HomeMy WebLinkAbout05- Morrison-Maierle Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of Ma rch 7, 2005 , betwccn THE CITY OF BOZEMAN, a
Municipal Corporation, Bozeman, Montana, 59715 (OWNER) and
Morrison-Maierlc, Inc., 901 Technolol!V Blvd., Bozeman, Montana, (ENGINEER).
Whereas the accomplishmcnt of the work and services described in this Agrecmcnt is csscntial to thc OWNER'S
public works improvemcnt program.
Whereas the OWNER intends to and has selected the ENGINEER to provide necessary and professional engineering
services for the project.
Whereas the ENGINEER represents that it is willing and qualificd to pcrform the professional engineering scrviccs
for this project described in this Agreemcnt.
Therefore, in consideration of the foregoing recitals and the mutual covenants and conditions containcd herein, the
parties agrcc as follows:
The conditions and provisions set forth in thc attachcd EXHIBIT A, ENGINEER'S STATUS DURING
CONSTRUCTION, is hereby incorporated in and madc part of this Agreement.
ARTICLK 1 - KNGlNEERING SERVICES
1.1. Thc detailed description of the spccific projcct componcnts is described as follows:
As outlincd in the proposal letter dated August 10, 2004, providc sitc civil, structural, architcctural, plumbing,
HV AC, and projeclmanagement serviccs for thc 4,500 s.f. cquipmcnt and parts storage building addition to thc
cxisting maintenance shop locatcd at the City of Bozeman Wastewater Treatment Plant.
1.2. The scope of services undcr this contract are set forth in this agreement and the attached EXHIBITS.
ARTICLE 2 - ENGINEER'S RKSPONSIBILITIES
2.1. ENGINEER shall pcrform for OWNER professional engineering services in all phases of the Project to which
this Agrcement applies as hereinafter providcd. Thcse services will include, but not be limited to, serving as OWNER's
professional engineering rcprcscntative for the Project, providing professional engineering consultation and advice and
furnishing customary civil, structural, mechanical, and architcctural subconsultant cngineering services incidental thercto.
2.2. The ENGINEER shall furnish all labor, materials, equipment, supplies, and incidentals necessary to conduct and
complctc the ENGINEER'S portions of the Projcct and to prepare and dcliver to the OWNER all data, reports, plans,
specifications, and recommendations as designated herein.
2.3. The ENGINEER shall ascertain such information as may havc a bearing on thc work from local units of
government, public, and private organizations and shall be authorizcd to procurc information from othcr authoritics as to
thc extent of these contacts and the rcsults thcreof.
2.4. Thc ENGINEER'S work shall be in accordancc with thc standards of sound cnginccring practices.
2.5. 'The ENGINEER shall name a Principal-In-Charge for the duration of the project. The Principal-In-Charge shall
be John R. Schunke. P.E.
2.6. Thc ENCINEER shall name a Projcct Managcr who shall be thc liaison between the ENGINEER and thc
OWNER. The Project Manager shall be Kurt W. Keith. P.E. 1l1e 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. Thc ENCINEER shall submit an estimatcd progrcss schcdulc at thc bcginning of thc work, and vcrbalmonthly
progrcss reports thereafter ~mtil the project is complctcd.
ARTICLE 3 - OWNER'S RESPONSIBILITIES
3.1 The OWNER shall name a Task Dircctor who shall be the liaison between the ENGINEER and the OWNER
during DESIGN segment of the Projcct. Thc Task Director designated shall be ~___._.".................._.~_..~____~_m.......__'
3.2 The OWNER shall have the right ofrcvicw and examination of the ENGINEER'S work at all times.
3.3 The OWNER shall make available all rccords (as-built drawings, construction records, etc.) indicating thc
existing configuration ofthc city utilities.
3.4 The OWNER will be responsiblc for Advcliising Bid Opcnings.
3.5 The OWNER shall attend the ~)fe-bid conferences, bid openings, pre-construction confcrcnccs, construction
progress and othcr job rclated meetings, substantial completion inspections and final paymcnt inspcctions.
ARTICLE 4 - BASIC I<:NGINEERING SERVICES
The ENGINEER shall render profcssional Engineering Services as follows:
4.1 PRE-DESIGN INVESTIGATION PHASE
After written authorization to procccd, ENCINEER shall:
4.1.1 Consult with OWNER to clarify and detlne OWNER's requirements for the Project and review
available data.
