Signed Contract_Burlington and National Street Water Main Replacement Project 2021 Award Design Engineering Contract with WHKS & Co.City of Dubuque
City Council Meeting
Consent Items # 22.
Copyrighted
July 19, 2021
ITEM TITLE: Signed Contract(s)
SUMMARY: American Queen Steamboat Company Inc. for Docking Agreement at
the Port of Dubuque -American Trust River's Edge Plaza; Celebration
Belle for Docking Agreement at Port of Dubuque - Alliant Plaza Docking
Facility; Robin Dodd for management of Miller Riverview Park and
Campground and Dubuque Water Sports Club; Morton Salt, Inc for
Public Works Ice Control Road Salt; WHKS & Co. for the Burlington and
National Water Main Replacement Project 2021.
SUGGESTED Suggested Disposition: Receive and File
DISPOSITION:
ATTACHMENTS:
Description Type
Docking Agreement for American Trust River's Edge
Plaza
Docking Agreement for Alliant Plaza Docking Facility
Miller Riverview Park and Campground and Dubuque
Water Sports Club
Burlington and National Water Main Replacement
Project 2021
Public Works Ice Control Road Salt
Supporting Documentation
Supporting Documentation
Supporting Documentation
Supporting Documentation
Supporting Documentation
THE CITY OF Dubuque
DUB93E
All -America City
Masterpiece on the Mississippi 11111.1
2007. 2012. 2013. 2017
TO: Michael C. Van Milligen, City Manager
FROM: Christopher Lester, Water Department Manager
SUBJECT: Burlington and National Street Water Main Replacement Project 2021
Award Design Engineering Contract
DATE: July 9, 2021
INTRODUCTION
The purpose of this memorandum is to request authorization and execution of the
attached engineering services contract with WHKS & Co. of East Dubuque, Illinois
(WHKS) in the amount of $50,515. WHKS will assist the City with preliminary and final
design engineering, construction plans and specifications, bidding assistance through
award, and construction inspection, the Burlington and National Street Water Main
Replacement Project 2021.
BACKGROUND
Since 2004, the area in and around Burlington Street and National Street has been
subject to ten water main breaks, with five of those events occurring in the last three
years. Not only are the residents inconvenienced with unplanned water outages, but the
main breaks have also resulted in some localized flooding of adjacent properties.
The water main in Burlington Street is 1937, 6-inch cast iron pipe, and in National Street
is 1930's, 6-inch mono cast pipe. Both water mains were installed with lead joints and at
some locations buried deeper than normal to a depth of 9feet-6inches. The street is
unimproved with no storm sewer and has an asphalt curb -line where it has been
requested by the residents.
DISCUSSION
Following the main break that occurred on February 23, 2020, the city was contacted by
a representative of the neighborhood requesting the city examine and evaluate the
replacement water main in the area.
Planning and Design Engineering
In June, the City solicited for engineering proposals to complete engineering planning
and design of the Burlington and National Street Water Main Replacement Project.
Engineering Firm Review and Short List Process
The City received five engineering proposals on July 2, 2021 via email and at the City
Clerk's office. Each proposal was reviewed and scored by the Kerry Leppert, Water
Engineering Assistant and Christopher Lester, Water Department Manager. Proposals
were submitted by: Axiom Consultants of Iowa City, Iowa; MSA Professional Services of
Dubuque, Iowa; Origin Design of Dubuque, Iowa; the team of Watersmith
Engineering/Buesing & Associates of Muscatine, Iowa and Dubuque, Iowa; and WHKS
of East Dubuque, Illinois.
Staff reviewed each proposal to ensure that the minimum requirements of the proposal
were met. Each proposal was evaluated using a scoring system made available publicly
in the RFP. Qualifying proposals were short-listed for final selection. The following
criteria was used to initially evaluate the submitted proposals:
The firm must have a high level of professional competence and a proven track
record in the preparation of similar projects:
a. Qualifications and experience of the Consultant and any sub consultants.
b. Demonstration of the project team's professional expertise and technical
abilities.
c. If a joint venture with sub consultants, the track records of the Firms
experience working together.
d. Experience of the Consultant working on municipal projects.
e. Experience of the Consultant working on municipal projects in Iowa.
