Loading...
HomeMy WebLinkAbout05- Morrison-Maierle Professional Services Agreement (2) PROFESSIONAL SERVICES AGREEMENT As outlincd in thc Scopc of Services letter dated Fcbruary 28,2005, provide structural, and project managemcnt scrviccs for thc dcsign and construction obscrvation of masonry wall repairs to the southwest corner of thc City Shop Complex located at 201 West Tamarack Street. THIS IS AN AGREEMENT made as of ~1arch 21. 2005 , between THE CITY OF BOZEMAN, a Municipal Corporation, Bozeman, Montana, 59715 (OWNER) and Morrison-Maierle. Inc.. 901 Technolol!V Blvd.. Bozeman, Montana, (ENGINEER). Whercas thc accomplishment of the work and services described in this Agrcement is essential to the OWNER'S public works improvement program. Whereas the OWNER intends to and has selected the ENGINEER to provide necessary and professional enginccring services for the project. Whereas the ENGINEER represents that it is willing and qualified to perform the professional engineering serviccs for this projcct described in this Agreement. Therefore, in consideration of the foregoing recitals and the mutual covenants and conditions contained herein, the parties agree as follows: The conditions and provisions set forth in thc attachcd EXHIBIT A, ENGINEER'S STATUS DURING CONSTRUCTION, is hereby incorporated in and made part ofthis Agreement. ARTICLE 1 - ENGINEERING SERVICES 1.1. The detailed description of the specific project components is described as follows: 1.2. The scope of serviccs undcr this contract arc sct forth in this agreement and the attached EXHII3ITS. ARTICLE 2 - ENGINEER'S RESPONSIBILITIES 2.1. ENClNEER shall perform for OWNER profcssional cnginccring services in all phases of the Project to which this Agreement applics as hereinafter provided. These services will include, but not bc limited to, serving as OWNER's professional engineeting representative for the Project, providing professional engineering consultation and advice and furnishing customary structural engineering scrviccs incidcntal thereto. 2.2. The ENCINEER shall furnish all labor, matetials, equipment, supplics, and incidentals necessary to conduct and complete the ENGINEER'S portions of the Project and to prepare and deliver to the OWNER all data, reports, plans, speciflcations, and recommendations as designated herein. 2.3. Thc ENGINEER shall asccrtain such information as may have a bearing on the work from local units of government, public, and private organizations and shall be authorizcd to procurc information from other authorities as to the extent of these contaets and the results thereof. 2.4. The ENGINEER'S work shall be in accordance with the standards of sound engineering practiccs. 2.5. Thc ENClNEER shall namc a Principal-In-Charge for thc duration of the project. The Ptincipal-In-Charge shall 2 be John R. Schunke, P.E. 2.6. The ENGINEER shall name a Projcct Managcr who shall be the liaison between the ENCINEER and the OWNER. The Project Manager shall be Kurt W. Kcith, P.E. The OWNER may name a Task Director who would bc the liaison between the ENGINEER and the OWNER during the design segment of the Project. 2.7. The ENGINEER shall submit an estimatcd progress schedule at the beginning of the work, and verbal monthly progrcss rcpOlis thcrcaftcr until thc project is completed. ARTICLE 3 - OWNER'S RESPONSIBILITIES 3.1 The OWNER shall name a Task Director who shall be the liaison betwccn the ENGINEER and the OWNER during DESIGN segment of the Project. The Task Director designated shall be 3.2 Thc OWNER shall have the right ofreview and examination ofthc ENGINEER'S work at all times. 3.3 The OWNER shall make available all records (as-built drawings, construction rccords, etc.) indicating the existing configuration of thc city utilitics. 3.4 The OWNER will bc rcsponsible for Advcrtising Bid Openings. 3.5 The OWNER shall attend the prc-bid confcrcnccs, bid openings, pre-construction confercnccs, construction progrcss and othcr job relatcd mcctings, substantial completion inspcctions and final payment inspections. ARTICLE 4 - BASIC ENGINEERING SERVICES The ENGINEER shall render professional Engineering Services as follows: 4.1 PRE-DESIGN INVESTIGATION PHASE Aftcr written authorization to proceed, ENGINEER shall: 4.1.1 Consult with OWNER to elarify and deflne OWNER's requiremcnts for the Project and review available data. 4.1.2 Advisc OWNER as to the necessity of OWNER's providing or obtaining from others, data or scrvices and assist OWNER in obtaining such data or services. 4.1.3 Identify and analyze requirements of govemmcntal authoritics having jurisdiction to approve thc dcsign of the Project and participate in consultations with such authorities. 4.1.4. Provide analyscs of OWNER's needs. 4.1.5. Prepare a submittal 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 setting forth ENGINEER's findings and recommendations. 4.1.6. Furnish 3 copies of the submittal documents and rcvicw them in person with OWNER. The Pre-design Investigation Phase will be completed and submitted within ~ calendar days following writtcn authorization from OWNER to ENGINEER to procced with that phase of services. 4.2 PRELIMINARY DESIGN PHASE Aftcr acccptance of thc prc-design submittal and reccipt of written authorization to proceed with thc Prcliminary Design Phase, ENCINEER shall: 4.2.1. In consultation with OWNER determine general scope, extent and charactcr ofthc Projcct. 4.2.2. ENCINEER shall then prcpare a Prcliminary Design Submittal, consisting of preliminary plans and specif1cations. 