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HomeMy WebLinkAbout21-76 Agreement Cesare Inc Geotechnical Services St. Vrain Water Treatment Plant's Injection Well Pads 06-23-2021RESOLUTION N0.21-76 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, APPROVING AN AGREEMENT BETWEEN CESARE INC AND THE TOWN OF FIRESTONE FOR GEOTECHNICAL SERVICES FOR THE ST VRAIN WATER TREATMENT PLANT'S INJECTION WHEREAS, the Town of Firestone ("Town") is in need of geotechnical engineering soil and concrete testing services and associated proj ect management for the St. Vrain Water Treatment Plant Project's ("Project") Injection Well Pads; and WHEREAS, as Cesare Inc., has been involved in the design of and provided geotechnical engineering services for other aspects of the Project it is uniquely well positioned to provide the geotechnical engineering services required for the Injection Well Pads. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO. The Agreement between the Town of Firestone and Cesare, Inc., for geotechnical engineering services for the St. Vrain Water Treatment Plant Project's Injection Well Pads is approved in substantially the same form as the copy attached hereto and made a part of this resolution and the Mayor is authorized to execute the Agreement on behalf of the Town. INTRODUCED, READ AND ADOPTED thi dray of r , 2021. TOWN OF FIRESTONE, COLORADO bi Sii�elar, Mayor ATTEST: J$s�ica Koenig, Cl��� Clerk INUMIMATANAWAIUN AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT FOR PROFESSIONAL SERVICES (the "Agreement") is made and entered into this 23 day of June 2021 (the "Effective Date"), by and between the TOWN OF FIRESTONE, a Colorado municipal corporation with an address of 151 Grant Avenue, P.O. Box 100, Firestone, Colorado 80520 (the "Town"), and Cesare, Inc., a Colorado corporation and an independent contractor with a principal place of business at 7108 South Alton Way, Building B, Centennial, CO 80112 ("Contractor") (each a "Party" and collectively the "Parties"). WHEREAS, the Town requires professional services; and WHEREAS, Contractor has held itself out to the Town as having the requisite expertise and experience to perform the required professional services. NOW, THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. SCOPE OF SERVICES A. Contractor shall furnish all labor and materials required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from the Scope of Services set forth in Exhibit A, attached hereto and incorporated herein by this reference and known as: Firestone Injection Well Pad Geotechnical Engineering (W2021-9545.01) B. A change in the Scope of Services shall not be effective unless authorized as an amendment to this Agreement. If Contractor proceeds without such written authorization, Contractor shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action. II. TERM AND TERMINATION A. This Agreement shall commence on the Effective Date, and shall continue until Contractor completes the Scope of Services to the satisfaction of the Town, or until terminated as provided herein. Be Either Party may terminate this Agreement upon 30 days advance written notice. The Town shall pay Contractor for all work previously authorized and completed prior to the date of termination. If, however, Contractor has substantially or materially breached this Agreement, the Town shall have any remedy or right of set-off available at law and equity. III. COMPENSATION In consideration for the completion of the Scope of Services by Contractor, the Town shall pay Contractor on an hourly rate plus expenses not to exceed an amount of 12 003.00. This amount is an estimate and includes all fees, costs and expenses that may be incurred by Contractor, and no additional amounts shall be paid by the Town for such fees, costs and expenses without prior written approval. Contractor may submit periodic invoices, which shall be paid by the Town within 30 days of receipt. 0 IV. PROFESSIONAL RESPONSIBILITY A. Contractor hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and professional licenses in good standing, required by law. The work performed by Contractor shall be in accordance with generally accepted professional practices and the level of competency presently maintained by other practicing professional firms in the same or similar type of work in the applicable community. The work and services to be performed by Contractor hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations. B. The Town's review, approval or acceptance of, or payment for any services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action isi arng out of the performance of this Agreement. C. Because the Town has hired Contractor for its professional expertise, Contractor agrees not to employ subcontractors to perform any work except as expressly set forth in the Scope of Services. V. OWNERSHIP Any materials, items, and work specified in the Scope of Services, and any and all related documentation and materials provided or developed by Contractor shall be exclusively owned by the Town. Contractor expressly acknowledges and agrees that all work performed under the Scope of Services constitutes a "work made for hire." To the extent, if at all, that it does not constitute a "work made for hire," Contractor hereby transfers, sells, and assigns to the Town all of its right, title, and interest in such work. The Town may, with respect to all or any portion of such work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change such work without providing notice to or receiving consent from Contractor. If the Town reuses or makes any modification to Consultant's designs, documents or work product without the prior written authorization of Consultant, the Town agrees, to the fullest extent permitted by law, to release the Consultant, its