HomeMy WebLinkAbout93- Thomas, Dean & Hoskins Professional Services Agreement
PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of October 18, 1993, between THE CITY
OF BOZEMAN, a Municipal Corporation, Bozeman, Montana, 59771-0640
(OWNER) and Thomas, Dean & Hoskins, Inc., 111 North Tracy Avenue,
Bozeman, Montana, 59715 (ENGINEER).
Whereas the accomplishment of the work and services described in
this Agreement is essential to the OWNER'S public works improvement
program.
Whereas the OWNER intends to provide a sewer main extension from
East Olive street south approximately 700 feet on South Wallace
street and has selected the ENGINEER to provide necessary and
professional engineering services for the project.
Whereas the ENGINEER represents that it is willing and qualified to
perform the professional engineering services for this project
described in this Agreement.
Therefore, in consideration of the foregoing recitals and the
mutual covenants and conditions contained herein, the parties agree
as follows:
The conditions and provisions set forth in the attached EXHIBIT A -
ENGINEER'S STATUS DURING CONSTRUCTION and EXHIBIT B - A LISTING OF
THE DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY OF THE
RESIDENT PROJECT REPRESENTATIVE are hereby incorporated in and made
part of this Agreement.
ARTICLE 1 - ENGINEERING SERVICES
1.1. The detailed description of the specific project
components is described as follows:
Provide topographic site survey, project design plans and
specifications (contract documents) , construction
adiministration, and construction staking, inspection and
testing, in accordance with sections 4.1, 4.2, 4.3, 4.4, 4.5,
and 4.6 of this Agreement and EXHIBITS A and B
1.2. The scope of services under this contract are set forth
in this agreement and the attached EXHIBITS.
ARTICLE 2 - ENGINEER'S RESPONSIBILITIES
2.1. ENGINEER shall perform for OWNER professional engineering services
in all phases of the project to which this Agreement applies as hereinafter
provided. These services will include, but not be limited to, serving as OWNER's
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professional engineering representative for the Project, providing professional
engineering consultation and advice and furnishing customary civil and structural
engineering services incidental thereto.
2.2. The ENGINEER shall furnish all labor, materials, equipment, supplies,
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,
specifications, and recommendations as designated herein.
2.3. The ENGINEER shall ascertain such information as may have a bearing on the
work from local units of government, public, and private organizations and shall
be authorized to procure information from other authorities as to the extent of
these contacts and the results thereof.
2.4. The ENGINEER'S work shall be in accordance with the standards of
sound engineering practices.
2.5. The ENGINEER shall name a principal-In-charge for the duration of the
project. The principal-In-Charge shall be James A. Cummings.
2.6. The ENGINEER shall name a project Manager who shall be the liaison between
the ENGINEER and the OWNER. The Project Manager shall be David J. Crawford. The
OWNER may name a Task Director who would be the liaison between the ENGINEER and
the OWNER during the design segment of the project."
2.7. The ENGINEER shall submit an estimated progress schedule at the beginning
of the work, and monthly progress reports thereafter until the project is
.completed.
ARTICLE 3
- OWNER'S RESPONSIBILITIES
3.1 The OWNER shall name a Task Director who shall be the liaison between
the ENGINEER and the OWNER during DESIGN segment of the project. The Task
Director designated shall be craig Brawner.
3.2 The OWNER shall have the right of review and examination of the
ENGINEER'S work at all times.
3.3 The OWNER shall make available all records (as-buil t drawings,
construction records, etc.) indicating the existing configuration of the city
utilities.
3.4
The OWNER will be responsible for Advertising Bid openings.
3.5 The OWNER shall attend the pre-bid conferences, bid openings, pre-
construction conferences, construction progress and other job related meetings,
substantial completion inspections and final payment inspections.
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ARTICLE 4 - BASIC ENGINEERING SERVICES
The ENGINEER shall render professional Engineering Services as
follows:
4.1 PRELIMINARY DESIGN PHASE
After receipt of written authorization to proceed with the preliminary Design
Phase, ENGINEER shall:
4.1.1. In consultation with OWNER determine general scope, extent and
character of the Project.
4.1.2. Desiqn and Construction Survev: The ENGINEER shall conduct a
design field survey of the proj ect areas, as necessary, for locating
existing utilities (such as gas, power, telephone, TV cables, water and
sewer lines, irrigation facilities, fences, and approach driveways) and
making measured drawings of or investigating conditions of existing
facilities. The ENGINEER shall provide suitable horizontal and vertical
reference control points for the construction phase.
4.1.3. Permits and Riohts-of-Wav: The ENGINEER shall obtain approved
permits, licenses, and/or easement agreements from private landowners and
any other agencies or entities requiring similar approvals prior to
bidding. These approvals will be coordinated with the OWNER and will be
made on easement and permit documents approved by the OWNER. Information
and easement descriptions provided in the Basic Engineering Services will
be based on date available from design surveys and courthouse records.
4.1.4. Preliminarv Plans and Specifications. Prepare preliminary
construction plans and specifications with information which addresses the
special features of each project task.
4.1.5. Based on the information contained in the preliminary design
documents, ENGINEER will submit a revised opinion of probable Total
project Costs to the OWNER.
