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HomeMy WebLinkAboutRES.2464.07-06-2009BILL NO. 09-120 RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A GENERAL SERVICES AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES WITH JACOBS ENGINEERING GROUP, INC., IN THE CITY OF CAPE GIRARDEAU, MISSOURI BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute a General Services Agreement for Professional Consulting Services, in the City of Cape Girardeau, Missouri. A copy of said Agreement is attached to this Resolution and made a part hereof. PASSED AND ADOPTED THIS DAY OF'`GG 20 d"7 ATTEST: Gayle/. Conrad, City Cler Ja Knudtson, Mayor 6 10 GENERAL SERVICES AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES BETWEEN JACOBS ENGINEERING GROUP INC. CITY OF CAPE GIRARDEAU, MISSOURI Page 1 of 11 I GENERAL SERVICES AGREEMENT FOR PROFESSIONAL SERVICES TABLE OF CONTENTS PAGE ARTICLE I General Obligations of Consultant 3 ARTICLE II Compensation 3 ARTICLE III Changes in Scope of Services 3 ARTICLE IV Warranty and Liability 4 ARTICLE V Insurance 4 ARTICLE VI Payments 6 ARTICLE VII Period of Service 6 ARTICLE VIII Waiver 7 ARTICLE IX Relationship of Consultant to Client 7 ARTICLE X Governing Law 7 ARTICLE XI Notices and/or Communications 7 ARTICLE XII Adherence to Laws 8 ARTICLE XIII Nondisclosure of Proprietary and Confidential Materials 8 ARTICLE XIV Severability 9 ARTICLE XV Force Majeure 9 ARTICLE XVI Entirety of Agreement 9 ARTICLE XVII Ownership of Instruments of Service and Data 9 ARTICLE XVIII Certifications or Sealing of Instruments of Service by Professional Engineer 10 ARTICLE XIX Project Delay 10 ARTICLE XX Term of Agreement 10 Page 2 of 11 i GENERAL SERVICES AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES THIS AGREEMENT, made and executed as of the o&1 day of , 2009, by and between JACOBS ENGINEERING GROUP INC., with a place o siness at 501 N Broadway, St. Louis, MO 63102 (hereinafter called "Consultant"), an CITY OF CAPE GIRARDEAU, MISSOURI, a municipal Corporation, with a place of business at (hereinafter called "Client"), collectively referred to herein as "parties", provides as follows: ARTICLE I GENERAL OBLIGATIONS OF CONSULTANT Consultant will provide professional consulting and engineering services (hereinafter "Services") as authorized from time to time by written Amendments issued by Client and accepted by Consultant, as evidenced by Client's and Consultant's signatures thereon. Each Amendment issued by Client shall clearly state that it is issued pursuant to this Agreement and shall identify the scope of Services to be performed by Consultant, the schedule for performance of the Services and such other matters as may be pertinent to the individual authorization. ARTICLE II COMPENSATION Consultant will be compensated for Services on a Time and Expense basis, or as otherwise agreed, in each Amendment. ARTICLE III CHANGES IN SCOPE OF SERVICES Client may, at any time, make changes in the scope of Services required under an Amendment or in the definition of Services and tasks to be performed. In the event Client notifies Consultant of its desire to make a change in the scope of Services that may change the cost of performance, Consultant shall, within ten (10) working days after receiving such notice, give Client notification of any potential change in price for the Amendment. Equitable adjustments to price and time of performance resulting from scope of Services changes will be negotiated and, upon mutual agreement by Client and Consultant, the Amendment will be modified by a written instrument, signed by both parties, to reflect the changes in scope of Services, price and schedule. Page 3 of 11 ARTICLE IV WARRANTY AND LIABILITY A. To the extent of Consultant's negligence, Consultant shall indemnify and hold harmless the Client and its consultants, officers, agents and employees from and against third party claims of personal injury or property damage, including, but not limited to, reasonable attorneys' fees, arising out of or resulting from the negligent performance of Consultant's services hereunder. Comparative fault principles shall apply to this indemnity obligation. The above -said right of indemnity shall be in addition to other rights of indemnity that the Client may possess. B. The indemnification obligation under Article IV.A shall not be limited by any limitation on amount or type of damages, compensation or benefits payable by or for the Consultant under workers' or workmen's compensation acts, disability payment acts or other employee benefit acts. C. All insurance required hereunder shall provide that the insurer's cost of providing the insured(s) a defense and appeal, including attorneys' fees, shall be supplementary and