4.2.3. Preliminary Dcsign Submittal: Specific itcms to be addressed in the design submittal will include, but not be limited to: 4.2.3.1. Summary of construction requircmcnts with appropriate drawings for each task included in the project. 4.2.3.2. Plans for providing water and sewer services for affected propcrtics during construction. 4.2.3.3. Summary geotechnical report for spccific tasks, if needed. 4.2.3.4. Special design considcrations for Projcct tasks with conditiOlls not covcrcd in standard construction methods or spccifications. 4.2.4. Geotechnical Explorations and Analvsis: As directcd by the OWNER, the ENGINEER will utilize existing geotechnical explorations and analysis for project dcsign and bidding. The ENGINEER docs not guarantee the accuracy nor applicability of these existing documents to this spccific project. 4.2.5. Preliminary Plans and Specifications. Prepare preliminary construction plans and specifications with information which addresses the special features of each project task. 4.2.6. ENCINEER shall preparc and furnish complete copies of preliminary bidding documcnts and design report as requested to OWNER and at the same time fumish copics as directed by OWNER to agcncics and/or parties having regulatory responsibilities or direct financial participation in any part of the Project; providc any technical criteria, writtcn dcscriptions and dcsign data necessary for securing pcrmits or approval from authorities havingjurisdiction to review and approvc thc dcsign, and assist owner in securing such approvals; and review documents in person with OWNER and review authoritics, and, if ncccssary, conduct a plan-in-hand site rcview. All changes agreed to between ENGINEER and OWNER will bc notcd in a memorandum from thc ENCINEER to thc OWNER and incorporatcd into the final plans and specifications. The Preliminary Design Phase will be completed and submitted within 30 authorization from OWNER to ENGINEER to proceed with that phasc of scrviccs. calendar days following written 4.3 FINAL DESIGN PHASE A fter written authorization to proceed with the final Dcsign Phasc, ENGINEER shall: 4.3.1. On the basis of the accepted Preliminary Design documcnts, prepare for incorporation in the Contract Documents flnal drawings and Technical Specifications of sufficicnt dctail to show the general scope, extcnt and detailed character of the work to be furnished and performed by thc Contractor(s) suitable for use in the projcct bidding and construction. 4.3.2. Fumish OWNER six copics of the Contract Documents (including design drawings, and specifications). The Final Phasc will bc complete and submitted within 30 OWNER to ENGINEER to proceed with that phase of services. calendar days following writtcn authorization from 3 4 4.4 BIDDING OR NEGOTIATING PHASE After written authorization to proceed with the Bidding or Negotiating Phase, ENGINEER shall: 4.4.1. Provide interpretation or clarification to prospcctivc biddcrs rcgarding the Bidding Documents, and issue addenda as appropriate. 4.4.2. Consult with and advise OWNER as to the acceptability of the primc contractor, subcontractors, suppliers and other persons and organizations proposed by the prime contractor(s) (herein call "Contractor(s)") for those portions of the work as to which such acceptability is required by the Bidding Documents. 4.4.3. Consult with OWNER concerning and determine the acceptability of substitutc materials and equipment proposed by Contractor(s) when substitution prior to the award of contracts is allowed by thc Bidding Documents. 4.5 CONSTRUCTION PHASE The responsibilities of the ENGINEER during the Construction Phase are summarized as follows: 4.5.1. Ccncral Administration of Construction Contract. ENCINEER shall consult with and advise OWNER and act as OWNER'S representative as provided in EXHIBIT A - ENGINEER'S STATUS DURING CONSTRUCTION, attached to and made part of this Agreement. The extent and limitations of the authority, dutics, and responsibilities of the ENGINEER on the construction job site as assigncd hcrc~in shall not be modi fled except as the ENGINEER may otherwise agree in writing. In addition to thc scrviccs provided under Article 10 (Exhibit A) thc ENCINEER shall provide the following scrviccs during construction: 4.5.1.1 ENClNEER shall provide OWNER copies of all correspondcncc bctwecn the ENGINEER and Contractor. 4.5.1.2 Upon request of thc Owner, rcvicw and approve, for conformance with the project technical spccifications all shop drawings, and othcr Contractor submittals rcquircd 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 cngincering dcficicncics arc rcquircd to complete the project original design concept. 4.5.1.4 Schedule and conduct with the OWNER a final projcet inspcction and submit a report to the OWNER documenting any outstanding items or deficiencies requiring COlTcction prior to final payment. 4.5.2. Resident Proiect Reoresentative. At the OWNER'S request, the ENGINEER will not bc required to provide a Resident Project Represcntativc at the job site to provide observation of the work. 4.5.3 Limitations of Responsibilities. ENGfNEER will not bc rcsponsiblc for CONTRACTOR's means, methods, techniques, sequences or procedures of construction, or the safety precautions and programs incident thereto, and ENGINEER will not be responsible for CONTRACTOR's failure to pcrform or furnish the Work in accordance with the Contract Documents; however, nothing contained in this agrecment shall be construed to release ENGINEER from liability for failure to properly perform duties and rcsponsibilitics assumed by ENGINEER in the Contract Documents. 