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HomeMy WebLinkAboutCayuga Heights (V) - WWTP - BGM.pdf AGREEMENT BETWEEN VILLAGE OF CAYUGA HEIGHTS (OWNER) AND GHD CONSULTING SERVICES INC. FOR PROFESSIONAL SERVICES ASSOCIATED WITH CAYUGA HEIGHTS WASTEWATER TREATMENT PLANT (PROJECT) October 2015 GHD – USA Services Agreement Edited QA010 USA Rev. Nov 2012 G:\Groups\Administration\_Agreements\2015\Cayuga Heights (V) - WWTP - BGM.docx 2 of 7 General Details: Project Name Cayuga Heights Wastewater Treatment Plant “OWNER” and the “Client” means Village of Cayuga Heights 836 Hanshaw Road Ithaca, NY 14850 OWNER’s Designated Representative(s) is OWNER’s Authorized Signer is Brent A. Cross, PE Village Engineer 607.257.5536 bcross@cayuga-heights.ny.us Katherine D. Supron Mayor “GHD” means GHD Consulting Services Inc. 1 Remington Park Drive Cazenovia, New York 13035 GHD’s Designated Representative is Jason Greene, PE Project Engineer 315.679.5768 jason.greene@ghd.com GHD’s Authorized Signer is Bruce Munn, PE Principal 315.679.5733 bruce.munn@ghd.com Services: See Exhibit A. Fees: (by phase) $7,400.00, as further defined in Exhibit A. Period of Service: Effective Date of this Agreement: Date of last Authorization Period of service defined in Exhibit A. Additional Exhibits: N/A GHD – USA Services Agreement Edited QA010 USA Rev. Nov 2012 G:\Groups\Administration\_Agreements\2015\Cayuga Heights (V) - WWTP - BGM.docx 3 of 7 Duly authorized representatives to execute this Agreement: On Behalf of GHD: Bruce Munn, PE Principal 10/13/15 (Signature) (Print name) (Title) (Date) On Behalf of OWNER: Katherine D. Supron Mayor (Signature) (Print name) (Title) (Date) Additional Signatures, if required: (Signature) (Print name) (Title) (Date) (Signature) (Print name) (Title) (Date) GHD – USA Services Agreement Edited QA010 USA Rev. Nov 2012 G:\Groups\Administration\_Agreements\2015\Cayuga Heights (V) - WWTP - BGM.docx 4 of 7 Services 1. The standard of care for any professional services performed or furnished by GHD under this Agreement will be the care and skill ordinarily used by members of the profession practicing under similar circumstances at the same time and in the same locality. GHD makes no warranties, express or implied, under this Agreement or otherwise, in connection with GHD’s services. 2. Any questions in relation to the services being provided by GHD can be directed to the Job Manager. 3. Change of Scope. The scope of Services set forth in this Agreement is based on facts known at the time of execution of this Agreement. For some projects involving conceptual or process development services, scope may not be fully definable during initial phases. As the Project progresses, facts discovered may indicate that scope should be changed. GHD will promptly inform OWNER in writing of such situations, and if the facts discovered constitute a material change in project assumptions, the parties shall renegotiate the amended scope of this Agreement as necessary. Information and Documents 4. OWNER shall designate and advise GHD of a person to act as OWNER's Representative who has complete authority with respect to the services. OWNER shall do the following in a timely manner: (a) Provide all criteria and full Information as to OWNER's requirements for the Project; (b) Assist GHD by providing all available Information pertinent to the Project (e.g. previous reports), all of which GHD may use and rely upon in performing the services; GHD will not be obligated to verify the accuracy of OWNER provided Information unless verification is included in GHD's scope of work; (c) Arrange for site and property access as required for GHD to perform the services; (d) Give prompt written notice to GHD of any event that affects the scope or timing of GHD's services. Payment 5. Method of Payment. OWNER shall pay GHD the Fees as defined under the Exhibits. Additionally, OWNER will pay for any additional approved services GHD undertakes, and any Liability, cost or expense GHD incurs, if: (a) The general approved scope, schedule, extent or character of Services is changed materially. In this event, the amount of compensation provided for herein shall be subject to equitable adjustment in accordance with paragraph 3, Change of Scope; (b) Any Information OWNER (or OWNER’s employees, agents or contractors) provides to GHD is not complete and accurate; (c) Part or all of the Services are delayed or suspended (other than as a result of GHD’s breach of the Agreement); (d) OWNER fails to pay an amount due under the Agreement; or (e) OWNER ends the Agreement before GHD has completed the services. 