Consulting Services Agreement between May 6, 2024
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NON-EXCLUSIVE CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF GONZALES
AND PROFESSIONAL SERVICES INDUSTRIES FOR MATERIALS TESTING AND SPECIAL
INSPECTION SERVICES FOR THE COMMUNITY CENTER COMPLEX PROJECT THIS AGREEMENT for consulting services is made by and between the City of Gonzales ("City") and Professional Services Industries, Inc. ("Consultant") (together sometimes referred to as the "Parties") as of May 6, 2024 (the "Effective Date").
Section 1. SCOPE OF SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on December 30, 2027, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time. All work performed under this Agreement shall be authorized in advance and in writing by a specific Task Order prior to the commencement of services. Each Task Order shall describe the nature of the specific task or service to be performed by the Consultant, the estimated number of hours within which such task or service must be completed and the compensation for such task or service. Details shall include a description of the task or service which Consultant shall perform, the format and schedule for deliverables, the schedule of performance, and the schedule of compensation. Consultant shall not perform any task or service unless authorized by a fully executed Task Order. Consultant shall advise city staff in writing of any anticipated change in any task or service, fee or time schedule, and shall obtain city staff’s written consent to the change prior to making any changes.
1.5 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder.
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Section 2. COMPENSATION. The City will pay Consultant’s invoices under each authorized Task Order per the rates outlined in Exhibit B. Consultant shall submit invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
Serial identifications of invoices; i.e., Progress Bill No. 1 for the first invoice, etc.; The beginning and ending dates of the billing period; A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
For each work item under each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder;
Consultant shall give separate notice to the City when the total number of hours worked by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours within a 12-month period under this Agreement and any other agreement between Consultant and City. Such notice shall include an estimate of the time necessary to complete work described in Exhibit A and the estimate of time necessary to complete work under any other agreement between Consultant and City, if applicable.
2.2 Payments. City shall make payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. Notwithstanding, Consultant and City acknowledge that payment for Consultant’s services are fully dependent on development applicants’ deposits and that the timing of City’s invoice payment may be adversely impacted by inadequate applicant funds. City shall make a good -faith effort to ensure that all development applicant accounts are maintained at a level to cover Consultant’s anticipated costs.
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2.3 <<Not Used>>
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.6 Reimbursable Expenses. Any reimbursable expenses are included in the authorized contract amount and shall be approved by city staff in advance.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance Consulting Services Agreement between May 6, 2024
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required herein for the subcontractor(s) and provided evidence that such insurance is in effect to City.
Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Consultant may rely on a selfinsurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an "occurrence" basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
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b. City, its officers, officials, employees, and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of the Consultant; or automobiles owned, leased, hired, or borrowed by the Consultant.
c. For any claims related to this Agreement or the work hereunder, the Consultant's insurance covered shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
d. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days' prior written notice has been provided to the City, except for 10-days’ notice of cancellation may be given for nonpayment of premium.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than $1,000,000 covering the licensed professionals' errors and omissions. Any deductible or self-insured retention shall not exceed $150,000 per claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. c. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant shall purchase an extended period coverage for a minimum of five years after completion of work under this Agreement.
d. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement.
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4.3.3 Additional Requirements. A certified endorsement to include contractual liability shall be included in the policy.
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with complete copies of all policies delivered to Consultant by the insurer, including complete copies of all endorsements attached to those policies. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Consultant beginning work, it shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time.
4.4.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
4.4.4 Wasting Policies. No policy required by this Section 4, except for the professional liability policy shall include a "wasting" policy limit (i.e., limit that is eroded by the cost of defense).
4.4.5 Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the consultant, its employees, agents, and subcontractors.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
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4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach:
Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall, to the fullest extent allowed by law, with respect to all Services performed in connection with this Agreement, defend with counsel reasonably acceptable to City, indemnify, and hold City, its officers, employees, agents, and volunteers, harmless from and against any and all claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, ("Claims"). Consultant will bear all losses, costs, damages, expense and liability of every kind, nature and description that arise out of, pertain to, or relate to such Claims, whether directly or indirectly ("Liability"). Such obligations to defend, hold harmless and indemnify the City shall not apply to the extent that such Liabilities are caused by the sole negligence, active negligence, or willful misconduct of the City.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type of express or implied indemnity against the Indemnitees.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
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6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Consultant's Failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
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Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant.
Consultant may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
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8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
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Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Monterey or in the United States District Court for the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation Consulting Services Agreement between May 6, 2024
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for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant.
Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by the City’s Public Works Director ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
Deborah Priest
Professional Services Industries
16170 Vineyard Blvd, Suite 170
Morgan Hill, CA 95037
.
