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HomeMy WebLinkAbout93- SID No. 657 Agreement for Professional Engineering Services THIS AGREEMENT made on the 3rd day of May AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES FOR PAVING, DRAINAGE AND SIDEWALK IMPROVEMENTS S.I.D. NO. 657 1993, by and between the CITY OF BOZEMAN, a municipal corporation of the State of Montana, hereinafter called the "OWNER" and "THOMAS, DEAN & HOSKINS, INC.", hereinafter called the "ENGINEER"; WITNESSETH; WHEREAS, Clair Daines, the developer of Westfield Subdivision, Phase III, has petitioned the city of Bozeman, Montana, to create a special improvement district (S.l.D.) for certain improvements within said subdivision; and WHEREAS, Clair Daines has previously retained the engineering services of Thomas, Dean & Hoskins, Inc., for purposes of planning the development of said Subdivision; and WHEREAS, the development of Clair Daines' subdivision and the S.I.D. are interrelated and dependent upon each other; and WHEREAS, Glair Daines has filed a written request with the city to have Thomas, Dean & Hoskins, Inc. continue to plan the development of said subdivision, including the improvements constructed through the S.I.D. project; and WHEREAS, Clair Daines is the owner of all property to be assessed for the costs of the improvements constructed under said S. I. D. WHEREAS, the Owner intends to provide street paving, drainage and sidewalk improvements through creation of Special Improvement District No. 657; NOW, THEREFORE, Owner and Engineer for the considerations hereinafter set forth, agree as follows: A. The Engineer shall conform to the requirements of Section 18-2-121 and -122, and MCA and all other applicable laws, ordinances, statutes, rules and regulations. B. The Engineer agrees to perform professional 1 2 services in connection with the project and to serve as the owner's representative in those phases of the project to which this Agreement applies. C. The project shall include street paving and concrete curb and gutter for Westfield Subdivision, Phase III on Lexington Drive from Wagonwheel Road to West Fieldstone Drive and shall include street paving and concrete curb and gutter on West Fieldstone Drive from the existing pavement, approximately 200 feet north of Lexington Drive to approximately 200 feet south of Lexington Drive. The project will.also include storm drainage improvements to provide adequate drainage for the streets being constructed. A sidewalk will be placed on the west side of Wagonwheel Road. I - SCOPE OF ENGINEERING WORK The Engineer agrees as follows: A. Design Phase The Engineer shall develop a design report for the Owner's review and approval. The Engineer will prepare construction plans and specifications in accordance with accepted engineering standards and in accordance with the design report. The Engineer will provide five (5) copies of bidding documents, including Contractor bond and insurance requirements to the Owner with information to allow for the call for competitive bids for construction of the improvements. The specifications and bid documents shall be the Montana Public Works Standard Specifications, Third Addition, October, 1988, including the August 1, 1991 Addendum No.1, and as further modified by the Owner. B. Biddinq Phase The Engineer shall provide bid documents to interested parties upon receipt of a document fee. 3 The Engineer shall answer contractor/supplier inquiries prior to the contract bid opening. The Engineer shall provide the Owner with construction cost estimate, assist with the bid opening, evaluate the bids received, and make an award recommendation to the Owner, assemble contract documents and coordinate their execution. Bid tabulations shall be completed by the Engineer for the OWner. C. Construction Insoection and Contract Administration The Engineer shall provide a base line and benchmark to assist in construction of principal project components. The Engineer shall provide a qualified full time inspector during underground improvement installation and when asphalt or concrete is being installed and part-time inspection during other improvement construction. These services shall include a daily inspection diar.y with written weekly progress reports to the Owner (project director), and the processing of contractor shop drawing submittals, claims and payment requests. The Engineer would prepare any routine change orders. The inspection services shall include material testing and verification of, 'contract compliance with jOb site requirements, plans and specifications. The Owner shall receive copies of all correspondence from the Engineer to the Contractor. The Engineer will provide the following: Material Testinq: 1) Concrete air content and slump 2) Trench backfill, gravel and pavement replacement densities 3) Aggregate gradations 4) Plant mix strength, flow and asphalt content General Administration of Construction Contract. Engineer shall consult with and advise Owner and act as Owner's representative as provided in Article 9 of the Standard General Conditions of the Construction Contract. No. 1910-8 (1983 edition) of the Engineers Joint Contract Documents Committee, 4 attached to and made a part of this Agreement. All of Owner's instructions to