4.1.6. ENGINEER shall prepare and furnish complete copies of
preliminary bidding documents and design report as requested to OWNER and
at the same time furnish copies as directed by OWNER to agencies and/or
parties having regulatory responsibilities or direct financial
participation in any part of the Project; provide any technical criteria,
written descriptions and design data necessary for securing permits or
approval from authorities having jurisdiction to review and approve the
design, and assist owner in securing such approvals; and review documents
in person with OWNER and review authorities, and, if necessary, conduct a
plan-in-hand site review. All changes agreed to between ENGINEER and
OWNER will be noted in a memorandum from the ENGINEER to the OWNER and
incorporated into the final plans and specifications.
The preliminary Design Phase will be completed and submitted within 30 calendar
days following written authorization from OWNER to ENGINEER to proceed with that
phase of services.
4.2 FINAL DESIGN PHASE
After written authorization to proceed with the Final Design Phase, ENGINEER
shall:
4.2.1.
On the basis .of the accepted preliminary Design documents and
4.3.3. Consult with and advise OWNER as to the acceptability of
prime contractor, subcontractors, suppliers and other persons
organizat ions proposed by the prime contractor ( s) (herein
"Contractor(s)") for those portions of the work as to which
acceptability is required by the Bidding Documents.
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the revised opinion of probable Total Project Costs, prepare for
incorporation in the Contract Documents final drawings and Technical
specifications of sufficient detail to show the general scope, extent and
detailed character of the work to be furnished and performed by the
Contractor(s) suitable for use in the project bidding and construction.
4.2.2. Advise OWNER of any adjustments to the latest opinion of
probable Total Project Costs caused by changes in general scope, extent or
character or design requirements of the project or Construction Costs.
Furnish to OWNER a revised opinion of probable Total Project Costs based
on the Drawings and Specifications.
4.2.3. Prepare for review and approval by OWNER, its legal counsel
and other advisors, contract agreement forms, general conditions and
supplementary conditions, and (where appropriate) bid forms, invitations
to bid and instructions to bidders, special provisions, technical
specifications, and standard drawings, and other related contract
documents in conformance with the latest edition of the Montana Public
Works Standard specifications (MPWSS) and City of Bozeman Modifications to
MPWSS adopted by the City of Bozeman.
4.2.4. Furnish OWNER six copies of the Contract Documents (including
design drawings, specifications and contracts).
The Final Phase will be complete and submitted with 90 calendar days following
written authorization from OWNER to ENGINEER to proceed with that phase of
services.
4.3 BIDDING OR NEGOTIATING PHASE
After written authorization to proceed with the Bidding or Negotiating Phase,
ENGINEER shall:
4.3.1. Assist OWNER in advertising for and obtaining bids or
negotiating proposals for construction contract(s) and record prospective
bidders to whom Bidding Documents have been issued, receive and process
deposits for Bidding Documents and conduct pre-bid conferences.
4.3.2. Provide interpretation or clarification to prospective bidders
regarding the Bidding Documents, and issue addenda as appropriate.
4.3.4. Consult with OWNER concerning and determine the acceptability
of substitute materials and equipment proposed by Contractor(s) when
substitution prior to the award of contracts is allowed by the Bidding
Documents.
4.3.5. Attend the Bid opening, prepare bid tabulation, evaluate bids,
assess bidders' responsiveness and responsibility and make award
recommendation to OWNER.
4.3.6 Facilitate contract award, and the execution and distribution
of the contract documents for construction, materials, equipment and
services. Furnish Owner two original signature sets of executed contract
documents (including design drawings, specifications and contracts).
Furnish contractor with one set of original signature executed contract
documents and up to three sets of construction documents.
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4.4.1.6 ENGINEER shall provide OWNER copies
correspondence between the ENGINEER and Contractor.
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4.4 CONSTRUCTION PHASE
The responsibilities of the ENGINEER during the Construction Phase are summarized
as follows:
4.4.1. General Administration of Construction Contract. ENGINEER
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 and may be further provided under the
General Conditions of the contract documents. The extent and limitations
of the authority, duties, and responsibilities of the ENGINEER on the
construction job site as assigned here-in shall not be modified except as
the ENGINEER may otherwise agree in writing. All of OWNER's instruction
to Contractor(s) will be issued through ENGINEER who will have authority
to act on behalf of OWNER to the extent provided in the General
Conditions except as otherwise provided in writing.
In addition to the services provided under Article 10 (Exhibit A) the
ENGINEER shall provide the following services during construction:
4.4.1.1
schedule and conduct a pre-construction conference.
4.4.1.2 Provide personnel, equipment and supplies for
construction layout and control, including establishment of line,
grade, and blue top control staking, but not blue top stakes.
4.4.1.3 Review Contractors' construction schedules and
operations, and the Contractors' traffic control plans and its
implementation prior to the start of construction.
4.4.1.4 Ascertain that the Contractor has secured required
permits needed to accomplish his work.
4.4.1.5 Prepare and provide weekly activity and progress reports
to the City's Task Director.
4.4.1.7 Issue stop and resume work orders, in whole or in part,
when work is not or cannot be performed in accordance with the
Contract Documents.
4.4.1.8 Review and approve, for conformance with the project
technical specifications all shop drawings, and other Contractor
submittals required by the Contract Documents.
4.4.1.9 Our ing construction review Contractors' construction
schedules and evaluate conformance and progress under the Contract
time provisions.