4.1.2 Advise OWNER as to the ncccssity of OWNER's providing or obtaining from othcrs, data or scrviccs
and assist OWNER in obtaining such data or services.
4.1.3 Identify and analyze requirements of govcmmcntal authoritics having jurisdiction to approvc thc design
of the Project and participate in consultations with such authorities.
4.1.4. Providc analyscs of OWNER's needs.
4.1.5. Prepare a Report containing schematic layouts, sketches and conceptual design criteria with
appropriate exhibits to indicate clearly the considerations involved (including applicable requirements of
governmental authorities having jurisdiction as aforesaid) and the alternative solutions available to
OWNER and sctting forth ENGINEER's findings and recommendations.
4.1.6. Furnish
3 copies of the Study and Report documents and review them in person with OWNER.
Thc Pre-design Investigation Phase will bc completcd and submittcd within ..J.Q.... calendar days following written
authorization from OWNER to ENGIN EER to proceed with that phase of services.
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4.2 PRELIMINARY DESIGN PHASI':
After acceptance of the prc-dcsign report and receipt of written authorization to proceed with the Preliminary Design
Phasc, ENGINEER shall:
4.2.1.
In consultation with OWNER deternline general scope, extent and character of the Project.
4.2.2. ENCINEER shall tllen prepare a Preliminary Design Repolt, consisting of preliminary plans and
speci fi cati on s.
4.2.3. Preliminary Design Rcport: Spccific itcms to be addressed in the design report will include, but not bc
limited to:
4.2.3.1. Summary of construction requirements with appropriatc drawings for cach task included in
the project.
4.2.3.2. Plans for providing water and sewer services for affected properties during construction.
4.2.3.3. Summary geotechnical report for specific tasks, if needed.
4.2.3.4. Special design considerations for Project tasks with conditions not covered in standard
construction mcthods or specifications.
4.2.4. Cieotec.;hl1j.9..'i!L Explorations and Analysis: As dircctcd by thc OWNER, thc ENCINEER will utilize
cxisting gcotcchnical explorations and analysis for project design and bidding. The ENGINEER does not
guarantcc thc accuracy nor applicability of these existing documcnts to this spccific project.
4.2.5. Prcliminarv Plans an(I.5ne9i[icAiQ!lli. Prepare preliminary construction plans and specitlcations with
infOll11ation which addresses thc spccial fcaturcs of cach projeet task.
4.2.6. ENGINEER shall prcparc and fumish complete copies of preliminary bidding documents and dcsign
report as requested to OWNER and at thc same timc fumish copics as directed by OWNER to agencics and/or
parties having regulatory rcsponsibilitics or direct financial participation in any part of the Project; provide any
technical criteria, writtcn dcscriptions and desif,'11 data necessary for securing pernlits or approval from
authoritics havingjurisdietion to review and approve the design, and assist owner in securing such approvals; and
rcvicw documcnts in person with OWNER and review authorities, and, if ncccssary, conduct a plan-in-hand site
review. All changes agreed to bctwccn ENCINEER and OWNER will be noted in a memorandum from thc
ENGIN EER to thc OWN ER and incorporated into the tlnal plans and specitlcations.
Thc Prcliminary Dcsign Phase will be completed and submitted within 10
authorization from OWNER to ENGINEER to proceed with that phasc of scrviccs.
calendar days following written
4.3 FINAL DESIGN PHASE
After written authorization to procced with the Final Design Phase, ENGINEER shall:
4.3.1. On the basis of the acceptcd Preliminary Dcsign documcnts, preparc for incorporation in thc Contract
Documents final drawings and Technical Specifications of suft1cient detail to show the general scope, extent and
dctailcd character of the work to be furnished and performed by the Contractor(s) suitable for use in the project
bidding and construction.
4.3.2. Prcparc for rcvicw and approval by OWNER, its legal counsel and other advisors, contract agrecmcnt
forms, general conditions and supplementary conditions, and (where appropriate) bid fonm, invitations to bid
and instructions to bidders, special provisions, technical specit1cations, and standard drawings, and other related
contract documents in conformance with the latest edition of the Montana Public Works Standard Specit1cations
(MPWSS) and City of Bozeman Modifications to MPWSS adopted by the City of Bozcman.
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4.3.3. Furnish OWNER six copies of the Contract Documents (including design drawings, specifications and
contracts).