Contractor(s) will be issued through Engineer who will have authority to act on behalf of Owner to the extent provided in said Standard General Conditions except as otherwise provided in writing. D. Construction Completion. The Engineer shall make a final inspection with the Owner. This inspection shall include a certification that all punch list i terns have been completed and the improvements are constructed according to plans and specifications. When the construction contract requirements have been achieved, the Engineer shall issue a "Notice of Substantial Completion" to the Owner. The Engineer shall complete accurate record drawings and furnish the Owner one set of reproducible my1ars. The Engineer- shall make a one-year (ll-month) warranty inspection with the Owner and make a recommendation regarding final acceptance of the improvements. II - ENGINEERING FEES The Owner will pay the Engineer based on the work completed. The fees will be a lump sum amount for each phase of the project to be due and payable monthly in proportion to the work completed. The lump sum fee for each phase shall be as follows: Design Phase: $ 9,000 Bidding Phase: 900 Construction Inspection: 7,200 Construction Completion: 900 Total Fee: $18,000 The contract fees shall not be exceeded without written authorization from the Owner prior to performance of the services. The fee for the construction inspection is based on the construction contractor substantially completing construction of the work within the time of completion indicated in the bid documents. In the event that the Contractor exceeds the contract time, the Engineer will be paid for any inspection services 5 provided after the contract period at a rate of two times payroll cost plus out-of-pocket expenses. The Engineer hereby agrees that in the event of a court determining, rUling or declaring that the city failed to comply with MCA 18-8-201 et sea. , the Engineer will indemnify and hold harmless the city of Bozeman against and from all claims, damages, costs, and liability arising out of or resulting from the City's failure to comply with MCA 18-8-201 et sea. III - TERMS AND CONDITIONS The Owner and Engineer further agree to the following conditions: A. Termination: (1) The Owner shall have the right to terminate this agreement for default should the Owner determine that the Engineer is failing to prosecute the work in a manner which assures timely completion or that the Engineer is not performing any of the provisions of this agreement. If the Owner terminates for default, then the Owner shall not be liable ,for any further payment to the Engineer whatsoever and the Engineer shall be liable for any costs to the Owner resulting from the termination. The Owner's rights herein are in addition to any other remedies it may have under the law. (2) The Owner shall also have the right to terminate this agreement for its convenience upon seven (7) days written notice. If the Owner terminates for its convenience, the Engineer shall waive any claims for damages, including loss of anticipated profits, and as the sole right and remedy of Engineer, Owner shall pay the Engineer for the work performed plus any reasonable costs incidental to the termination of the work. B. Liabilitv: The Engineer agrees to indemnify and save harmless the Owner, its officers, agents and All drawings Engineer for property of request, be and other work products of this project shall become the Owner and will, at delivered to the Owner, the the its but employees against and from any and all actions, suits, claims, demands, expenses (including a reasonable attorney's fee) or liability of any character whatsoever brought or asserted for injuries to the death of any person or persons, or damages to property arising out of, resul ting from or in connection with the performance of the work herein specified, except the liability arising out of a sole negligence of the Owner, it's contractor, and their agents or employees. C. Insurance: without limiting any of Engineer's obligations hereunder, Engineer shall secure and maintain, until the work is completed and accepted by the Owner, insurance coverage naming the Owner as additional insured (with the exception of Workers' Compensation) with minimum insurance coverage as follows: TYPE OF COVE~AGE lIMITS Workers' Compensation: In accordance with the laws of the State of Montana Statutory Employers' Liability: $100,000 per accident General Liability: Bodily Injury $1,000,000 each occurrence Property Damage, including coverage for damage caused by blasting, collapse or structural injury and/or damage to underground facilities $100.000 $300.000 Each occurrence Aggregate -or- Bodily Injury & Property Damage Single and combined $1,000,000 Automobile: Bodily iniury covering all automobiles, trucks, tractors, trailers or other automotive equipment whether owned or rented by Engineer or owned by ~loyees of Engineer. Property Damage covering all automobiles, trucks, tractors, trailers, or other automotive equipment whether owned or rented by Engineer or owned by ~loyees of Engineer. -or- Bodily Iniury and Property Damage Single and conbined $1,000,000 Professional Errors and Omissions: $750,000 per claim Engineer will, before commencing work deliver certification of such insurance to