4.4.1.10 Prepare for OWNER'S approval any plan and specification
changes which due to any initial design or engineering deficiencies
are required to complete the project original design concept.
4.4.1.11 Inspect the project and when appropriate, and after
conferring with OWNER, issue a certificate of Substantial Completion
to the Contractor.
4.4.1.12 Prior to recommending final payment, schedule and
conduct with the OWNER a final project inspection and submit a
report to the OWNER documenting any outstanding items or
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deficiencies requiring correction prior to final payment. Upon
satisfactory project completion ENGINEER shall certify in writing to
the OWNER, and any required regulatory agencies, that the
construction was completed in accordance with the approved plans and
specifications and is performing in accordance with the design
concept.
4.4.1.13 Eleven months after project substantial completion
schedule and conduct with the Owner a One Year Warranty Inspection
of the project and advise the owner in writing whether project
deficiencies exist and if the project is performing in accordance
with the design concept.
4.4.2. Resident Proiect Representative. ENGINEER shall provide a
qualified Resident project Representative at the job site to provide
observation of the work as provided in EXHIBIT B - A LISTING OF THE
DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY OF THE RESIDENT
PROJECT REPRESENTATIVE., attached to and made part of this Agreement.
The ENGINEER shall submit to the OWNER, for review and acceptance, the
resume of each Resident project Representative who may be assigned to the
job site during the course of the project not less than 10 calendar days
prior to the pre-construction meeting. Any subsequent change in the
resident representative shall also be subject to the OWNER'S approval.
4.4.3 Limitations of Responsibilities. 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; however, nothing contained
in this agreement shall be construed to release ENGINEER from liability for
failure to properly perform duties and responsibilities assumed by ENGINEER in
the Contract Documents.
4.5. PROJECT DOCUMENTATION
ENGINEER shall furnish OWNER with (a) one mylar copy and two paper copies of the
Project Record Drawings ("As-Builts"), (b) written monthly progress reports, and
(c) a project notebook containing such correspondence and documentation as
requested by OWNER.
4.6. CONSTRUCTION TESTING
The inspection services shall include material testing and verification of
contract compliance with job site requirements, plans and specifications.
The ENGINEER shall provide and maintain detailed documentation of the following
material testing:
1) Concrete air content and slump
2) Embankment, Trench backfill, and gravel and pavement
replacement densities
3) Aggregate gradations
4) Plant mix strength, flow and asphalt content
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ARTICLE 5 - ADDITIONAL SERVICES
5.1. If OWNER wishes ENGINEER to perform any of the following Additional
Services, OWNER shall so instruct ENGINEER in writing, and ENGINEER shall perform
or obtain from others such services and will be paid therefor as provided in the
Agreement:
5.1.1. Legal land surveys performed to obtain data for preparing
easements and rights-of-way descriptions.
5.1.2. Preparation of applications and supporting documents for
governmental agencies in addition to those required under Basic Services;
preparation or review of environmental studies and related services; and
assistance in obtaining environmental approvals.
5.1. 3. Services resulting from significant changes, in the general
scope, extent or character of the project or maJor changes in
documentation previously accepted by OWNER where changes are due to causes
beyond ENGINEER's control.
5.1.4.
Providing renderings or models.
5.1.5. Preparing documents for alternate bids requested by OWNER for
work not executed or for out-of-sequence work.
5.1.6. Providing other services not otherwise provided for in the
Agreement, including services normally furnished by the OWNER as elsewhere
herein described.
5.1.7. Furnishing the services of independent professional associates
or consultants for other than Basic Services.
5.2. When required by the Contract Documents in circumstances beyond ENGINEER's
control, ENGINEER shall perform or obtain from others any of the following
Additional Services as circumstances require during construction and without
waiting for specific instructions from OWNER, and ENGINEER will be paid therefor
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 resulting change
in compensation for Basic Services is not commensurate with the additional
services rendered.
5.2.2. Services in making revisions to Drawings and Specifications
occasioned by the OWNER'S acceptance of substitutions proposed by
Contractor(s); services after the award of each contract in evaluating and
determining the acceptability of an unreasonable or excessive number of
substitutions proposed by Contractor; and evaluating an unreasonable or
extensive number of claims submitted by Contractor (s) or others in
connection with the work.
5.2.3. Services resulting from significant delays, changes or price
increases occurring as a direct result of materials, equipment or energy
shortages.
5.2.4. Additional or extended services during construction made
necessary by (1) work damage by fire or other causes during construction,
(2) a significant amount of defective or neglected work of any Contractor,
(3) acceleration of the progress schedule involving services beyond normal
working hours, (4) default by any Contractor.
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ARTICLE 6 - COMPENSATION FOR ENGINEERING SERVICE
6.1 LUMP SUM PAYMENT FOR DESIGN SERVICES AND EXPENSES OF ENGINEER
6.1.1 Lump Sum Payment. The OWNER shall for des ign phase services
performed as Basic Engineering Services under sections 4.1 through 4.3 of
this agreement pay a lump sum in the amount of $3.700 for such services.
6.1.2 pavment Schedule. Total cumulative payments for the design phase
engineering services (sections 4.1 through 4.3) shall not exceed the
following ceilings:
$ 1.850 (50% of design fee) until the Preliminary Plans and specifications
have been submitted to the OWNER and review authorities.