Any written notice to City shall be sent to:
Carmen Gil, City Manager
City of Gonzales
P.O. Box 647
Gonzales, CA 93926
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example.
_________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A and B represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
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Exhibit A Scope of Services – Phase 1 of the Community Center Project Exhibit B PSI’s April 26, 2024 Proposal Letter
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.14 Non-Responsibility for General Contractor Responsibilities and Duties. Unless otherwise agreed by City and Consultant in writing, nothing in Consultant's services shall be construed to mean that Consultant assumes any of the contractual responsibilities or duties of the general contractor. The general contractor is solely responsible for construction means, methods, sequences and procedures used in the construction of a project and for related performance in accordance with its contract with the City. The general contractor shall not be relieved of its responsibility for the safety of the workplace or for the method or manner of construction. The Consultant and its personnel have no authority to exercise any control over or charge of acts or omissions of the general contractor or their employees in connection with the construction work.
The Parties have executed this Agreement as of the Effective Date.
CITY OF GONZALES PROFESSIONAL SERVICES INDUSTRIES
Carmen Gil, City Manager Deborah Priest, Principal Consultant Attest:
Mary Villegas, Deputy City Clerk
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EXHIBIT A
TASK ORDER 1
SCOPE OF SERVICES
Consultant shall provide Materials Testing and Special Inspection services during construction of Phase 1 of the Community Center Complex project. This is presented in PSI’s April 26, 2024 Letter Proposal and includes inspection and/or testing of:
1. Soils (sampling, monitoring of excavations and compaction testing)
2. Asphalt (verify mix design, temperature, and compaction testing)
3. Concrete (mix design, size and placement of reinforcing steel and compressive strength testing)
4. Masonry (mix design, confirm reinforcing placement, and mortar mixing)
5. Structural Steel fabrication and erection
6. Structural Wood framing (nailing, anchoring, and fastenings) Compensation for all efforts under this Task Order shall be provided for a not-to-exceed fee of $135,000 as authorized at the May 6, 2024 City Council meeting.
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EXHIBIT B
PSI’s April 26, 2024 Proposal Letter
April 26, 2024
Mr. Luis Flores
Harris & Associates
450 Lincoln Avenue, Suite 103
Salinas, California 93901
Phone: (831) 840-5207
Email: [email protected]
Re: Proposal for Construction Materials Testing and Special Inspection Services Gonzales Community Center Phase 1 & Phase 2
5 th Street, Gonzales, California 93926
PSI Proposal Number 0587-423300 Rev 2 (Phase 1) & 0587-423302 (Phase 2) Dear Mr. Flores,
Professional Service Industries, Inc., (PSI), is pleased to submit the following proposal for providing construction materials testing and special inspection services for the above referenced project.
PSI is operated by registered professional engineers and meets criteria set forth by (ASTM E-329) and the American Association of State Highway and Transportation Officials (AASHTO).
PSI understands that our services will consist of inspection and/or testing the following:
• Soils
• Asphalt
• Concrete Construction
• Masonry Construction
• Structural Steel Fabrication
• Structural Steel Erection
• Structural Wood Framing
PSI proposes to provide the described services on a unit-price basis. Total fees will be determined by the actual amount of technical time expended for this project and the actual quantity of laboratory tests performed. For preliminary budgeting purposes, PSI has prepared the following estimated budget for testing services based on information procured online, which included a review of the construction plans and specifications dated 02/28/2024.
PSI retained electronic copies of the project documents. The work performed by PSI will depend on the actual construction schedule. All work will be performed at the direction of the contractors’ representative on an On-Call basis. Prior to starting work on the project, it would be beneficial to meet to discuss a detailed schedule of your testing needs after which we can more accurately determine the total project testing budgets.
Please note that our services do not include supervision or direction of the actual work. Also, be aware that neither the presence of our field representative nor the observation and testing by our firm shall imply PSI's responsibility for defects discovered in the construction work. It is understood that our firm will not be responsible for job or site safety on this project. Job site safety will be the sole responsibility of others.
PROJECT DESCRIPTION
This is the new construction of the Dennis & Janice Caprara Community Center Complex located in Gonzales, California. The community center will be constructed in 2 phases. Phase 1 will include Building A (10,000 SF), parking and sitework. Phase 2 will include Building B (8,900 SF). The two C shaped buildings will create a courtyard area featuring an amphitheater, play/discovery area, seating & outdoor classrooms.
Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024
DEFINED SCOPE OF WORK
Provide Special Inspection and materials testing in accordance with the 2022 International Building Code with California State Amendments and project specifications as directed by the client and/or their designated site representative. Special inspections anticipated are soils, asphalt, concrete construction, masonry construction, structural steel, lateral wood framing, and mass timber. The following is a description of the anticipated services.
