HomeMy WebLinkAbout19- Professional Services Agreement - DOWL, LLC - Church Street Stormwater Improvement Project soz
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this r` day of , 201_q, by
and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street,
Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter
referred to as "City," and, DOWL, LLC., a comprehensive design firm, 1300 Cedar Street, Helena,
MT 59601, hereinafter referred to as "Contractor."
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the attached Church Street Stormwater Improvement Project Scope and Budget
(Scope and Budget).
2. Term/Effective Date: This Agreement is effective upon the date of its execution.
3. Scope of Services: Contractor will perform engineering services related to the design
of a stormwater treatment unit located at a project site mutually agreed upon by both parties. Conflicts
between this Agreement and the Scope and Budget, unless specifically provided otherwise, the
Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the attached Scope
and Budget. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City, and
will become an additional charge over and above the amount listed in the Scope and Budget. The
City must agree in writing upon any additional charges.
5. Contractor's Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Scope and Budget, and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect cost,progress or performance of the Scope and Budget.
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b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform said services in a professional
manner and with the degree of care and skill ordinarily exercised under the same conditions by
professionals practicing in the same field at the same time in the same or similar locality; that it has
the power to enter into and perform this Agreement and grant the rights granted in it; and that its
performance of this Agreement shall not infringe upon or violate the rights of any third party,whether
rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature
whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise
control as to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor
is an independent contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Contractor is not subject to the terms and provisions of the City's
personnel policies handbook and may not be considered a City employee for workers' compensation
or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in
any dealings between Contractor and any third patties.
Contractor shall comply with the applicable requirements of the Workers' Compensation Act,
Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71,
MCA. Contractor shall maintain workers' compensation coverage for all members and employees of
Contractor's business, except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers' compensation coverage by an insurer licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (2) proof of exemption from workers'
compensation granted by law for independent contractors.
Contractor shall post a legible statement of all wages and fringe benefits to be paid to the
Contractor's employees and the frequency of such payments (i.e., hourly wage employees shall be
paid weekly). Such posting shall be made in a prominent and accessible location at the Contractor's
normal place of business and shall be made no later than the first day of services provided under this
Agreement. Such posting shall be removed only upon expiration or termination of this Agreement.
In performing the services under this Agreement, Contractor shall give preference to the
employment of bona fide residents of Montana, as required by §18-2-403,MCA, and as such,term is
defined by §18-2-401(1), MCA. When malting assignments of work, Contractor shall use workers
both skilled in their trade and specialized in their field of work for all work to which they are assigned.
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Pursuant to §§18-2-403 and 18-2-422,MCA, Contractor shall pay wages,fringe benefits, and
expenses including travel allowances as set forth in the current Montana Prevailing Wage Rate for
Non-Construction Services in effective and applicable to Gallatin County, Montana which schedule
is incorporated herein. Contractor shall pay all hourly wage employees on a weekly basis. Violation
of the requirements set forth in the above State of Montana schedule of prevailing wage rates may
subject the Contractor to the penalties set forth in §18-2-407,MCA. Contractor shall maintain payroll
records during the term of this Agreement and for a period of three (3) years following termination
of this Agreement.
The Contractor shall ensure that any person, firm or entity performing any portion of the
services under this Agreement for which the contractor, subcontractor or employer is responsible, is
paid the applicable standard prevailing rate of wages.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps, at its own expense and without expectation of
reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific
steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that
Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief
to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to indemnify and hold the City
harmless against claims,demands,suits,damages, losses,and expenses, including reasonable defense
attorney fees, to the extent caused by the negligence or willful misconduct of the Contractor or
Contractor's agents or employees.
Such obligations shall not be construed to negate,abridge,or reduce other rights or obligations
of indemnity that would otherwise exist. The indemnification obligations of this Section must not be
construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s)
which would otherwise exist as to such indemnitee(s).
Contractor's indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
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Should any indemnitee described herein be required to bring an action against the Contractor
to assert its right to defense or indemnification under this Agreement or under the Contractor's
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court
of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was
obligated to indemnify the indemnitee for a claim(s) or any portion(s)thereof.
In the event of an action filed against City resulting from the City's performance under this
Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents
or employees, including the right of contribution for loss or damage to person or property arising
from, growing out of, or in any way connected with or incident to the performance of this Agreement
except"responsibility for his own fraud, for willful injury to the person or property of another, or for
violation of law, whether willful or negligent" as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above,Contractor shall at Contractor's expense secure
insurance coverage through an insurance company or companies duly licensed and authorized to
conduct insurance business in Montana which insures the liabilities and obligations specifically
assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion
for liabilities specifically assumed by the Contractor in subsection (a) of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City and Contractor
shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers' Compensation—statutory;
• Employers' Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
• Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
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The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The insurance
and required endorsements must be in a form suitable to City and shall include no less than a sixty
(60) day notice of cancellation or non-renewal. The City must approve all insurance coverage and
endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2)
business days of Contractor's receipt of notice that any required insurance coverage will be terminated
or Contractor's decision to terminate any required insurance coverage for any reason.