4.6. PROJECT DOCUMENTATION ENGINEER shall furnish OWNER with (a) one mylar copy and two paper copics of thc Project Rccord Drawings ("As- Builts"), and (b) a project notebook containing such correspondence and documentation as requcstcd by OWNER. 5 4.7. CONSTRUCTION TESTING Upon requirements imposed by the Building Oftlcial, the inspection services may include material tcsting and verification of contract compliance with job site requirements, plans and specif1cations. The construction documents may require the OWNER to retain the services of a qualified testing agency to provide thc following material testing: I) Masonry special inspections and testing ARTICLE 5 - ADDITIONAL SERVICES 5.1. If OWNER wishes ENGINEER to perform any of the following Additional Services, OWNER shall so instruct ENCINEER in writing, and ENClNEER shall perform or obtain from othcrs such scrvices and will be paid therefore as provided in the Agreement: 5.1.1. Lcgalland survcys performed to obtain data for prcparing casements and rights-of-way descriptions. 5.1.2. Preparation of applications and supporting documents for govcrnmcntal agcncies in addition to those required under Basic Services; preparation or review of enyironmental studies and rclatcd scrvices; and assistance in obtaining environmental approvals. 5.1.3. Services resulting from signitlcant changes in the general scope, extent or charactcr of thc Project or major changes in documentation prcviously accepted by OWNER where changes are due to causcs bcyond ENCINEER's control. 5.1.4. Providing renderings or models. 5.1.5. Prcparing documcnts for altematc bids requcstcd by OWNER for work not executed or for out-of- sequence work. 5.1.6. Providing other services not otherwise provided for in thc Agrcemcnt, including services normally furnished by the OWNER as elsewhere herein described. 5.1.7. Furnishing thc scrviccs of indcpendcnt professional associates or consultants for other than Basic Services. 5.2. When required by the Contract Documents in circumstances beyond ENClNEER's control, ENGINEER shall pcrform or obtain from others any of the following Additional Scrviccs as circumstances require during construction and without waiting for specific instructions from OWNER, and ENClNEER will bc paid therefore as provided in this Agreement: 5.2.1. Services in connection with work directive changes and change orders to reflect the changes requested by OWNER if the rcsulting change in compcnsation for Basic Services is not commensurate with the additional services rendered. 5.2.2. Services in making revisions to Drawings and Specitlcations occasioned by thc OWNER'S need to meet budget constraints and/or acceptance of substitutions proposed by Contractor(s); serviccs after the award of each contract in evaluating and determining the acceptability of an unreasonable or cxcessivc number of substitutions proposed by Contractor; and evaluating an unreasonable or extensive number of claims submitted by Contractor(s) or othcrs in conncction with the work. 5.2.3. Services resulting from signitlcant delays, changes or pricc incrcases occurring as a direct result of materials, equipment or energy shortages. 6.2.1.1 Costs Compensation. Compensation for these services shall bc bascd on thc ENGINEER's Direct Labor Cost timcs a factor of~ for services rendered which shall cover Direct Labor, Dircct Labor Overhead, General & Administrative Overhead and Profit. 5.2.4. Additional or cxtcnded services during construction madc ncccssary by (I) work damage by fire or other causes during construction, (2) a significant amount of defcctivc or ncglccted work of any Contractor, (3) accclcration of the progress schedule involving services beyond normal working hours, (4) default by any Contractor. ARTICLE 6 - COMPENSATION FOR ENGINEERING SERVICE 6.1 LUMP SUM AGREEMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER 6.1.1 Paymcnt. The OWNER shall for design phase services performed as Basic Engineering Serviccs undcr sections 4.1 through 4.4 of this agrccmcnt pay a total sum in thc amount of $1.300.00 for such services. 6.1.2 Payment Schedule. Total cumulativc payments for the design phase engineering services (sections 4.1 through 4.4) shall not exceed the following ceilings: $130.00 (10 % of design fee) until the Pre~design Investigation and Preliminary Design Report have been submitted to the OWNER. $650.00 (50% of design fee) until the Preliminary Plans and Specifications have been submitted to thc OWNER and review authorities. $1.170.00 (90% of design fee) until the Final Plans and Specifications have been submitted to the OWNER and review authorities. 6.1.3 General. Engineer shall submit monthly statements for services rendered. The statements shall be based upon Engineer's estimate of thc 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 retainage requirements pursuant to the payment provisions ofthc Agrcemcnt . 6.1.4 Reimbursablc Expcnses. Only thosc expcnses spccifically idcntificd for payment under section 6.2 of this Agrccment arc rcimbursable. All other design related expenses are included in the Lump Sum Payment for the Basic services (4.1 through 4.4) and are not separately reimbursable. Additional Scrviccs spccifically identified under the scope of design services for payment under 6.1 are not separately reimbursable. 