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HomeMy WebLinkAbout2018-28792018 -2879 Agreement for Professional Services This Agreement is effective as of August , 2018, between City of Columbia Heights (Client) and Short Elliott Hendrickson Inc. (Consultant). This Agreement authorizes and describes the scope, schedule, and payment conditions for Consultant's work on the Project described as Highway Safety Improvement Program (HSIP) Grant assistance for Central Avenue (Trunk Highway 65) Corridor Enhancements between 43rd Avenue NE and 47th Avenue NE. Client's Authorized Representative: Kevin Hansen Address: 637 38t1 Avenue NE Columbia Heights, MN 55421 Telephone: 763.706.3705 Project Manager: Scott Haupt Address: Short Elliot Hendrickson. Inc. 3535 Vadnais Center Telephone: 651.490.2055 email: khansen@columbiaheightsmn.gov St. Paul, MN 55110 email: shaupt@sehinc.com Scope: The Basic Services to be provided by Consultant as set forth herein is provided subject to the attached General Conditions of the Agreement for Professional Services (General Conditions Rev. 07.14.16), which is incorporated by reference herein and subject to Exhibits attached to this Agreement. See attached Scope of Work Proposal dated August 9, 2018. The lump sum fee is $4,000 including expenses and equipment. Reimbursable expenses include reproduction costs. The payment method, basis, frequency and other special conditions are set forth in attached Exhibit A -2. This Agreement for Professional Services, attached General Conditions, Exhibits and any Attachments (collectively referred to as the "Agreement ") supersedes all prior contemporaneous oral or written agreements and represents the entire understanding between Client and Consultant with respect to the services to be provided by Consultant hereunder. In the event of a conflict between the documents, this document and the attached General Conditions shall take precedence over all other Exhibits unless noted below under "Other Terms and Conditions ". The Agreement for Professional Services and the General Conditions (including scope, schedule, fee and signatures) shall take precedence over attached Exhibits. This Agreement may not be amended except by written agreement signed by the authorized representatives of each party. Other Terms and Conditions: Other or additional terms contrary to the General Conditions that apply solely to this project as specifically agreed to by signature of the Parties and set forth herein: None Short Elliott Hendrickson Inc. Y Title Prin City of Columbia Heights By: Title: s \ae \c\colhl \common \proposals \th 65 hsip grant_august 201843rd-47th ave \hsip_ letter agreemenl_6 -9 -18 do cx Short Elliott Hendrickson Inc. Letter Agreement - 1 City of Columbia Heights (Rev. 07.14.16) "Is', le Short Elliott Hendrickson Inc. Letter Agreement - 1 City of Columbia Heights (Rev. 07.14.16) General Conditions of the Agreement for Professional Services SECTION I — SERVICES OF CONSULTANT A. General 1 Consultant agrees to perform professional services as set forth in the Agreement for Professional Services or Supplemental Letter Agreement ( "Basic Services "). Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Client or the Consultant. The Consultant's services under this Agreement are being performed solely for the Client's benefit, and no other party or entity shall have any claim against the Consultant because of this Agreement or the performance or nonperformance of services hereunder B. Schedule 1. Unless specific periods of time or dates for providing services are specified, Consultant's obligation to render services hereunder will be for a period which may reasonably be required for the completion of said services. 2. If Client has requested changes in the scope, extent, or character of the Project or the services to be provided by Consultant, the time of performance and compensation for Consultant's services shall be adjusted equitably. The Client agrees that Consultant is not responsible for damages arising directly or indirectly from delays beyond Consultant's control. If the delays resulting from such causes increase the cost or the time required by Consultant to perform its services in accordance with professional skill and care, then Consultant shall be entitled to a equitable adjustment in schedule and compensation C. Additional Services 1 If Consultant determines that any services it has been directed or requested to perform are beyond the scope as set forth in the Agreement or that, due to changed conditions or changes in the method or manner of administration of the Project, Consultant's effort required to perform its services under this Agreement exceeds the stated fee for Basic Services, then Consultant shall promptly notify the Client regarding the need for additional services Upon notification and in the absence of a written objection, Consultant shall be entitled to additional compensation for the additional services, and to an extension of time for completion of additional services absent written objection by Client. 