HomeMy WebLinkAbout02- HDR Engineering Professional Services Agreement
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PROFESSIONAL SERVICES AGREEMENT
TIllS IS AN AGREEMENT made as of October 13. 2003~_, bctwcen THE CITY OF
BOZEMAN, a Municipal Corporation, Bozeman, Montana, 59715 (OWNER) IJDR
ENGINEERING, INC., a Nebraska corporation, with principal offices at 3075 N. Reserve, Suite A,
Missoula, Montana 59808 , (ENGINEER).
Whereas the accomplishment of the work and services described in this Agreement is essential to the
OWNER'S public works improvemcnt program.
Whereas the OWNER intends to and has selected the ENGINEER to provide necessary and
professional engineering services for thc project.
Whcreas the ENGINEER represents that it is willing and qualified to perform the professional
engineering serviccs for this project described in this Agreement.
Therefore, in consideration of the foregoing recitals and the mutual covenants and conditions
contained herein, the parties agree as follows:
ARTICLE I - ENGINEERING SERVICES
1.1. The detailed description of the specific project components is described as follows:
The purpose of this effort is to provide assistance to the City of Bozeman in the development of their
Phase 2 permit, the city stormwater program, calculation of costs and staff hours associated with the
tasks in the permit, and negotiation of memoranda of understanding with Montana State Uni versity
and Montana Department of Transportation.
1.2. The scope of services under this contract are set forth in detail in Article 4 of this agrecment.
ARTICLIL2 - ENGINEER'S RESPONSIBILITIES
2.1. ENGINEER shall perfonTI for OWNER professional engineeling services in all phases ofthe
Project to which this Agreement applies as hereinafter provided. Thcse services will include, but not
be Ii mitcd to, serving as OWNER's professional engineering representati ve for thc Project, providing
professional engineering consultation and advice and furnishing customary civil and structural
engineering services incidental thereto.
2.2. The ENGINEER shall furnish all labor, materials, equipment, supplics, and incidentals
nccessary to conduct and complete the ENGINEER'S p01tions of the Project and to prepare and
deliver to thc OWNER all data, rep01ts, plans, specifications, and recommendations as designated
herein.
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2.3. The ENGINEER shall ascertain such information as may have a bearing on the work from
local units of government, public, and private organizations and shall be authorized to procure
information from other authorities as to the extent of these contacts and the results thereof.
2.4. The ENGINEER'S work shall be in accordance with the standards of sound engineering
practices.
2.5. The ENGINEER shall name a Principal-In-Charge for the duration of the project. The
Principal-In-Charge shall be David L. Clark.
2.6. The ENGINEER shall name a Project Manager who shall be the liaison between the
ENGINEER and the OWNER. The Project Manager shall be Amanda McInnis. The OWNER may
name a Task Director who would be the liaison between the ENGINEER and the OWNER during
the design segment of the Project.
2.7. The ENGINEER shall submit an estimated progress schedule at the beginning of the work,
and monthly progress reports thereafter until the project is completed.
ARTICLE 3 - OWNER~S RESPONSIBILITIES
3.1 The OWNER shall name a Task Director who shall be the liaison between the ENGINEER
and the OWNER during DESIGN segment of the Project.
3.2 The OWNER shall have the right of review and examination of the ENGINEER'S work at
all times.
3.3 The OWNER shall make available all records (as-built drawings, construction records, etc.)
indicating the existing configuration of the city utilities. The ENGINEER shall have the right
to rely on the accuracy and completeness of information supplied by the OWNER.
ARTICLE 4 - BASIC ENGINEERING SERVICES
The ENGINEER shall render professional Engineering Services as described on the attached Exhibit
A: Scope of Services.
