HomeMy WebLinkAboutLOCHMUELLER 116-0126-OCE rOCHMUELLEM
GROUP
6200 Vogel Road, Evansville, Indiana 47715 • 812.479.6200
T R A N S M I T T A L
Date: February 1, 2017
Project Name:
To: City of Jeffersonville Hamburg Pike Claim Review
Attn: Mike Moore
500 Quartermaster Court
Jeffersonville, Indiana 47130
Lochmueller Group Project No.: 116-0126-OCE
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Date Copies Description
2/1/2017 1 Agreement
1/31/2017 1 Professional Liability Certificate of Insurance
1/31/2017 1 General Liability Certificate of Insurance
1 EVerify Affidavit
REMARKS:
Executed Agreement for your file. If you have any questions, please contact our office.
LOCHMUELLER GROUP, INC.
Matthew E.Wannem�er_
Vice President/Chief Administrative Officer
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into this day of
2016 (the "Effective Date"), by and between the City of Jeffersonville, acting
by and th ough its proper officials, hereinafter referred to as LOCAL PUBLIC AGENCY, and
Lochmueller Group, Inc., hereinafter referred to as CONSULTANT.
W I T N E S S E T H
WHEREAS,the LOCAL PUBLIC AGENCY desires to contract for Professional Services, and
WHEREAS, CONSULTANT has expressed a willingness to perform said services,
NOW,THEREFORE,the parties hereto agree that CONSULTANT shall provide the services
and documents hereinafter described, in relation to the following described project: Hamburg
Pike Claim Review (the "PROJECT").
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto mutually covenant and agree as follows:
Section I Basic Services by CONSULTANT
The basic services to be provided by CONSULTANT under this Agreement are as set forth
in Appendix "A" ("Services").
Section II Information and Services to be Furnished by the LOCAL PUBLIC AGENCY
The information and services to be furnished by the LOCAL PUBLIC AGENCY are as set
forth in Appendix"B".
Section III Schedule
CONSULTANT shall deliver the Services to the LOCAL PUBLIC AGENCY in accordance with
the Schedule contained in Appendix "C". The LOCAL PUBLIC AGENCY agrees that CONSULTANT
is not responsible for damages arising directly or indirectly from delays for causes beyond
CONSULTANT's control. In addition, if the delays resulting from any such causes increase the
cost or time by CONSULTANT to perform its Services in an efficient manner, CONSULTANT shall
be entitled to a reasonable adjustment in schedule and compensation.
Section IV Compensation
CONSULTANT shall receive payment for the Services performed under this Agreement as
set forth in Appendix "D".
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Section V General Provisions
1.0 Work Office
CONSULTANT shall perform the Services at its offices or at such other locations as may
be necessary or appropriate.
2.0 Standards of Performance
2.1 The standard of care for all professional services performed or furnished by
CONSULTANT under this Agreement will be the care and skill ordinarily used by
members of the respective 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
CONSULTANT's Services.
2.2 CONSULTANT shall be responsible for the technical accuracy of its Services and
documents resulting therefrom, and LOCAL PUBLIC AGENCY shall not be
responsible for discovering deficiencies therein. CONSULTANT shall correct any
deficiencies CONSULTANT discovers without additional compensation except to
the extent such action is directly attributable to deficiencies in LOCAL PUBLIC
AGENCY-furnished information.
2.3 CONSULTANT shall perform or furnish professional services in all phases of the
Project to which this Agreement applies. CONSULTANT shall serve as LOCAL
PUBLIC AGENCY's prime professional for the Project:. CONSULTANT may employ
such subconsultants as CONSULTANT deems necessary to assist in the
performance or furnishing of the Services. CONSULTANT shall not be required to
employ any subconsultants unacceptable to CONSULTANT.
2.4 CONSULTANT and LOCAL PUBLIC AGENCY shall comply with applicable laws or
regulations and Owner-mandated standards. This Agreement is based on these
requirements as of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for modifications to LOCAL
PUBLIC AGENCY's responsibilities or to CONSULTANT's scope of services,times of
performance, or compensation.
2.5 LOCAL PUBLIC AGENCY shall be responsible for, and CONSULTANT may rely
upon, the accuracy and completeness of all requirements, programs,
instructions, reports, data, and other information furnished by LOCAL PUBLIC
AGENCY to CONSULTANT pursuant to this Agreement. CONSULTANT may use
such requirements, reports, data, and information in performing or furnishing
services under this Agreement.