2 Additional services shall be billed in accord with agreed upon rates, or if not addressed, then at Consultant's standard rates. Suspension and Termination 1. If Consultant's services are delayed or suspended in whole or in part by Client, or if Consultant's services are delayed by actions or inactions of others for more than 60 days through no fault of Consultant, then Consultant shall be entitled to either terminate its agreement upon 7 days written notice or, at its option, accept an equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect reasonable costs incurred by Consultant 2 This Agreement may be terminated by either party upon seven days written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination 3 This Agreement may be terminated by either party upon thirty days' written notice without cause. All provisions of this Agreement allocating responsibility or liability between the Client and Consultant shall survive the completion of the services hereunder and/or the termination of this Agreement 4 In the event of termination, Consultant shall be compensated for services performed prior to termination date, including charges for expenses and equipment costs then due and all termination expenses. General Conditions - 1 (Rev. 07.14.16) SECTION II —CLIENT RESPONSIBILITIES A. General 1. The Client shall, in proper time and sequence and where appropriate to the Project, at no expense to Consultant, provide full information as to Client's requirements for the services provided by Consultant and access to all public and private lands required for Consultant to perform its services 2. The Consultant is not a municipal advisor and therefore Client shall provide its own legal, accounting, financial and insurance counseling and other special services as may be required for the Project. Client shall provide to Consultant all data (and professional interpretations thereof) prepared by or services performed by others pertinent to Consultant's services, including but not limited to, previous reports; sub - surface explorations; laboratory tests and inspection of samples; environmental assessment and impact statements, surveys, property descriptions; zoning, deed and other land use restrictions; as- built drawings, electronic data base and maps. The costs associated with correcting, creating or recreating any data that is provided by the Client that contains inaccurate or unusable information shall be the responsibility of the Client. 3 Client shall provide prompt written notice to Consultant whenever the Client observes or otherwise becomes aware of any changes in the Project or any defect in Consultant's services. Client shall promptly examine all studies, reports, sketches, opinions of construction costs, specifications, drawings, proposals, change orders, supplemental agreements and other documents presented by Consultant and render the necessary decisions and instructions so that Consultant may provide services in a timely manner 4 Client shall require all utilities with facilities within the Client's Project site to locate and mark said utilities upon request, relocate and /or protect said utilities as determined necessary to accommodate work of the Project, submit a schedule of the necessary relocation /protection activities to the Client for review and comply with agreed upon schedule. Consultant shall not be liable for damages which arise out of Consultant's reasonable reliance on the information or services furnished by utilities to Client or others hired by Client. 5. Consultant shall be entitled to rely on the accuracy and completeness of information or services furnished by the Client or others employed by the Client and shall not be liable for damages arising from reasonable reliance on such materials Consultant shall promptly notify the Client if Consultant discovers that any information or services furnished by the Client is in error or is inadequate for its purpose SECTION III — PAYMENTS A. Invoices 1. Undisputed portions of invoices are due and payable within 30 days. Client must notify Consultant in writing of any disputed items within 15 days from receipt of invoice Amounts due Consultant will be increased at the rate of 1 0% per month (or the maximum rate of interest permitted by law, if less) for invoices 30 days past due. Consultant reserves the right to retain Instruments of Service untll all Invoices are pald In IUII. Consultant will not be liable for any claims of loss, delay, or damage by Client for reason of withholding services or Instruments of Service until all invoices are paid in full. Consultant shall be entitled to recover all reasonable costs and disbursements, including reasonable attorney's fees, incurred in connection with collecting amounts owed by Client. 2. Should taxes, fees or costs be imposed, they shall be in addition to Consultant's agreed upon compensation. 3. Notwithstanding anything to the contrary herein, Consultant may pursue collection of past due invoices without the necessity of any mediation proceedings. Exhibit A -2 to Agreement for Professional Services Between City of Columbia Heights (Client) and Short Elliott Hendrickson Inc. (Consultant) Dated August , 2018 Payments to Consultant for Services and Expenses Using the Lump Sum Basis Option The Agreement for Professional Services is amended and supplemented to include the following agreement of the parties: A. Lump Sum Basis Option The Client and Consultant select the Lump Sum Basis for Payment for services provided by Consultant. During the course of providing its services, Consultant shall be paid monthly based on Consultant's estimate of the percentage of the work completed. Necessary expenses and equipment are provided as a part of Consultant's services and are included in the initial Lump Sum amount for the agreed upon Scope of Work. Total payments to Consultant for work covered by the Lump Sum Agreement shall not exceed the Lump Sum amount without written authorization from the Client. The Lump Sum amount includes compensation for Consultant's services and the services of Consultant's Consultants, if any for the agreed upon Scope of Work. Appropriate amounts have been incorporated in the initial Lump Sum to account for labor, overhead, profit, expenses and equipment charges. The Client agrees to pay for other additional services, equipment, and expenses that may become necessary by amendment to complete Consultant's services at their normal charge out rates as published by Consultant or as available commercially B. Expenses Not Included in the Lump Sum The following items involve expenditures made by Consultant employees or professional consultants on behalf of the Client and shall be paid for as described in this Agreement. 