HomeMy WebLinkAbout95- Thomas, Dean & Hoskins Professional Services Agreement (2)
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PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of October 2 ,1995, between THE
CITY OF BOZEMAN, a Municipal Corporation, Bozeman, Montana, 59771-
0640 (OWNER) and THOMAS, DEAN & HOSKINS, INC., 111 North Tracy,
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 replace approximately 700 lineal feet
of the 30 inch Bozeman Creek water supply pipeline, and has
selected the ENGINEER to provide necessary and professional
engineering services for the project.
Whereas the ENGINEER represents that it
perform the professional engineering
described In this Agreement.
is willing and qualified to
services for this proj ect
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, 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 survey and data collection, perform the design, assist in
bidding, provide construction staking and inspection and as-built drawings
for the replacement of approximately 700 lineal feet of the 30 inch Bozeman
Creek water supply pipeline.
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 shed I 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 professional
engineering representative for the proj ect, providing professional engineering
consultation and advice and furnishing customary civil and structural engineering
services incidental thereto.
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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 Proj ect 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 Richard Hixson.
3.2 The OWNER shall have the right of review and examination of the ENGINEER'S
work at all times.
3.3 The OWNER shall make available all records (as-built drawings, construction
records, etc.) indicating the existing configuration of the city utilities.
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.
ARTICLE 4 - BASIC ENGINEERING SERVICES
The ENGINEER shall render professional Engineering Services as
follows:
4.1
PRE-DESIGN INVESTIGATION PHASE
After written authorization to proceed, ENGINEER shall:
4 _1.1 Consult with OWNER to clarify and define OWNER's requirements for
the Project and review available data.
4.1.2 Advise OWNER as to the necessity of OWNER's providing or
obtaining from others, data or services and assist OWNER in obtaining such
data or services.
4.1.3 Identify and analyze requirements of governmental authorities
having jurisdiction to approve the design of the Project and participate in
consultations with such authorities.
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4.2.2. ENGINEER shall then
specifications for the Project.
prepare
a
preliminary
plans
and
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The Pre-design Investigation Phase will be completed and submitted within 1..1
calendar days following written authorization from OWNER to ENGINEER to proceed with
that phase of services.
4.2
PRELIMINARY DESIGN PHASE
After acceptance of the pre-design investigation and receipt of written
authorization to proceed with the Preliminary Design Phase, ENGINEER shall:
4.2.1. In consultation with OWNER determine general scope, extent and
character of the Project.
4.2.3. Desiqn and Construction Survey: The ENGINEER shall conduct a
design field survey of the project 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.
4.2.4. Permits: The ENGINEER shall obtain approved permits from
agencies or entities requiring approvals prior to bidding. These approvals
will be coordinated with the OWNER.
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. Based on the information contained in the preliminary design
documents, ENGINEER will submit a revised opinion of probable Total Project
Costs to the OWNER.
4.2.7. ENGINEER shall prepare and furnish complete copies of preliminary
bidding documents 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 14 calendar days
following written authorization from OWNER to ENGINEER to proceed with that phase
of services.
4.3
FINAL DESIGN PHASE
After written authorization to proceed with the Final Design Phase, ENGINEER shall:
4.3.1. On the basis of the accepted Preliminary Design documents and 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.
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4.3.2. 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.
4.3.3. 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.
4.3.4. Furnish OWNER six copies of the Contract Documents (including
design drawings, specifications and contracts) .
The Final Phase will be complete and submitted with 14 calendar days following
written authorization from OWNER to ENGINEER to proceed with that phase of services.
4.4
BIDDING OR NEGOTIATING PHASE
After written authorization to proceed with the Bidding or Negotiating Phase,
ENGINEER shall:
4.4.1. Assist OWNER in 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.
4.4.2. Provide interpretation or clarification to prospective bidders
regarding the Bidding Documents, and issue addenda as appropriate.
4.4.3. Consult with and advise OWNER as to the acceptability of the
prime 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.
4.4.4. 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.
4.4.5. Attend the Bid opening, prepare bid tabulation, evaluate bids,
assess bidders' responsiveness and responsibility and make award
recommendation to OWNER.