ARTICLE 5 ~ ADDITIONAL SERVICES
5.1. If OWNER wishes ENGINEER to perform any of the following Additional Services,
OWNER shall so instruct ENGINEER in writing, and ENGINEER shall perform or obtain from
others sueh services and will be paid therefore as provided under 6.2.4 of this Agreement:
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5.2 DELETED
ARTICLE 6 - COMPENSATION FOR ENGINEERING SERVICE
6.1 Section 6.1 DELETED.
6.2 DIRECT LABOR COST PAYMENT FOR BASIC SERVICES AND EXPENSES OF
ENGINEER.
Construction and project documentation services performcd as Basic Engineering Services under
sections 4.5 through 4.7 including Gcncral Administration of Construction Contract, Resident
Project Representation, Project Documentation, and Construction Testing, shall be compensated in
accordance with the following:
6.2.1 The OWNER shall pay for Construction Phase and Project Documentation Services
an amount not to ex.ceed $9,800 exccpt as provided under 6.2.1.2 and 6.2.4.
6.2.1.1 Costs Compcnsation. Compensation for these scrvices shall be based on the
ENGlNEER's Direct Labor Cost timcs a factor of 3.10 for services
rendered which shall cover Direct Labor, Dircct Labor Overhead, General &
Administrative Overhead and Profit.
6.2.1.2 Notification..: At any timc during the construction that it bccomes apparent
that the Construction Phasc and Project Documentation Services rendered under this
Agreement will cxceed the negotiated compensation for these services, and prior to
performing services in excess of the contract ceiling, the ENGINEER shall give
OWNER writtcn notice thereof. PromptlythereafterOWNER and ENGINEER shall
review the scope and progress of the project work. ENGINEER shall obtain written
authorization from OWNER, prior to any additional costs being incuned undcr
paragraph 6.2.1.3. If it is determined that due to a changc in project scope the
ENGINEER is entitled to additional compcnsation, OWNER and ENGINEER may
ncgotiate terms as provided undcr 6.2.1.1. The amount and terms of any additional
compensation under 6.2.1.1 or 6.2.1.3 shall bc negotiated and agreed in writing
pursuant to 9.16.
6.2.1.3 Costs Excceding Estimated Compensation. Whcn the total cost of the
original scope ex.ceeds the negotiated compensation for these services, thc OWNER
shall pay only for the direct costs incuned in exccss of the estimated compensation.
Thcsc costs consist of an amount cqual to the ENGINEER'S Direct Labor Cost times
a factor of 3.10 for services rcndered which shall include Direct Labor, the federally
audited payroll Direct Labor Overhead, and General & Administrative Overhead
costs, but shall not include any allowance for profit.
6.2.2. Reimbursable Expcnses, as defined in section 7.4 of this Agreement, for Basic
Services and Approved Additional Services shall be paid to the ENGINEER by thc OWNER
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in the actual amount of the costs incuned up to an amount not to exceed $1,000
which includes $ 0 for consultants employed by the Engineer and $ 1,000 for all other
reimbursable expenses. The estimated reimbursable expenses are identified in Exhibit "A."
6.2.3. DELETED.
6.2.4 The OWNER shall pay an amount for Additional Services rendered by the
ENGINEER and approved in writing by the OWNER on the basis of the ENGINEER'S
Direct Labor Costs times a factor of 3.10, or an amount otherwise negotiated at the time such
services are requested and approved by the OWNER.
ARTICLE 7 - MEANING OF TERMS
7.1 AGREEMENT
As used herein the term "this Agreement" refers to the contents of this document and its Exhibits
attached hereto and referred to as if they were patt of one and the same document.
7.2 CONSTRUCTION COSTS
The construction cost of the entire Project (herein refen-ed to as "Construction Cost") means the total
cost to OWNER of those pottions of the entire Project designed and specified by ENGINEER, but it
will not include ENGINEER's compensation and expenses, the cost of land, rights-of-way, or
compensation for or damagcs to, propelties unless this Agreement so specifics, nor will it include
OWNER's legal, accounting, insurance counseling or auditing services, or interest and financing
charges incurred in connection with the Project or the cost of other services to be provided by others
to OWNER.
