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HomeMy WebLinkAboutTrans 2016-12-05 Item 2A - Agreement - Settlement and Mediation Support with Anchor QEA (South 143rd Street / Fort Dent Way)TO: FROM: CC: DATE: Public Works Department - Bob Giberson, Director Transportation Committee Bob Giberson, Public Works Director 4A- iTIFNIM-4.51- - I December 2, 2016 Allan Ekberg, Mayor SUBJECT: Interurban Avenue South (S 143rd St to Fort Dent Way) Project No. 90310402 Contract for Settlement and Mediation Support Services with Anchor QEA ISSUE Execute a contract supplement with Anchor QEA (Anchor) in the amount of $40,000.00 to provide documentation and analysis support for ongoing settlement and mediation for Interurban Ave S. Construction has been complete on Interurban Ave S from S 143rd St to Fort Dent Way since July 2016. Early change orders and multiple construction delays extended the construction contract time past the original required completion date. We still have not received a formal construction contract claim from the contractor. We have been responding to numerous letters and emails regarding additional time and compensation, but we have exhausted all construction management budget in this effort. We would like to proactively enter into settlement and mediation discussions with the construction contractor. DISCUSSION Anchor provided construction management services throughout the Interurban Ave S construction contact and has all the documentation for the project. Anchor has been asked to provide settlement and mediation support services and has provided the proposed contract scope and fee for a fee not to exceed $40,000. FINANCIAL IMPACT Funds have been budgeted in 2017 for the construction contract claim settlement. We are also expecting the Transportation Improvement Board to cover some of the contract overruns. Council is being asked to approve a settlement and mediation support services contract with Anchor QEA in the amount of $40,000.00 for the Interurban Ave S Project and consider this item on the Consent Agenda at the December 12, 2016 Special meeting. Attachment: Anchor QEA Contract \Npwstore\pw common$\pw eng\projects\a- rw & rs projects\interurban ave s (90310402)\info memo anchor settement & mediation 12-02-16 gi.docx City of Tukwila Contract Number: 6200 Southcenter Boulevard, Tukwila WA 98188 CONSULTANT AGREEMENT FOR THIS AGREEMENT is entered into between the City of Tukwila, Washington, hereinafter referred to as "the City", and Anchor QEA LLC, hereinafter referred to as "the Consultant", in consideration of the mutual benefits, terms, and conditions hereinafter specified, Proiect Designation. The Consultant is retained by the City to perform settlement and mediation support services in connection with the project titled Interurban Avenue South construction. 2. Scope of Services. The Consultant agrees to perform the services, identified on Exhibit "A" attached hereto, including the provision of all labor, materials, equipment and supplies. 3. Duration of A-greement, Time for Performance. This Agreement shall be in full force and effect for a period commencing upon execution and ending March 31, 2017, unless sooner terminated under the provisions hereinafter specified. Work under this Agreement shall commence upon written notice by the City to the Consultant to proceed. The Consultant shall per-form all services and provide all work product required pursuant to this Agreement no later than March 31, 2017 unless an extension of such time is granted in writing by the City. 4. Payment. The Consultant shall be paid by the City for completed work and for services rendered under this Agreement as follows: A. Payment for the work provided by the Consultant shall be made as provided on Exhibit "B" attached hereto, provided that the total amount of payment to the Consultant shall not exceed $40,000 (Forty thousand dollars) without express written modification of the Agreement signed by the City. B. The Consultant may submit vouchers to the City once per month during the progress of the work for partial payment for that portion of the project completed to date. Such vouchers will be checked by the City and, upon approval thereof, payment shall be made to the Consultant in the amount approved. C. Final payment of any balance due the Consultant of the total contract price earned will be made promptly upon its ascertainment and verification by the City after the completion of the work under this Agreement and its acceptance by the City. D. Payment as provided in this section shall be full compensation for work performed, services rendered, and for all materials, supplies, equipment and incidentals necessary to complete the work. E. The Consultant's records and accounts pertaining to this Agreement are to be kept available for inspection by representatives of the City and the state of Washington for a period of three (3) years after final payments. Copies shall be made available upon request. 5. Ownership and Use of Documents. All documents, drawings, specifications and other materials produced by the Consultant in connection with the services rendered under this Agreement shall be the property of the City whether the project for which they are made is executed or not. The Consultant shall be permitted to retain copies, including reproducible copies, of drawings and specifications for information, reference and use in connection with the Consultant's endeavors. The Consultant shall not be responsible for any use of the said documents, drawings, specifications or other materials by the City on any project other than the project specified in this Agreement. 