the the policy or policies shall contain a cancellation thereof shall be affected by thirty (30) days written notice to the Owner on this agreement, Owner. In addition, provision that no the insured without and to the Engineer. D. Ownership of Drawinqs: 6 7 Engineer may retain and use copies thereof in furtherance of its know-how. The Engineer's study and findings are not intended for use on other proj ects nor does Engineer represent that they are suitable for use by the Owner on any project other than the one for which they were prepared. Any reuse by the Owner without the written consent of the Engineer will be at the Owner's sole risk. E. Time: The Engineer agrees to begin work on the project within five (5) days of authorization to proceed. The Engineer will complete the services within 75 days after authorization to proceed. Provided, however, that if the completion of this agreement is delayed as a result of causes not reasonably foreseeable which are beyond Engineer's reasonable control and without its fault or negligence such as acts of God, then and in such event the time of completion of this agreement shall be extended for such additional time within which to complete the performance of the contract as is required by such delay, and the Engineer shall give the Owner written notice setting forth the reasons and justification for such additional time claimed under this paragraph. Failure on the part of the Engineer to give the Owner such notice shall constitute a waiver of this paragraph by the Engineer. F. Warrantv: Engin,eer warrants that it will provide its services in accordance with the standards of care, skill, and diligence normally exercised by a professional engineer in the performance of such engineering services. If any such service should be discovered to be not in conformance with this standard, the Engineer shall, at the Owner's request, re-perform the service at its own cost. Engineer shall also at its own expense make such changes, modifications or additions to the project which are made necessary by such re- performance of services. The Owner's rights herein are in addition to any other remedies the Owner may have under the law. G. Independent Contractor: It is agreed that the relation established by this agreement between the Engineer and the Owner is not that of agent and principal, nor servant and master, nor employee and employer, but that, on the contrary, the relation between the Engineer/Owner is purely contractual in the performance of the work herein specified, the Engineer being an independent contractor, 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 furnished by the Owner. THO.~S " DEAN _~ BY: James A. ummings Secretary-Treasurer H. 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; and I. Attorney's Fees and costs. That in the event it becomes necessary for either party to this agreement to retain an attorney or use an in-house counsel, to include city Attorney, to enforce any of the terms or conditions of this contract, or to give any notice required herein, then the prevailing party or parties shall be entitled to reasonable attorney's fees and costs to include fees, costs and salary of in-house counsel. J. Examination of Records: The Owner can request and have access to the Engineer's records within three years of the project services. K. Complete Aareement: This document, together with all attachments referenced herein, constitutes the complete agreement between the parties and supersedes all prior negotiations, representations or agreements, written or oral. The agreement may be amended only by written inst.rument signed by Owner and Engineer. ' L. No Assianment: It is expressly agreed that this agreement shall not be assigned in whole or in part by either party hereto without the previous consent of the other party in writing. M. Governina Law: This agreement shall be governed in all respects by the law of the State of Montana. IN WITNESS WHEREOF the parties hereto have made and executed this Agreement the day and year first above written. OWNER: ENGINEER: ,,~ ;/ ~EST: Ro in Sullivan Clerk of the Commission //j j /t- 0 ~ T. H. Thomas, President 8 ~. ATTACHMENT A TO AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES ARTICLE - 9 No. 1910-8 (1983 Edition) Engineers' Joint Contract Documents Committee ENGINEER'S STATUS DURING CONSTRUCTION OWNERS'S REPRESENTATIVE: 9.1 ENGINEER will be OWNER's representative during the construction period. The duties and responsibilities and the limitations of authority of ENGINEER as OWNER's representative during construction are set forth in the Contract Documents and shall not be extended without written consent of OWNER and ENGINEER. VISITS TO THE SITE: 9.2 ENGINEER will make visits to the site at intervals appropriate to the various stages of construction to observe the progress and quality of the executed Work and to determine, in general, if the Work is proceeding in accord:ulce with the Contract Documents. ENGINEER will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. ENGINEER's efforts will be directed toward providing for OWNER a 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 the Work. PROJECT REPRESENTATION: 9.3 If OWNER and ENGINEER agree, ENGI~EER will furnish a Resident Project Representative to