The Final Phase will be complete and submittcd within 30
OWNER to ENGINEER to procecd with that phase of services.
calendaT days following writtcn authorization from
4.4 BIDDING OR NEGOTIATING PHASE
After written authorization to proceed with the Bidding or Negotiating Phase, ENGINEER shall:
4.4.1. Assist OWNER in advcliising for and obtaining bids or ncgotiating proposals for construction
contract(s) and record prospectivc bidders to whom Bidding Documcnts have been issucd, reccivc and process
deposits for Bidding Documcnts and conduct pre-bid conferences.
4.4.2. Provide interpretation or clarification to prospcctivc biddcrs rcgarding thc Bidding Documents, and
issue addenda as appropriatc.
4.4.3. Consult with and advise OWNER as to the acccptability of thc prime contractor, subcontractors,
supplicrs and other persons and organizations proposcd by thc primc contractor(s) (herein call "Contractor(s)")
for those portions of the work as to which such acceptability is required by thc Bidding Documents.
4.4.4. Consult with OWNER concerning and determine the acceptability of substitute materials and
equipmcnt proposed by Contractor(s) whcn substitution prior to the award of contracts is allowed by the Bidding
Documents.
4.4.5. FaciJitatc contract award, and the execution and distribution of the contract documents for construction,
materials, cquipment and services. Furnish Owner two original signature sets of executed contract documents
(including design drawings, spccifications and contracts). Fumish contractor with one set of original signaturc
executed contract documcnts and up to three sets of con strueti on documents.
4.5 CONSTRUCTION PHASE
Thc rcsponsibilities ofthe ENGINEER during the Construction Phase aTe summarized as follows:
4.5.1. Gener'h! Administration of Construction Contract. ENCINEER shall consult with and advise OWNER
and act as OWNER'S rcpresentative as provided in EXHIBIT A - ENGINEER'S STATUS DURING
CONSTRUCTION, attached to and made part of this Agreement and may be further provided under the General
Conditions of the contract documents. '('he extent and linlitations of the authority, duties, and rcsponsibilitics of
the ENGINEER on the construction job site as assigned here-in shall not be moditled except as the ENGINEER
may otherwise agrcc in writing. All of OWNER's instruction to Contractor(s) will be issucd through
ENGINEER who will have authority to act on behalf of OWNER to the extent provided in the Cenera\
Conditions except as otherwise providcd in writing.
In addition to the services providcd undcr Article 10 (Exhibit A) thc ENCINEER shall providc the following
services during construction:
4.5.1.1 ENGINEER shall provide OWNER copies of all correspondence bctwccn thc ENGINEER
and Contractor.
4.5.1.2 Upon rcqucst of the Owner, rcview and approve, for confommncc with thc projcct tcchnical
specifications all shop drawings, and other Contractor submittals required by the Contract Documents.
4.5. 1.3 Prepare for OWNER'S approval any plan and specification changes which due to any initial
design or engineering deficiencics are required to complete thc projcct original dcsign concept.
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4.5.1.4 Schcdule and conduct with the OWNER a final project inspection and submit a report to the
OWNER documenting any outstanding itcms or dcficicncics rcquiring corrcction prior to final
paymcnt.
4.5.2. Resident Proiect Represcntativc. At thc OWNER'S rcquest, the ENCINEER will not bc rcquired to
provide a Resident Projcct Rcpresentative at the job site to provide observation of the work.
4.5.3 Limitations of Responsibilities. ENGINEER will not be responsible for CONTRACTOR's means,
mcthods, techniques, sequences or proccdurcs of construction, or thc safcty precautions and programs incident
thereto, and ENGINEER will not be responsible for CONTRACTOR's failure to perf 01111 or fU111ish the Work in
accordancc with thc Contract Documents; however, nothing contained in this agreement shall be construed to
relcasc ENCINEER from liability for failure to properly perform dutics and responsibilities assumed by
ENGINEER in the Contract Documents.
4.6. PROJECT DOCUMENTATION
ENGINEER shall fumish OWNER with (a) one mylar copy and two papcr copics of thc Projcct Rccord Drawings ("As-
Builts"), and (b) a project notebook containing such correspondence and documentation as requested by OWNER.
4.7. CONSTRUCTION TESTING
Thc inspcetion services shall include matcrial tcsting and vcrification of contract compliance with job site rcquircmcnts,
plans and specifications.