2. Review of the quality and completeness of the written proposal. The proposal
should clearly demonstrate understanding of the City's overall objectives for the
project.
3. Review of the design approach/methodology in completing scope of services
such as:
a. Grasp of project requirements and level of interest in the project.
b. Creativity and problem -solving ability.
c. Ability of Consultant team to demonstrate initiative, motivation and
knowledge as an indication of their desire to work with the City of
Dubuque.
4. Confirm inclusion of a proposed schedule required to complete the project.
Final Selection and Recommendation
The three firms short listed were evaluated on the level of effort necessary to perform
the requested scope of services. The staff evaluated the time to complete each task, the
qualifications and experience of the individuals identified, the innovation and initiative
2
each firm would bring to solving the problem, i.e. their ability and knowledge to
challenge the current solution prescribed in previous studies and the ability to recognize
other solutions that may result in cost savings, and the overall cost.
The following is a cost summary of each firm.
WHKS
MSA
Origin
Design
Preliminary and Final
$33,385
$42,700
$49,100
Engineering Design
Bidding and Award
$2,760
$2,000
$7,300
Construction Administration and
$14,370
$23,300
$37,400
Inspection
Estimated Total Engineering
$50,515
$68,000
$93,800
Costs
Upon review of the information provided from each firm including an evaluation of the
costs associated with the full scope of services recommends the City enter a contract
with WHKS of East Dubuque, Illinois.
WHKS has worked extensively with the City of Dubuque's Water Department on several
projects including the 2019 Tamarack Park Water Main Extension project which was
completed on schedule with minimal change orders, ensuring the City's compliance with
the Iowa Department of Natural Resources completion schedule.
The contract has been reviewed by Barry Lindahl, City Attorney's office.
BUDGETIMPACT
The estimate of probable cost for the Burlington & National Street Water Main
Replacement Project 2021 is:
Description
Cost Estimate
Construction Cost Estimate*
$350,000
Contingency
$35,000
Engineering & Inspection**
$100,000
Total Estimated Project Cost
$485,000
*Costs for construction materials increased significantly during COVID-19, therefore the
original construction estimate was increased by 17% (Combined Average percentage
increase of Plastic, Steel and Copper) from an estimated $300,000 to $350,000.
**Costs for Engineering and Inspection services were higher than anticipated during a
recent proposal request for engineering services for Orchard Drive Water Main
Replacement, therefore additional funding may also be requested beyond the
designated CIP.
3
The project currently has funding identified in FY2022, however due to possible
increase in construction, design engineering, and inspection services funding is being
requested for reallocation from a complementary capital project. A source of possible
additional project funding could be made available from 740-2873 Public Safety Way.
The water main extension along Public Safety Way was cancelled in 2020 and funds
were not reassigned to another project.
The source of the funds identified are Water Construction Local Funds.
CIP No.
FY
Fund Description
Fund Amount
740-2897
2022
Burlington Street Water Main Replacement
$350,000
740-2873
2021
Public Safety Way
$135,000
Total Funds Available
$485,000
Funds are available support the proposal from WHKS. The engineering proposal from
WHKS in the amount of $50,515 is $49,485 or 49.5% less than the available funds of
$100,000.
TENTATIVE SCHEDULE
Solicit for Engineering Design Proposals
Completed
Receipt of Proposals
Completed
Award Engineering Design
In process
Initiate Public Bidding & Set Public Hearing Date
August 16, 2021
Publish Notice to Bidders, Advertise for Bids
August 18, 2021
Publish Public Hearing Notice on Plans & Specs
August 20, 2021
Public Hearing on Plans & Specifications
September 7, 2021
Receipt of Bid Proposals (Bid Letting)
September 9, 2021
Award Construction Contract
September 20, 2021
Project Completion Date
November 12, 2021
REQUESTED ACTION
I respectfully request authorization and execution of the attached engineering services
contract with WHKS & Co. of East Dubuque, Illinois (WHKS) in the amount of $50,515.