Soils – The on-site inspector will observe and test soil excavation and structural compaction fills. Soils and base materials will be sampled for laboratory analysis for compliance with the project specifications. Laboratory analysis can typically include maximum dry density determination (Proctor) and grain size distribution (sieve). The on-site inspector will monitor structural fill operations and perform in-place density testing by nuclear densometer.
Not Geo of Record-No Report
Professional Service Industries, Inc. will provide “Harris & Associates” with a source of advice and opinion regarding the suitability of earthwork and foundation preparation with respect to the project documents provided. PSI understands there is no geotechnical report available for the project at this time. PSI is not providing the role of geotechnical engineer of record. PSI accepts no liability or responsibility for any errors or omissions in the original project documents. PSI’s work shall be limited to observing and testing for compliance with the recommendations made in the project documents. In the event that at any time there are determined to be defects in the original documents, client agrees to look solely to the original engineer for damages arising out of the report, and agrees to indemnify PSI for any claims out of those documents.
Asphalt - The on-site inspector will monitor delivery of hot mix asphalt and verify tickets for compliance with the approved mix design. The hot mix asphalt will be monitored for temperature as delivered and placed. During placement of hot mix asphalt the on-site inspector will perform in-place compaction by use of a nuclear densometer.
Samples of the hot mix asphalt delivered to the site will be tested for the Theoretical Maximum Specific Gravity (Rice) in addition to additional laboratory testing required by the project specifications..
Concrete Construction - The on-site inspector will provide periodic inspection of the placement of reinforcing steel for compliance with the project requirements for correct size, grade of steel, location, and clearance to forms and/or earthwork. The on-site inspector will continuously monitor placement of cast-in-place concrete for adherence to the project specifications. Each load, as required, will be checked for proper mix design, water/cement ratio, batch weights, adherence to slump requirements, air content, as well as proper methods of placement and consolidation.
Compressive strength samples will be cast on concrete delivered to the project.
Masonry Construction – The on-site inspector will provide inspection of reinforcing placement and continuous observation of grout and verify compliance with project specifications. Inspection of grouting mix will include compliance of batch tickets, mix design, consolidation during and after grouting, and verification of compressive strength using the Prism Method. The mixing of mortar will be observed for compliance.
Structural Steel Erection – The on-site inspector will monitor erection of structural steel members and joists, including location and fit of anchorages and inserts.
For purposes of this project PSI assumes that a fabricator meeting the 2021 International Building Code requirements, specifically:
1704.2.5.1 Fabricator Approval. Special inspections during fabrication are not required where the work is done on the premises of a fabricator approved to perform such work without special inspection. Approval shall be based upon review of the fabricator’s written fabrication procedures and quality control manuals that provide a basis for control of materials and workmanship, with periodic auditing of fabrication and quality control practices by an approved agency or the building official. At completion of fabrication, the approved fabricator shall submit a certificate of compliance to the owner or owner’s authorized agent for submittal to the building official as specified in Section 1704.5 stating that the work was performed in accordance with the approved construction documents.
In accordance with the project specifications PSI assumes that a certified fabricator fully capable of providing all visual or all visual and non-destructive testing, including NDE Level III oversight, with in house or subcontract forces. PSI has not provided any budget for fabricator inspections.
Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024 The inspector will verify adjustments to fit inaccuracies with the engineer and perform visual weld inspection of field welding in accordance with AWS D1.1, SJI specifications and AWS D1.8 when required. Installation of high strength bolted connections will be monitored and proper installation and tensioning of high strength bolts will be monitored.
Feeler gauges provided by the manufacturer will be used to ensure proper tensioning of bolts that use load indicator washers. Verification of metal decking installation will include: gauge and type of decking, support and anchorage welding, and button punching and seam stitch welding in accordance with design drawings and project specifications.
These services apply to the structural steel elements, including metal decking, joists, stairs and miscellaneous shapes, and welding of reinforcing steel. Nondestructive examination of full penetration welds using ultrasonic examination methods will be performed. Fillet welds will be examined using magnetic particle examination methods when required.
Structural Wood Framing – The on-site inspector will observe the erected structural support elements for adherence to the approved project drawings and specifications. The structural elements will be continuously inspected during field gluing operations and periodically inspected for nailing, bolting, anchoring and other fastening of elements of the seismic/wind force resisting system, including wood Shearwalls, wood diaphragms, drag struts, braces, shear panels and hold-downs.
Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024 Phase 1
DESCRIPTION OF SERVICE UNIT RATE QUANTITY TOTAL
Soils
Soils Technician
Grading & Backfill- 35 trips @ 8 hours each
Proctor ASTM D1557 $350.00 5 $1,750.00
Sieve Analysis ASTM C136 $160.00 5 $800.00
Atterberg Limits (LL & PL) ASTM D4318 $250.00 5 $1,250.00 Sample Pickups for Laboratory Testing
5 trips @ 4 hours each
$47,340.00
Asphalt
Asphalt Technician
HMA Paving- 2 trips @ 8 Reg Hours
HMA Paving- 2 trips @ 4 OT Hours $222.00 8 $1,776.00
Rice ASTM D2041 $250.00 2 $500.00
Extraction/Gradation ASTM D6307 $632.00 2 $1,264.00
Asphalt Subtotal $5,908.00
Concrete Construction
Reinforced Concrete Special Inspector
Footings- 2 trips @ 8 hours each for rebar & 2 trips @ 8 hours each for concrete observation & sampling
Reinforced Concrete Special Inspector
Stem Walls/Columns Plinths- 2 trips @ 8 hours each for rebar & 2 trips @ 8 hours each for concrete observation & sampling
Reinforced Concrete Special Inspector
Slab on Grade- 1 trip @ 8 hours each for rebar & 1 trip @ 8 hours each for concrete observation & sampling
Reinforced Concrete Special Inspector
Sidewalks, Pavement, Trash Enclosure & Misc. Site Concrete- 6 trips @ 8 hours each for rebar & 6 trips @ 8 hours each for concrete observation & sampling Cylinders/Compressive Strength Testing ASTM C39
11 sets of 5 cylinders
Sample Pickups
11 trips @ 4 hours each
Concrete Construction Subtotal $34,727.00
Masonry Construction
Masonry Technician on-site Regular time
CMU Walls- 2 trips @ 8 hours each
Grout Cubes/Compressive Strength Testing ASTM C109
1 set of 4 prisms
Sample Pickups
1 trips @ 4 hours each
Masonry Construction Subtotal $3,067.00
Structural Steel Fabrication & Erection
Welding/Bolting Special Inspector
Field Welding & Bolting- 4 trips @ 8 hours each
Welding Special Inspector
Fabrication Shop Visual Inspection- 2 trip @ 8 hours each Structural Steel Fabrication & Erection Subtotal $7,680.00 Structural Wood Framing
Structural Wood Special Inspector
Shear Walls, Holdowns, Diaphragms & SWFRS- 8 trips @ 4 hours each Structural Wood Framing Subtotal $5,024.00
Project Management, Report Review & Pre Construction Meetings $165.00 50 $8,250.00 Administrative $80.00 46 $3,680.00
Trip Charges $75.00 92 $6,900.00
Senior Engineer for Final Letter of Compliance $225.00 10 $2,250.00 Project Management & Administration Subtotal $21,080.00 Estimated Total $124,826.00
$105.00 4 $420.00
$157.00 32 $5,024.00
$160.00 32 $5,120.00
$160.00 16 $2,560.00
$157.00 16 $2,512.00
$45.00 3 $135.00
$45.00 55 $2,475.00
$105.00 44 $4,620.00
$157.00 16 $2,512.00
$157.00 96 $15,072.00
$157.00 32 $5,024.00
$157.00 32 $5,024.00
$148.00 280 $41,440.00
Soils Subtotal
$148.00 16 $2,368.00
$105.00 20 $2,100.00
Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024 Phase 2
DESCRIPTION OF SERVICE UNIT RATE QUANTITY TOTAL
Concrete Construction
Reinforced Concrete Special Inspector
Footings- 2 trips @ 8 hours each for rebar & 2 trips @ 8 hours each for concrete observation & sampling
Reinforced Concrete Special Inspector
Stem Walls/Columns Plinths- 2 trips @ 8 hours each for rebar & 2 trips @ 8 hours each for concrete observation & sampling
Reinforced Concrete Special Inspector
Slab on Grade-1 trip @ 8 hours each for rebar & 1 trip @ 8 hours each for concrete observation & sampling
Cylinders/Compressive Strength Testing ASTM C39
5 sets of 5 cylinders
Sample Pickups for Laboratory Testing
5 trips @ 4 hours each
Concrete Construction Subtotal $14,623.00
Structural Steel Fabrication & Erection
Welding/Bolting Special Inspector
Field Welding & Bolting- 4 trips @ 8 hours each
Welding Special Inspector
Fabrication Shop Visual Inspection- 2 trip @ 8 hours each Structural Steel Fabrication & Erection Subtotal $7,680.00 Structural Wood Framing
Structural Wood Special Inspector
Shear Walls, Holdowns, Diaphragms & SWFRS- 5 trips @ 4 hours each Structural Wood Framing Subtotal $3,140.00
Project Management, Report Review & Pre Construction Meetings $165.00 18 $2,970.00 Administrative $80.00 15 $1,200.00
Trip Charges $75.00 29 $2,175.00
Senior Engineer for Final Letter of Compliance $225.00 5 $1,125.00 Project Management & Administration Subtotal $7,470.00
Estimated Total $32,913.00
$105.00 20 $2,100.00
$157.00 20 $3,140.00
$160.00 32 $5,120.00
$160.00 16 $2,560.00
$157.00 16 $2,512.00
$45.00 55 $2,475.00
$157.00 32 $5,024.00
$157.00 16 $2,512.00
Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024
PROJECTED BUDGET ESTIMATE
The projected rates are for special inspections and materials testing for the Gonzales Community Center Project in Gonzales, California. Based upon the anticipated scope of work, the total estimated budget for Phase 1 is $124,826.00 and $32,913.00 for Phase 2. The attached cost estimate is anticipated to be used as a budget for services only it does not represent a maximum or minimum fee. Services requested but not listed herein will be billed at our standard unit rates. This proposal is subject to the attached terms and conditions.