7.3 DiRECT LABOR COSTS
Direct Labor Costs used as a basis for payment mean the actual salaries and wages paid to all
ENGINEER's personnel engaged directly on the Project, including, but not limited to, engineers,
architects, surveyors, designers, drafters, specification writers, estimators, other technical and
business personnel; but docs not include indirect payroll related costs or fringe benefits. For the
purposes of this Agreement the principals and employees of the ENGINEER maximum billable
Direct Labor Costs are:
Principals $60.00 -- /hour
Project Manager $29.50 /hour
Project Controller $16.50 /hour
Clerical $9.00 /hour
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7.4 REIMBURSABLE EXPENSES
Reimbursable Expenses mean the actual expenses incurred by ENGINEER or ENGINEER's
independent professional associates or consultants directly in connection with the Project, such as
expenses for: transportation and subsistence incidental thereto; obtaining bids or proposals from
Contractor(s); subsistence and transportation of Resident Project Representati ves and their assistants;
toll telephone calls and telegrams; reproduction of reports, Drawings, Specifications, Bidding
Documents and similar Project-related items; and if authorized in advance by OWNER, ovet1ime
work requiring higher than regular rates. In addition, when compensation for Basic Services is on
the basis of Direct Labor Costs method of payment, Reimbursable Expenses will also include the
amount billed to ENGINEER by special consultants employed by ENGINEER and authorized by
OWNER (other than as an authorized Additional Services) and will also include expenses incurred
for computer time and other specialized equipment, including an appropriate charge for previously
established programs and expenses of photographic production techniques.
ARTICLE 8 - PAYMENT PROVISIONS
8.1 TIMES OF PAYMENTS. ENGINEER may submit monthly statements for Basic Services
and approved Additional Services rendered and for Reimbursable Expenses incurred; however,
payments shall not exceed the ceilings provided in 6.1 and 6.2. Final payment shall be made only
after acceptance of the project by the OWNER. If OWNER disputes the amount of the billing,
OWNER will notify the ENGINEER in writing within ten (10) calendar days of the receipt of bill of
the dispute. Undisputed items included in invoices shall be paid upon receipt of the invoice.
8.2 REQUESTS FOR PAYMENT. Each request for payment shall include a documentatIOn
summary of the period incremental man hours incurred, direct labor rates and billed rates, detail of
reimbursable costs, total period billing, and total cumulative billing. When requested by OWNER
services for distinct project segments shall be accounted and billed separately.
8.3 PAYMENT UNDER TERMINATION. In the event of termination by the OWNER upon the
completion of any phase of the Basic Services, progress payments due ENGINEER for services
rendered through such phase shall constitute total payment for such services. In the event of such
termination by OWNER during any phasc of the Basic Services, ENGINEER also will be
reimbursed for the charges of pre-approved independent professional associates and consultants
employed by ENGINEER to render Basic Services, and paid for services rendered during that phase
on the basis of the payment provisions of the Agreement. In the event of any sLIch termination,
ENGINEER will be paid for unpaid pre-approved Additional Services and unpaid Reimbursable
Expenses which arc authorized under this agreement.
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ARTICLE 9 - GENERAL CONSIDERATIONS
9.1 TERMINATION OF AGREEMENT
9.1.1 The sole right is hereby reserved to the OWNER to terminate this Engineering
Agreement for any and all causes or for its convenicnce at any time upon fifteen (15) days
written notice to the ENGINEER.
9.1.2 If termination for default is effected by the OWNER, an equitable adjustment in the
price provided for in this Agrcement shall be made, but (1) no amount shall be allowed for
anticipated profit on unperformed services or other work, and (2) any payment due to the
ENGINEER at the time of tcrmination may be adjusted to cover any additional costs to the
OWNER because of the ENGINEER's default. If termination for convenience is effected by
thc OWNER, the equitable adjustment shall include a reasonable profit, as determined by
owner, for services or other work performed. The equitable adjustment for any termination
shall provide for payment to the ENGINEER for services rendered and expenses incuned
prior to the termination, in addition to termination settlement costs reasonably incutTed by
the ENGINEER relating to commitments which had become firm prior to the termination.