WHKS will assist the City with preliminary and final design engineering, construction
plans and specifications, bidding assistance through award, and construction
inspection, the Burlington and National Street Water Main Replacement Project 2021.
Once signed the contract will be placed on the next available City Council Consent
Agenda, Signed Contracts.
Attachments: WHKS Contract
12
cc: Jenny Larson, Director of Finance and Budget
Gus Psihoyos, City Engineer
John Klostermann, Public Works Director
Jathks
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT, by and between the City of Dubuque hereinafter referred to as the "Client" and
WHKS & Co., hereinafter referred to as "WHKS", is made as follows:
WHEREAS, the Client has a need for certain professional services relating to the project described as
Burlington and National Water Main Replacement Project 2021.
WHEREAS, WHKS proposes to furnish the professional services required by the Client for said project,
NOW THEREFORE, the Client hereby agrees to retain and compensate WHKS to perform the
professional services in accordance with the terms and conditions of this Agreement and the attached
Standard Terms and Conditions.
WHKS shall perform the following described services for the Client:
Design, bid, and construction phase engineering services as described on the attached Scope
of Services included in Exhibit A.
For the services described above, the Client shall remunerate WHKS as follows:
Billed Hourly with a Not -to -Exceed Fee of $50,515.00 including Expenses.
Executed this day of July, 2021
City of Dubuque / WHKS & co.
By: lat ��By:
Printed Name: Michael C. Van Milligan Printed Name:
Steven Scott Sweet, P.E.
Title: Citv Manaaer Title: Principal
whks
Exhibit A to Professional Services Agreement
A. Project Description
The project consists of the survey, design and part-time construction services for the
replacement of existing water mains along Burlington St., National St., Stoltz St., and Muscatine
St. and locating an appropriate site for an air release valve as shown on Exhibit B. The project
will use the City of Dubuque special provisions and SUDAS specifications. The water main on
all streets, other than Burlington, will be considered alternate bids.
1. Project Management
The Project Manager will;
a. Keep strict control over costs related to this project.
b. Will serve as the primary point of contact for all exchange of information between the
Client and the Contractor.
c. Maintain an updated critical path project schedule based on the proposed completion
schedule.
d. Coordinate with the City to maintain an updated Total Project Cost (TPC) budget for the
duration of the project. The budget shall include estimated consultant and vendor fees,
construction costs, and all direct costs and reimbursable expenses for the Consultant,
Sub -consultants, and the City.
e. Prepare bi-monthly project progress reports or as requested by the Client.
f. Attend three (3) project update meetings, not including the kick- off meetings.
g. Conduct an onsite or tabletop kick-off meeting with Water Department Staff as assigned
by the Department Manager or designee to confirm scope, schedule, and budget for the
project.
2. Quality Assurance/Quality Control
The Consultant shall have a formal written QA/QC program in place for the full duration of the
project. The written program may be requested by the City at the project kick-off meeting for
review. Upon request from the City and at any time throughout the project, the Consultant shall
provide documentation to the City that verifies the QA/QC program is being actively utilized
and followed.