6.2 DIRECT LABOR COST PAYMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER. Construction and project documentation serviccs pcrfonncd as Basic Engineering Services under sections 4.5 through 4.7 including General Administration of Construction Contract, and Project Documcntation, shall be compensated in accordance with thc following: 6.2.1 The OWNER shall pay for Construction Phase and Project Documentation Services an amount not to exceed $650.00 except as provided undcr 6.2.1.2 and 6.2.4. 6.2.1.2 Notification. At any time during the construction that it becomes apparent that the Construction Phase and Project Documentation Services rendered undcr this Agrccmcnt will cxceed the negotiated compensation for these services, and prior to perfomling services in excess of thc contract ceiling, the ENGINEER shall give OWNER written notice thereof. Promptly thereafter OWNER and ENGINEER shall review thc scope and progress of the project work. ENGINEER shall obtain writtcn authorization from OWNER, prior to any additional costs being incLllTed under paragraph 6.2.1.3. If it is detennined that due to a change in project scope under paragraph 5.2.1, thc ENGINEER is cntitled to additional compensation, OWNER and ENGINEER may negotiate terms as provided under 6.2.1.1. 7 The amount and terms of any additional compcnsation under 6.2.1.1 or 6.2.1.3 shall be negotiated and agreed in writing pursuant to 9.16. 6.2.1.3 Costs Excccding Estimated Compensation. Except as allowcd under 5.2.1, when thc total cost of the original scope Construction Phasc and Project Documentation Scrvices exceeds the negotiatcd compensation for these services, the OWNER shall pay only for the dircct costs incurred in excess of the estimated compensation. These costs consist of an amount equal to the ENCINEER'S Direct Labor Cost times a factor of 2.6045 for scrviccs rendered which shall includc Direct Labor, the federally audited payroll Direct Labor Overhead, and Ccncral & Administrative Ovcrhcad costs, but shall not include any allowance for profit. 6.2.2. Reimbursable Expenscs, as dcfined in section 7.4 of this Agrcemcnt, for Basic Services and Approved Additional Services shall be paid to the ENGINEER by thc OWNER in the actual amount of the costs incurred up to an amount not to cxceed $0.00 which includes $0.00 for consultants employed by the Enginccr and $0.00 for all other reimbursable expenses. 6.2.3. Failcd Tcst Expcnscs. Thc ENGINEER shall maintain and provide to the OWNER, a rccord of the costs associated with failing quality control tests performed for thc OWNER during the course of the construction of the project and recommend an amount the OWNER deduct from thc contractor(s) payments. 6.2.4 Thc OWNER shall pay an amount for Additional Scrviccs rendered by the ENClNEER and approved in writing by thc OWNER on thc basis of the ENGINEER'S Dircct Labor Costs times a factor of 3.00 , or an amount otherwise negotiated at the time such serviccs are requested and approved by thc OWNER. ARTlCU= 7 - MEANING OF TERMS 7.1 AGREEMENT 8 As uscd hcrein the term "this Agreement" refers to the contents of this document and its Exhibits attached hereto and refcrrcd to as ifthey were part of one and the same document. 7.2 CONSTRUCTION COSTS The construction cost of the entirc Projcct (hcrcin rcfcrred to as "Construction Cost") means the total cost to OWNER of those portions of thc entire Project designed and specified by ENGINEER, but it will not include ENGINEER's compensation and expenses, thc cost of land, rights-of-way, or compensation for or damages to, propcrtics unless this Agrcemcnt so specifles, nor will it include OWNER's legal, accounting, insurance counscling or auditing services, or intercst and financing chargcs incurred in connection with the Projcct or the cost of other services to bc provided by others to OWNER. 7.3 DIRECT LABOR COSTS Dircct Labor Costs used as a basis for payment mean the actual salaries and wages paid to all ENGINEER's personncl engaged directly on thc Projcct, including, but not limited to, enginccrs, architects, surveyors, dcsigners, drafters, specification writers, estimators, other technical and busincss personnel; but does not include indirect payroll rcJatcd costs or fringc bcncfits. For the purposes of this Agreement the principals and employees of the ENCINEER maximum billable Direct Labor Costs arc: Principals Project Managcr Senior Engineer Staff Engineer Scnior Technicians CAD D Draftcr Technicians $ 43.33 $ 35.24 $ 32.67 $ 21.00 $ 17.33 $ 17.33 $ 14.50 /hour /hour /hour /hour /hour /hour /hour 9 Construction Inspector Two Person Survey Crew Clerical $ 21.00 $ 31.67 $ 13.33 /hour /hour /hour 7.4 REIMBURSABLE EXPENSES Reimbursable Expcnscs 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 subsistcnce incidental thereto; obtaining bids or proposals from Contractor(s); subsistence and transportation of Resident Project Representatives and their assistants; toll tclcphone calls and tclegrams; rcproduction ofreports, Drawings, Specifications, Bidding Documents and similar Project-related items; and if authorized in advance by OWNER, ovcrtimc work requiring higher than regular rates. In addition, when compensation for Basic Services is on the basis of Dircct Labor Costs method of paymcnt, Reimbursable Expenses will also include the amount billed to ENGINEER by special consultants employcd by ENGINEER and authorized by OWNER (other than as an authorized Additional Services) and will also include expenscs incurrcd for computer time and other specialized equipment, including an appropriate charge for previously establishcd programs and expenses of photographic production techniques. ARTICLE 8 - PAYMENT PROVISIONS 8.1 TIM ES OF PAYMENTS. ENGINEER may submit monthly statements for Basic Serviccs and approved Additional Scrvices rcndered and for Reimbursable Expenses incurred; however, payments shall not excccd thc ceilings provided in 6.1 and 6.2. Final paymcnt shall be made only aftcr acccptance of the projcct by the OWNER. If OWNER disputes the amount of thc billing, OWNER will notify the ENGINEER in writing within tcn (10) calcndar days of the rcccipt of bill of the dispute. 