$ 3.330 (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 the
proportion of the total services actually completed at the time of
billing, subject to any limitations on Payments based on completion of
tasks or specific retainage requirements pursuant to the payment
provisions of the Agreement .
6.1.4 Reimbursable Expenses. only those expenses specifically identified
for payment under section 6.2 of this Agreement are reimbursable. All
other design related expenses are included in the Lump Sum Payment for the
Basic services (4.1 through 4.3) and are not separately reimbursable.
Additional Services specifically 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 services performed as Basic Engineering
Services under sections 4.4 through 4.6 including General Administration of
Construction Contract, Resident Project Representation, Project Documentation,
and Construction Testing, shall be compensated in accordance with the following:
6.2.1 The OWNER shall pay for Construction Phase and Project Documentation
Services an amount not to exceed $2,000 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 the ENGINEER's Direct Labor Cost times a factor of 2.80
for services rendered which shall cover Direct Labor, Direct Labor
Overhead, General & Administrative Overhead and Profit.
6.2.1.2 Notification. At any time during the construction that
it becomes apparent that the Construction Phase and Project
Documentation Services rendered under this Agreement will exceed the
negotiated compensation for these services, and prior to performing
services in excess of the contract ceiling, the ENGINEER shall give
OWNER written notice thereof. Promptly thereafter OWNER and
ENGINEER shall review the scope and progress of the project work.
ENGINEER shall obtain written authorization from OWNER, prior to any
additional costs being incurred under paragraph 6.2.1.3. If it is
determined that due to a change in project scope under paragraph
5.2.1, the ENGINEER is entitled to additional compensation, OWNER
and ENGINEER may negotiate terms as provided under 6.2.1.1. The
amount and terms of any additional compensation under 6.2.1.1 or
6.2.1.3 shall be negotiated and agreed in writing pursuant to 9.16.
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6.2.1.3 Costs Exceedinq Estimated Compensation. Except as allowed
under 5.2.1, when the total cost of the original scope Construction
Phase and Project Documentation Services exceeds the negotiated
compensation for these services, the OWNER shall pay only for the
direct costs incurred in excess of the estimated compensation.
These costs consist of an amount equal to the ENGINEER'S Direct
Labor Cost times a factor of 2.469 for services rendered which shall
include Direct Labor, the federally audited payroll Direct Labor
Overhead, and General & Administrative Overhead costs, but shall not
include any allowance for profit.
6.2.2. Reimbursable Expenses, as defined in section 7.4 of this
Agreement, for Basic Services and Approved Additional Services shall be
paid to the ENGINEER by the OWNER in the actual amount of the costs
incurred.
6.2.3. Failed Test Expenses. The ENGINEER shall maintain and provide
to the OWNER, a record of the costs associated with failing quality
control tests performed for the OWNER during the course of the
construction of the project and recommend an amount the OWNER deduct from
the contractor(s) payments.
6.2.4 The OWNER shall pay an amount for Additional Services rendered by
the ENGINEER and approved in writing by the OWNER on the basis of the
ENGINEER'S Direct Labor Costs times a factor of 2.80, or an amount
otherwise negotiated at the time such services are requested and approved
by the OWNER.
ARTICLE 7 - MEANING OF TERMS
7.1 AGREEMENT
As used herein the term "this Agreement" refers to the contents of this document
and its Exhibits attached hereto and referred to as if they were part of one and
the same document.
7.2 CONSTRUCTION COSTS
The construction cost of the entire project (herein referred to as "Construction
cost") means the total cost to OWNER of those portions of the entire project
designed and specified by ENGINEER, but it will not include ENGINEER's
compensation and expenses, the cost of land, rights-of-way, or compensation for
or damages to, properties unless this Agreement so specifies, nor will it include
OWNER's legal, accounting, insurance counseling or auditing services, or interest
and financing charges incurred in connection with the project or the cost of
other services to be provided by others to OWNER.
7.3 DIRECT LABOR COSTS
Direct Labor Costs used as a basis for payment mean salaries and wages paid to
all ENGINEER's personnel engaged directly on the project, including, but not
limited to, engineers, architects, surveyors, designers, drafters, specification
writers, estimators, other technical and business personnel; but does not include
indirect payroll related costs or fringe benefits. For the purposes of this
Agreement the principals and employees of the ENGINEER Direct Labor Costs are:
Senior Engineer
Staff Engineer
Technicians
CADD Drafter
$26.80/hour
$22.20/hour
$12.90/hour
$lO.OO/hour
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Construction Inspector
Two Person Survey Crew
Party Chief
Clerical
Vehicle
Nuclear Densometer
$13.40/hour
$21. OO/hour
$lS.OO/hour
$9.70/hour
$9.00/day
$200.00/month
7.4 REIMBURSABLE EXPENSES
Reimbursable Expenses mean the actual expenses incurred by ENGINEER or ENGINEER' s
independent professional associates or consultants directly in connection with
the project, such as expenses for: transportation and subsistence incidental
thereto; obtaining bids or proposals from contractor(s); subsistence and
transportation of Resident Project Representatives and their assistants; toll
telephone calls and telegrams; reproduction of reports, Drawings, Specifications,
Bidding Documents and similar project-related items; and if authorized in advance
by OWNER, overtime work requiring higher than regular rates. In addition, when
compensation for Basic Services is on the basis of Direct Labor Costs method of
payment, Reimbursable Expenses will also include the amount billed to ENGINEER
by special consultants employed by ENGINEER and authorized by OWNER (other than
as an authorized Additional Services) and will also include expenses incurred for
computer time and other specialized equipment, including an appropriate charge
for previously established programs and expenses of photographic production
techniques.