B. Project Scope of Services
1. Survey, Design, Bidding, Award, and Construction Observation
The following are the scope of services related to the Burlington and National Street Water
Main Replacement Project 2021:
a. Conduct design survey for the purposes of creating engineered plans and specifications for
bidding.
b. Obtain in field video (drone with permit, or traditional video means) of pre -construction road,
housing, and sidewalks adjacent to the project site and construction limits to limit future
conflict and claims. Obtain photos to supplement the video where further detail may be
necessary. Prepare a searchable electronic report by naming video and photo locations for
the City's files.
c. Conduct a survey of the distribution system to determine the best location of a proposed air
release structure.
d. Review alternative methods of replacement may be applicable because of the late season
bidding of the project. It is anticipated the wearing surface shall be fully restored prior to the
close of the asphalt plant which is typically early November. In that event that traditional
installation is necessary, an alternate will be included in the bid for temporary surfacing. The
City's Public Works Department shall complete the street resurfacing in 2022 in the event
temporary resurfacing is conducted.
e. Determine limits of curb line and sidewalk replacement and/or installation with Water
Department, Engineering, and Public Works Staff.
f. Review Park Hill Pumping Station data with Water Treatment Plant operations staff to monitor
routine and regular operation of the Park Hill Pumping Station following water main
replacement and air release structure installation.
g. Prepare final engineering design and specification documents, including any alternates and
temporary surfacing, for bidding in accordance with the City's design Standard and
Specifications SUDAS and the Water Department's Specification.
h. Prepare Engineered Estimate of Probable Cost.
i. Obtain all necessary local and state permits, including DNR permits.
j. Assist the City with bid letting, City Manager and Council memorandum preparation, and
award services.
k. Construction observation and inspection of four (4) hours, intermittent per day is expected to
answer questions, obtain material counts for as-builts, and make sure construction is per City
standards and SUDAS specifications.
I. Provide construction administration assistance during construction. Contract administration
assistance activities conducted during project construction include clarification of design details,
periodic visits to the construction site to observe the progress of work, review of shop drawings,
review periodic payment estimates for completed construction work and recommend payments
for processing, prepare change orders when required, and prepare the final summary of
construction costs.
m. Conduct a preconstruction meeting with Client, Contractor and Utility Owners.
n. Prepare record drawings at the completion of the construction.
o. Provide construction updates to the Client.
p. Provide as-builts of the construction project and submit to the City of Dubuque Water
Department upon completion. WHKS will be responsible for maintaining construction records
of all water distribution materials used in the project. Measurements from existing surface
features such as from back -of -curbs, building foundation lines, valves and hydrants to the new
water mains, valve fittings, etc., shall be recorded, including depth measurements. Upon
installation, copies of the construction records shall be submitted to the City of Dubuque Water
Department located at 925 Kerper Court, Dubuque, Iowa 52001. The primary contact person is
Kerry Leppert (563)-589-4292 or (email) kleppert cityofdubuque.org.
C. Project Area
1. See Exhibit B for Project Area.
Special Engineering Services are those services not listed above, but which may be required or
advisable to accomplish the Project. Special Engineering Services shall be performed when
authorized by the Client for additional fees, to be determined at the time authorized.
Special Engineering Services include:
1. Land surveying and platting
2. Easement research, plats or descriptions
3. Negotiation for easements or land acquisition
4. Special assessment assistance
5. Quality control testing and construction materials testing
6. Permits other than those identified above
7. Funding assistance, including grant and/or loan applications
8. Water and/or sanitary sewer rate studies
9. Geotechnical design/recommendations
10. Structural evaluation and/or design
11. Attendance at additional meetings (other than those listed above)
Burlington -National Water .
Project Ovei
2970
v� �o
375 DO s,� 2960
2999
PQV4 , �t2950 x
273
�a n rAL�_ERNA�#3
OLT2975 7Z ST.
!
2967 !
V 2951
380 ale 2944
S
400 PV
29474,
,
�P
!
! 3040
2945
467 Cp 2935
3035 !
475
! n
3015
! R 2960 ALTEF
3009 n� A NATIC
4/A A
3080 3060 2940
3090 ('�: 2938
3040 Y965
KE6�%CUK�T
6"! e`
i 4CIAC 2934
3020 rO
2945
2937
3085 3010 i
N 500 P ! MAIN PROJECT 2933
�2 BURLINGTON ST.