assist ENGINEER in observing the performance of the Work, The duties, responsibilities and limitations of authority of any such Resident Project Representative and assistants will be as provided in the Supplementary Conditions. If OWNER designates another agent to represent OWNER at the site who is not ENGINEER's agent or employee, the duties, responsibilities and limitations of authority of such other person will be as provided in the Supplementary Conditions. CLARIFlCA TIONS AND INTERPRET A TIONS: 9.4 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 the Contract Documents. If CONTRACTOR believes that a written clarification or interpretation justifies an increase in the Contract Price or an extension of the Contract Time and the parties are unable to agree to the amount or extent thereof, CONTRACTOR may make a claim therefor as provided in Article 11 or 12, 9.11 ENGINEER will be the initial interpreter of the requirements of the Contract Documents and judge of tbe acceptability of the Work tbereunder. Claims, disputes and other matters relating to the acceptability of the Work or tbe interpretation of the requirements of the Contract Documents pertaining to the performance and furnishing of the Work and claims under Articles 11 and 12 in respect of changes in the Contract Price or Contract Time will be referred initially to ENGINEER in writing with a request for a fonnal decision in accordance with this paragraph, which ENGINEER will render in writing within a reasonable time. Written notice of each such claim, dispute and other matter will be delivered by the claimant to ENGINEER and the other party to the Agreement promptly (but in no event later than thirty days) after the occurrence of the event giving rise thereto, and written supporting data will be submitted to ENGINEER and the other party within sixty days after such occurrence unless ENGINEER allows an additional period of time to ascertain more accurate data in support of the claim. AUTHORIZED VARIATIONS IN WORK: 9.5 ENGINEER may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order and will be binding on OWNER, and also on CONTRACTOR who shall perform the Work involved promptly. If CONTRACTOR believes 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 thereof, CONTRACTOR may make a claim therefor as provided in Article 11 or 12. - REJECTING DEFECTIVE WORK: 9.6 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 paragraph 13.9, whether or not the Work is fabricated, installed or completed. SHOP DRAWINGS, CHANGE ORDERS AND PAYMENT: 9.7 In connection with ENGINEER's responsibility for Shop Drawings and samples, see paragraphs 6.23 through 6.29 inclusive. 9.8 In connection with ENGINEER's responsibilities as to Change Orders, see Articles 10, 11 and 12. , ~ 9.9 In connection with ENGINEER's responsibilities in respect of Applications for Payment, etc., see Article 14, DETERMINATIONS FOR UNIT PRICES: 9.10 ENGINEER will determine the actual quantities and classifications of Unit Price Work performed by CONTRACTOR. ENGINEER will review with CONTRACTOR ENGINEER's preliminary determinations on such matters before rendering a written d.x:ision thereon (by recommendation of an Application for Payment or otheIWise). ENGINEER's written decisions thereon will be final and binding upon OWNER and CONTRACTOR, unless, within ten days after the date of any such decision, either OWNER or CONTRACTOR delivers to the other party to the Agreement and to ENGINEER written notice of intention to appeal from such a decision. DECISION ON DISPUTES: , ' .. ! ~ . , . 9,12 When functioning as interpreter and judge under paragraphs 1.10 and 1.11, ENGINEER will not show partiality to OWNER or CONTRACTOR and will not be liable in connection with an interpretation or decision rendered in good faith in such capacity. The rendering of a decision by ENGINEER pursuant to paragraphs 1.10 and 1.11 with respect to any such claim, dispute or other matter (except any which have been waived by the making or acceptance of final payment as provided in paragraph 14.16) 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. LIMITATIONS ON ENGINEER'S RESPONsmILITIES: 9.13 Neither ENGINEER's authority to act under this Article 9 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. 9.14 Whenever in the Contract Documents the terms Was ordered" Was directedw, Was required" Was allowedw, Was approvedw or terms of like effect or import are used, or the adjectives wreasonablew, wsuitablew, wacceptablew, wproperw or WsatisfactoryW or adjectives of like effect or import are used to describe a requirement, direction, review 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 compliance with the Contract Documen$s (unless there is a specific statement indicating otherwise). The use of any such term or adjictive shall not be effective to assign to ENGINEER any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of paragraph 9.15 or 9.16. 9.15 ENGINEER will not be responsible 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 perform or furnish the Work in accordance with the Contract Documents. 9.16 ENGINEER will not be responsible for the acts or omissions of CONTRACTOR or of any Subcontractor, any Supplier, or of any other person or organization performing or furnishing any of the Work.