shall not be included as part of the policy limits, but shall remain the insurer's separate responsibility. Contractor shall cause its insurance carriers to waive all rights of subrogation against the design professional, the Owner and their officers, employees and agents. ARTICLE V INSURANCE A. Consultant agrees to secure and maintain for the periods set forth below, at Consultant's sole cost and expense, the following insurance coverages in the form and in amounts not less than the amounts specified below: a. Consultant shall maintain at all times during the term of this Agreement and for a period of one (1) year, after date of completion, insurance covering claims arising out of the performance of Consultant's services under this Agreement and for claims arising out of allegations of errors, omissions or negligent acts for which Consultant may be liable, with a minimum policy limit of Two Million Dollars ($2,000,000.00) each claim/aggregate. b. Consultant shall maintain at all times during the term of this Agreement and for a period of one (1) year after date of completion commercial general liability insurance with Consultant's standard additional insured endorsement which shall protect Consultant and the Cleint, their agents, servants, employees, officers and consultants as required herein. Such insurance shall be endorsed to provide blanket contractual liability insurance and shall cover Consultant's indemnity Page 4 of 11 obligations contained in this Agreement, as well as other contractual liability. Such insurance shall have coverage with a combined single limit of not less than Two Million Dollars ($2,000,000.00) per occurrence. If such insurance policy contains a general aggregate limit, it shall separately apply to this Project. C. Consultant shall maintain at all times during the term of this Agreement and for a period of one (1) year after date of completion business automobile insurance coverage for all owned, hired or nonowned vehicles utilized by Consultant with minimum limits of coverage of a combined limit of not less than Two Million Dollars ($2,000,000.00) per occurrence. d. Consultant shall maintain at all times during the term of this Agreement an "all risk" property damage floater policy covering Consultant's personal property and Consultant's equipment, whether owned, leased or rented by Consultant. In addition, Consultant shall effect "valuable paper" coverage in an amount equal to the cost to reproduce or replace data, maps, drawings, specifications and any other materials relating to the Project. e. Consultant shall maintain at all times during the term of this Agreement insurance coverage for: 1. Claims under workers' or workman's compensation, disability benefit and other similar employee benefit laws; 2. Claims for damages because of bodily injury, occupational sickness or disease or death of Consultant's employees under any applicable employer's liability law; and 3. Claims for damages for bodily injury, sicknesses or disease or death of persons other than Consultant's employees. f. Consultant shall also provide and maintain any type of insurance not described above which it requires for its own protection or on account of statutes. B. Consultant's commercial general liability policy and business automobile liability policy, as set forth above, shall be endorsed to include the Client as an additional insured. Further, Consultant's "all-risk property damage policy" shall cover the Client's interest in such property. C. All insurance required by this Article V shall be endorsed to be primary and not contributing with any other liability insurance available to the Client. D. All insurance required hereunder shall not be subject to a deductible amount on a per -claim basis of more than Ten Thousand Dollars ($10,000.00) and shall not be subject to a per -occurrence deductible of more than Twenty -Five Thousand Dollars ($25,000.00). Consultant's comprehensive liability policy, business automobile liability policy and "all risk" property damage policy, as set forth above, shall be on an occurrence basis. Page 5 of 11 E. All insurance coverage procured by Consultant, with the possible exception of workers compensation insurance coverage, shall be provided by insurance companies having policyholder ratings not lower than "A-" and financial ratings not lower than "VIII" in the Best's Insurance Guide, latest edition in effect as of the date of this Agreement and subsequently in effect at the time of renewal of any policies required hereunder. F. Consultant shall provide certificate(s) of insurance to the Cleint before Consultant shall be entitled to any sum of money payable under this Agreement. All certificates shall be executed by a duly authorized