ARTICLE 8 - PAYMENT PROVISIONS
8.1 TIMES OF PAYMENTS. ENGINEER may submit monthly statements for Basic
Services and approved Additional Services rendered and for Reimbursable Expenses
incurred; however, payments shall not exceed the ceilings provided in 6.1.2.
Final payment shall be made only after acceptance of the project by the OWNER.
If OWNER disputes the amount of the billing, OWNER will notify the ENGINEER in
writing within ten (10) calendar days of the receipt of bill of the dispute.
8.2 REQUESTS FOR PAYMENT. Each request for payment shall include a
documentation summary of the period incremental man hours incurred, direct labor
rates and billed rates, detail of reimbursable costs, total period billing, and
total cumulative billing. When requested by OWNER services for distinct project
segments shall be accounted and billed separately.
8.3 PAYMENT UNDER TERMINATION. In the event of termination by the OWNER upon
the completion of any phase of the Basic Services, progress payments due ENGINEER
for services rendered through such phase shall constitute total payment for such
services. In the event of such termination by OWNER during any phase of the
Basic Services, ENGINEER also will be reimbursed for the charges of pre-approved
independent professional associates and consultants employed by ENGINEER to
render Basic Services, and paid for services rendered during that phase on the
basis of the payment provisions of the Agreement. In the event of any such
termination, ENGINEER will be paid for unpaid pre-approved Additional Services
and unpaid Reimbursable Expenses which are authorized under this agreement.
ARTICLE 9 - GENERAL CONSIDERATIONS
9.1 TERMINATION OF AGREEMENT
9.1.1 The sole right is hereby reserved to the OWNER to terminate this
Engineering Agreement for any and all causes or for it's convenience at
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any time upon fifteen (15) days written notice to the ENGINEER.
9.1.2 If termination for default is effected by the OWNER, an equitable
adjustment in the price provided for in this Agreement shall be made, but
(1) no amount shall be allowed for anticipated profit on unperformed
services or other work, and (2) any payment due to the ENGINEER at the
time of termination may be adjusted to cover any additional costs to the
OWNER because of the ENGINEER's default. If termination for convenience
is effected by the OWNER, the equitable adjustment shall include a
reasonable profit, as determined by owner, for services or other work
performed. The equitable adjustment for any termination shall provide for
payment to the ENGINEER for services rendered and expenses incurred prior
to the termination, in addition to termination settlement costs reasonably
incurred by the ENGINEER relating to commitments which had become firm
prior to the termination.
9.1.3 Upon receipt of a termination action under paragraph 9.1.2, the
ENGINEER shall (1) promptly discontinue all affected work (unless the
notice directs otherwise), and (2) deliver or otherwise make available to
the OWNER within ten (10) days copies of all data, design drawings,
specifications, reports, estimates, summaries and such other information
and materials as may have been accumulated by the ENGINEER in performing
this Agreement, whether completed or in process.
9.1.4 In the event this Contract is terminated prior to completion, the
original copies of the ENGINEER'S data, recommendations, plans,
specifications, analysis and other related documents prepared by the
ENGINEER prior to said termination shall be delivered to and become the
property of the OWNER.
9.1.5 Upon termination, the OWNER may take over the work and may award
another party an Agreement to complete the work under this Agreement.
9.1.6 OWNER'S right to terminate is in addition to any other remedies
OWNER may have under the law.
9.2 INSPECTION AND AUDIT
All books, papers, records, payrolls, vouchers and invoices relating to costs and
expenditures incurred as to the performance of the services by the ENGINEER
hereunder shall be made available to the OWNER, or their 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 of
final payment.
9.3 EMPLOYMENT
The ENGINEER warrants that he has not employed or retained any company or
persons, other than a bona fide employee, working solely for the ENGINEER, to
solicit to secure this contract, and that he has not paid or agreed to pay any
company or person, other than bona fide employees working solely for the
ENGINEER, any fee, commission, percentage, brokerage fee, gifts or any other
considerations contingent upon or resulting from the award or making of this
Contract. For breach or violation of this warranty, the OWNER shall have the
right to annul the Contract without liability or in its discretion to deduct from
the price or consideration or otherwise recover the full amount of such fee,
commission, percentage, brokerage fee, gift or contingent fee.
All employees of the ENGINEER or other persons while engaged in the performance
of work or services required by the ENGINEER shall be considered employees of the
ENGINEER only and not of the OWNER.
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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 Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States code, and all regulations promulgated thereunder.
9.5 SUBLETTING OR ASSIGNING OF WORK
The ENGINEER shall not sublet or assign any of the work covered herein without
prior written approval of the OWNER.