1. Expense of overtime work requiring higher than regular rates, if authorized in advance by the Client. 2. Other special expenses required in connection with the Project. 3. The cost of special consultants or technical services as required. The cost of subconsultant services shall include actual expenditure plus 10% markup for the cost of administration and insurance. The Client shall pay Consultant monthly for expenses not included in the Lump Sum amount. s:\ae \c \colhl \common \propcsals\th 65 hsip grant_august 2016_43rd47th ave \exhibit a2.docx Short Elliott Hendrickson Inc. Exhibit A -2 - 1 City of Columbia Heights (Rev. 10.21.10) SECTION IV— GENERAL CONSIDERATIONS A. Standards of Performance 1 The standard of care for all professional engineering and related services performed or furnished by Consultant under this Agreement will be the care and skill ordinarily exercised by members of Consultant's profession practicing under similar circumstances at the same time and in the same locality. Consultant makes no warranties, express or implied, under this Agreement or otherwise, in connection with its services. 2. Consultant neither guarantees the performance ofany Contractor nor assumes responsibility for any Contractor's failure to fumish and perform the work in accordance with its construction contract or the construction documents prepared by Consultant. Client acknowledges Consultant will not direct, supervise or control the work of construction contractors or their subcontractors at the site or otherwise. Consultant shall have no authority over or responsibility for the contractor's acts or omissions, nor for its means, methods or procedures of construction. Consultant's services do not include review or evaluation of the Client's, contractor's or subcontractor's safety measures, orjob site safety or furnishing or performing any of the Contractor's work. 3. If requested in the scope of a Supplemental Letter Agreement, then Consultant may provide an Opinion of Probable Construction Cost. Consultant's Opinions of Probable Construction Cost provided for herein are to be made on the basis of Consultant's experience and qualifications and represent Consultant's best judgment as a professional generally familiar with the industry. However, since Consultant has no control over the cost of labor, materials, equipment or service furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions. Consultant cannot and does not guarantee that proposats, bids or actual construction cost will not vary from Opinions of Construction Cost prepared by Consultant. If Client wishes greater assurance as to probable Construction Cost, Client shall employ an independent cost estimator or negotiate additional services and fees with Consultant. Indemnity for Environmental Issues 1. Consultant is not a user, generator, handler, operator, arranger, starer, transporter or disposer of hazardous or toxic substances, therefore the Client agrees to hold harmless, Indemnify and defend Consultant and Consultant's officers. directors, suboxmsultant(s), employees and agents from and against any and all claims, losses, damages. liability and costs. Including but not IkmRed to costs of defense, arising out of or in any way connected with, the presence, discharge, release. or escape of hazardous or toxic substances, pollutants or contaminants of any kind at the site. C. Limitations on Consultant's Liability The Client hereby agrees that to the fullest extent permitted by law. Consultants total liability to the Client for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any way related to the Project or this Agreement from any cause or causes including, but not limited to. Consultant's negligence, errors. omissions, strict liability, breach of contract or breach of warranty shall not exceed five hundred thousand dollars (S50O,OOO). In the event Client desires limits of liability in excess of thoso provided in this paragraph, Client shall advise Consultant in writing and agree that Consultant's fee shall increase by 1%for each additional five hundred thousand dollars of liability limits, up to a maximum limit of liability of five million dollars ($5,000,000). Neither Party shall be Gable to the other for consequential damages, including. without limitation, lost rentals, increased rental expenses, loss of use, loss of income, lost profit, financing business and reputation and for loss of management or employee productivity, incurred by one another or their subsidiaries or successors, regardless of whether such damages are foreseeable and are caused by breach of contract, willful misconduct, negligent act or omission, or other wrongful act of either of them. 3 It is intended by the parties to this Agreement that Consultant's services shall not subject Consultant's employees, officers or directors to any personal legal exposure for the risks associated general Gondltions - 2 (Rev 07 14.16) with this Agreement. The Client agrees that as the Client's sole and exclusive remedy, any claim, demand or suit shall be directed and /or asserted only against Consultant, and not against any of Consultant's individual employees, officers or directors, and Client knowingly waives all such claims against Consultant individual employees, officers or directors. D. Assignment 1 Neither party to this Agreement shall transfer, sublet or assign any rights under, or interests in, this Agreement or claims based on this Agreement without the prior written consent of the other party Any assignment in violation of this subsection shall be null and void SECTION V — DISPUTE RESOLUTION A. Mediation 1 Any dispute between Client and Consultant arising out of or relating to this Agreement or services provided under this Agreement, (except for unpaid invoices which are governed by Section III), shall be submitted to nonbinding mediation as a precondition to litigation unless the parties mutually agree