9.1.3 Upon receipt of a termination action under paragraph 9.1.2, the ENGINEER shall (I)
promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver
or otherwise make avai lable to the OWNER within ten (10) days copies of all data, design
drawings, specifications, reports, estimates, summaries and such other information and
materials as may have been accumulated by the ENGINEER in performing this Agreement,
whether completed or in process.
9.1.4 In the event this Contract is terminated prior to completion, the original copies ofthe
ENGINEER'S data, recommendations, plans, specifications, analysis and other related
documents prepared by the ENGINEER prior to said termination shall be delivered to and
become the property of the OWNER. ENGINEER shall be allowcd to keep copies of its
work product.
9.1.5 Upon termination, the OWNER may take ovcrthc work and may award another party
an Agreement to complete the work under this Agreement.
9.1.6 OWNER'S right to terminate is in addition to any other remedies OWNER may have
under the law.
9.1.7 The ENGINEER may terminate this Contract if the OWNER substantially fails to
perform in accordance with its obligations under this contract, or if ENGINEER's
services cannot be performed because of hazardous materials provided ENGINEER
notifies the OWNER in writing of its intention to do so. The ENGINEER must
provide the OWNER with sufficient information to detetmine what obligations under
the contract have not been met.
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The OWNER will have fifteen (15) days from the date notice is received to cure any
default specifically set forth in said notice.
9.2 INSPECTION AND AUDIT
All books, papers, records, payrolls, vouchers and invoices relating to costs and expenditures
incuned as to the performance ofthe services by the ENGINEER hereunder shall be made available
to the OWNER, or their authorized representatives for audit and review, at the ENGINEER'S
respecti ve offices at all reasonable ti mes during the contract period and for three years from the date
of final payment.
9.3 EMPLOYMENT ENGINEER warrants that he has not employed or retained any company or
persons, other than a bona fide employee, working solely for the ENGINEER, to solicit to secure this
contract, and that he has not paid or agreed to pay any company or person, other than bona fide
employees working solely for the ENGINEER, any fcc, commission, percentage, brokerage fee, gifts
or any other considerations contingent upon or resulting from the award or making of this Contract.
For breach or violation of this walTanty, the OWNER shall have the right to annul the Contract
without liability or in its discretion to deduct from the price or consideration or otherwise recover the
full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
All employees ofthe ENGINEER or other persons while engaged in the performance of work or
services required by the ENGINEER shall be considered employees of the ENGINEER only and not
of the OWNER.
9.4 NONDISCRIMINATION
The ENGINEER wi II not discriminate on the basis of race, color, religion, creed, political ideas, sex,
age, marital status, national origin or disability in employment or provision of services. The
ENGINEER shall be subject to and comply with Title VI of the Civi I Rights Act of 1964; Section
140, Title 2, United States Code, and all regulations promulgated thereunder.
9.5 SUBLETTING OR ASSIGNING OF WORK
The ENGINEER shall not sublet or assign any of the work covered herein without prior written
approval of the OWNER.
9.6 ST ANDARD OF CARE
In providing services under this agreement, the ENGINEER will perfOlm in a manner consistent with
the degree of care and skill ordinarily cxcrcised by members of the same profession cUlTently
practicing under similar circumstances. If any service should be found to be not in conformance with
this standard, the ENGINEER shall, at the OWNER's request, re-perform the service at its own
expense. Engineer shall also, at its own expense, make such changes, modifications or additions to
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the project which are made necessary as a result of the initial non-performance or the re-performance
of services. The OWNER's rights herein are in addition to any other remedies the OWNER may
have under the law.
9.7 LEGAL RELATIONS
9.7.1 The ENGINEER shall comply with all Federal, State, and Local laws and ordinances
applicable to the work to be done.
