Loading...
HomeMy WebLinkAbout19-175 - Ed Berschinski Consulting, LLC -Consulting Services / 42nd Ave S Phase III Project4...* L A • • 90B City of Tukwila 6200 Southcenter Boulevard, Tukwila WA 98188 Agreement Number: 19-175(a) Council Approval N/A CONTRACT FOR SERVICES Amendment #1 Between the City of Tukwila and Ed Berschinski Consulting, LLC That portion of Contract No. 19-175 between the City of Tukwila and Ed Berschinski Consulting, LLC is hereby amended as follows: Section 3, Duration of Agreement; Time for Performance shall be modified as follows: This Agreement shall be in full force and effect for a period commencing upon execution and ending March 31, 2020, 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 perform all services and provide all work product required pursuant to this Agreement no later than March 31, 2020 unless an extension of such time is granted in writing by the City. All other provisions of the contract shall remain in full force and effect. Dated this / day of CITY OF TUKWILA Henry Has' , Director CA Revised December 20 16 , 20 'ao CONTRACTOR Printed Name: r1c,/k4 -Reir\-6(\64; 69Auilim i_LL Page 1 of 1 City of Tukwila 6200 Southcenter Boulevard, Tukwila WA 98188 Contract Numb& 19-175 Council Approval N/A PROFESSIONAL SERVICES AGREEMENT (Includes consultants, architects, engineers, accountants, and other professional services) THIS AGREEMENT is entered into between the City of Tukwila, Washington, hereinafter referred to as "the City", and Ed Berschinski Consulting, LLC, hereinafter referred to as "the Consultant", in consideration of the mutual benefits, terms, and conditions hereinafter specified. 1. Proiect Designation. The Consultant is retained by the City to perform consulting services in connection with the project titled 42nd Avenue South Phase III Project . 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 Agreement; Time for Performance. This Agreement shall be in full force and effect for a period commencing upon execution and ending January 31, 20V3 , 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 perform all services and nrovide all work product required pursuant to this Agreement no later than January 31, 2W-0 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 $10,000.00 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. 7. Indemnification. 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. A. Other Insurance Provision. The Consultant's Automobile 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. B. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. C. 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 Contractor before commencement of the work. Upon request by the City, the Consultant shall furnish certified copies of all required insurance policies, including endorsements, required in this Agreement and evidence of all subcontractors' coverage. D. 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. E. 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. CA revised December 2016 Page 2 9. Independent Contractor. The Consultant and the City agree that the Consultant is on 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 toany benefits accorded City employees bvvirtue ofthe 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 proQnmnn, otherwise assuming the duties of on employer with respect to the Consultant, o[any employee ofthe Consultant. 10. Covenant Against Coo*iMqentFees. The Consultant warrants that hehas not employed or retained any company or peraon, other than a bonmfide employee working solely for the Consultant, to solicit orsecure this oontract, and that he has not paid or agreed to pay any company or peraon, other than o bonafidg employee working solely for the Consu}tant, any fee, co[MnOiSsion, pe[cent8ge, brokerage fee, g/fto, or any other consideration contingent upon or resulting from the mxvmrd or making of this contract. For breach or violation of this warrant, the City shall have the right to annul this contract without |iobi|ity, or in its discretion to deduct from the contract price or consideration, or otherwise reoover, the full amount of such fee, commiosinn, peronntage, brokerage fee, gift, orcontingent fee. 11. Discrimination Prohibited. Contr@cto[, with regard to the work performed by it under this Agreement, will not discriminate on the grounds of race, religion, oreed. Co|or, national origin, age, veteran atatus, sex. seXW@| Orientadon, gender identity, marital atmtVs, political affi|iation, the presence of any disabi|ity, or any other protected u|ens status under state or federal |oxv, in the selection and retention of employees or procurement of materials or supplies. 12. Assiqmmmemk' The Consultant shall not sublet or assign any of the services covered by this Agreement without the express written consent ofthe 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 ofany other provision. ` 14. Termination. A. The City nememvaa the right to terminate this Agreement at any time by giving hen M[A days written notice tothe Consultant. B. In the event of the death of o mernber, partner or officer of the Conou|tant, or any of its supervisory personnel assigned to the project, the surviving members of the Consultant hereby agree tocomplete the work under the terms ofthis Agreement, }Yrequested todo so by the City. This section shall not be a bar to renegotiations of this AQnaennant between surviving members mfthe Consultant and the City. |fthe City amchooses. 15. Applicable Law; Venue;Attmrmev's Fees- This Agreement shall be subject to, and the Consultant shall at all iiOOeG CDrnp|y xxith, all applicable fede[8|, state and local |avvs, naRu|otiono, and ru|eo, including the provisions of the City of Tukwila Municipal Code and ordinances of the City of Tukwila. In the event any uuit, 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 ahmU be entitled to its mttorney'a Nyea and coats of suit. Venue for any motion arising from or related to this Agreement shall be exclusively in King County Superior Court. 