otherwise. Mediation shall occur within 60 days of a written demand for mediation unless Consultant and Client mutually agree otherwise. B. Litigation — Choice of Venue and Jurisdiction 1. Any dispute not settled through mediation shall be settled through litigation in the state where the Project at issue is located. SECTION VI — INTELLECTUAL PROPERTY A. Proprietary Information All documents, including reports, drawings, calculations, specifications, CADD materials, computers software or hardware or other work product prepared by Consultant pursuant to this Agreement are Consultant's Instruments of Service ( "Instruments of Service ") and Consultant retains all ownership interests in Instruments of Service, including all available copyrights. Consultant shall retain all of its rights in its proprietary information including, without limitation, its methodologies and methods of analysis, ideas, concepts, expressions, inventions, know how, methods, techniques, skills, knowledge and experience possessed by Consultant prior to, or acquired by Consultant during, the performance of this Agreement and the same shall not be deemed to be Work Product or Work for Hire and Consultant shall not be restricted in any way with respect thereto. B. Client Use of Instruments of Service Provided that Consultant has been paid in full for its services, Client shall have the right in the form of a license to use Instruments of Service resulting from Consultant's efforts on the Project Consultant shall retain full rights to electronic data and the drawings, specifications, including those in electronic form, prepared by Consultant and its subconsultants and the right to reuse component information contained in them in the normal course of Consultant's professional activities. Consultant shall be deemed to be the author of such Instruments of Service, electronic data or documents, and shall be given appropriate credit in any public display of such Instruments of Service. Records requests or requests for additional copies of Instruments of Services outside of the scope of services are available to Client subject to Consultant's current rate schedule. C. Reuse of Documents All Instruments of Service prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by the Client or others on extensions of the Project or on any other Project. Any reuse of the Instruments of Service without written consent or adaptation by Consultant for the specific purpose intended will be at the Client's sole risk and without liability or legal exposure to Consultant; and the Client shall release Consultant from all claims arising from such use Client shall also defend, indemnify and hold harmless Consultant from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting from reuse of Consultant documents without written consent. SEH Building a Better World for All of Us' August 9, 2018 Kevin Hansen, P.E. Director of Public Works /City Engineer City of Columbia Heights 637 38th Avenue NE Columbia Heights, MN 55421 Dear Kevin: RE: City of Columbia Heights Central Avenue Corridor Enhancement - HSIP Grant Assistance SEH No. 129628 14.00 Thank you for your request for a proposal from SEH, Inc. for Highway Safety Improvement Program (HSIP) grant assistance for Central Avenue Corridor Enhancements between 47th Avenue NE and 431 Avenue NE. It is our understanding the City is interested in pursuing grant funding for improvements similar to those recently designed for Central Avenue between 47th Avenue and 51 st Avenue. The project would focus on various improvements to the Central Avenue corridor including sidewalk, American with Disability Act (ADA) improvements and enhancements to lighting and bus stop facilities, in addition to hardscape enhancements such as colored /textured concrete. The project would be funded through the MnDOT HSIP grant program if successful. The City is requesting that SEH assist city staff in preparing the grant application due August 31, 2018. Our fee estimate includes the following tasks: 1. Prepare grant application documents for the City's use in submitting to MnDOT, including updates to the previously prepared exhibits used for the MnDOT TED grant submittal in fall 2017. 2 Obtain and analyze crash data from MnDOT, prepare crash diagrams and a cost/benefit analysis of the proposed improvements. 3. Review /update previously completed high level engineer's estimate of construction costs which was previously completed as part of the MnDOT TED Grant Application in fall 2017. 4. Submit draft grant application materials to City for review and address City comments prior to finalizing the grant application. It is our understanding that the City has /will be notifying the other affected agencies (MnDOT, Anoka County, City of Hilltop) of their intent to apply for the grant funding, and will obtaining the necessary response letter(s) as requested in the Grant submittal requirements. We also understand the City wishes to propose the same improvements that were included in the TED grant application in fall 2017. The lump sum fee of $4,000 including reimbursable expenses is compensation for our services and the agreed upon scope of work as described above. Additional services if requested would be at their additional cost. Engineers I Architects I Planners I Scientists Short Elliott Hendrickson Inc., 3535 Vadnais Center Drive, St Paul, MN 55110 -5196 SEH is 100% employee -owned I sehinc.com 1 651 490 2000 1 600.325 2055 1 888 906 8166 fax Kevin Hansen August 9, 2018 Page 2 Thank you for the opportunity to submit our proposal and we welcome any questions that you have. Please contact me at 651.490.2055, or Sue Mason at 651.490.2018. Sincerely, SHORT ELLIOTT HENDRICKSON INC. ?CJ4oscmf I Scott D. Haupt Project Manager sdh c: Sue Mason s: \ae\c \colht\common\proposals \th 65 hsip grant_august 2018 43rd-47th ave\central avenue hsip grant assistance proposal B-9-1 B.docx