Table 1: Service Options
Service Options Estimated Fee Authorization
Check [✓]
Special Inspections –Phase 1 $124,826.00
Special Inspections – Phase 2 $32,193.00
Respectfully submitted,
Professional Service Industries, Inc.
Mariel Renteria Deborah Priest, PE
Project Manager Principal Consultant
Construction Services Construction Services
[email protected] [email protected] Attachments: Project Data Sheet
General Notes
General Conditions
PROPOSAL ACCEPTANCE:
AGREED TO, THIS ___________ DAY OF ________________________ , 2024 BY (please print
name):
_________________________________________________________ TITLE: _________________________________________________________ COMPANY: _________________________________________________________ SIGNATURE: _________________________________________________________ Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024
PSI GENERAL NOTES
1. Testing is conducted in general accordance with ASTM procedure and project specifications.
2. All hourly testing will be on a portal-to-portal basis from 16170 Vineyard Blvd Suite 170, Morgan Hill, CA 95037.
3. All rates are based upon a 4-hour minimum charge for assignments of up to 4 hours. A minimum charge of 8 hours will apply for all assignments in excess of 4 hours up to 8 hours.
4. The minimum billing increment for regular and overtime is the full hour.
5. PSI requires notification at least twenty-four (24) hours in advance of the schedule job starting time. Forty-eight (48) hours’ notice is requested for night, weekend or out of town work.
6. Cancellation of field testing and observation services is required no less than the working day prior to the date the services are to be performed. Services cancelled without advance and/or inadequate notice will be assessed a minimum 2-hour charge.
7. A one-time project set-up charge at a rate of $250.00 applies to all projects.
8. Premium Rates for Inspectors, Technicians, and NDE Personnel will be invoiced at 1.5 times the applicable rate listed above for hours worked outside of 7 am to 5 pm. And for the following:
a. 1.5 times the rate on weekdays outside of the hours listed above. b. 1.5 times the hourly rate on Saturday
c. 2.0 times the hourly rate after 12 hours on weekdays, after 8 hours on Saturdays, and for the 1st 8 hours on Sunday. d. 2.5 times the hourly rate over 8 hours on Sundays and Holidays. e. Minimum hourly charges of 4 and 8 hours per day for services
9. PSI observes the following paid holidays, New Year’s Day 01/01/2024, Memorial Day-05/27/2024, Juneteenth National Independence Day-06/19/2024, Independence Day-07/04/2024, Labor Day-09/02/2024, Thanksgiving Day-11/28/2024, Thanksgiving Holiday11/29/2024, Christmas Eve Holiday-12/24/2024, and Christmas Day-12/25/2024. Work requested on these holidays will be invoiced at 2X our standard labor rate.
10. Re-testing and re-inspection will be performed at the unit rates indicated and will be in addition to the estimated costs. Furthermore, discrepancies and non-conformance resolution may require additional Project Management time at the rates referenced above.
11. Laboratory testing required to be performed outside normal working hours shall be charged at 1.5 times the normal test rate.
12. Surcharges for laboratory services during overtime hours or for expedited results may apply (these surcharges will be 1.5 times the applicable unit rate).
13. Rented equipment, consumables, commercial travel, shipping, reproductions, long distance phone calls and/or any outside services performed will be billed at cost plus 20% unless billed directly to and paid by the client.
14. Project Manager and Admin/Clerical time to schedule and supervise personnel and evaluate and review reports will be billed at a minimum of 0.5 hours per report issued.
15. Invoices will be billed monthly. Invoices will be mailed/emailed on or about the third business day after the month to which services were rendered.