9. 6 STANDARD OF CARE
ENGINEER warrants that it will provide its services in accordance with the
standards of care, skill, knowledge, 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
expense. Engineer shall also, at its own expense, make such changes,
modifications or additions to the project which are made necessary as a result
of the initial nonperformance or the re-performance of services. The OWNER's
rights herein are in addition to any other remedies the OWNER may have under the
law.
9. 7 LEGAL RELATIONS
The ENGINEER shall comply with all Federal, State, and Local laws and ordinances
applicable to the work to be done.
The ENGINEER agrees to indemnify, hold harmless and defend the OWNER and its
officers, agents and employees against any and all actions, suits, claims,
demands, costs, judgements, expenses (including a reasonable attorney's fee), and
liability of any character whatsoever brought or asserted for any injury, death,
or damage received or sustained by any person, persons, property, business or any
other entity, arising out of or resulting from, or in connection with the
performance of the work herein specified. The ENGINEER is not required to defend
the OWNER from assertions that the OWNER was negligent, or indemnify the OWNER
from liability based solely on OWNER's negligence. The indemnity required here
shall not be limited by reason of the specification of any particular insurance
coverage in this Agreement.
The ENGINEER is and shall perform this agreement as an independent contractor,
and as such, is responsible to the OWNER only as to the results to be obtained
in the work herein specified, and to the extent that the work shall be done in
accordance with the terms, plans and specifications. The ENGINEER shall have and
maintain complete control over all of its employees, subcontractors, agents and
operations, being responsible for any required payroll deductions and providing
required benefits, such as, but not 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 insurance,
therein, naming the OWNER as an additional insured, to include thirty (30) days
notice of cancellation or non-renewal.
without limiting any of ENGINEER's obligations hereunder, ENGINEER shall secure
and maintain, until the work is completed and accepted by the OWNER, insurance
Bodily Iniury & Property
Damaqe Single and combined
$ 500,000 each occurrence
coverage naming the OWNER as additional insured with minimum insurance coverage
as follows:
Tvpe of Coveraqe
Limits
Employers' Liability:
5 100,000 per accident
General Liability:
Bodily Iniury & Property
Damaqe Single and combined
$ 1,000,000 per accident
Automobile:
Bodily Iniury covering all
automobiles, trucks,
tractors, trailers, or
other automotive equip-
ment whether owned or
rented by Engineer or
owned by employees of
Engineer.
5 500,000 each person
51,000,000 each occurrence
Property Damaqe covering
all automobiles, trucks,
tractors, trailers or other
automotive equipment whether
owned or rented by Engineer
or owned by employees of
Engineer
5 500,000 each occurrence
OR
Professional Errors & Omission:
$ 1,000,000 per claim and
aggregate each occurrence
9.9 ENDORSEMENT
The ENGINEER shall place his endorsement on all drawings and other data furnished
by him.
9.10 OWNERSHIP OF DOCUMENTS
All schedules,
specifications,
of the Contract
to the OWNER.
data, exhibits, recommendations, design reports, plans,
and other related documents prepared or obtained under the terms
are deemed to be the property of the OWNER and shall be delivered
9.11 PUBLIC INFORMATION
The ENGINEER shall not issue any statements, releases or information for public
dissemination without prior approval of the OWNER.
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9.12 PROPRIETARY RIGHTS
If patentable discoveries or inventions should result from work required herein,
all rights accruing from such discoveries or inventions shall be joint property
of the ENGINEER and the OWNER. Provided that the OWNER, state agencies or
political subdivisions and the United States Government shall have the
irrevocable, nonexclusive, nontransferable and royalty-free license to use each
invention in the manufacture, use and disposition, according to law, of any
article or material, and in the use of any method that may be developed as part
of the work described and contemplated herein.
9.13 RECORDS
The ENGINEER shall maintain accounting records and other evidence pertaining to
the cost incurred and to make the records available at all reasonable times
during the Contract term and for one (1) year from the date of final payment.
Such accounting records and other evidence pertaining to the cost incurred will
be made available for inspections by OWNER.
9.14 SUCCESSORS IN INTEREST
The covenants, agreements and all statements in this Contract apply to and shall
be binding on the heirs, personal representatives, successors and assigns of the
respective parties.
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 enforce any of the terms or conditions of this Contract or
to give any notice required herein, then the prevailing Party or the Party giving
notice shall be entitled to reasonable attorney's fees and costs, including fees,
salary, and costs of in-house counsel to include City Attorney.
9.16 MODIFICATIONS AND AMENDMENTS
That any amendment 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 after execution become a part of this Contract.
In witness Whereof, the Parties hereto do make and execute this
Agreement.
ENGINEER ~
BY: T )V-rr.. ~--
. (presiden
DATE:
December 6, 1993
DATE: 0 C+- ) 1', / tf '13
BY:
:::RO~~~~K
(C ty or ey)
15
This Exhibit is attached to, made a part of and incorporated by reference
the Agreement made on October 18, 1993, between CITY OF BOZEMAN (OWNER)
Thomas, Dean & Hoskins, Inc., Bozeman, Montana (ENGINEER) providing
professional engineering services.
with
and
for
EXHIBIT A
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
ENGINEER'S STATUS DURING CONSTRUCTION
ARTICLE 10 - ENGINEER'S STATUS DURING CONSTRUCTION
10.1.
OWNERS'S REPRESENTATIVE
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.
10.2.
VISITS TO THE SITE
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 accordance 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'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
the Work.