The construction documents will rcquire the CONTRACTOR to provide and maintain detailed documentation of thc
following material testing:
1) Concrctc strcngth, air content and slump
2) Embankment, trench backtlll, and gravel and pavement densities
3) Aggregate gradations
4) Plant mix strcngth, flow and asphalt content
ARTICLE 5 - ADDITIONAL SERVICES
5.1. If OWNER wishcs ENCINEER to perf 01111 any of the following Additional Services, OWNER shall so instruct
ENGINEER in writing, and ENGINEER shall perfom1 or obtain from others such services and will be paid thcreforc as
provided in the Agreemcnt:
5.1.1.
Legal land surveys performed to obtain data for preparing easements and rights-of-way descriptions.
5.1.2. Preparation of applieations and supporting documents for governmental agencies in addition to thosc
rcquired under Basic Services; preparation or rcvicw of cnvironmcntal studics and rclatcd services; and
assistance in obtaining environmcntal approvals.
5.1.3. Services resulting from significant changcs in thc gcncral scopc, cxtcnt or charactcr of the Project or
major changes in documentation prcviously accepted by OWNER where changcs arc duc to causcs bcyond
ENGINEER's control.
5.IA.
Providing renderings or models.
5.l.5. Preparing documcnts for alternate bids requested by OWNER for work not executed or for out-of-
scqucncc work.
5.1.6. Providing other scrviccs not othcrwise provided for in the Agreement, including serviccs normally
furnished by the OWNER as c/scwhcre hercin described.
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5.1.7. Fumishing the services of independcnt profcssional associatcs or consultants for other than Basic
Services.
5.2. Whcn rcquircd by the Contract Documents in circumstanccs bcyond ENGINEER's control, ENGINEER shall
perform or obtain from others any of the following Additional Serviccs as circumstanccs require during construction and
without waiting for specific instructions from OWNER, and ENGINEER will bc paid thereforc as provided in this
Agreemcnt:
5.2.1. Services in connection with work dircctivc changes and changc orders to rcflcct thc changcs requested
by OWNER if thc rcsulting change in compensation for Basic Services is not commensurate with the additional
services rendered.
5.2.2. Services in making rcvisions to Drawings and Specifications occasioned by the OWNER'S nccd to
mcct budgct constraints and/or acceptance of substitutions proposed by Contractor(s); services after the award of
cach contract in evaluating and determining the acceptability of an unrcasonable or excessive number of
substitutions proposed by Contractor; and cvaluating an unrcasonablc or extensivc numbcr of claims submitted
by Contractor(s) or othcrs in conncction with the work.
5.2.3. Services resulting from significant delays, changes or price increases occurring as a direct rcsult of
matcrials, cquipment or energy shortages.
5.2.4. Additional or extendcd scrviccs during construction madc necessary by (1) work damagc by firc or
othcr causcs during construction, (2) a significant amount of defective or neglected work of any Contractor, (3)
accelcration of the progress schedulc involving scrviccs bcyond normal working hours, (4) default by any
Contractor.
ARTICLE 6 - COMPENSATION }<"OR ENGINI<-:ERING SERVICE
6.1 LUMP SUM AGREEMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER
6.1.1 Payment. The OWNER shall for dcsign phase serviccs pcrformcd as Basic Enginccring Services under
sections 4.1 through 4.4 of this agrccmcnt pay a total sum in thc amount of $12,300.00 for such scrvices.
6.1.2 Payment Schcdule. Total cumulative payments for the design phase engineering services (scctions 4.1
through 4.4) shall not excecd the following ceilings:
$1.230.00 (10 % of design fcc) until the Pre-design Invcstigation and Prcliminary Dcsign RepOli havc bccn
submitted to the OWNER.
$6.150.00 (50% of dcsign fee) until the Preliminary Plans and Specifications havc been submittcd to the
OWNER and rcvicw authoritics.
$11.070.00 (90% of design fee) until the Final Plans and Specitlcations have been submitted to the OWNER and
review authorities.
6. 1.3 Gcncral. Engineer shall submit monthly statements for services rendered. 111e statements shall bc
bascd upon Engineer's estimate of tbe proportion of the total services actually completed at the time of billing,
subject to any limitations on Payments bascd on complction of tasks or spccific rctainagc rcquircmcnts pursuant
to the payment provisions of the Agrccmcnt .
6.1.4 Reimbursable EXPcl1ses. Only those expenses specifically identified for paymcnt under section 6.2 of
this Agrccmcnt are reimbursable. All other design related expenses are included in the Lump Sum Payment for
the Basic serviccs (4.1 through 4.4) and are not separately reimbursable. Additional Services speci fically
identified under the scope of dcsign scrvices for paymcnt undcr 6.1 arc not scparatcly rcimbursablc.