agent of each of the applicable insurance carriers and state that at least thirty (30) days' notice shall be given to the Client before any policy covered thereby is changed or canceled. Such certificate shall be in a form acceptable to the Client. Consultant shall have the obligation to provide additional certificate(s) evidencing continuation of coverages with respect to insurance coverages that are to remain in force after completion of the Project as set forth in this Article V. G. The maintenance in full current force and effect of such terms and amounts of insurance shall be a condition precedent to Consultant's exercise or enforcement of any rights under this Agreement. H. If a part of the Work hereunder is performed by a consultant or subcontractor of Consultant, Consultant shall cover any and all consultants and subcontractors in its policies and require each consultant or subcontractor to secure and maintain insurance against all applicable hazards or risks of loss and in the amounts and forms set forth in this Article V. ARTICLE VI PAYMENTS Consultant shall invoice Client on a monthly basis for payment of labor expenditures and reimbursable costs incurred. Payment shall be due within thirty (30) days of the invoice date. Failure by Client to pay Consultant any sum, when or as due, under this Agreement, shall entitle Consultant, at its election, to stop work until payment is made. ARTICLE VII PERIOD OF SERVICE Consultant shall make its best efforts to complete its consulting Services within the time period set forth in the Amendment. Page 6 of 11 ARTICLE VIII WAIVER Waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way effect, limit, or waive such party's rights thereafter to enforce and compel strict compliance with all the terms and conditions of this Agreement. ARTICLE IX RELATIONSHIP OF CONSULTANT TO CLIENT The Consultant shall be and shall operate as an independent contractor with respect to the Services performed under this Agreement and shall not be nor operate as an agent or employee of Client. This Agreement is not intended to be one of hiring under the provisions of a Workers' Compensation statute or other law and shall not be so construed. ARTICLE X GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri. ARTICLE XI NOTICES AND/OR COMMUNICATIONS All notices and/or communications to be given under this Agreement shall be in writing and shall be addressed as follows: To Consultant Tn Cliant Attention: Jeff Gratzer Attention: Tim Gramling Position: Wastewater Section Manager Position: Public Works Director Address: Jacobs Engineering Group Inc. Address: City of Cape Girardeau 501 N Broadway Public Works Department St. Louis, MO 63102 2007 Southern Expressway Cape Girardeau, MO 63703 Either party may, by written notice to the other, change the representative or the address to which such notices, certificates, or communications are to be sent. Any notice or communication required in writing hereunder shall be given by registered, certified, or first class mail (postage required), or telefax addressed to the party at its Page 7 of 11 address set forth above. Communications by telefax shall be confirmed by depositing a copy the same day with the U.S. Post Office for transmission by registered, certified, or first class mail in an envelope properly addressed. The postmark date of notices sent by mail (except for confirmatory notices) shall be the date of notice. ARTICLE XII ADHERENCE TO LAWS Consultant shall adhere to federal, state, and local laws, rules, regulations, and ordinances applicable to performance of the Services hereunder including, without limitation, all applicable provisions of federal and state law relating to equal employment opportunity and non-discrimination. ARTICLE XIII NONDISCLOSURE OF PROPRIETARY AND CONFIDENTIAL MATERIALS Client and Consultant agree that any disclosure will be made on the following basis: A. Confidential Client Information ("Primary Data") disclosed to Consultant which is identified in writing by Client as proprietary to Client shall be: (1) safeguarded, (2) maintained in confidence, and (3) made available by Consultant only to those of its employees or others who have a need -to -know and agree to equivalent conditions pertaining to nondisclosure as contained herein. B. Upon completion of the Project, as defined in each Amendment, or sooner if Client so requests, the Consultant shall return to Client's representative all Primary Data furnished to the Consultant under this Agreement and shall, if requested, deliver to the Client's representative all drawings, schedules, calculations, and other documents generated by Consultant for use in connection with the Project ("Secondary Data"). C. Consultant shall