(D % 2925 4
h 3015
x
510 PS kF0
�O4 2950
3
530 �.
6+„ 540
24
535 296
4 5
601
2 2945
UU�B��E
�Special Achievement in GIS
2775 0 2018 Award Winner
i
Masterpiece on the Mississippi Cp
3 i 2774
N
I'3
• 0
i city
Du - • O •
• ,IA
s i Kucer • •
® Inte a •
Yr 2. ti 17 ///�v/ •
u see •
—b.: TM1Is mf°�rnazl°n was c° Pottle V
sn9 th, D,b,,I,,,A 5 phlc ys n
�oAe s7 _ em a ted b L, °r � •
he
d s tl e a,,,,the 1 inch = 1 fe t • •
he Cl[ que tl 'nug g fii d M1 ^
s up be tl f I bl DAGIS d •
°f° ° 1h c y d h p 9 0 50 100 0 00 0 Feet
agen II h le for a y d [- d ' d I
c° .. p , °f';pec al tlp 9 h h bl
bl it, 't °f the autli d M1 tl use °f
th �d [ the nabl'ty t° use this tl °f, b cM1 °f y M1 sever. V //\\/JJ\J\�^\•�` •
•
b •f
C ,
•
o G
n
Map Prepared by:
City of Dubuque
Water Department
1902 Hawthorne St
563-589-4291
STANDARD TERMS AND CONDITIONS
FOR
PUBLIC SECTOR PROJECTS
1. Scope of Services
Client and WHKS have agreed to a
list of services WHKS will provide to
Client as listed on the Professional
Services Agreement Form.
2. Governinq Law
The laws of the State of Iowa will
govern this Agreement, its interpreta-
tion and performance. Any litigation
arising in any way from this
Agreement shall be brought in the
Iowa District Court for Dubuque
Coun .
3. Standard of Care
Services provided by WHKS under
this Agreement will be performed in a
manner consistent with that degree
of care and skill ordinarily exercised
by members of the same profession
currently practicing under similar
circumstances aR IeEaR .
4. Integration
This Agreement comprises the final
and complete agreement between
Client and WHKS. It supersedes all
prior communications, representa-
tions, or agreements, whether oral or
written, relating to the subject matter
of this Agreement. Execution of this
Agreement signifies that each party
has read the document thoroughly.
Amendments to this Agreement shall
not be binding unless made in writing
and signed by both Client and
WHKS.
5. Guarantees and Warranties
WHKS shall not be required to sign
any documents, no matter by whom
requested, that would result in
WHKS having to guarantee or
warrant the existence of conditions
whose existence WHKS cannot
ascertain. Client also agrees not to
make resolution of any dispute with
WHKS or payment of any amount
due to WHKS in any way contingent
upon WHKS signing any such
guarantee or warranty.
6. Indemnification
WHKS agrees, to the extent
permitted by law, to indemnify and
hold Client, its officers and
employees harmless from any
damage, liability or cost (including
reasonable attorney's fees and costs
of defense) to the extent caused by
WHKS' negligent acts, errors or
omissions in the performance of
professional services under this
Agreement and those of its
subconsultants or anyone for whom
WHKS is legally liable.
Client agrees, to the extent permitted
by law, to indemnify and hold WHKS
harmless from any damage, liability
or cost (including reasonable
attorneys' fees and costs of defense)
to the extent caused by Client's
negligent acts, errors or omissions
and those of Client's contractors,
subcontractors or consultants or
anyone for whom Client is legally
liable.
Neither WHKS nor Client shall be
obligated to indemnify the other party
in any manner whatsoever for the
other party's own negligence.
7. Billing and PaymentProvisions
Invoices shall be submitted by
WHKS monthly and are due upon
presentation and shall be considered
PAST DUE if not paid within thirty
(30) calendar days of the invoice
date.