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6.2 DIRECT LABOR COST PAYMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER.
Construction and project documentation scrviccs performed as Basic Engineering Services under sections 4.5 through 4.7
including General Administration of Construction Contract, and Project Documentation, shall bc compensated in
accordance with the following:
6.2.1 The OWNER shall pay for Construction Phase and Projcct Documcntation Scrvices an amount ]lot to
excccd $6,600.00 except as provided under 6.2.1.2 and 6.2.4.
6.2.1.1 Costs Compensation. Compensation for these services shall be based on thc ENGINEER's
Dircct Labor Cost times a factor of~ for serviccs rcndcrcd which shall covcr Direct Labor, Direct
Labor Overhead, General & Administrativc Ovcrhcad and Profit.
6.2.1.2 Notification. At any time during the construction that it becomcs apparent that the
Construction Phase and Project Documcntation Scrviccs rcndcrcd under this Agrcement will cxcccd the
negotiated compensation for thcsc services, and prior to perfom1ing serviccs in excess of the contract
ceiling, the ENCINEER shall give OWNER written notice thereof. Promptly thereafter OWNER and
ENGINEER shall review the scope and progrcss of thc projcct work. ENGINEER shall obtain written
authorization from OWNER, prior to any additional costs being incurred under paragraph 6.2.1.3. J f it
is dctcrmincd that due to a change in project scope undcr paragraph 5.2.1, thc ENGINEER is cntitled to
additional compensation, OWNER and ENCINEER may negotiate terms as provided under 6.2.1.1.
The amount and tcrms of any additional compensation under 6.2.1.1 or 6.2.1.3 shall be negotiated and
agrccd in writing pursuant to 9. J 6.
6.2.1.3 Costs Excccding Estimated Compensation. Except as allowed under 5.2.1, when the total cost
of thc original scope Construction Phase and Project Documentation Scrvices excccds the negotiated
compcnsation for these services, thc OWNER shall pay only for thc direct costs inculTcd in cxccss of
the estimated compensation. Thcsc costs consist of an amount cq~lal to the ENGINEER'S Direet Labor
Cost times a factor of 2.6045 for services rendered which shall incl~lde Direct Labor, the federally
audited payroll Direct Labor Overhead, and General & Administrative Overhead costs, but shall not
includc any allowance for protlt.
6.2.2. Rcimbursable Expenses, as defined in section 7.4 of this Agrcemcnt, for Basic Scrviccs and Approved
Additional Services shall be paid to the ENGINEER by thc OWNER in thc actual amount of thc costs incurred
up to an amount not to exceed $0.00 which includes $0.00 for consultants cmployed by thc Engineer and $0.00
for all other reimbursablc cxpcnses.
6.2.3. Failed Tt;st Expenses. Thc ENGINEER shall maintain and providc to the OWNER, a rccord of thc
costs associated with failing quality control tests perforn1ed for the OWNER during the course of the
construction of the project and recommend an amount thc OWNER dcduct from thc contractor(s) payments.
6.2.4 The OWNER shall pay an amount for Additional Services rendered by the ENGINEER and approved
in writing by thc OWNER on the basis of the ENGINEER'S Direct Labor Costs times a factor of 3.00 , or an
amount othcrwise negotiated at the time such services are requested and approvcd by the OWNER.
ARTICLE 7 - MEANING OF TERMS
7.1 AGREEMENT
As used herein the tcrm "this Agrccment" refers to the contents of this document and its Exhibits attached hereto and
referrcd to as if they were part of one and the same document.