6. GHD will submit monthly invoices for services rendered and payment will be made within 30 days of OWNER’s receipt of such invoices. Interest at 1% per month will be charged on all past due amounts. When the Fees are on the basis of a lump sum, fixed fee, or a percentage of construction cost for the Project, GHD’s invoices will be based upon GHD's estimate of the proportion of the services actually completed at the date of the invoice. If OWNER objects to any invoice submitted by GHD, OWNER shall so advise GHD in writing giving reasons therefore within fourteen (14) days of receipt of such invoice. If no such objection is made, the invoice will be considered acceptable by OWNER. Insurance 7. GHD shall maintain continuously during the life of this Agreement the following minimum insurance requirements: (a) Workers’ Compensation Insurance with statutory limits and Employer’s Liability of at least $1,000,000 per occurrence; (b) Comprehensive General Liability Insurance with combined single limits of not less than $1,000,000 in any one occurrence or in the aggregate, applicable to bodily injury, sickness, or death and for loss of or damage to property; (c) Automobile Liability Insurance covering all owned, non- owned, or hired vehicles used by GHD with limits of not less than $1,000,000 combined single limits applicable to bodily injury, sickness, or death of any one person per occurrence and for loss of or damage to property; (d) Professional Liability Insurance in the amount of $1,000,000 covering claims, damages and Liability arising out of, or resulting from, GHD’s professional negligence in performance of the services. 8. The policies under 7(b) and 7(c) above shall: (1) name OWNER as an Additional Insured; (2) be endorsed to be primary and non-contributory to any other insurance maintained by OWNER. 9. GHD will provide OWNER with satisfactory evidence of the above insurances upon request. Total Liability for Damages 10. (a) Notwithstanding any other provisions of this Agreement, but subject to clause 10(b) below, to the maximum extent permitted by law, the total aggregate Liability of GHD to OWNER and/or anyone claiming by, through, or under OWNER shall be limited to the amounts set out in clause 7 for the relevant insurance policy or, if no insurance is applicable, to $1,000,000. GHD – USA Services Agreement Edited QA010 USA Rev. Nov 2012 G:\Groups\Administration\_Agreements\2015\Cayuga Heights (V) - WWTP - BGM.docx 5 of 7 (b) With respect to professional errors or omissions only, notwithstanding any other provision of this Agreement, to the maximum extent permitted by law, the total aggregate Liability of GHD to OWNER and/or anyone claiming by, through, or under OWNER, for all Liabilities arising out of, or resulting from the professional errors or omissions of GHD in the performance or non-performance of the services shall be limited to $1,000,000, or the total Fees actually paid to GHD under this Agreement, whichever is less. (c) Neither party to this Agreement shall be liable to the other for any indirect, special, incidental, punitive or consequential damages, including but not limited to loss of profits, arising in connection with the performance or non-performance of this Agreement. Intellectual Property 11. All Documents prepared or furnished by GHD are instruments of service in respect of the Project and GHD shall retain an ownership and property interest therein whether or not the Project is completed. Any reuse without written verification or adaptation by GHD for the specific purpose intended will be at OWNER's sole risk and without Liability or legal exposure to GHD, and OWNER shall indemnify and hold harmless GHD from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Confidentiality, documents and information 12. GHD agrees to keep confidential and not disclose to any person or entity, other than GHD's employees and subcontractors, without the prior written consent of OWNER (which consent shall not be unreasonably withheld, delayed, or conditioned), all data and Information not previously known to GHD and marked "CONFIDENTIAL" by OWNER and provided in the course of GHD's performance of the services. This provision shall not apply to data or Information which is in the public domain or which was acquired by GHD independently from third parties not under any obligation to OWNER to keep such data and Information confidential or which GHD is required to