If payment is not received by WHKS
within thirty (30) calendar days of the
invoice date, Client shall pay as
interest an additional charge of one
whks
crr mrs + plannen + WW urw7mrs
Page 1 of 4
and one -quarter percent (1.25%)
of the PAST DUE amount per
month. Payment thereafter shall
first be applied to accrued interest
and then to the unpaid principal.
If Client fails to make payments
within sixty (60) days from the
date of an invoice or otherwise is in
breach of this Agreement, WHKS
may, at its option, suspend
performance of services upon five
(5) calendar days' notice to Client.
WHKS shall have no liability
whatsoever to Client for any costs
or damages as a result of such
suspension caused by any breach
of this Agreement by Client. If
Client fails to make payment to
WHKS in accordance with the
payment terms herein, this shall
constitute a material breach of this
Agreement and shall be cause for
termination by WHKS.
In the event legal action is
necessary to enforce the payment
provisions of this Agreement,
WHKS shall be entitled to collect
from Client any judgment or
settlement sums due, reasonable
attorneys' fees, court costs and
expenses incurred by WHKS in
connection therewith and, in
addition, the reasonable value of
WHKS personnel time and
expenses spent in connection with
such collection action, computed at
WHKS current fee schedule and
expense policies.
Payment of invoices is in no case
subject to unilateral discounting or
set -offs by Client, and payment is
due regardless of suspension or
termination of this Agreement by
either party.
8. Ownership of Records
All reports, plans, specifications,
field data and notes and
other
documents, including all documents
on electronic media, prepared by
WHKS as instruments of service
shall remain the property of WHKS.
Client shall be permitted to retain
copies, including reproducible
copies, of the plans and
specifications for information and
reference in connection with Client's
use of the completed project. The
plans and specifications shall not be
used by Client or by others on other
similar projects except by agreement
in writing by WHKS.
9. Delivery of Electronic Files
In accepting and utilizing any
drawings, reports and data on any
form of electronic media generated
and provided by WHKS, Client
covenants and agrees that all such
electronic files are instruments of
service of WHKS, who shall be
deemed the author, and who shall
retain all rights under common and
statutory laws, and other rights,
including copyrights. Client is aware
that differences may exist between
the electronic files delivered and the
respective construction documents
due to addenda, change orders or
other revisions. In the event of a
conflict between the signed
construction documents prepared by
WHKS and electronic files, the
signed construction documents shall
govern.
Client and WHKS agree that the
electronic files prepared by WHKS
shall conform to the current CADD
software in use by WHKS or to other
mutually agreeable CADD specifica-
tions defined in the Agreement. Any
changes to the CADD specifications
by either Client or WHKS are subject
to review and acceptance by the
other party. Additional efforts by
WHKS made necessary by a change
to the CADD specifications or other
software shall be compensated for
as Additional Services.
The electronic files provided by
WHKS to Client are submitted for an
acceptance period of 60 days. Any
defects Client discovers during this
period will be reported to WHKS and
will be corrected as part of the Scope
of Services. Correction
of defects
detected and
reported
after the
acceptance
period
will be
compensated
for as
Additional
Services.
Client agrees not to reuse the
electronic files, in whole or in part, for
any purpose or project other than the
project that is the subject of this
Agreement. Client agrees not to
transfer the electronic files to others
without the prior written consent of
WHKS, except as required by law.
In addition, Client agrees, to the
extent permitted by law, to indemnify
and hold WHKS harmless from any
damage, liability or cost, including
reasonable attorney's fees and costs
of defense, arising from any changes
made by anyone other than WHKS
or from any reuse of the electronic
files without the prior written consent
of WHKS.
Under no circumstance shall delivery
of the electronic files for use by
Client be deemed a sale by WHKS
and WHKS makes no warranties,
either express or implied, of
merchantability and fitness for any
particular purpose. In no event shall
WHKS be liable for any loss of profit
or any consequential damages.