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2.6 CONSULTANT shall not be required to sign any documents, no matter by whom
requested, that would result in CONSULTANT's having to certify, guarantee or
warrant the existence of conditions whose existence CONSULTANT cannot
ascertain. LOCAL PUBLIC AGENCY agrees not to make resolution of any dispute
with CONSULTANT or payment of any amount due to CONSULTANT in any way
contingent upon CONSULTANT's signing any such certification.
2.7 CONSULTANT shall not be responsible for the acts or omissions of any
contractor(s), subcontractor or supplier, or any of the contractor's agents or
employees or any other persons (except CONSULTANT'S own employees) at the
site or otherwise furnishing or performing any of the contractor's work; or for
any decision made on interpretations or clarifications of any contract for
construction, general conditions, supplemental conditions, change orders, .and
related documents (the "Contract Documents") given by LOCAL PUBLIC AGENCY
without consultation and advice of CONSULTANT.
3.0 Authorized Project Representatives
Contemporaneous with the execution of this agreement, CONSULTANT and LOCAL
PUBLIC AGENCY shall designate specific individuals to act as CONSULTANT's and LOCAL
PUBLIC AGENCY's representatives with respect to the Services to be performed or
furnished by CONSULTANT and responsibilities of LOCAL PUBLIC AGENCY under this
Agreement. Such individuals shall have authority to transmit instructions, receive
information, and render decisions relative to the Project on behalf of each respective
pa rty.
4.0 Ownership of Documents
All documents, including tracings, drawings, reports, estimates, specifications, field
notes, investigations, studies, etc., shall be considered as instruments of service, and
shall remain the property of CONSULTANT. During the performance of the Services
herein provided for, CONSULTANT shall be responsible for any loss or damage to the
documents which it caused, herein enumerated,while they are in its possession and any
such loss or damage shall be restored at its expense. Full access to the Services during
the progress of the Services shall be available to LOCAL PUBLIC AGENCY. LOCAL PUBLIC
AGENCY shall not reuse or make any modification to the construction documents
without the prior written authorization of CONSULTANT. LOCAL PUBLIC AGENCY agrees,
to the fullest extent permitted by law, to defend, indemnify and hold harmless
CONSULTANT, its officers, directors, employees and subconsultants (collectively,
"CONSULTANT") against any damages, liabilities or costs, including reasonable
attorneys' fees and defense costs arising from, or allegedly arising from or in any way
connected with, the unauthorized reuse or modification of the construction documents
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by LOCAL PUBLIC AGENCY or any person or entity that acquires or obtains the
construction documents from or through the LOCAL PUBLIC AGENCY without the
written authorization of CONSULTANT. Under no circumstances shall the transfer of
ownership of CONSULTANT's drawings, specifications, electronic files or other
instruments of service be deemed a sale by CONSULTANT, and CONSULTANT makes no
warranties, either express or implied, of merchantability and fitness for any particular
purpose, nor shall such transfer be construed or regarded as any waiver or other
relinquishment of CONSULTANT's copyrights in any of the foregoing, full ownership of
which shall remain with CONSULTANT, absent CONSULTANT's express prior written
consent.
5.0 Access to Records
CONSULTANT and its subcontractors shall maintain all books, documents, papers,
accounting records and other evidence pertaining to the cost incurred and shall make
such materials available at its respective offices at all reasonable times during the period
of this Agreement and for three (3) years from the date of final payment under the
terms of this Agreement, for inspection by the LOCAL PUBLIC AGENCY and copies
thereof shall be furnished if requested.
6.0 Compliance with State and Other Laws
CONSULTANT specifically agrees that in performance of the Services herein enumerated
by it or by a subconsultant contractor or anyone acting in behalf of either,that it or they
will exercise reasonable skill and care in its efforts to comply with applicable State,
Federal, and Local Statutes, Ordinances and Regulations and assist the LOCAL PUBLIC
AGENCY in obtaining all permits that are applicable to the entry into and the
performance of this Agreement.
7.0 Employment Eligibility Verification
The CONSULTANT affirms under the penalties of perjury that he/she/it does not
knowingly employ an unauthorized alien.
The CONSULTANT shall enroll in and verify the work eligibility status of all his/her/its
newly hired employees through the E-Verify program as defined in IC 22-5-1.7-3. The
CONSULTANT is not required to participate should the E-Verify program cease to exist.