use its best efforts not to use for itself or to disclose to third parties any Primary Data or Secondary Data without the prior written consent of Owner. D. The nondisclosure obligations pertaining to Primary and Secondary Data shall terminate three (3) years from date Consultant's association with the Project terminates. The nondisclosure obligations shall not apply to any data which: Was known to the Consultant (and previously unrestricted) before disclosure of Primary Data to Consultant under this Agreement or before generation of Secondary Data; 2. Is subsequently acquired by the Consultant from a third party who is not in default of any obligation restricting the disclosure of such information; or Page 8 of 11 Is subsequently available or becomes generally available to the public. E. Notwithstanding this nondisclosure obligation, Consultant may nevertheless draw upon its experience in its future association with other clients. ARTICLE XIV SEVERABILITY Any provision of this Agreement prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Agreement. ARTICLE XV FORCE MAJEURE Any delays in or failure of performance by Consultant or Client, other than the payment of money, shall not constitute default hereunder if and to the extent such delays or failures of performance are caused by occurrences beyond the reasonable control of Client or Consultant, as the case may be, including but not limited to, acts of God or the public enemy; compliance with any order or request of any governmental authority; fires, floods, explosion, accidents; riots, strikes or other concerted acts of workmen, whether direct or indirect; or any causes, whether or not of the same class or kind as those specifically named above, which are not within the reasonable control of Client or Consultant respectively. In the event that any event of force majeure as herein defined occurs, Consultant shall be entitled to a reasonable extension of time for performance of its Services and an equitable adjustment in its compensation. ARTICLE XVI ENTIRETY OF AGREEMENT This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof. ARTICLE XVII OWNERSHIP OF INSTRUMENTS OF SERVICE AND DATA A. All design documents, drawings, estimates, calculations and specifications ("instruments of service") prepared by Consultant in the course of performing the Services are considered the Client's property. Client is advised that should Client re- use the instruments of service at another location, the instruments of service should be reviewed by and sealed by Client or an engineer licensed in the jurisdiction where the instruments of service are sought to be re -used. Client agrees to indemnify and defend Consultant from and against claims resulting from re -use of the Consultant's instruments of service at a location other than that contemplated by the applicable Amendment. Page 9 of 11 A B. All materials and information that are supplied by Client for use by Consultant ("data") and all copies or duplications thereof shall be delivered to Client by Consultant, if requested by Client, upon completion of Services. However, Consultant may retain one complete set of data for record purposes as part of its project files. ARTICLE XVIII CERTIFICATION OR SEALING OF INSTRUMENTS OF SERVICE BY PROFESSIONAL ENGINEER All specifications, drawings, and other engineering documents that are prepared by Consultant shall be certified or sealed by a registered professional engineer, as required by law in the jurisdiction where the project is located. Such certifications or seals shall be valid for the state in which the specifications, drawings, or other engineering documents are to be used or applied. ARTICLE XIX PROJECT DELAY If an Amendment calls for provision of Services under a guaranteed maximum price, fixed fee, or stipulated lump sum basis, and the Consultant's work on any phase of the Services is extended beyond the dates stated therein, and such extension is not attributable in whole or in part to the fault of Consultant, then the guaranteed maximum price, fixed fee, or stipulated lump sum, as the case may be, shall be equitably adjusted. ARTICLE XX TERM OF AGREEMENT This Agreement shall continue in effect until terminated by either party by giving sixty (60) days' advance written notice to the other party. However, if such termination occurs, this Agreement shall continue to apply under all Amendments issued prior to such termination. Page 10 of 11 IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first above written. CONSULTANT: CLIENT: JACOBS E GINEERING GROUP INC. CITY OF CAP I DE U, MISSOURI By: By: Name: Kt i t/ S /�'� /" l A I -,c),✓ Name: Safi" d(wUpr Title: Title: Cc1 �(�i►tQQPr Date: 1 I (� �� Date: 1 aI-� o! Page 11 of 11 VU