices: 1030 Burlew Blvd, Bldg. B, Suite 2 Owensboro, KY 42303 EICDCe E-520, Short Form of Agreement Between Owner and Engineer for Professional Services. Copyright 02015 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. This is Appendix 1, Engineer's Standard Hourly Rates, referred to in and part of the Short Form of Agreement between Owner and Engineer for Professional Services dated , 2018. Engineer's Standard Hourly Rates A. Standard Hourly Rates: 1. Standard Hourly Rates are set forth in this Appendix 1 and include salaries and wages paid to personnel in each billing class plus the cost of customary and statutory benefits, general and administrative overhead, non -project operating costs, and operating margin or profit. 2. The Standard Hourly Rates apply only as specified in Paragraphs 2.01, 2.02, and 2.03, and are subject to annual review and adjustment. B. Schedule of Hourly Rates: Billing Class Rate Principal Engineer $ 185/hour Project Engineer $120/hour Project Manager $ 40/hour Graduate Engineer $ 75/hour Sr. Cad Tech $ 75/hour Field Tech $ 60/hour Clerical $ 40/hour Legal PE Expert Witness $ 300/hour Appendix 1, Standard Hourly Rates Schedule. FICOC® E-520, Short Form of Agreement Between Owner and Engineerfor Professional Services. Copyright ©2015 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.