Additionally, the CONSULTANT is not required to participate if the CONSULTANT is self-
employed and does not employ any employees. Also, pursuant to I.C. 22-5-1.7,
CONSULTANT must execute an affidavit affirming that the CONSULTANT does not
knowingly employ an unauthorized alien and confirming CONSULTANT's enrollment in
the Program, unless the Program no longer exists, which Affidavit shall be filed with the
LOCAL PUBLIC AGENCY prior to the execution of this contract.
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The CONSULTANT shall not knowingly employ or contract with an unauthorized alien.
The CONSULTANT shall not retain an employee or contract with a person that the
CONSULTANT subsequently learns is an unauthorized alien.
The CONSULTANT shall require his/her/its subcontractors, who perform work under this
Contract, to certify to the CONSULTANT that the SUB-CONSULTANT does not knowingly
employ or contract with an unauthorized alien and that the SUB-CONSULTANT has
enrolled and is participating in the E-Verify program. The CONSULTANT agrees to
maintain this certification throughout the duration of the term of a contract with a SUB-
CONSULTANT.
The LOCAL PUBLIC AGENCY may terminate for default if the CONSULTANT fails to cure a
breach of this provision no later than thirty (30) days after being notified by the LOCAL
PUBLIC AGENCY.
8.0 Allocation of Risks—Indemnification
8.1 To the fullest extent permitted by law, CONSULTANT shall indemnify and hold
harmless LOCAL PUBLIC AGENCY, LOCAL PUBLIC AGENCY's officers, directors,
partners, and employees from and against any and all costs, losses, and damages
(including but not limited to all reasonable fees and charges of engineers,
architects, attorneys, and other professionals, and all court or arbitration or
other dispute resolution costs) caused solely by the negligent acts or omissions
of CONSULTANT or CONSULTANT's officers, directors, partners, employees, and
its consultants in the performance and furnishing of CONSULTANT's services
under this Agreement.
9.0 Waiver
LOCAL PUBLIC AGENCY and CONSULTANT further agree to waive, on behalf of their
assigns, employees, agents, and successors-in-interest, any and all consequential
damages arising out of their responsibilities hereunder.
10.0 Status of Claims
CONSULTANT shall be responsible for keeping the LOCAL PUBLIC AGENCY currently
advised as to the status of any claims made for damages against CONSULTANT which are
known resulting from services performed under this Agreement. CONSULTANT shall
send notice of claims related to Services under this Agreement to LOCAL PUBLIC
AGENCY within thirty(30) days.
11.0 Dispute Resolution -Jurisdiction and Venue
If disputes arise between LOCAL PUBLIC AGENCY and CONSULTANT during the course of
the Project, or following completion of the Project, which are not resolved within three
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(3) weeks after a demand for direct negotiation, the parties agree that all disputes
between them arising out or relating to this Agreement or the Project shall be
submitted to non-binding mediation, unless the parties mutually agree otherwise, with
mediation conducted in Evansville, Indiana. If the parties do not agree on a mediator
within ten (10)days after demand for mediation, either party may request the American
Arbitration Association to appoint a mediator who shall be an attorney having
substantial experience in construction law issues. If the mediator is unable to facilitate a
settlement of disputes within forty-five (45) days of his/her appointment, the mediator
shall issue a written statement to the parties to that effect and the aggrieved party may
then seek relief through litigation. Any such litigation shall be resolved without the
assistance of a jury, and each party hereby waives trial by jury in any claim whether in
contract or tort, at law or in equity, arising out of or in any way related to this
Agreement. If the parties are not able to settle the dispute through mediation, then it is
understood that both parties hereto agree and consent to the exercise of jurisdiction
over any matter or dispute arising in connection with this Agreement in a state court
sitting in the state and county in which the project resides.
12.0 Worker's Compensation and Liability insurance
CONSULTANT shall procure and maintain, until final payment by LOCAL PUBLIC AGENCY
for the Services covered by this Agreement, insurance of the kinds and in the amounts
hereinafter provided in insurance companies authorized to do such business in the State
of Indiana covering all operations under this Agreement whether performed by it or by
its subcontractor. CONSULTANT shall furnish a certificate or certificates in a form
satisfactory to LOCAL PUBLIC AGENCY, showing that this section has been complied
with. During the term of this Agreement, CONSULTANT shall furnish LOCAL PUBLIC
AGENCY with certificates showing that the required insurance coverage is maintained.
The certificate or certificates shall provide that the policies shall not be changed or
canceled until ten (10)days written notice has been given to the LOCAL PUBLIC AGENCY.