9.7.2 The ENGINEER agrees to indemnify, hold harmless, and defend the OWNER, its
officers, directors, agents, and employees from and against any suits, causes of
action, claims, demands, damages, costs, expenses, obligations, and liability of any
character, including attorney's fees, arising out of or resulting from or in connection
with the ENGINEER's negligent performance of the services specified in this
agreement or willful misconduct. ENGINEER will be held responsible only forthose
damages, costs, attorney's fees, and liabi lities as are attributable to the ENGINEER's
percent of fault as compared with 100% of the fault giving rise to the damages.
9.7.3 In an appropriate case in which attorney's fees are awarded to the OWNER following
a wrongful refusal of a tender of defense, said fees may include fees and salary paid
by the OWNER to the City Attorney or other in-house counsel.
9.7.5 The indemnity required herein shall not be limited by reason of the specification of
any patiicular insurance coverage in this agreement.
9.7.6 The ENGINEER shall perform this agreement as an independent contractor, and as
such, is responsible to the OWNER only as to the results to be obtained in the work
herein specified, and to the extent that the work shall be done in accordance with the
terms, plans and specifications. The ENGINEER shall have and maintain complete
control over all of its employees, subcontractors, agents and operations, being
responsible for any required payroll deductions and providing required benefits, such
as, but not Ii mited to, worker's compensation with statutory limits, and
unemployment insurance.
9.8 INSURANCE
The ENGINEER shall secure and furnish to the OWNER certificate of insurance, therein, naming the
OWNER as an additional insured except on worker's compensation and professional liability
policies, to include thirty (30) days notice of cancellation or non-renewal.
Without limiting any of ENGINEER's obligations hereuncler, ENGINEER shall secure and maintain,
until the work is completed and accepted by the OWNER, insurance coverage naming the OWNER
as additional insured except on worker's compensation and professional liability policies, with
minimum insurance coverage as follows:
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Type of Coverage Limits
Employers' Liability: $ 100,000 per accident
General Liability:
Bodily Injury & Property
Damage Single and combined $ 1,000,000 per accident
Automobi Ie:
Bodily Injury covering all $ 500,000 each person
automobiles, trucks,
tractors, trailers, or $1,000,000 each OCCUlTence
other automotive equip-
ment whether owned or
rented by Engineer or
owned by employees of
Engineer.
Property Damage covering $ 500,000 each OCCUtTence
all automobiles, trucks,
tractors, trai lers or other
automotive equipment whether
owned or rented by Engineer
or owned by employees of
Engineer
OR
Bodily Injury & Propetty $ 500,000 each occurrence
Damage Single and combined
Professional ElTors & Omissions: $ 1,000,000 per claim
9.9 ENDORSEMENT
The ENGINEER shall place his endorsement on all drawings and other data furnished by him.
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9.10 OWNERSHIP OF DOCUMENTS
The parties admit and agree the documents produced under this agreement arc not intended or
represented to be suitable for reuse by OWNER or any other individual on any other project. Any
reuse without written verification or adaptation by ENGINEER will be at OWNER's sole risk and
without liability or legal exposure to ENGINEER, or to ENGINEER's independent professional
associates or consultants. Files in electronic media format of text, data, graphics, or of other types
that are fUl11ished by ENGINEER to OWNER arc only for convenience of owner, and hard copies
shall control in the event of a contlict with electronic files. Any conclusion or information obtained
or derived from such electronic files will be at the user's sole risk.
9.11 PUBLIC INFORMATION
The ENGINEER shall not issue any statements, releases or information for public dissemination
without prior approval of the OWNER.
9.12 PROPRIETARY RIGHTS
If patentable discoveries or inventions should result from work required herein, all rights accruing
from such discoveries or inventions shall be joint property of the ENGINEER and the OWNER.