officers, directors, employees and sub -consultants from all claims and causes of action arising from such uses, and shall indemnify and hold them harmless from all costs and expenses, including the cost of defense, related to claims and causes of action to the extent such costs and expenses arise from the Town's modification or reuse of the documents. The Town expressly acknowledges and agrees that the documents and data to be provided by Consultant under the Agreement may contain certain design details, features and concepts from the Consultant's own practice detail library, which collectively may form portions of the design for the Project, but which separately, are, and shall remain, the sole and exclusive property of Consultant. Nothing herein shall be construed as a limitation on the Consultant's right to re -use such component design details, features and concepts on other projects, in other contexts or for other clients. VI. INDEPENDENT CONTRACTOR Contractor is an independent contractor. Notwithstanding any other provision of this Agreement, all personnel assigned by Contractor to perform work under the terms of this Agreement shall be, and remain at all times, employees or agents of Contractor for all purposes. Contractor shall make no representation that it is a Town employee for any purposes. VII. INSURANCE A. Contractor agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor pursuant to this Agreement. At a minimum, Contractor shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3. Professional liability insurance with minimum limits of $1,000,000 each claim and $2,000,000 general aggregate. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees or its contractors shall be excess and not contributory insurance to that provided by Contractor. Contractor shall be solely responsible for any deductible losses under any policy. C. Contractor shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. VIII. INDEMNIFICATION A. Contractor agrees to indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Agreement if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of Contractor, any subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor, or which arise out of a worker's compensation claim of any employee of Contractor or of any employee of any subcontractor of Contractor. Contractor's liability under this indemnification provision shall be to the fullest extent of, but shall not exceed, that amount represented by the degree or percentage of negligence or fault attributable to Contractor, any subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor or of any subcontractor of Contractor. B. If Contractor is providing architectural, engineering, surveying or other design services under this Agreement, the extent of Contractor's obligation to indemnify and hold harmless the Town may be determined only after Contractor's liability or fault has been determined by adjudication, alternative dispute resolution or otherwise resolved by mutual agreement between the Parties, as provided by C.R.S. § 13-50.5-102(8)(c). IX. ILLEGAL ALIENS A. Certification. By entering into this Agreement, Contractor hereby certifies that, at the time of this certification, it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement and that Contractor will participate in either the E-Verify Program administered by the United States Department of Homeland Security and Social Security Administration or the Department Program administered by the Colorado Department of Labor and Employment to confirm the employment eligibility of all employees who are newly hired to perform work under this Agreement. B. Prohibited Acts. Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement, or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. C. Verification. 1. If Contractor has employees, Contractor has confirmed the employment eligibility of aII employees who are newly hired to perform work under this Agreement through participation in either the E-Verify Program or the Department Program, 2. Contractor shall not use the E-Verify Program or Department Program procedures to undertake pre -employment screening of job applicants while this Agreement is being performed. 3. If Contractor obtains actual knowledge that a subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien who is performing work under this Agreement, Contractor shall: notify the subcontractor and the Town within 3 days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien who is performing work under this Agreement; and terminate the subcontract with the subcontractor if within 3 days of receiving the notice required pursuant to subsection 1 hereof, the subcontractor does not stop employing or contracting with the illegal alien who is performing work under this Agreement; except that Contractor shall not terminate the subcontract if during such 3 days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien who is performing work under this Agreement. D. Duty to Comply with Investigations. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation conducted pursuant to C.R.S. § 8-17.5-102(5)(a) to ensure that Contractor is complying with the terms of this Agreement. E. Affidavits. If Contractor does not have employees, Contractor shall sign the No Employee Affidavit" attached hereto. If Contractor wishes to verify the lawful presence of newly hired employees who perform work under the Agreement via the Department Program, Contractor shall sign the "Department Program Affidavit" attached hereto. X. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Weld County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third -party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre -paid, first class United States Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities or protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. J. Rights and Remedies. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. K, Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. Representative Authority. Each person signing this Agreement represents and warrants that he or she is duly authorized and has the legal capacity to execute the Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. OWN O�/) I I % TT GIII, I OLO r, Bobbi Sindelar ATTEST; jes ' a Koenig, Town CESARE, INC. By: Print: K. Craig Vaughn, P.E. Title: Senior Princi ATTEST: Print Name: Jan K. Wright DEPARTMENT PROGRAM AFFIDAVIT To be completed only if Contractor participates in the Department of Labor Lamful Presence Verification Program I, , as a public contractor under contract with the Town of Firestone (the "Town"), hereby affirm that: 1. I have examined or will examine the legal work status of all employees who are newly hired for employment to perform work under this public contract for services ("Agreement") with the Town within 20 days after such hiring date; 2. I have retained or will retain file copies of all documents required by 8 U.S.C. § 1324a, which verify the employment eligibility and identity of newly hired employees who perform work under this Agreement; and 3. I have not and will not alter or falsify the identification documents for my newly hired employees who perform work under this Agreement. Signature Date STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was subscribed, sworn to (or affirmed) before me this _day of 2020, by as of My commission expires: (SEAL) Notary Public EXHIBIT A SCOPE OF SERVICES HOURLY RATE PROPOSAL OSARK INC. Firestone Injection Well Pads Proposal Agreement No. 210506 Genteehuteal L'nglneers & Construction hfarertals Consultants Field Services Frequency of Service Estimated Hours Hourly Rate Total Engineering technician (earthwork testing) Full Time 100 $68 $6,800 Engineering technician (concrete testing) When called 14 $68 $952 Field Services Subtotal $7,752 Laboratory Testing # of Tests Unit Rate Total Soil Moisture/density relationship Proctor with classification 3 $277 $831 Relative density (pipe bedding Concrete Compressive strength cylinders sets of 5 2 $75 $150 Labo atory Testing Subtotal $981 Project Management Estimated Hours Hourly Rate Total Project manager 18 $130 $2,340 Principal review 4 $150 $600 Technical support 6 $55 $330 Project Management Subtotal $3,270 TOTAL ESTIMATE $12,003 1) Estimate is based on project plans and specifications (dated 03J23/2021 by Civil Arts, ), bid schedule quantities, number of crews, timing, and sequencing provided by Mr. David Lindsay representing the Town of Firestone, Tom Bail representing Fortress Development Solutions, and Cesare's experience. Estimated hours are based on testing the minimum frequency required by specifications. Time does not include retesting or additional testing requested or 2) Estimated time for concrete testing includes travel, time onsite, cylinder pickup, and daily report by field representative. 3) Estimated time for soil testing includes travel, testing of building pad fill, injection well pad, and utility trench backfill. 4) Estimated time for APM testing includes travel and testing of asphalt placement using a nuclear density gauge. 5) Overtime hours (time onsite exceeding 8 hours and all weekend hours) will be invoiced at 1.35 times the hourly rate. 6) Engineering and consultation will be provided, as requested, at fee schedule rates. 7) Samples collected and subjected to testing, if any, will be disposed of after testing is completed. Samples not subjected to testing, if any, will be disposed of thirty (30) days after submittal of the report for which the samples were collected. Cesare requires a minimum 24 hours notice for all testing and construction observation. All requests for services on weekend days must be scheduled by 4:00 PM on Thursday. All scheduling must be conducted through Cesare's assigned project manager or corporate office and not through field personnel, unless arrangements are made prior to Cesare rendering services. Additional services required outside this scope of services will be provided at the hourly rates listed in Cesare's current schedule of fees. This proposal assumes a workday of 8 hours and a workweek of 40 hours. Fees exceeding 8 hours per day or 40 hours per week and hours worked on weekends will include an Overtime Premium at a rate of 1.35 times the rates indicated in Cesare's schedule of fees. Hours worked on Cesare paid holidays will be invoiced at 2 times the standard rate indicated. A Night Shift Premium will be invoiced at the Standard Rate plus $5 per hour (6 PM to 6 AM). If nonconforming items/conditions are observed, Cesare personnel may not be able to remain onsite to witness, test, or observe corrective actions. Cesare personnel will make reasonable efforts to remain onsite while corrective actions are performed. Reobserving/retesting may ne to b resclpedu e . Authorized Cesare Representative V Date 06/02/21 Title Senior Principal/Director of Business Development Proposal Agreement and Terms of Agreement accepted by: Signed by Title Representing Date This authorization or basic services shall serve as a contract/proposal between Cesare, Inc. and the authorized person signing for this scope of service to be completed by Cesare, Inc. The above fee will be due upon completion of the services as described herein. This sheet must be signed prior to commencement of the services. Services outside the above stated scope will be invoiced at Cesare's current fees. F210506 Firestone Injection Well Pad Proposal 06.02.21.xlsx Corporate Office: 7108 South Alton Way, Building B •Centennial, CO 80112 Locations: Centennial •Frederick • Silverthorne •Salida/Crested Butte Phone 303-220-0300 • v✓ww.cesareinc.com