6. Compliance with Laws. The Consultant shall, in performing the services contemplated by this Agreement, faithfully observe and comply with all federal, state, and local laws, ordinances and regulations, applicable to the services rendered under this Agreement. T Indemnification. The Consultant shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or resulting from the negligent acts, errors or omissions of the Consultant in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Consultant's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 8. Insurance. The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. Consultant's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Consultant to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A. Minimum Amounts and Scope of Insurance. Consultant shall obtain insurance of the types and with the limits described below: Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. Automobile Liability insurance shall cover all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named as an insured under the Consultant's Commercial General Liability insurance policy with respect to the work performed for the City. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. CA revised: 1-2013 Page 2 4. Professional Liability with limits no less than $1,000,000 per claim a l $1,000,000 policy aggregate limit. Professional Liability insurance shall appropriate to the Consultant's profession. B. Other Insurance Provision. The Consultant's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain that they shall be primary insurance with respect to the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant's insurance and shall not be contributed or combined with it. C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A-VII. D, Verification of Coverage. Consultant shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Consultant before commencement of the work. Certificates of coverage and endorsements as required by this section shall be delivered to the City within fifteen (15) days of execution of this Agreement. E. Notice of Cancellation. The Consultant shall provide the City with written notice of any policy cancellation, within two business days of their receipt of such notice. F. Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five business days notice to the Consultant to correct the breach, immediately terminate the contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Consultant from the City. 9. Independent Contractor. The Consultant and the City agree that the Consultant is an independent contractor with respect to the services provided pursuant to this Agreement. Nothing in this Agreement shall be considered to create the relationship of employer and employee between the parties hereto, Neither the Consultant nor any employee of the Consultant shall be entitled to any benefits accorded City employees by virtue of the services provided under this Agreement. The City shall not be responsible for withholding or otherwise deducting federal income tax or social security or for contributing to the state industrial insurance program, otherwise assuming the duties of an employer with respect to the Consultant, or any employee of the Consultant. 10. Covenant Against Contingent Fees. The Consultant warrants that he has not employed or retained any company or person, other than a bonafide employee working solely for the Consultant, to solicit or secure this contract, and that he has not paid or agreed to pay any company or person, other than a bonafide employee working solely for the Consultant, any fee, commission, percentage, brokerage fee, gifts, or any other consideration contingent upon or resulting from the award or making of this contract. For breach or violation of this warrant, the City shall have the right to annul this contract without liability, or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 11. Discrimination Prohibited. The Consultant, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin, age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation or the presence of any disability in the selection and retention of employees or procurement of materials or supplies. CA revised -. 1-2013 Page 3 12. Assignment. The Consultant shall not sublet or assign any of the services covered by this Agreement without the express written consent of the City. 13. Non-Waiver. Waiver by the City of any provision of this Agreement or any time limitation provided for in this Agreement shall not constitute a waiver of any other provision. 14. Termination. A. The City reserves the right to terminate this Agreement at any time by giving ten (10) days written notice to the Consultant. B. In the event of the death of a member, partner or officer of the Consultant, or any of its supervisory personnel assigned to the project, the surviving members of the Consultant hereby agree to complete the work under the terms of this Agreement, if requested to do so by the City. This section shall not be a bar to renegotiations of this Agreement between surviving members of the Consultant and the City, if the City so chooses. 15. Applicable Law; Venue; Attorney's Fees, This Agreement shall be subject to, and the Consultant shall at all times comply with, all applicable federal, state and local laws, regulations, and rules, including the provisions of the City of Tukwila Municipal Code and ordinances of the City of Tukwila. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. Venue for any action arising from or related to this Agreement shall be exclusively in King County Superior Court. I& Severability and Survival. If any term, condition or provision of this Agreement is declared void or unenforceable or limited in its application or effect, such event shall not affect any other provisions hereof and all other provisions shall remain fully enforceable. The provisions of this Agreement, which by their sense and context are reasonably intended to survive the completion, expiration or cancellation of this Agreement, shall survive termination of this Agreement, 17, Notices. Notices to the City of Tukwila shall be sent to the following address: City Clerk City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 Notices to Consultant shall be sent to the following address: Anchor QEA LLC 720 Olive Way, Suite 19 Seattle, WA 98101 1 18. Entire Agreement, Modification. This Agreement, together with attachments or addenda, represents the entire and integrated Agreement between the City and the Consultant and supersedes all prior negotiations, representations, or agreements written or oral. No amendment or modification of this Agreement shall be of any force or effect unless it is in writing and signed by the parties. CA revised : 1-2013 Page 4 DATED this - day of 20 CITY OF TUKWILA CONSULTANT By. Allan Ekberg, Mayor Printed Name- Ed Berschinski Title: Principal Construction Manager Attest/Authenticated: Approved as to Form: City Clerk, Christy O'Flaherty Office of the City Attorney CA revised : 1-2013 Page 5 720 Olive Way, Suite 1900 5eaWe Washington 98101 | � Z ANC � ~ ~~'~~ November 29, 2016 Mr. Bob Giberson, PE Public Works Director, Cito of T-%kAa-; 6300 Southcenter Blvd, Suite 100 Tukwila, WA 98188 Re: City of Tukwila: Interurban Avenue South Improvements Settlement and Mediation Support Services As requested by the City of Tukwila, this letter represents aproposed scope ofwork for Anchor QEA LbCho provide settlement and mediation support services (as requested) ho assist the City inits efforts bo close out the construction contract for the above referenced project. Althnughthespedfic scope of work may vary, the general scope of services is expected to include but not necessarily limited to the following: • Review relevant project documents representing project schedu|gamdoosts • Review and evaluate Contractor requests for additional compensation and provide opinion of w Participate in strategy meetings with City, negotiation meetings with Contractor orother meetings with relevant parties • Draft proposed settlement offers for City review, revision and transmittal • Other related services as mutually agreed The services outlined above are anticipated ho have a duration Vf approximately 4months: November 1, 2016 thru March 31, 2017. This duration may be extended at the request of the City if extended negotiations or legal actions demand, The initial budget for these services isestablished to be $40,000.00 not to be exceeded without written authorization from the City. Rates for these services are provided on the attached Exhibit B. Thank you for consideration of this agreement. Sincerely, EdBerschinsk Principal Construction Manager 76032S-07.07 City of Tukwila Settlement and Mediation Support Services L.L.C. Anchor QEA, 2016 BILLING RATES Professional Level Hourly Rates Principal / z C�I ......................... ...... ......... -------..... $235 Senior --- ...... ......... --........ ..... $207 Managing Analyst/CM/Engineer/LA/Planner/Scientist ............ — .... ............... ......................... $l93 Senior................... --............ .......................... $171 Staff3 mi ................ ... ............... ............ .............. $15} Staff s1----------------------$l36 Stuff] .................. ---_--............. ................ $|l4 Senior CAD' -------------------------------------$[l9 [AD Designer .................. — ... —... .......... ................................. —...... —............. .................. $|OO Technician... ....... ................... ...... ....... ...... ................................ ........ .................... .... -- ... $97 TechnicalEditor ................................ —...................................... ... .......... ............ .............. $100 Special Hourly Rates Nabooacxpsrtconau)toot-------------------------------_---.$305 All work &*o testifying expert ............. --- ....... — ... ... ......... i5times professional level rate EXPENSE BILLING RATES Expense Rates Computer Modeling (per hour) ................ -----............................................... ----'$l0.00 Graphic Plots (varies with plot size) ....... --.......... ....... . ............ --............. ............. $3-6/f FEE ON LABOR AND EXPENSE CHARGES Su beontracts/subc onsult ants ............ ...... ---................................. ......... ..... — ... ........ .... lO% Travel and other direct costs .... ........ ... — .... ........ — ......... ........ ........... —....... --........... —lOY6 Field equipment &c supplies .............. ...... ----------...................... ................. ...... ..lO96 This isa company confidential document. / Cm Construction Martager Z Lx Landscape Architect s CAD -- Computer Aided Design 8