In the event that such written notice of change or cancellation is given, LOCAL PUBLIC
AGENCY may, at its option, terminate this Agreement and no further compensation
shall, in such case, be made to CONSULTANT:
The kinds and amounts of insurance required are as follows:
12.1 Policy covering the obligations of CONSULTANT in accordance with the
provisions of the Worker's Compensation law. This Agreement shall be void and
of no effect unless CONSULTANT procures such policy and maintains it until
acceptance of the CnnTirno
r ...... . . ,... ,...
12.2 Commercial General Liability Insurance (naming the LOCAL PUBLIC AGENCY as an
additional insured) with limits of liability to be not less than $1,000,000 per
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occurrence, including bodily injury and property damage, and not less than
$2,000,000 aggregate.
12.3 Commercial Automobile Liability Insurance, including hired or non-owned
vehicles with limits of liability of not less than $1,000,000 for each accident.
12.4 Professional Liability Insurance in the amount of at least $1,000,000 per claim
and aggregate.
13.0 Changes in the Services
In the event the LOCAL PUBLIC AGENCY requires change in the Services, after the
Services have progressed as directed by the LOCAL PUBLIC AGENCY, adjustments in
compensation to CONSULTANT, and in time for performance of the Services as
modified, shall be determined by the LOCAL PUBLIC AGENCY in consultation with
CONSULTANT and CONSULTANT shall not commence the change of scope of the
Services until a supplemental agreement is executed and CONSULTANT is authorized in
writing by the LOCAL PUBLIC AGENCY.
14.0 Termination
The obligation to provide further services under this Agreement may be terminated by
either party upon thirty (30) days written notice from receipt 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. If the services of this Agreement are terminated,
CONSULTANT shall deliver to the LOCAL PUBLIC AGENCY all data, reports, drawings,
specifications and estimates completed or partially completed and these shall became
the property of the LOCAL PUBLIC AGENCY. The earned value of the Services performed
shall be based upon an estimate of the portions of the total services as have been
rendered by CONSULTANT to the date of termination and which estimate shall be as
made by the LOCAL PUBLIC AGENCY in consultation with CONSULTANT for all Services to
be paid for on a lump sum basis.
15.0 Non-Discrimination
Pursuant to I.C. 22-9-1-10, CONSULTANT and its subcontractors, if any, shall not
discriminate against any employee or applicant for employment, to be employed in
performance of the services under this Agreement, with respect to hire, tenure, terms,
conditions or privileges of employment or any matter directly or indirectly related to
employment, because of race, color, religion, sex, handicap, national origin or ancestry.
Breach of this covenant may be regarded as a material breach of the Agreement.
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16.0 Successors and AssiAnee5
The LOCAL PUBLIC AGENCY, insofar as authorized by law, binds itself and its successors,
and CONSULTANT binds its successors, executors, administrators and assignees, to the
other party of this Agreement and to the successors, executors, administrators and
assignees of such other party, as the case may be insofar as authorized by law, in
respect to all covenants of this Agreement. Neither party may assign this Agreement, or
any right, interests, claim, chose in action, defense or privilege under this Agreement
without the written consent of the other party. Subcontracting to subconsultants,
normally contemplated by the CONSULTANT as a generally accepted business practice,
shall not be considered an assignment for purposes of this Agreement.
17.0 Entire Agreement—Supplements
This Agreement, together with the Appendices attached hereto, constitutes the entire
agreement between the parties. This Agreement may only be amended, supplemented
or modified by a written document executed in the same manner as this Agreement.
18.0 Duration of Agreement
If the basic Services covered in this Agreement have not been completed in accordance
with the Schedule set forth in Appendix "C" of this Agreement, through no fault of
CONSULTANT, extension of CONSULTANT's services beyond that time shall be revised,
through mutual agreement,to include compensation for inflationary adjustments.
19.0 Hazardous Environmental Condition
19.1 LOCAL PUBLIC AGENCY represents to CONSULTANT that to the best of its
Knowledge a Hazardous Environmental Condition does not exist.
19.2 LOCAL PUBLIC AGENCY has disclosed to the best of its knowledge to
CONSULTANT the existence of all asbestos, PCB's, petroleum, hazardous waste,
or radioactive material located at or near the Site, including type, quantity_ and
location.
19.3 If a Hazardous Environmental Condition is encountered or alleged, CONSULTANT
shall have the obligation to notify LOCAL PUBLIC AGENCY and, to the extent of
applicable laws and regulations, appropriate governmental officials.