8.2 REQUESTS FOR PAYMENT. Each request for payment shall includc a documentation summary of the period incremental man hours incurrcd, direct labor ratcs and billcd rates, dctail of reimbursable costs, total period billing, and total cumulativc billing. Whcn requested by OWNER services for distinct project scgmcnts shall bc accounted and billed scparatcly. 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 ENCINEER for services rendered through such phase shall constitute total payment for such services. In the evcnt of such termination by OWNER during any phase of the Basic Services, ENGINEER also will bc rcimbursed for the charges of pre-approved indept.'I1dent professional associates and consultants employed by ENGINEER to render Basic Services, and paid for services rendered during that phase on the basis of thc payment provisions of the Agreement. In the cvcnt of any such termination, ENGINEER will be paid for unpaid pre- approvcd Additional Services and unpaid Reimbursable Expenses which are authorized under this agrecmcnt. ARTICLE 9 - GENERAL CONSIDERATIONS 9.1 TERMINATION OF AGREEMENT 9.1.1 The sole right is hereby rescrvcd to thc OWNER to terminate this Engineering Agreement for any and all causes or for its convenience at any time upon fiftcen (IS) days written notice to the ENGINEER. 9.1.2 If termination for default is effected by the OWNER, an equitable adjustmcnt in the price providcd for in this Agreement shall be made, but (1) no amount shall be allowed for anticipatcd profit on unpcrformed services or other work, and (2) any payment duc to the ENGINEER at the time of termination may be adjustcd to cover any additional costs to thc OWNER bccausc of the ENGINEER's default. If termination for convenicnce is cffccted by thc OWNER, the equitable adjustment shall includc a rcasonablc profit, as determined by owner, for services or other work performed. The equitable adjustment for any termination shall providc for payment to the ENGINEER for services rendered and expenses incurred prior to the termination, in addition to tcrmination settlement costs reasonably incurrcd by the ENGINEER relating to commitments which had become firm prior to thc termination. 9.1.3 Upon receipt of a termination action under paragraph 9.1.2, thc ENGINEER shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deli vcr or otherwise make available to the OWNER within ten (10) days copics of all data, design drawings, specifications, rcports, estimates, summaries and such othcr information and matcrials as may have been accumulatcd by the ENCINEER in pcrforming this Agrecmcnt, whether completed or in process. 9.1.4 In thc event this Contract is tcrminated prior to completion, the original copies of the ENGINEER'S data, rccommcndations, plans, specifications, analysis and other related documents prepared by the ENGINEER prior to said termination shall be delivered to and become the property ofthc OWNER. 10 9.1.5 Upon tcrmination, the OWNER may takc ovcr the work and may award anothcr party an Agreement to complete the work under this Agreement. 9.1.6 OWNER'S right to tcrminate is in addition to any other remedies OWNER may have undcr thc law. 9.2 INSPECTION AND AUDIT All books, papers, records, payrolls, vouchcrs and II1voices relating to costs and expenditurcs incurred as to the performance of the services by the ENGINEER hereunder shall bc made available to the OWNER, or thcir authorized representatives for audit and review, at the ENGINEER'S respective offices at all reasonable times during the contract period and for three years from the date offinal payment. 9.3 EMPLOYMENT The ENGINEER warrants that he has not employed or retained any company or pcrsons, other than a bona fide employce, 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 fce, commission, percentagc, brokeragc fee, gifts or any other considerations contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, the OWNER shall have the right to annul the Contract without liability or in its discrction to dcduct from thc price or considcration or otherwise recover the full amount of such fee, commission, perccntage, brokerage fee, gift or contingent fee. All employees of the ENGINEER or other persons while engaged in thc performance of work or services requircd by the ENGINEER shall be considered employees of the ENGINEER only and not of the OWNER. 9.4 NONDISCRIMINATION Thc ENCINEER will not discriminate on the basis of race, color, religion, crecd, political idcas, scx, age, marital status, national origin or disability in cmployment or provision of scrvices. The ENGINEER shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, Unitcd States Code, and all regulations promulgated there under. 