disclose under any law, rule, regulation, ordinance, code, standard, or court order. Termination 13. (a) The obligation to provide further services under this Agreement may be terminated by either party upon thirty days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. Upon such termination, OWNER shall pay to GHD all amounts owing to GHD under the Agreement, for all work performed up to the effective date of termination, plus reasonable termination costs. (b) This Agreement may be terminated for convenience by OWNER upon thirty days prior written notice to GHD. In the event of termination for convenience by OWNER, GHD shall be entitled to receive all amounts owing to GHD under the Agreement, for all work performed up to the effective date of termination, plus reasonable termination costs. Indemnification 14. To the maximum extent permitted by law, each party shall indemnify and hold harmless the other party, its appointed and elected officials, partners, officers, directors, employees, and agents; from and against any and all Liabilities arising from the negligent or wrongful acts, errors, or omissions, or breach of contract, by a party; but only to the extent of that party’s relative degree of fault. 15. In furtherance of these obligations, and only with respect to OWNER, GHD waives any immunity it may have or limitation on the amount or type of damages imposed under any industrial insurance, worker’s compensation, disability, employee benefit, or similar laws. GHD ACKNOWLEDGES THAT THIS WAIVER OF IMMUNITY WAS MUTUALLY NEGOTIATED. Dispute Resolution 16. Both parties agree in good faith to attempt to resolve amicably, without litigation, any dispute arising out of or relating to this Agreement or the work to be performed hereunder. In the event that any dispute cannot be resolved through direct discussions, the parties agree to endeavor to settle the dispute by mediation. Either party may make a written demand for mediation, which demand shall specify the facts of the dispute. The matter shall be submitted to a mediator mutually selected by the parties. The mediator shall hear the matter and provide an informal nonbinding opinion and advice in order to help resolve the dispute. The mediator’s fee shall be shared equally by the parties. If the dispute is not resolved through mediation, the matter may be submitted to the judicial system, in the courts of general jurisdiction where the Project is located, in which event all litigation and collection expenses, witness fees, court costs and attorneys’ fees shall be paid to the prevailing party. Independent Contractor 17. GHD shall act as an independent consultant and not as an agent or employee of OWNER, and will be solely responsible for the control and direct performance of the services provided by its employees and agents. Assignment 18. This Agreement may be assigned by either party with the prior written consent of the other party. Health and Safety 19. GHD shall only be responsible for the activities of its own employees and agents on the Project site with respect to safety. Compliance with Laws, Permits and Licenses 20. This Agreement shall be governed by the law of the state where the Project is located. GHD shall perform its Services in accordance with applicable laws, regulations, ordinances, permits, licenses, and other rules. GHD – USA Services Agreement Edited QA010 USA Rev. Nov 2012 G:\Groups\Administration\_Agreements\2015\Cayuga Heights (V) - WWTP - BGM.docx 6 of 7 Severability 21. The parties agree that, in the event one or more of the provisions of this Agreement should be declared void or illegal, the remaining provisions shall not be affected and shall continue in full force and effect. No Third-Party Beneficiaries 22. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or GHD to any third party. All duties and responsibilities undertaken under this Agreement shall be for the sole and exclusive benefit of OWNER and GHD. There are no intended third-party beneficiaries. Notwithstanding the foregoing, should a court find a third party to be a beneficiary of this Agreement, it is the intent of the parties that the judicially created third-party beneficiary be bound by and subject to all of the terms and conditions of this Agreement. Notification Period 23. Any applicable Statute of Limitation shall be deemed to commence running on the date which the claimant knew, or should have known, of the facts giving rise to their claims, but in no event later than the date of the final invoice for GHD’s