10.3.
PROJECT REPRESENTATION
If OWNER and ENGINEER agree, ENGINEER 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 EXHIBIT B, A LISTING
OF THE DUTIES. RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY OF THE RESIDENT
PROJECT REPRESENTATIVE.
10.4.
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 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 the General provisions of the
construction Contract Document.
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2
10.5.
AUTHORIZED VARIATIONS IN WORK
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 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 shop drawing provisions of the General Provisions of
the construction Contract Document
10.7.2. The ENGINEER's responsibilities for Change Orders shall comply
with the change order provisions of the General provisions of the
construction Contract Document.
10.7.3. The ENGINEER's responsibilities for contractor's Application
for Payment shall comply with the payment provisions of the General
Provisions of the construction Contract Document
10.8.
DETERMINATIONS FOR UNIT PRICES
ENGINEER will determine the actual quantities and classifications of unit Price
Work performed by CONTRACTOR. ENGINEER will review with CONTRACTOR the
ENGINEER's preliminary determinations on such matters before rendering a written
recommendation thereon (by recommendation of an Application for Payment or
otherwise) to OWNER.
10.9.
DECISION ON DISPUTES
10.9.1. ENGINEER will be the initial interpreter of the requirements
of the Contract Documents and judge of the acceptability of the Work
thereunder. Claims, disputes and other matters relating to the
acceptability of the Work or the interpretation of the requirements of the
Contract Documents pertaining 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 render in
writing within a reasonable time. Written notice of each such claim,
dispute and other matter shall be promptly reported and copied to the
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 rendering of a decision by ENGINEER
3
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.
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
directed", "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, 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 Documents (unless there is a specific
statement indicating otherwise). The use of any such term or adjective
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 4.4.3.
1
EXHIBIT B
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
A LISTING OF THE nlITlES, RESPONSIDILITIES AND
LIMITATIONS OF AUTIlORITY OF THE RESIDENT PROJECT
REPRESENTATIVE.
This Exhibit is attached to, made a part of and incorporated by reference with
the Agreement made on October 18, 1993, between CITY OF BOZEMAN (OWNER) and
Thomas, Dean & Hoskins, Inc., Bozeman, Montana, 59715 (ENGINEER) providing for
professional engineering services.
ARTICLE 11 - DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY
OF THE RESIDENT PROJECT REPRESENTATIVE
ENGINEER shall furnish a Resident project Representative (RPR), assistants and
other field staff to assist ENGINEER in observing performance of the work of
Contractor.
Through more extensive on-site observations of the work in progress and field
checks of materials and equipment by the RPR and assistants, ENGINEER shall
endeavor to provide further protection for OWNER against defects and deficiencies
in the work of CONTRACTOR; but, the furnishing of such services will not make
ENGINEER responsible for or give ENGINEER control over construction means,
methods, techniques, sequences or procedures or for safety precautions or
programs, or responsibility for CONTRACTOR's failure to perform the Work in
accordance with the Contract Documents and in particular the specific limitations
set forth in section 8.5 of the Agreement are applicable.
The duties and responsibilities of the RPR are limited to those of ENGINEER in
this agreement and in the construction Contract Documents, and are further
limited and described as follows:
11. 1.
GENERAL
RPR is ENGINEER's agent at the site, will act as directed by and under the
supervision of ENGINEER, and will confer with ENGINEER regarding RPR's actions.
RPR's dealings in matters pertaining to the on-site work shall in general be with
ENGINEER and CONTRACTOR keeping OWNER advised as necessary. RPR's dealings with
subcontractors shall only be through or with the full knowledge and approval of
CONTRACTOR. RPR shall generally communicate with OWNER with the knowledge of and
under the direction of ENGINEER.
11. 2 .
DUTIES AND RESPONSIBILITIES OF RPR
11.2.1. Schedules: Review the progress schedule, schedule of Shop
Drawing submittals and schedule of values prepared by CONTRACTOR and
consult with ENGINEER concerning acceptability.
11.2.2. Conferences and Meetinqs: Attend meetings with CONTRACTOR,
such as preconstruct ion conferences, progress meetings, job conferences
and the project-related meetings, and prepare and circulate copies of
minutes thereof.
11.2.4.2.
CONTRACTOR,
examination.
Receive samples which are furnished at
and notify ENGINEER of availability of
the site by
samples for
11.2.3.
Liaison:
11.2.3.1. Serve as ENGINEER's liaison with CONTRACTOR, working
principally through CONTRACTOR's superintendent and assist in
understanding the intent of the Contract Documents; and assist
ENGINEER in serving as OWNER's liaison with CONTRACTOR.
11. 2.3.2. Assist in obtaining from OWNER additional details or
information, when required for proper execution of the Work.
11.2.4.
Shop Drawinqs and Samples:
11.2.4.1.
Record date of receipt of Shop Drawings and samples.
11.2.4.3. Advise ENGINEER and CONTRACTOR of the commencement of
any Work requiring Shop Drawing or sample if the submittal has not
been approved by ENGINEER.
11.2.5.
Review of Work, Re;ection of Defective Work, Inspections and
Tests:
11.2.5.1. Conduct on-site observations of the Work in progress to
assist ENGINEER in determining if the Work is in general proceeding
in accordance with the Contract Documents.