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7.2 CONSTRllCTION COSTS
The construction cost of the entire Project (hcrcin referred to as "Construction Cost") mcans thc total cost to OWN ER of
those portions of the entire Project dcsigncd and specified by ENGINEER, but it will not include ENGINEER's
compcnsation and expenses, thc cost of land, rights~of-way, or compcnsation for or damages to, properties unless this
Agreemcnt so specitles, nor will it include OWNER's legal, accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with the Projcct or thc 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 salarics and wages paid to all ENGINEER's personnel
cngaged directly on thc Projcct, including, but not limitcd to, cngineers, architects, surveyors, dcsigncrs, draftcrs,
specitlcation writcrs, cstimators, other technical and business personnel; but does not includc indirect payroll related costs
or fringe benefits. For the purposcs of this Agreement thc principals and cmployees of the ENGINEER maximum billable
Dircct Labor Costs are:
Principals
Project Managcr
Scnior Engineer
Staff Engineer
Senior Technicians
CADD Draftcr
Technicians
Construction Inspector
Two Pcrson Survey Crew
Clerical
7.4 REIMBURSABLE EXPENSES
$":l:}33 /hour
$ 35.24 /hour
$ 32.67 ._~/hour
$ 21.00 /hour
$ 17.33 /hour
$ 17.33 ._/hour
$_14.;;0 /hour
$ 21.00 /hour
$ 3 1.67_~ /hour
$ 13.33 .___/hour
Reimbursablc Expenses mean the actual expenscs incurred by ENGINEER or ENCINEER's independent professional
associatcs or consultants directly in connection with the Project, such as cxpcnses for: transportation and subsistence
incidcntal thereto; obtaining bids or proposals from Contractor(s); subsistcncc and transportation of Resident Project
Reprcscntatives and their assistants; toll tclephone calls and telegrams; rcproduction or reports, Drawings, Specitkations,
13idding Documents and similar Project-related items; and if authorized in advance by OWNER, overtimc work rcquiring
higher than regular ratcs. In addition, when compcnsation for Basic Services is on the basis of Dircct Labor Costs mcthod
of paymcnt, Reimbursable Expenses will also include the amount billed to ENGINEER by special consultants employed
by ENCiINEER and authorizcd by OWNER (other than as an authorizcd Additional Services) and will also include
expenses incurrcd for computer time and othcr spccialized equipment, including an appropriatc charge for prcviously
cstablishcd programs and expenscs of photographic production techniqucs.
ARTICLE 8 - PAYMENT PROVISIONS
8.1 TIMES OF PAYMENTS. ENGINEER may submit monthly statcments for Basic Services and approved
Additional Services rcndcrcd and for Reimbursablc Expcnses incurred; however, payments shall not excccd thc ceilings
provided in 6.1 and 6.2. Final payment shall be madc only after acceptance of the project by the OWNER. If OWNER
disputcs thc amount of the billing, OWNER will notify the ENGINEER in writing within tcn (10) calcndar days of thc
receipt of bill of the dispute.
8.2 REQUESTS FOR PAYMENT. Each requcst for payment shall include a documentation summary of the
period incrcmcntalman hours incurred, dircct labor rates and billed rates, detai I of rcimbursablc costs, total period billing,
and total cumulative billing. When requcstcd by OWNER services for distinct projcct scgments shall be accounted and
billcd scparately.
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8.3 PAYMENT LINDER TERMINATION. In the evcnt of termination by thc OWNER upon thc completion of any
phasc ofthc Basic Services, progress paymcnts duc ENCINEER for serviccs rendered through such phase shall constitute
total payment for such serviccs. In the event of such termination by OWNER during any phase of the Basic Services,
ENGINEER also will be reimburscd for the charges of pre-approved independent professional associates and consultants
employed by ENGINEER to rcnder Basic Services, and paid for serviccs rcndcred during that phasc on thc basis of the
payment provisions of thc Agreement. In the event of any such tcrmination, ENClNEER will be paid for unpaid prc-
approved Additional Services and unpaid Rcimbursable Expenses which are authorized under this agreement.
ARTICLE 9 - GENERAL CONSIDERATIONS
9.1 TERMINATION OF AGREEMENT
9.1.1 The solc right is hcreby reserved to the OWNER to terminate this Engineering Agrccmcnt for any and
all causcs or for its convenience at any timc upon fiftccn (15) days written notice to tbe ENGINEER.
9.1.2 If tcrmination for default is effected by thc OWNER, an cquitable adjustmcnt in the price providcd for
in this Agreement shall be madc, but (I) no amount shall be allowed for anticipated profIt on unperformed
scrviccs or othcr work, and (2) any payment due to the ENGINEER at the timc oftcrmination may bc adjustcd to
covcr any additional costs to the OWNER bccausc of thc ENCINEER's default. If tem1ination for convenicncc
is effected by the OWNER, thc equitable adjustment shall include a reasonable profIt, as determined by owner,
for services or othcr work perfon11ed. The equitable adjustment for any termination shall providc for payment to
thc ENCINEER for services rendered and cxpcnscs incurrcd prior to the tennination, in addition to tennination
settlement costs reasonably incurrcd by thc ENCINEER rclating to commitments which had become finn prior to
the termination.