services under this Agreement. To the maximum extent permitted by law, as a condition precedent to commencing a judicial proceeding, a party shall give written notice of their claims, including all amounts claimed, and the factual basis for their claims, to the other party within two (2) years of when the claimant knew, or should have known, of the facts giving rise to their claims, but in no event later than two (2) years from the date of GHD’s final invoice for Services under this Agreement. Complete Agreement 24. This Agreement represents the entire understanding between the OWNER and GHD, and supersedes all prior negotiations, representations, understandings or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the parties hereto. 25. All notices or other written communications required under this Agreement shall be given personally upon delivery or by certified mail, return receipt requested, upon deposit in a U.S. Mail receptacle to the appropriate parties at the addresses shown on the signature page. 26. This Agreement applies to all services undertaken by GHD for OWNER relative to this Project, including any services undertaken prior to the Effective Date hereof. Definitions 27. Unless the context otherwise requires, in the Agreement: “Additional Insured” means that the interests of the client will be noted on the relevant policy, but does not mean that the client is an “Insured” under that policy. “Agreement” means the agreement executed by the parties in connection with the services, including these terms and exhibits. “Designated Representative” means specific individuals who act as Engineer’s and OWNER’s representatives with respect to the services to be performed or furnished by Engineer and responsibilities of OWNER under this Agreement. Such an individual shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of the respective party whom the individual represents. “Document” or “Documents” includes a written or electronic document. “Fees” means the amount set out in the agreement details including disbursements. “Information” includes documents and information provided pertinent to the project. “Liability” or “Liabilities” means any and all liabilities for actions (whether sounding in tort, contract (express or implied), warranty (express or implied), statutory liability, strict liability, or otherwise); claims (including, but not limited to, claims for bodily injury, death, property damage, (including bodily injury, death, or property damage to employees) or arising under environmental laws); and costs or damages of every nature without limitation (including, but not limited to, reasonable attorneys’ fees and costs of defense). “Project” means the project(s) that the services relate to. “Services” means the services set out in the agreement details (or otherwise the services GHD undertakes). “OWNER” means the person(s) set out in the agreement details (and if more than one person, “OWNER” means each of those persons severally and all of them jointly). GHD – USA Exhibit A Edited QA010 USA Rev. Nov 2012 G:\Groups\Administration\_Agreements\2015\Cayuga Heights (V) - WWTP - BGM.docx 7 of 7 SCOPE OF SERVICES 1. Task 1 – Assist Owner with the review of wastewater discharge permit application and potential permitting for a proposed micro-chip manufacturing facility (M/A-COM Technology Solutions Holdings, Inc.). GHD shall assist the Owner with the items pertaining to the potential permitting of this facility. • USEPA National Categorical Pretreatment Standards • Article VIII of Local Law No. 1 (1987), Village of Cayuga Heights • Industrial user permit application • Draft/Final permit development A headworks analysis is not included in the Scope of Services. 2. Task 2 – Assist Owner in evaluating the feasibility of disposal of the liquid bio-solids from the Wastewater Treatment Plant (WWTP) to the Ithaca WWTP. Provide a letter feasibility report. 3. Task 3 – Assist the Owner in developing an estimated dollar value for the Village WWTP to be used for Homeland Security purposes. Cost estimate will be based upon published cost curves for replacement of each of the existing unit processes. PERIOD OF SERVICE 1. Task 1 – 30 to 60-day turnaround for industrial discharge permit application and each re-application, if required. Total duration up to 60 days. 2. Tasks 2 and 3 – 60 days from authorization by Owner. PAYMENTS TO THE ENGINEER The above Scope of Services will be completed on an hourly basis not to exceed $7,400.00 (estimated 60 man- hours of effort).