16. Based on our understanding this project is subject to prevailing wages.
17. Concrete test cylinder sizes will be in accordance with ASTM C31 and ACI 318.
18. ACI 301-10 section 1.6.2.2.d, states that the contractor is responsible for “[providing] space and source of electrical power on the project site for facilities to be used for initial curing of concrete test specimens as required by ASTM C31/C31M, for the sole use of the Owner’s quality assurance testing agency.” PSI understands the term “space” to mean “an environmentally controlled and secure space” for initial curing in the field, and the contractor is required to provide electricity and security of the space. Accordingly, this proposal does not include provisions or the associated fee for PSI to provide this service. The initial curing box can be provided by PSI at the project site for additional fees which shall include the daily rental cost and associated mobilization cost of the curing box. In the event the curing box is stolen or damaged as the site security is the responsibility of the contractor, PSI shall invoice our client the cost of the same at cost plus 10%.
19. Subcontracted labor or testing will be invoiced at cost plus 30%.
20. Reports will be provided to the client electronically using Construction Hive. Distribution using other methods will be billed at hourly project administration rates.
21. At the client's request, a Final Compliance Letter will be prepared and submitted to the client within 30 calendar days of the completion of all materials testing conducted by PSI at the site. The Final Compliance Letter will be an additional hourly charge at the Senior Registered Professional rate referenced above. Furthermore, no Final Letter will be issued without payment in full for all outstanding invoices.
Requests for additional or supplemental letters will be invoiced based on Senior Registered Professional hourly rate with a minimum charge of $300 per letter.
22. Unit prices/rates are in effect for the calendar year of this proposal and are subject to a 6% change on an annual basis thereafter.
GENERAL CONDITIONS
Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024
1. PARTIESAND SCOPE OF WORK: Professional Service Industries Inc. (“PSI”) shall include said company or its particular division, subsidiary or affiliate performing the work. “Work” means the specific service to be performed by PSI as set forth in PSl’s proposal, Client’s acceptance thereof and these General Conditions.
Additional work ordered by Client shall also be subject to these General Conditions. “Client” refers to the person or business entity ordering the work to be done by PSI. If Client is ordering the work on behalf of another, Client represents and warrants that it is the duly authorized agent of said party for the purpose of ordering and directing said work. Unless otherwise stated in writing, Client assumes sole responsibility for determining whether the quantity and the nature of the work ordered by the client is adequate and sufficient for Client’s intended purpose. Client shall communicate these General Conditions to each and every third party to whom Client transmits any part of PSI’s work. PSI shall have no duty or obligation to any third party greater than that set forth in PSI’s proposal, Client’s acceptance thereof and these General Conditions. The ordering of work from PSI, or the reliance on any of PSI’s work, shall constitute acceptance of the terms of PSI’s proposal and these General Conditions, regardless of the terms of any subsequently issued document.
2. TESTS AND INSPECTIONS: Client shall cause all tests and inspections of the site, materials and work performed by PSI or others to be timely and properly performed in accordance with the plans, specifications and contract documents and PSI’s recommendations. No claims for loss, damage or injury shall be brought against PSI by Client or any third party unless all tests and inspections have been so performed and unless PSI’s recommendations have been followed. Client agrees to indemnify, defend and hold PSI, its officers, employees and agents harmless from any and all claims, suits, losses, costs and expenses, including, but not limited to, court costs and reasonable attorney’s fees in the event that all such tests and inspections are not so performed or PSl’s recommendations are not so followed.
3. PREVAILING WAGES: This proposal specifically excludes compliance with any project labor agreement, labor agreement, or other union or apprenticeship requirements. In addition, unless explicitly agreed to in the body of this proposal, this proposal specifically excludes compliance with any state or federal prevailing wage law or associated requirements, including the Davis Bacon Act. It is agreed that no applicable prevailing wage classification or wage rate has been provided to PSI, and that all wages and cost estimates contained herein are based solely upon standard, non-prevailing wage rates. Should it later be determined by the Owner or any applicable agency that in fact prevailing wage applies, then it is agreed that the contract value of this agreement shall be equitably adjusted to account for such changed circumstance. Client will reimburse, defend, indemnify and hold harmless PSI from and against any liability resulting from a subsequent determination that prevailing wage regulations cover the Project, including all costs, fines and attorney’s fees.
4. SCHEDULING OF WORK: The services set forth in PSI’s proposal and Client’s acceptance will be accomplished by PSI personnel at the prices quoted. If PSI is required to delay commencement of the work or if, upon embarking upon its work, PSI is required to stop or interrupt the progress of its work as a result of changes in the scope of the work requested by Client, to fulfill the requirements of third parties, interruptions in the progress of construction, or other causes beyond the direct reasonable control of PSI, additional charges will be applicable and payable by Client.
5. ACCESS TO SITE: Client will arrange and provide such access to the site and work as is necessary for PSI to perform the work. PSI shall take reasonable measures and precautions to minimize damage to the site and any improvements located thereon as the result of its work or the use of its equipment.