10. Changed Conditions
Client shall rely on the judgment of
WHKS as to the continued adequacy
of this agreement in light of
occurrences or discoveries that were
not originally contemplated by or
known to WHKS. Should WHKS call
for contract renegotiation, WHKS
shall identify the changed conditions
necessitating renegotiation and
WHKS and Client shall promptly and
in good faith enter into renegotiation
of this Agreement. If terms cannot
be agreed to, the parties agree that
either party has the absolute right to
terminate this Agreement.
11. Permits and Approvals
WHKS shall assist Client in applying
for those permits and approvals
typically required by law for projects
similar to the one for which WHKS
services are being engaged. This
assistance consists of completing
and submitting forms as to the
results of certain work included in the
Scope of Services.
12. Suspension of Services
If the project is suspended for more
than thirty (30) calendar days in the
aggregate, WHKS shall be
compensated for services performed
and charges incurred prior to receipt
of notice to suspend and, upon
resumption, an equitable adjustment
in fees to accommodate the resulting
demobilization and remobilization
costs. In addition, there shall be an
equitable adjustment in the project
schedule based on the delay caused
by the suspension. If the project is
suspended for more than ninety (90)
calendar days in the aggregate,
WHKS may, at its option, terminate
this Agreement upon giving notice in
writing to Client.
13. Termination
Either Client or WHKS may terminate
this Agreement at any time with or
without cause upon delivering to
giving the other party not less than
seven (7) calendar days prior written
notice. Client shall within thirty (30)
calendar days of termination pay
WHKS for all services rendered and
all costs incurred up to the date of
termination, in accordance with the
compensation provisions of the
Agreement.
14. Unauthorized Changes
In the event Client, Client's
contractors or subcontractors or
anyone for whom Client is legally
liable makes or permits to be made
any changes to any reports, plans,
specifications or other contract
documents prepared by WHKS
without obtaining WHKS' prior written
consent, Client shall assume full
responsibility for the results of such
changes. Therefore, Client agrees to
waive any claim against WHKS and
to release WHKS from any liability
arising directly or indirectly from such
changes.
Client also agrees, to the extent
permitted by laws, to indemnify and
hold WHKS harmless from any
Page 2 of 4
damage, liability or cost, including
reasonable attorneys' fees and costs
of defense, arising from such
changes.
15. Jobsite Safety
Neither the professional activities of
WHKS nor the presence of WHKS or
its employees and subconsultants at
a construction site, shall relieve the
General Contractor and any other
entity of their obligations, duties and
responsibilities including, but not
limited to, construction means,
methods, sequence, techniques or
procedures necessary for
performing, superintending or
coordinating all portions of the
construction work in accordance with
the contract documents and any
health or safety precautions required
by any regulatory agencies. WHKS
and its personnel have no authority
to exercise any control over any
construction contractor or other entity
or their employees in connection with
their work or any health or safety
precautions.
16. Additional Services
Services which are requested by
Client or are required as part of the
Project, but are not included in the
Scope of Services, are considered
Additional Services.
WHKS will notify Client in writing
when Additional Services will be
needed. WHKS and Client will agree
on the extent of the Additional
Service(s) required and will agree on
the method and amount of the
compensation for performance of
said agreed upon Additional
Services.
WHKS will not perform Additional
Services which will result in
additional cost to Client without
daGuMeRted verbal rp for written
authority of Client.
In the event WHKS is requested or
required to participate in any dispute
resolution procedure which involves
any aspect of the Project, Client
agrees to compensate WHKS for the
reasonable value of WHKS'
personnel time and expensesspent
in connection with such procedures
computed at WHKS' then current fee
schedule and expense policies.
17. Dispute Resolution
In an effort to resolve any conflicts
that arise, Client and WHKS agree
that all disputes between them
arising out of or relating to this
Agreement shall be submitted to
nonbinding mediation unless the
parties mutually agree otherwise.