9.5 SUBLETTING OR ASSIGNING OF WORK The ENGINEER shall not sublet or assign any of the work covercd hcrcin without prior written approval ofthc OWNER. 9.6 STANDARD OF CARE In providing scrviccs undcr this agreement, thc ENCINEER will perform in a manner consistcnt with the degree of care and skill ordinarily cxerciscd by mcmbcrs of thc samc profession currently practicing under similar circumstances. If any service should be found to be not in conformance with this standard, the ENGINEER shall, at thc OWNER's request, re- perform the service at its own expense. Engineer shall also, at its own cxpense, make such changes, modifications or additions to the project which are made necessary as a result of the initial non-pcrformance or the re-pcrformance of scrviccs. Thc 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 Thc 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 hannless, 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. In the event the OWNER is found proportionately responsible, the ENGINEER will be held responsible only for those damages, costs, attorney's fees, and liabilities as are attributable to the ENGINEER's percent offault as compared with 100% of the fault giving rise to the damages. 11 9.7.3. ENGINEER agrees to indemnify, hold harmless and defend the OWNER, its officers, dircctors, 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 conncction with the ENGINEER's non-negligent performance of the services specified in this agreement. In thc event the OWNER is found proportionatcly responsible, the ENGINEER will be held responsible only for those damages, costs, attorney's fccs, and liabilities as are attributable to the ENGINEER's percent of fault as compared with 100% of the fault giving rise to the damages. 9.7.4 In an appropriate case in which attorney's fecs arc awardcd 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 rcquired herein shall not be limited by reason of the specification of any particular 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 rcsuIts to be obtained in the work herein specified, and to thc extent that the work shall bc done in accordance with the terms, plans and specifications. The ENGINEER shall have and maintain complctc 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 limited to, worker's compensation with statutory limits, and unemployment insurance. 9.8 INSURANCE The ENGINEER shall secure and furnish to the OWNER certificate of insurancc, thcrcin, naming the OWNER as an additional insured, to include thirty (30) days notice of cancellation or non-renewal. Without limiting any of ENCINEER's obligations hcrcundcr, ENGINEER shall secure and maintain, until thc work is completed and accepted by the OWNER, insurance coverage naming the OWNER as additional insured with minimum insurancc covcrage as follows: Type of Coverage Limits Employers' Liability: $ 100,000 per accident Central Liability: 130dilv Iniury & Propertv Damage Single and combined $ I ,000,000 per accident II Automobile: Bodily Iniurv covcring all automobiles, trucks, tractors, trailers, or other automotive equip- ment whether owned or rented by Engineer or owncd by employees of Engincer. $ 500,000 each person $1 ,000,000 cach occurrence Propcrty Damagc covcring all automobiles, trucks, tractors, trailers or other automotive equipment whether owned or rented by Engineer or owned by employees of Engineer $500,000 each occurrence OR Bodilv Iniury & Propertv Qamagt< Single and combined $ 500,000 cach occurrence In addition to the above insurance coverage, the ENGINEER shall secure and maintain, until the work is completed and acceptcd by the OWNER, and without naming OWNER as an additional insured, professional errors and omissions coverage as follows: Professional Errors & Omissions: $ 1,000,000 pcr elaim and aggregate each occurrence 9.9 ENDORSEMENT Thc ENGINEER shall place his endorscmcnt on all drawings and other data furnished by him. 9.10 OWNERSHIP OF DOCUMENTS The parties admit and agree the documents produced under this agreement are not intendcd or represented to be suitable for reuse by OWNER or any other individual on any other project. Any reuse without writtcn verification or adaptation by ENGINEER will be at OWNER's sole risk and without liability or legal exposure to ENCINEER, or to ENGINEER's indepcndcnt profcssional associates or consultants. Piles in electronic media forn1at of text, data, graphics, or of other types that are fumished by ENGINEER to OWNER are only for convcnicnce of owner. Any conclusion or information obtained or derived from such electronic filcs will be at the user's sole risk. 9.11 PUBLIC INFORMATION 111e ENGINEER shall not issue any statements, releases or information for public disscmination without prior approval of the OWNER. 9.12 PROPRIETARY RIGHTS If patentable discoveries or inventions should result from work rcquircd herein, all rights accruing from such discoveries or inventions shall be joint property of the ENGINEER and thc OWNER. Provided that the OWNER, state agencies or political subdivisions and the United States Government shall have the irrevocable, nonexclusivc, nontransferable and royalty-free license to use each invention in the manufacture, use and disposition, according to law, of any article or material, and in the use of any method that may be dcvcloped as part of the work described and contemplated hercin. 