6. CLIENT’S DUTY TO NOTIFY ENGINEER: Client warrants that it has advised PSI of any known or suspected hazardous materials, utility lines and pollutants at any site at which PSI is to do work, and unless PSI has assumed in writing the responsibility of locating subsurface objects, structures, lines or conduits, Client agrees to defend, indemnify and save PSI harmless from all claims, suits, losses, costs and expenses, including reasonable attorney’s fees as a result of personal injury, death or property damage occurring with respect to PSI’s performance of its work and resulting to or caused by contact with subsurface or latent objects, structures, lines or conduits where the actual or potential presence and location thereof were not revealed to PSI by Client.
7. RESPONSIBILITY: PSI’s work shall not include determining, supervising or implementing the means, methods, techniques, sequences or procedures of construction. PSI shall not be responsible for evaluating, reporting or affecting job conditions concerning health, safety or welfare. PSI’s work or failure to perform same shall not in any way excuse any contractor, subcontractor or supplier from performance of its work in accordance with the contract documents. Client agrees that it shall require subrogation to be waived against PSI and for PSI to be added as an Additional Insured on all policies of insurance, including any policies required of Client’s contractors or subcontractors, covering any construction or development activities to be performed on the project site. PSI has no right or duty to stop the contractor’s work.
8. SAMPLE DISPOSAL: Test specimens will be disposed immediately upon completion of the test.All drilling samples will be disposed sixty (60) days after submission of PSI’s report.
9. PAYMENT: The quantities and fees provided in this proposal are PSI’s estimate based on information provided by Client and PSI’s experience on similar projects.
The actual total amount due to PSI shall be based on the actual final quantities provided by PSI at the unit rates provided herein. Where Client directs or requests additional work beyond the contract price it will be deemed a change order and PSI will be paid according to the fee schedule. Client shall be invoiced once each month for work performed during the preceding period. Client agrees to pay each invoice within thirty (30) days of its receipt. Client further agrees to pay interest on all amounts invoiced and not paid or objected to for valid cause in writing within said thirty (30) day period at the rate of eighteen (18) percent per annum (or the maximum interest rate permitted under applicable law), until paid. Client agrees to pay PSI’s cost of collection of all amounts due and unpaid after thirty (30) days, including court costs and reasonable attorney’s fees. PSI shall not be bound by any provision or agreement requiring or providing for arbitration of disputes or controversies arising out of this agreement, any provision wherein PSI waives any rights to a mechanics’ lien, or any provision conditioning PSI’s right to receive payment for its work upon payment to Client by any third party. These General Conditions are notice, where required, that PSI shall file a lien whenever necessary to collect past due amounts. Failure to make payment within 30 days of invoice shall constitute a release of PSI from any and all claims which Client may have, whether in tort, contract or otherwise, and whether known or unknown at the time.
GENERAL CONDITIONS
Gonzales Community Center Professional Service Industries, Inc.
Time and Materials Proposal Rev 2 Engineering • Consulting • Testing PSI Proposal No. 0587-423300 (phase 1) 0587-423302 (phase 2) 4/26/2024
10. ALLOCATION OF RISK: CLIENT AGREES THAT PSI’S SERVICES WILL NOT SUBJECT PSI’S INDIVIDUAL EMPLOYEES, OFFICERS OR DIRECTORS TO ANY
PERSONAL LIABILITY, AND THAT NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CLIENT AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE TO DIRECT OR ASSERTANY CLAIM, DEMAND, OR SUIT ONLYAGAINST PSI.