18. Third Party Beneficiaries
Nothing contained in this Agreement
shall create a contractual relationship
with or a cause of action in favor of a
third party against either Client or
WHKS. WHKS' services under this
Agreement are being performed
solely for Client's benefit, and no
other entity shall have any claim
against WHKS because of this
Agreement or the performance or
nonperformance of services
hereunder.
19. Extension of Protection
Client agrees to extend any and all
liability limitations and
indemnifications provided by Client
to WHKS to those individuals and
entities WHKS retains for
performance of the services under
this Agreement, including but not
limited to WHKS officers and
employees and their heirs and
assigns, as well as WHKS
subconsultants and their officers,
employees, heirs and assigns.
20. Timeliness of Performance
WHKS will perform the services
described in the Scope of Services
with due and reasonable diligence
consistent with sound professional
practices.
21. Delays
WHKS is not responsible for delays
caused by factors beyond WHKS'
reasonable control, including but not
limited to delays because of strikes,
lockouts, work slowdowns or
stoppages, accidents, acts of God,
failure of any governmental or other
regulatory authority to act in a timely
manner, failure of Client to furnish
timely information or approve or
disapprove of WHKS' services or
work product promptly, or delays
caused by faulty performance by
Client or by contractors of any level.
When such delays beyond WHKS'
reasonable control occur, Client
agrees WHKS is not responsible for
damages, nor shall WHKS be
deemed to be in default of this
Agreement.
22. Right to Retain Subconsultants
WHKS may use the services of
subconsultants when, in the sole
opinion of WHKS, it is appropriate
and customary to do so. Such
persons and entities include, but are
not limited to, aerial mapping
specialists, geotechnical consultants
and testing laboratories. WHKS' use
of other consultants for additional
services shall not be unreasonably
restricted by Client provided WHKS
notifies Client in advance.
23. Assignment
Neither party to this Agreement shall
transfer, sublet or assign any rights
under or interest in this Agreement
(including but not limited to monies
that are due or monies that may be
due) without the prior written consent
of the other party.
24. Severability and Survival
Any provision of this Agreement later
held to be unenforceable for any
reason shall be deemed void, and all
remaining provisions shall continue
in full force andeffect.
25. Hazardous Materials
It is acknowledged by both parties
that WHKS' Scope of Services does
not include any services related to
asbestos or hazardous or toxic
materials. In the event WHKS or any
other party encounters asbestos or
hazardous or toxic materials at the
Jobsite, or should it become known in
any way that such materials may be
present at the jobsite or any adjacent
areas that may affect the
performance of WHKS services,
Page 3 of 4
WHKS may, at its option and without
liability for consequential or any other
damages, suspend performance of
services on the project until Client
retains appropriate specialist
consultant(s) or contractor(s) to
identify, abate and/or remove the
asbestos or hazardous or toxic
materials, and warrant that the
jobsite is in full compliance with
applicable laws and regulations.
26. Joint Participation
The parties have participated jointly
in the negotiation and preparation of
all agreements between the parties.
Each party has had an opportunity to
obtain the advice of legal counsel
and to review and comment upon
this instrument. Accordingly, no rule
of construction shall apply against
any party or in favor of any party.
This instrument shall be construed
as if the parties jointly prepared it
and any uncertainty or ambiguity
shall not be interpreted against one
partyand in favor of another.
27. Record Documents
If required in the Professional
Services Agreement, WHKS shall,
upon completion of the Work,
compile for and deliver to the Client
a reproducible set of Record
Documents that are based upon the
marked -up record drawings,
addenda, change orders and other
data furnished by the Contractor or
other third parties. These Record
Documents may show certain
significant changes from the original
design made during construction.
Because these Record Documents
are based on unverified information
provided by other parties, which the
Consultant is entitled to assume as
reliable, the Consultant does not
warrant their accuracy.
28. Insurance. WHKS shall at
all times during the performance of
Services pursuant to this Agreement
provide insurance as described in
the attached Insurance Schedule.
Revised 02/23/07
Revised: 04/29/09
Page 4 of 4