9.1.3 Upon receipt of a termination action undcr paragraph 9.1.2, the ENCINEER shall (I) promptly
discontinue all affected work (unless thc notice directs otherwise), and (2) deliver or otherwise make available to
the OWNER within tcn (IO) days copies of all data, design drawings, speciflcations, reports, estimates,
summarics and such other information and materials as may have been accumulated by thc ENGINEER in
perfom1ing this Agreement, whether complcted or in proccss.
9.1.4 In the event this Contract is tcrminated prior to completion, the original copies of the ENCINEER'S
data, recommendations, plans, spccifications, analysis and other related documents prepared by the ENGINEER
prior to said termination shall be delivered to and become the property of the OWNER.
9.1.5 Upon tern1ination, the OWNER may take ovcr thc work and may award another party an Agreemcnt to
complete the work undcr this Agreen1cnt.
9.1.6 OWNER'S right to tcrminatc is in addition to any othcr remcdics OWNER may have under the law.
9.2 INSPECTION AND AUDIT
All books, papcrs, rccords, payrolls, vouchers and invoices relating to costs and cxpcnditurcs incurrcd as to the
performance of thc services by the ENGINEER hereundcr shall bc madc available to thc OWNER, or their authorized
rcprcscntatives for audit and review, at thc ENGINEER'S respcctive offices at all reasonable times during thc contract
period and for three years from thc datc of final payment.
9.3 EMPLOYMENT
1l1e ENGINEER warrants that hc has not employed or retained any company or persons, other than a bona fIde employee,
working solcly for thc ENGINEER, to solicit to securc this contract, and that he has not paid or agrccd to pay any
company or pcrson, othcr than bona fide employees working solely for thc ENGINEER, any fee, commission, percentage,
brokerage fee, gifts or any other considcrations contingent upon or resulting from the award or making of this Contract.
For breach or violation of this warranty, thc OWNER shall have the right to annul the Contract without liability or in its
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discrction 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 employces of the ENGINEER or other pcrsons while engaged in thc pcrfonnancc of work or scrviccs rcquircd by the
ENCINEER shall be considered employccs of the ENGINEER only and not ofthe OWNER.
9.4 NONDISCRIMINATION
The ENGINEER will 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
Titlc VI of the Civil Rights Act of 1964; Section 140, Title 2, United Staks Codc, and all rcgulations promulgatcd thcre
under.
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 STANDARD OF CARE
In providing scrviccs under this agreement, the ENGINEER will perform in a manncr consistent with the degree of care
and skill ordinariI y exercised by membcrs of the samc profession currently practicing under similar circumstances. If any
service should be found to bc not in conformance with this standard, the ENGINEER shall, at the OWNER's request, re-
perform thc service at its own expense. Engincer shall also, at its own cxpcnsc, makc such changcs, modifications or
additions to the project which arc madc nccessary as a result of the initial non-performance or the rc-pcrformancc 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 thc
work to be done.
9.7.2 The ENGINEER agrees to indemnify, hold harmless, and defend the OWNER, its oflicers,
directors, agents, and employees from and against any suits, causes of action, claims, demands,
damages, costs, expenses, obligations, and liability of any character, including attomey's fees,
arising out of or resulting from or in connection with the ENGINEER'S negligent perfonnance of
the services specified in this agreement. In the event the OWNER is found proportionately
responsible, the ENGINEER will be held responsible only for those damages, costs, attomey's
fees, and liabilities as are attributable to the ENGINEER's percent of fault as compared with 100%
ofthe fault giving rise to thc damages.
9.7.3. ENGINEER agrces to indemnify, hold harmless and defend the OWNER, its officers, directors,
agents, and cmployees trom and against any suits, causes of action, claims, demands, damagcs,
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 non-negligent performance of the
scrvices specified in this agreement. In the event the OWNER is found proportionately
rcsponsible, the ENGINEER will be held responsible only for those damages, costs, attomey's
fees, and liabilities as are attributable to the ENGINEER's percent of fault as compared with 100%
ofthe fault giving rise to the damages.
9.7.4 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 Attomey or other in-house counsel.
9.7.5 The indemnity required herein shall not be limited by reason of the specification of any particular
insurance coveragc in this agreement.
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9.7.6 The ENGINEER shall perform this agreement as an indepcndcnt contractor, and as such, is
responsible to the OWNER only as to the results to be obtaincd in the work hcrcin specified, and
to the extcnt 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 rcquired payroll deductions and
providing required benefits, such as, but not limited to, worker's compensation with statutory
limits, and unemployment insurance.