4.4.6 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 two sets of original signature executed contract documents
including one for the bonding company and up to three sets of construction
documents.
4.5
CONSTRUCTION PHASE
The responsibilities of the ENGINEER during the Construction Phase are summarized
as follows:
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4.5. 1 . 8 Review and approve, for conformance
technical specifications all shop drawings, and
submittals required by the Contract Documents.
with
other
the proj ect
Contractor
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4.5.1. 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:
4.5.1.1
schedule and conduct a pre-construction conference.
4.5.1.2 Provide personnel, equipment and supplies for construction
layout and control, including establishment of line, and grade control
staking.
4.5.1.3 Review Contractors' construction schedules and operations,
and the Contractors' traffic control plans and its implementation prior
to the start of construction.
4.5.1.1 Ascertain that the Contractor has secured required permi ts
needed to accomplish his work.
4.5.1.5 Prepare and provide weekly activity and progress reports
to the City'S Task Director.
4.5.1.6 ENGINEER shall provide OWNER copies of all correspondence
between the ENGINEER and Contractor.
4.5.1.7 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.
4.5.1.9 During construction review Contractors' construction
schedules and evaluate conformance and progress under the Contract time
provisions.
4.5.1.10 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.
4.5.1.11 Inspect the project and when appropriate, and after
conferring with OWNER, issue a Certificate of Substantial completion
to the Contractor.
4.5.1.12 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 defj ciencies 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 wac; completed in
accordance with the approved plans and specifications and is performing
in accordance with the design concept.
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4.5.1.13 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.
4.5.2. Resident Prol ect 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.
Upon request, 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.
4.5.3 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 wi th 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.
4.6. 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.
4.7. 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
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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.
extent or
previously
ENGINEER's
Services
character
accepted
control.
resulting from significant changes in the general scope,
of the Project or major changes in documentation
by OWNER where changes are due to causes beyond
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.
increases
shortages.
Services resulting from significant delays, changes or price
occurring as a direct result of materials, equipment or energy
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 design phase services
performed as Basic Engineering Services under sections 4.1 through 4.4 of
this agreement pay a lump sum in the amount of $5,000.00 for such services.
6.1.2 Payment Schedule. Total cumulative payments for the design phase
engineering services (sections 4.1 through 4.4) shall not exceed the
following ceilings:
$500.00 (10 %- of design fee) until the Pre-design Investigation has been
completed.
$2,500.00 (50% of design fee) until the Preliminary Plans and Specifications
have been submitted to the OWNER and review authorities.
$4,500.00 (90% of design fee) until the Final plans and Specifications have
been submitted to the OWNER and review authorities.
$5,000.00 (100% of design fee) upon advertisement for bids by City.
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 4.4) 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 4.5 through 4.7 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 Proj ect
Documentation Services an amount not to exceed $5,000.00 except as provided
under 6.2.1.2 and 6.2.4.
6.2.1.1
based on
services
Overhead,
Costs Compensation. Compensation for these services shall be
the ENGINEER's Direct Labor Cost times a factor of 3.006 for
rendered which shall cover Direct Labor, Direct Labor
General & Administrative Overhead and Profit.
6.2.1.2 Notification. At any time during the construction that i~
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
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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.
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 2.614 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 Additi.onal Services rendered
by the ENGINEER and approved in writing by the OWNER on the basis of the
ENGINEER'S Direct Labor Costs times a factor of 3.006, 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 Exhi.bits 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 Proj ect
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:
Staff Engineer
CADD Drafter
Construction Inspector
Two Person Survey Crew
Clerical
$22.29/hour
$10.75/hour
$13.64/hour
$24.62/hour
$ 9.15/hour
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7.4 REIMBURSABLE EXPENSES
Reimbursable Expenses mean the actual expenses incurred by ENGINEER or ENGINEER's
independent professional associates or consultants directly in connection with the
Project, such as expenses for: transportation and subsistence incidental thereto;
obtaining bids or proposalS from Contractor(s); subsistence and transportation of
Resident Project 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 any
time upon fifteen (15) days written notice to the ENGINEER.
9.1.2 If termination for default is effected by the OWNER, an equitahle>
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 it;
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 t_he
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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 (lO) 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.
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.