18. Sevemmbi|itv and Survival. If any ternl, 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 Agnaarnent, which by their sense and context are noaepnmb|y intended to survive the connp|eUon, expiration or cancellation of this /\0naarnent' shall survive termination ofthis Agreement. CA revised December 2016 EXHIBIT A October 15, 2019 City of Tukwila Proposed Scope of Work: 42nd Avenue Phase 3 Construction Evaluation of Design Engineer Responsibility for Cost Overruns Introduction The City of Tukwila awarded an approximately $6.5 million contract to Active Construction Inc. (ACI) to build the above referenced project. The project had numerous change orders and contract extensions and ultimately cost over $11 million to complete. The City has taken responsibility for some of the cost overruns, has settled final costs with ACI, and is in the process of settling cost responsibility with utilities for their role in the +/- $5 million in additional costs. The City has determined that the design engineers have a responsibility for approximately $1.7 million due to errors/omissions in the design documents. The City has outlined in a letter to the designer 5 primary areas of responsibility for cost overruns and logic for reimbursement requested. The design engineer refuses to accept responsibility for any cost overruns and will not provide financial contributions to settle final construction costs. At the request of the City, Ed Berschinski will provide an independent review of project related documents, interview involved parties and provide an opinion to the City of Tukwila if, in his opinion, the designers actions or inactions were contributory to the cost overruns. Using that opinion, the City may or may not decide to seek compensation from the designer via legal action. Scope of Services Document Review: The City of Tukwila shall provide Mr. Berschinski unfettered access to documents and correspondence related to the matter for his review, including but not limited to the following: • Correspondence from City to Design Engineer requesting cost reimbursement and response from designer. • Summary of construction costs including all change orders, request for change orders and force accounts • Conformed set of construction contract documents and bid tabulation • Baseline schedule and subsequent schedules for completing the work including requests for time extension and justification for granting a time extension. • Design Engineer's contract, scope of work and any record of negotiations related to scope of work including that of subconsultants • Geotechnical report and other documents or correspondence as may be applicable Interviews: When requested by Mr. Berschinski, the City of Tukwila will make arrangements with parties that may have first-hand knowledge of the work conducted for this project to be interviewed by Mr. Berschinski. Mr. Berschinski will question their observations related to the work to assist in drawing conclusions. The City shall encourage participants to be open and honest and assure them there will be no repercussions for sharing their candid observations and that the interviews will be confidential. Individuals to be interviewed include but not necessarily limited to the following: • The City design project manager(s) • The City construction project manager(s) • The construction management consultant project manager(s) • The construction inspector(s) • Other individuals who may have observations related to cost overruns Report Preparation: Mr. Berschinski will provide his opinion in a brief synopsis report to be addressed to the appropriate City public works official and City Attorney. The report shall be confidential and marked as "Attorney/client privileged correspondence prepared in anticipation of litigation". It shall consist solely of Mr. Berschinski's opinion of responsibility for cost overruns — his notes from document review and interviews will not be included. In consideration of responsibility, the opinion will address entitlement only and calculation of "quantum merit" will not be considered. If Mr. Berschinski's opinion in this matter is in any way contributory to the City's decision to pursue legal action against the design engineer, The City of Tukwila agrees to indemnify, protect and defend Mr. Berschinski from any and all actions and costs related to providing his opinion including counter actions from the design engineer or related parties. Mr. Berschinski assumes no liability for rendering his opinion in this matter. Deliverables include draft and final report (not to exceed 3 pages) and meeting with City officials/attorney to discus draft and changes for final. All reporting will be directly to Henry Hash (Public Works Director) and/or Hari Ponnekanti (Deputy Public Works Director/City Engineer). Cost Proposal (costs are estimated and may vary) The costs outlined below are estimate by task. Actual costs by task may vary. Interim reporting will be made to the City at the approximate 30% ($3000), 60% ($6000) and 90% ($9000) accrual stages with written authorization toproceed tothe next stage aLeach point. Document Review: 4Ohours @$1SO/hr $6000 Interviews: 1Ohours @ $160/hr $1500 Report prep and meeting: 16hours @$1SO/hr $2400 Expenses: Mileage, ferry fares, and misc. $ IOO Total: Not toexceed without authorization from City $lO^OOO Payments shall bemade to: Ed BerschinskiConsu|hng, LL[ 134O7K8anzanitaRd. N[ Bainbridge Island, VVA9O11U Time for Completion All work listed above including issuance of final report shall be completed by January 31, 2020.