19.4 If CONSULTANT's scope of services does not include any services related to a
Hazardous Environmental Condition and in the event CONSULTANT or any other
party encounters a Hazardous Environmental Condition, CONSULTANT 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
LOCAL PUBLIC AGENCY: (i) retains appropriate specialist consultant(s) or
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contractor(s) to identify and, as appropriate, abate, remediate, or remove the
Hazardous Environmental Condition, and (ii) warrants that the Site is in full
compliance with applicable laws and regulations.
19.5 LOCAL PUBLIC AGENCY acknowledges that CONSULTANT is performing
professional services for LOCAL PUBLIC AGENCY and that CONSULTANT is not
and shall not be required to become an "arranger", "operator", "generator", or
"transporter" of hazardous substances, as defined in the comprehensive
Environmental Response, Compensation, and Liability Act of 1990 (CERCLA),
which are or may be encountered at or near the Site in connection with
CONSULTANT's activities under this Agreement.
19.6 If CONSULTANT's services under this Agreement cannot be performed because
of a Hazardous Environmental Condition, the existence of the condition shall
justify CONSULTANT's terminating this Agreement for cause on thirty (30) days
notice.
20.0 Notices
All written notices required by this Agreement shall be sent to the parties at the
following addresses by certified mail, return receipt requested:
If to CONSULTANT: Lochmueller Group, Inc.
Attn: Matthew E.Wannemuehler
6200 Vogel Road
Evansville, Indiana 47715
If to LOCAL PUBLIC AGENCY: City of Jeffersonville
Attn: Mike Moore, Mayor
500 Quartermaster Court,Suite 220
Jeffersonville, Indiana 47130
21.0 Governing Law
Where permitted by law, this Agreement shatl be interpreted and enforced according to
the laws of the State of which the project resides, without resort to its conflict of laws
rules.
The undersigned attests, subject by the penalties for perjury, that it is the contract
party, or that it is the representative, agent, member or officer of CONSULTANT, that it
has not, nor has any other member, employee, representative, agent or officer of the
firm,company,corporation or partnership represented by it, directly or indirectly,to the
best of its knowledge, entered into or offered to enter into any combination, collusion
of agreement to receive or pay, and that it has not received or paid, any sum of money
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or other consideration for the execution of this Agreement other than that which
appears upon the face of the Agreement.
22.0 No Investment in Iran
22.1 As required by IC 5-22-16.5, the CONSULTANT certifies that the CONSULTANT is
not engaged in investment activities in Iran. Providing false certification may
result in the consequences listed in IC 5-22-16.5-14, including termination of this
Contract and denial of future state contracts, as well as an imposition of a civil
penalty.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement the day and year
first above written.
LOCHMUELLER GROUP, INC. CITY OF JEFFER NVILLE
By By
Mi, ael R. Hinton Mike MJPre
President/Chief Executive Officer Mayor
Date Date
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APPENDIX"A"
SCOPE OF SERVICES
CONSULTANT shall perform an investigation of Contract Documents for Delay Claim Review and
Liquidated damage disputes.
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APPENDIX`B"
INFORMATION AND SERVICES TO BE PROVIDED BY LOCAL PUBLIC AGENCY
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APPENDIX"CA
SCHEDULE
CONSULTANT shall provide the services set forth in Appendix "A" of this Agreement through
May 2017.
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APPENDIX"C
SCHEDULE
CONSULTANT shall provide the services set forth in Appendix "A" of this Agreement through
May 2017.
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APPENDIX"D"
COMPENSATION
1.0 AMOUNT OF PAYMENT
1.1 The CONSULTANT shall receive payment for the services performed under this
Agreement in the amount of a total fee not-to-exceed Ten Thousand Dollars
($10,000.00), unless a modification to this Agreement is approved in writing by
the LOCAL PUBLIC AGENCY.
1.2 The CONSULTANT shall be paid for providing the services set forth in Appendix
"A" based on the actual hours of work performed and in accordance with the
following rate schedule:
Construction Engineer III $142.02
2.0 METHOD OF PAYMENT
2.1 The CONSULTANT shall submit invoices to the client on a monthly basis for
services rendered. In no event shall the total of the CONSULTANT's invoices
exceed the amount provided in this Appendix "D" without prior approval as
provided elsewhere in this Agreement.
2.2 The LOCAL PUBLIC AGENCY shall pay the CONSULTANT for said invoices within
thirty(30)calendar days for CONSULTANT's services.
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