$1,000,000 each occurrence
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 coverage
naming the OWNER as additional insured with minimum insurance coverage as follows:
Type of Coveraqe
Limits
Employers' Liability:
$ 100,000 per accident
General Liability:
Bodily InlUry & Property
Damaqe Single and combined
$ 1,000,000 per accident
Automobile:
Bodily Inlury covering all
automobiles, trucks,
tractors, trailers, or
other automotive equip-
ment whether owned or
rented by Engineer or
owned by employees of
Engineer.
$ 500,000 each person
12
Bodily InlUry & Property
Damaqe Single and combined
$ 500,000 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
$ 500,000 each occurrence
OR
Professional Errors & Omission:
$ 1,000,000 per policy year
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, data, exhibits, recommendations, design reports, plans,
specifications, and other related documents prepared or obtained under the terms of
the Contract are deemed to be the property of the OWNER and shall be delivered to
the OWNER.
9.11 PUBLIC INFORMATION
The ENGINEER shall not issue any statements, releases or information for public
dissemination without prior approval of the OWNER.
9.12 PROPRIETARY RIGHTS
If patentable discoveries or inventions should result from work required herein, all
rights accruing from such discoveries or inventions shall be joint property of the
ENGINEER and the OWNER. Provided that the OWNER, state agencies or political
subdivisions and the United States 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.
13
CITY OF BOZE~., ~O.'ANA
( -, \) t I "n~ \
BY: ~ /v\J~..L. C . V\j ~~\J1c,-
(City Manager)
BY:
(Pre ident)
~)15/tj'S
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.
DATE:
October 2, 1995
DATE:
c:>
BY:
14
1
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 , 1995, between CITY OF BOZEMAN (OWNER) and THOMAS, DEAN
& HOSKINS, INC. (ENGINEER) providing for professional engineering services.
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.
10.5.
AUTHORIZED VARIATIONS IN WORK
ENGINEER may authorize minor variations in the Work from the requirements of the
Contract Documentr3 which do not involve an adjustment in the Contract Price or the
2
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.
lO . 9 . 2 . When functioning as interpreter under paragraphs 1. 0 . 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 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.
3
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 4.5.3.
1
EXHIBIT B
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
A LISTING OF THE DUTIES, RESPONSIBILITIES AND
LIMITATIONS OF AUTHORITY OF THE RESIDENT PROJECT
REPRESENTATIVE.
This Exhibit is attached to, made a part of and incorporated by reference with the
Agreement made on , 1995, between CITY OF BOZEMAN (OWNER) and THOMAS,
DEAN & HOSKINS. INC. (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 at 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 Lhe
proj ect - related meetings, and prepare and circulate copies of minutes
t.hereof.
11.2.3.
Liaison:
11.2.3.1.
principally
Serve as
through
ENGINEER's liaison with CONTRACTOR, working
CONTRACTOR's superintendent and assist in
11.2.3.2.
information,
Assist in obtaining from OWNER additional details
when required for proper execution of the Work.
or
understanding the intent of the Contract Documents; and assist ENGINEER
in serving as OWNER's liaison with CONTRACTOR.
11.2.4.
Shop Drawinqs and Samples:
11.2.4.1. Record date of receipt of Shop Drawings and samples.
11.2.4.2. Receive samples which are furnished at the site by
CONTRACTOR, and notify ENGINEER of availability of samples for
examination.
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.
tests:
Review of Work. Reiection of Defective Work. Inspections and
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 Work Directive Changes,
Addenda, Change Orders, Field Orders, additional Drawings issued
subsequent to the execution of the Contract, ENGINEER's clarifications
and interpretations of the Contract Documents, progress reports, and
other Project related documents.
11.2.8.2.
CONTRACTOR
Keep a detailed and accurate diary or log hook, recording
hours on the job site, weather conditione;. prime and
2
11.2.8.3.
CONTRACTORS,
equipment.
Record names, addresses and telephone numbers of
subcontractors and major suppliers of materials
all
and
~
subcontractor daily work force, daily log of equipment on site 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.
11.2.9.
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.
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.
11.3.
LIMITATIONS OF AUTHORITY
Resident Project Representative:
3
..
,
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.
4