Provided that the OWNER, state agencies or political subdivisions and the United States
Govel11ment shall have the irrevocable, nonexclusive, nontransferable and royalty-free license to use
each invention in the manufacture, use and disposition, according to law, of any atticle or material,
and in the use of any method that may be developed as patt ofthe work described and contemplated
herein.
9.13 RECORDS
The ENGIN EER shall maintain accounting records and other evidence pertaining to the cost inculTed
and to make the records available at all reasonable times during the Contract term and for one (1)
year from the date of final payment. Such accounting records and other evidence pertaining to the
cost incurred will be made available for inspections by OWNER.
9.14 SUCCESSORS IN INTEREST
The covenants, agreements and all statements in this Contract apply to and shall be binding on the
heirs, personal representati ves, successors and assigns of the respecti ve parties.
9.15 ATTORNEY'S FEES AND COSTS
That in the event it becomes necessary for either Patty of this Contract to retain an attol11ey to
enforce any of the terms or conditions of this Contract or to give any notice required herein, then the
prevailing Patty or the Party giving notice shall be entitled to reasonable attorney's fees and costs,
including fees, salary, and costs of in-house counsel to include City Attol11ey.
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9.16 MODIPICATIONS AND AMENDMENTS
That any amcndmcnt or modification of this Contract or any provisions hcrcin shall be made in
writing or executed in the samc manner as this original documcnt and shall aftcrcxecution become a
part of this Contract.
In witncss Whereof, the Parties hcrcto do make and execute this Agrccmcnt.
CITY OF BOZEMAN, MONTANA ENGINEER
BY:__:-\ - '\ ,
BY: "
---...........~-"---o.....-.-
(City Manager)
DATE: October 13. 2003 DATE: g -15-03 -
ATTEST:
ByrJ/:J ~
(Clerk of Commission)
APPROVED-AS TO FORM
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.1 . /1
,/,~"1,,/ /
'".
,,{ c ,
BY:
(CitY Attorney)
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Exhibit A: Scope of Services - Phase 2 Permit Assistance
Purpose
The purpose of this effort is to providc assistance to the City of Bozeman in the development of their Phasc 2 pcrmit,
the city stormwater program, calculation of costs and staff hours associated with the tasks in the permit, and
negotiation of mcmoranda of understanding with Montana State University and Montana Department of
'f'ransportation.
Approach
The work plan is broken down into subtasks that are described in the following paragraphs.
1.1 Phase 2 Permitting Workshop. In a one-day workshop on February 19,2003, HDR revicwed and provided
comments the City of Bozeman's current Phase 2 permit application and the City's storrnwater program, due to
DEQ on March 10,2003. Alternate approaches to mccting the requirements of the six minimum control
measurcs and requirements associatcd with annual permitting through the 5-year permit cycle were discussed.
1.2 Cost and Hours Calculation. HDR will review the permit application and provide an estimated breakdown of
staff hours and direct costs associated with each permit activity throughout the 5-year permit cyclc.
1.3 Memoranda of Understanding Assistance. HlJR will provide review comments on draft and final memoranda
of understanding for Montana State Univcrsity and Montana Department of Transportation. In addition, HDR
will participate in one negotiation session including MSlJ and MDT in a single day.
1.4 Ongoing Stormwater Program Support. As necded, if asked, HDR will provide ongoing support of the City
storm water program.
Del iverables:
. Cost tabulation of estimated Phasc 2 Costs
. Two sets of comments (draft and final) on MDT and MSLJ memoranda of understanding.
. Meeting minutes from negotiation session
. 13 udget:
Project Manager Project Principal
1.1 Phase 2 Permitting Workshop 15 6
1.2 Cost and Hours Calculation 24 4
1.3 MOU Assistance 24 6
T otal* $ 9,800
'includes expenses
Schedule:
. Prepare Cost Calcuations: 7 days after NTP
. Prepare Draft MODs for distribution to MSU/MDT: August 29, 2003
. Conduct Mceting with MSU/MDT: Mid-Septembcr
. Finalize MOlls: End of October
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