11.2.5.2. Report to ENGINEER whenever RPR believes that any Work
is unsatisfactory, faulty or defective or does not conform to the
Contract Documents, or has been damaged, or does not meet the
requirements of any inspection, test or approval required to be
made; and advise ENGINEER of Work that RPR believes should be
corrected or rejected or should be uncovered for observation, or
requires special testing, inspection or approval.
11. 2.5.3. verify that tests, equipment and systems startup and
operating and maintenance training are conducted in the presence of
appropriate personnel, and the CONTRACTOR maintains adequate records
thereof; and observe, record and report to ENGINEER appropriate
details relative to the test procedures and startup.
11.2.5.4. Accompany visiting inspectors representing public or
other agencies having jurisdiction over the project, record the
results of these inspections and report to ENGINEER.
11.2.6. Interpretation of Contract Documents: Report to ENGINEER when
clarifications and interpretations of the Contract Documents are needed
and transmit to CONTRACTOR clarifications and interpretations as issued by
ENGINEER.
11. 2.7. Modifications: Consider and evaluate CONTRACTOR's suggestions
for modifications in Drawings or specifications and report with RPR' s
recommendations to ENGINEER. Transmit to CONTRACTOR decisions as issued
by ENGINEER.
11.2.8.
Records:
11.2.8.1. Maintain at the job site orderly files for
correspondence, reports of job conferences, Shop Drawings and
samples, reproductions of original Contract Documents including all
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Work Directive changes, Addenda, change Orders, Field
additional Drawings issued subsequent to the execution
Contract, ENGINEER's clarifications and interpretations
Contract Documents, progress reports, and other Project
documents.
Orders,
of the
of the
related
11.2.8.2. Keep a detailed and accurate diary or log book,
recording CONTRACTOR hours on the job site, weather conditions,
prime and subcontractor daily work force, daily log of equipment
onsite or on standby, data relative to questions of Work Directive
changes, Change Orders or changed conditions, list of job site
visitors, daily activities, decisions, observations in general, and
specific observations in more detail as in the case of observing
test procedures; and send copies to ENGINEER.
11.2.8.3. Record names, addresses and telephone numbers of all
CONTRACTORS, subcontractors and major suppliers of materials and
equipment.
11.2.9.
Reports:
11.2.9.1. Furnish ENGINEER periodic reports as required of
progress of the Work and of CONTRACTOR' s compliance with the
progress schedule and schedule of Shop Drawing and sample
submittals.
11. 2.9.2. Consult with ENGINEER in advance of scheduled major
tests, inspections or start of important phases of the Work.
11. 2.9.3. Draft proposed change Orders and Work Directive Changes,
obtaining backup material from CONTRACTOR and recommend to ENGINEER
Change Orders, Work Directive Changes, and Field Orders.
11.2.9.4. Report immediately to ENGINEER and OWNER upon the
occurrence of any accident.
11.2.10. Payment Requests: Review applications for payment with
CONTRACTOR for compliance with the established procedure for their
submission and forward with recommendations to ENGINEER, noting
particularly the relationship of the payment requested to the schedule of
values, Work completed and materials and equipment delivered at the site
but not incorporated in the Work.
11.2.11. Certificates, Maintenance and Operation Manuals: During the
course of the Work, verify that certificates, maintenance and operation
manuals and other data required to be assembled and furnished by
CONTRACTOR are applicable to the items actually installed and in
accordance with the Contract Documents, and have this material delivered
to ENGINEER for review and forwarding to OWNER prior to final payment for
the Work.
11.2.12.
Completion:
11.2.12.1. Submit to CONTRACTOR, and ENGINEER a list of observed
items requiring completion or correction before ENGINEER may issue
a Certificate of Substantial completion.
11.2.12.2 Assess completion or correction of items noted under
11.2.12.1, advise ENGINEER on their status, and make recommendation
to Engineer regarding issuance of a Certificate of Substantial
completion.
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11. 3.
11.2.12.3. Conduct final inspection in the company of ENGINEER,
OWNER, and CONTRACTOR and prepare a final list of items to be
completed or corrected.
11.2.12.4. Observe that all items on final list have been completed
or corrected and make recommendations to ENGINEER concerning final
acceptance.
LIMITATIONS OF AUTHORITY
Resident Project Representative:
11.3.1. Shall not authorize any deviation from the Contract Documents
or substitution of materials or equipments, unless authorized by ENGINEER.
11.3.2. Shall not exceed limitations of ENGINEER's authority as set
forth in the Agreement or the Contract Documents.
11. 3.3. Shall not undertake any of the responsibilities of CONTRACTOR,
subcontractors or CONTRACTOR's superintendent.
11.3.4. Shall not advise on, issue directions relative to or assume
control over any aspect of the means, methods, techniques, sequences or
procedures of construction unless such advice or directions are
specifically required by the Contract Documents.
11.3.5. Shall not advise on, issue directions regarding or assume
control over safety precautions and programs in connection with the Work.
11.3.6. Shall not accept Shop Drawing or sample submittals from anyone
other than CONTRACTOR.
11.3.7.
part.
Shall not authorize OWNER to occupy the project in whole or in
11.3.8. Shall not participate in specialized field or laboratory tests
or inspections conducted by others except as specifically authorized by
ENGINEER.
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