9.8 INSURANCE
The ENGINEER shall secure and furnish to thc OWNER ccrtificatc of insurance, thercin, naming the OWNER as an
additional insurcd, to include thirty (30) days notice of canccllation or non-rencwal.
Without limiting any of ENGINEER's obligations hereunder, ENGINEER shall sccurc and maintain, until the work is
completcd and acccpted by the OWNER, insurancc covcragc naming the OWNER as additional insured with minimum
insurance coverage as follows:
Tvpc of Covcrage
Limits
.E1}}1?1()yers' L i a b i Ii tv:
~J.OO,OOO per accidcnt
Gcncral Liabilitv:
Bodily IniLl!L& ProPcl1y
J)am~~ Single and combined
$..1.000,000 per accident
Automobile:
BodilvJl:!imy covering all
automobiles, trucks,
tractors, trailers, or
othcr automotive equip-
mcnt whcthcr owned or
rented by Engineer or
owned by employccs of
Enginccr.
U~OOO each person
$1,000,000 each occurrence
Propertv Damagc covcring
all automobiles, trucks,
tractors, trailers or othcr
automotive equipment whcther
owned or rented by Engineer
or owncd by cmployees of
Enginccr
$'i00,000 each occurrencc
OR
Bodily Jnjurv & Property
pamage Single and combincd
$ 500,000 each occurrence
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In addition to thc above insurance coverage, the ENGINEER shall secure and maintain, until the work is completed
and accepted by the OWNER, and without naming OWNER as an additional insured, professional errors and
omissions coverage as follows:
Profcssional Errors & Omissions:
$ 1,000,000 per claim and
aggrcgatc cach occurrcncc
9.9 ENDORSEMENT
Thc ENGINEER shall place his endorsement on all drawings and othcr data fumished by him.
9.10 OWNERSHIP OF DOCUMENTS
TIle partics admit and agree the documents produced under this agrccment arc not intcndcd or reprcsentcd 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 bc at OWNER's sole risk and without liability or legal exposurc to ENGINEER, or to ENGINEER's
indcpcndcnt profcssional associates or consultants. Filcs in electronic mcdia format of tcxt, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only for convenience of owner. Any conclusion or information
obtaincd or dcrivcd from such electronic files will be at the user's sole risk.
9.11 PUBLIC INFORMATION
The ENGINEER shall not issue any statcments, releases or infom1ation for public dissemination without prior approval of
the OWNER.
9.12 PROPRIETARY RIGHTS
If patentable discoveries or invcntions should result from work required herein, all rights accruing from such discovcrics
or inventions shall bc joint property of the ENGINEER and the OWNER. Provided that the OWNER, state agencies or
political subdivisions and the United States Government shall have the irrevocablc, noncxclusivc, nontransferable and
royalty-free license to use each invention in thc manufacturc, usc and disposition, according to law, of any m1icle or
n1aterial, and in the use of any mcthod that may be dcveloped as part of the work described and contemplated herein.
9.13 RECORDS
Thc ENCIN EER shall maintain accounting records and othcr cvidencc pCl1aining to thc cost incurrcd and to make the
records available at all reasonable times during thc Contract tcrm and for onc (I) ycar from thc datc of final payment.
Such accounting records and othcr cvidencc pertaining to the cost incurred will be made available for inspeetions by
OWNER.
9.14 SUCCESSORS IN INTEREST
Thc covenants, agreements and all statements in this Contract apply to and shall be binding on thc hcirs, personal
representatives, successors and assigns ofthc rcspcctive partics.
9.15 ATTORNEY'S FEES AND COSTS
That in the event it becomes necessary for either Party of this Contract to retain an attorney to enforcc any of the terms or
conditions of this Contract or to givc any notice rcquired herein, then the prevailing Party or the Party giving noticc shall
be entitled to reasonable attomcy's fccs and costs, including fees, salary, and costs of in-house counsel to include City
Attorney.
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9.16 MODIFICATIONS AND AMENDMENTS
That any amendmcnt or modification of this Contract or any provisions herein shall be made in writing or executed in the
same manner as this original document and shall aftcr cxecution bccome a part of this Contract.
In witness Whereoi~ the Parties hereto do make and execute this Agreement.
CITY OF BOZEMAN, MONTANA ENGINE~ _
BY ~,j~~;d;nl~
c.C-__-.
DATE: hb IS, ZOCJS--
I
DATE: March 7, 2005
ATTEST:
Hy:fi~L~
(Clerk of Conmlission)
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