9.13 RECORDS The ENCINEER shall maintain accounting records and other evidcnce pcrtaining to the cost incurred and to make the rccords available at all reasonable times during the Contract term and for one (I) ycar from the date of final payment. Such accounting records and other evidence pertaining to the cost incurred will be madc 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, pcrsonal represcntativcs, successors and assigns of the respective partics. 9.15 ATTORNEY'S FEES AND COSTS That in the event it becomes necessary for either Party of this Contract to retain an attomcy to enforce any of the terms or conditions of this Contract or to give any notice rcquired herein, then the prevailing Party or the Party giving notice shall bc entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in~house counsel to include City Attorney. 9.16 MODIFICATIONS AND AMENDMENTS 111at any amendment or modiflcation of this Contract or any provisions herein shall be madc in writing or executed in the same manner as this original document and shall after execution become a part of this Contract. In witness Whereof, the Parties hereto do make and execute this Agreement. CITY OF BOZEMAN, MONTANA ByrS4:J~ (City Manager) EI~ ~L V......sz...(~esident) L'-----_ BY: DATE:3-22-0~ lor- /V1 h .,0.......:: DATE: ~ I r .0- rc... GK. '--'-...J ATTEST: BY~-/ ~ (Cler of Comn11SslOn) 12 EXHIBIT A TO AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES ENGINEER'S STATUS DURING CONSTRUCTION This Exhibit is attached to, made a part of and incorporated by reference with the Agreement made on , between CITY OF BOZEMAN (OWNER) and Morrison-Maierle. Inc. (ENGINEER) providing for professional engineering services. ARTICLE 10 - ENGINEER'S STATUS DURING CONSTRUCTION 10.1. OWNER'S REPRESENTATIVE ENGINEER will be OWNER's representative during the construction period. The duties and rcsponsibilities and the limitations of authority of ENGINEER as OWNER's representative during construction are set forth in thc Contract Documents and shall not be extended without written consent of OWNER and ENGINEER. 10.2. VISITS TO THE SITE ENGINEER will make two visits to the site at intervals appropriate to the various stages of construction to observe the progrcss and quality of the executcd Work and to detem1ine, in general, if the Work is proceeding in accordance with thc Contract Documcnts. ENGINEER will not be rcquircd to make exhaustive or continuous on-site inspcctions to check the quality or quantity ofthe Work. ENGINEER's efforts will be directed toward providing for OWNER's greater degree of confidence that the completed Work will conform to the Contract Documents. On the basis of such visits and on-site observations as an experienced and qualified design professional, ENGINEER will keep OWNER informed of the progress of the Work and will endeavor to guard OWNER against defects and deficiencies in thc Work. 10.3. PROJECT REPRESENTATION At the OWNER '8 request, the ENGINEER will not provide a Resident Project Representative at thc job site to provide observation of the work. 1 0.4. CLARIFICATIONS AND INTERPRETATIONS ENGINEER will issue with reasonable promptness such written clarifications or interpretations of the requirements of the Contract Documents (in the form of Drawings or otherwise) as ENGINEER may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of thc Contract Documents. If CONTRACTOR believes that a written claritication or interpretationjustifies an increasc in the Contract Price or an extension of the Contract Time and the parties are unable to agrce to the amount or extent thereof, CONTRACTOR may make a claim therefore as provided in the General Provisions of the conshuction Contract Document. 10.5. AUTHORIZED VARIATIONS IN WORK ENGINEER may authorize minor variations in the Work from the requircments of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and arc consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Ordcr and will be binding on OWNER, and also on CONTRACTOR who shall perform the Work involved promptly. If CONTRACTOR belicvcs that a field Order justifies an increase in the Contract Price or an extension of the Contract Time and the parties are unable to agree as to the amount or extent thereot~ CONTRACTOR may make a claim thercforc as provided in the General Conditions of the Construction Contract. 10.6. REJECTING DEFECTIVE WORK ENGINEER will have authority to disapprove or reject Work which ENGINEER believes to be defective, and will also have authority to require special inspection or testing of the Work as provided in the General Provisions of the construction Contract Document whether or not the work is fabricated, installed, or completed. 10.7. SHOP DRAWINGS, CHANGE ORDERS AND PAYMENT 10.7.1. The ENGINEER's responsibility for Shop Drawings and samples shall comply with the following: A. Contractor shall submit Shop Drawings and Samples to Engineer for review and approval in accor- dance with the acceptable Schedule of Submittals. Each submittal will be identified as Engineer may reqUJre. 1. Shop Drawings a. Submit number of copies specified in the General Requirements. b. Data shown on the Shop Drawings will be complete with respcct to quantities, dimensions, specified performance and design criteria, materials, and similar data to show Enginccr the services, materials, and equipment Contractor proposes to provide and to enable Engineer to review the information for thc limited purposes required by Paragraph D. 2. Samples__ Contractor shall also submit Samples to Engineer for review and approval in accordance with the acceptable schedule of Shop Drawings and Sample submittals. a. Submit number of Samples specified in the Specifications. b. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engincer to review the submittal for the limited purposes required by Paragraph D. B. Where a Shop Drawing or Sample is rcquired by the Contract Documents or the Schedule of Submittals, any relatcd Work performed prior to Engineer's review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor. C. Submittal Procedures 1. Before submitting each Shop Drawing or Sample, Contractor shall have determined and verified: a. all field measurements, quantities, dimensions, specified performancc and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; b. thc suitability of all materials with respect to intcnded use, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performancc of the Work; c. all information relative to Contractor's responsibilities for means, methods, tcchniques, sequences, and procedures of construction, and safety precautions and programs incident thcreto; and d. shall also have reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements ofthc Work and the Contract Documents. 2. Each submittal shall bear a stamp or spccific written certification that Contractor has satisfied Contractor's obligations undcr thc Contract Documents with respect to Contractor's review and approval of that submittal. 2 3. With each submittal, Contractor shall give Engineer specific written notice of any variations, that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawing's or Sample Submittal; and, in addition, by a specific notation made on each Shop Drawing or Sample submitted to Engineer for review and approval of each such variation. D. Engineer's Review 1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the Schedule of Submittals acceptable to Engineer. Engineer's review and approval will be only to deter]mine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design conccpt of the completed Project as a functioning whole as indicated by the Contract Documents. 3 2. Engineer's review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequencc, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. 3. Engineer's review and approval shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Paragraph C.3 and Engineer has given written approval of each such variation by spccific written notation thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer's review and approval shall not relieve Contractor from rcsponsibility for complying with the requirements of Paragraph C.t. E. Resubmittal Procedures I. Contractor shall make corrections required by Enginecr and shall return the required number of corrected copies of Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous submittals. 10.7.2. Thc ENGINEER's is not responsible for the review of Change Orders. 10.7.3. The ENGINEER is not responsible for the review of Application for Paymcnt. 10.8. DETERMINATIONS FOR UNIT PRICES Not applicable 10.9. DECISION ON DISPUTES 10.9.1. ENGINEER will bc thc initial interpreter of the rcquircments ofthc Contract Documents and judge of the acccptability of thc Work thcre under. Claims, disputcs and othcr matters relating to the acceptability of thc Work or the interpretation of the requirements of the Contract Documcnts pcrtaining to the performance and furnishing of the Work and claims under The General Conditions of the Construction Contract in respect of changes in the Contract Price or Contract Time will be referred initially to ENGINEER in writing with a request for a formal decision in accordance with this paragraph, which ENGINEER will rcndcr in writing within a reasonable time. Written notice of each such claim, dispute and other matter shall be promptly reported and copicd to thc OWNER. .. 10.9.2. When functioning as interpreter under paragraphs 10.8 and 10.9.1, ENGINEER will not show partiality to OWNER or CONTRACTOR and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity. The rcndering of a decision by ENGINEER pursuant to paragraphs 10.8 and 10.9.1 with respect to any such claim, dispute or other matter will be a condition precedent to any exercise by OWNER or CONTRACTOR of such rights or remedies as either may otherwise have under the Contract Documents or by Laws or Regulations in respect of any such claim, dispute or other matter. 4 10.10. LIMITATIONS ON ENGINEER'S RESPONSIBILITIES 10.10.1. Neither ENGINEER's authority to act under this Article or elsewhere in the Contract Documents nor any decision made by ENGINEER in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of ENGINEER to CONTRACTOR, any Sub-contractor, any Supplier, or any other person or organization performing any of the Work, or to any surety for any of them. 10.10.2. Whenever in the Contract Documents the terms "as ordered", "as dirccted", "as required", "as allowed", "as approved" or terms of like effect or import are used, or the adjectives "reasonable", "suitable", "acceptable", "proper" or "satisfactory" or adjectives of like effect or import are used to describe a requirement, direction, revicw or judgment of ENGINEER as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliancc with the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjcctive shall not be effective to assign to ENGINEER any duty or authority to supervise or direct the furnishing or pcrformance of the Work or any duty or authority to undertake responsibility contrary to the provisions of paragraph 4.5.3.