SHOULD PSI OR ANY OF ITS EMPLOYEES BE FOUND TO HAVE BEEN NEGLIGENT IN THE PERFORMANCE OF ITS WORK, OR TO HAVE MADE AND
BREACHED ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR CONTRACT, CLIENT, ALL PARTIES CLAIMING THROUGH CLIENT AND ALL PARTIES CLAIMING TO HAVE IN ANY WAY RELIED UPON PSI’S WORK AGREE THAT THE MAXIMUM AGGREGATE AMOUNT OF THE LIABILITY OF PSI,
ITS OFFICERS, EMPLOYEES AND AGENTS SHALL BE LIMITED TO
$25,000.00 OR THE TOTALAMOUNT OF THE FEE PAID TO PSI FOR ITS WORK PERFORMED ON THE PROJECT, WHICHEVER AMOUNT IS GREATER. IN THE EVENT CLIENT IS UNWILLING OR UNABLE TO LIMIT PSI’S LIABILITY IN ACCORDANCE WITH THE PROVISIONS SET FORTH IN THIS PARAGRAPH, CLIENT MAY, UPON WRITTEN REQUEST OF CLIENT RECEIVED WITHIN FIVE DAYS OF CLIENT’S ACCEPTANCE HEREOF, INCREASE THE LIMIT OF PSI’S LIABILITY TO $250,000.00 OR THE AMOUNT OF PSI’S FEE PAID TO PSI FOR ITS WORK ON THE PROJECT, WHICHEVER IS THE GREATER, BY AGREEING TO PAY PSI A SUM EQUIVALENT TO AN ADDITIONAL AMOUNT OF 5% OF THE TOTAL FEE TO BE CHARGED FOR PSI’S SERVICES. THIS CHARGE IS NOT
TO BE CONSTRUED AS BEING A CHARGE FOR INSURANCE OF ANY TYPE, BUT IS INCREASED CONSIDERATION FOR THE GREATER LIABILITY INVOLVED. IN ANY EVENT, ATTORNEY’S FEES EXPENDED BY PSI IN CONNECTION WITH ANY CLAIM SHALL REDUCE THE AMOUNT AVAILABLE, AND ONLY ONE SUCH AMOUNT WILLAPPLY TO ANY PROJECT.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY) OR OTHERWISE
FOR LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT) OR FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, OR SPECIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, BUSINESS, OR ANTICIPATED SAVINGS (EVEN WHEN ADVISED OF THEIR POSSIBILITY).
NO ACTION OR CLAIM, WHETHER IN TORT, CONTRACT, OR OTHERWISE, MAY BE BROUGHT AGAINST PSI, ARISING FROM OR RELATED TO PSI’S WORK, MORE THAN TWO YEARS AFTER THE CESSATION OF PSI’S WORK HEREUNDER, REGARDLESS OF THE DATE OF DISCOVERY OF SUCH CLAIM.
11. INDEMNITY: Subject to the above limitations, PSI agrees not to defend but to indemnify and hold Client harmless from and against any and all claims, suits, costs and expenses including reasonable attorney’s fees and court costs to the extent arising out of PSI’s negligence as finally determined by a court of law. Client shall provide the same protection to the extent of its negligence. In the event that Client or Client’s principal shall bring any suit, cause of action, claim or counterclaim against PSI, the Client and the party initiating such action shall pay to PSI the costs and expenses incurred by PSI to investigate, answer and defend it, including reasonable attorney’s and witness fees and court costs to the extent that PSI shall prevail in such suit.
12. TERMINATION: This Agreement may be terminated by either party upon seven days’ prior written notice. In the event of termination, PSI shall be compensated by Client for all services performed up to and including the termination date, including reimbursable expenses.
13. EMPLOYEES/WITNESS FEES: PSI’s employees shall not be retained as expert witnesses except by separate, written agreement. Client agrees to pay PSI’s legal expenses, administrative costs and fees pursuant to PSI’s then current fee schedule for PSI to respond to any subpoena. For a period of one year after the completion of any work performed under this agreement, Client agrees not to solicit, recruit, or hire any PSI employee or person who has been employed by PSI within the previous twelve months. In the event Client desires to hire such an individual, Client agrees that it shall seek the written consent of PSI, and shall pay PSI an amount equal to one- half of the employee’s annualized salary, without PSI waiving other remedies it may have.
14. FIDUCIARY: PSI is not a financial advisor, does not provide financial advice or analysis of any kind, and nothing in our reports can create a fiduciary relationship between PSI and any other party.
15. RECORDING: Photographs or video recordings of the Client’s own project may be taken by and used for the Client’s own internal purposes. Photographs or video recordings may not be used for marketing or publicity, or distributed to a third party or otherwise published without PSI’s prior review and consent in writing. Taking photographs of other Clients’ samples, test setups, or facilities, or recording in any manner any test specimen other than the test specimen related to the Client’s project is prohibited; and the Client agrees to hold in strict confidence and not use any proprietary information disclosed either advertently or inadvertently. The Client shall defend, hold harmless, and indemnify PSI for any breach of this clause.
16. CHOICE OF LAW AND EXCLUSIVE VENUE: All claims or disputes arising or relating to this agreement shall be governed by, construed, and enforced in accordance with the laws of Illinois. The exclusive venue for all actions or proceedings arising in connection with this agreement shall be either the Circuit Court in Cook County, Illinois, or the Federal Court for the Northern District of Illinois.
17. PROVISIONS SEVERABLE: The parties have entered into this agreement in good faith, and it is the specific intent of the parties that the terms of these General Conditions be enforced as written. In the event any of the provisions of these General Conditions should be found to be unenforceable, it shall be stricken and the remaining provisions shall be enforceable.
18. ENTIRE AGREEMENT: This agreement constitutes the entire understanding of the parties, and there are no representations, warranties or undertakings made other than as set forth herein. This agreement may be amended, modified or terminated only in writing, signed by each of the parties hereto.