The City must approve all insurance coveralze and endorsements prior to the Contractor
commencing work.
8. Termination for Contractor's Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails
to perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement and
the Contractor's right to proceed with all or any part of the work ("Termination Notice Due
to Contractor's Fault"). The City may then take over the work and complete it, either with its
own resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
C. Any termination provided for by this Section 8 shall be in addition to any other
remedies to which the City may be entitled under the law or at equity.
d. In the event of termination Linder this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City's Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may terminate
this Agreement by written notice to Contractor ("Notice of Termination for City's
Convenience"). The termination shall be effective in the manner specified in the Notice of
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Termination for City's Convenience and shall be without prejudice to any claims that the City
may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as
may be necessary to preserve, protect, and maintain work already completed or immediately
in progress.
C. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of the
Notice of Termination for City's Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special,punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any
nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
11. Representatives:
a. City's Representative: The City's Representative for the purpose of this
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Agreement shall be Kyle Mehrens or such other individual as City shall designate in writing.
Whenever approval or authorization from or communication or submission to City is required
by this Agreement, such communication or submission shall be directed to James Goehrung
as the City's Representative and approvals or authorizations shall be issued only by such
Representative;provided,however,that in exigent circumstances when City's Representative
is not available, Contractor may direct its communication or submission to other designated
City personnel or agents as listed above and may receive approvals or authorization from such
persons.
b. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be Jeffrey Olsson or such other individual as Contractor shall
designate in writing. Whenever direction to or communication with Contractor is required by
this Agreement, such direction or communication shall be directed to Contractor's
Representative; provided, however, that in exigent circumstances when Contractor's
Representative is not available, City may direct its direction or communication to other
designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances,rules,and regulations,obtain all necessary permits,licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers'
compensation laws, all environmental laws including, but not limited to,the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and
State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons
performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have
a policy to provide equal employment opportunity in accordance with all applicable state and federal
anti-discrimination laws,regulations, and contracts. The Contractor will not refuse employment to a
person,bar a person from employment,or discriminate against a person in compensation or in a term,
condition, or privilege of employment because of race,color,religion, creed,political ideas, sex, age,
marital status, national origin, actual or perceived sexual orientation, gender identity, physical or
mental disability, except when the reasonable demands of the position require an age, physical or
mental disability, marital status or sex distinction. The Contractor shall be subject to and comply
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with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all
regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of
its sub-Contractors providing services under this agreement.
15. Intoxicants;DOT Drug and Alcohol Regulations/Safety and Training: Contractor
shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City property
or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of
and shall comply with its responsibilities and obligations under the U.S.Department of Transportation
(DOT)regulations governing anti-drug and alcohol misuse prevention plans and related testing. City
shall have the right to request proof of such compliance and Contractor shall be obligated to furnish
such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor's rights, including the right to compensation or duties arising
hereunder,without the prior written consent of City. Any subcontractor or assignee will be bound by
all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor's compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party any default or breach by the other parry of any
terms or conditions of this Agreement does not limit the other patty's right to enforce such term or
conditions or to pursue any available legal or equitable rights in the event of any subsequent default
or breach.
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19. Attorney's Fees and Costs: That in the event it becomes necessary for either Party of
this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement 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.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties,the parties may invite an independent,disinterested mediator to assist
in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor's indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable,the
balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
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enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties other
than as set forth in this Agreement. All communications, either verbal or written, made prior to the
date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
xx*Y END OF AGREEMENT EXCEPT FOR SIGNATURES Xxxx
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IN WITNESS WHEREOF,the parties hereto have executed this instrument the day and year
first above written.
CITY OF BOZE N(CIT
Signature:
Print Name:
Print Title:
DOWL ENGIN RING, . ( ONTRACTOR)
Signature: (1 1 I
Print Name: l7rec, Vabc-1
Print Title: "AM- Resoo te. fir•,tna.0 r—
APPROVED AS TO FORM:
By
(// K
Greg lli an, Bozeman City Attorney
Professional Services Agreement for[Church Street Stormwater Improvement Project]
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Church Street Stormwater Improvement Project
Scope and Budget
Scope ®f Services
The City of Bozeman (City) would like to add water quality treatment to the Church Street Storm Drain system.
Installation of the treatment structure (assumed to be a Contech CDS unit) is planned along the existing storm
drain alignment south of the intersection of Church St.and Main St. Utilities in the Church St.corridor include, but
are not limited to, sanitary sewer which is located just east of, and approximately parallel to, the roadway
centerline and a municipal water line which also parallels the roadway centerline, with a current alignment
between the sanitary sewer and the east curb. The water line was relocated from its former alignment west of
the roadway centerline as part of the 2007 Water Renovation project.The original water line was abandoned in
place and can be partially removed as part of construction of the current project if in conflict with the work. An
excerpt from the Record Drawings from the 2007 Water Renovation project is included below as Figure 1 and
depicts the known utilities in the project vicinity. In general, an ideal location for the water quality treatment
structure would minimize impacts to the curb,gutter,and sidewalk while maximizing separation from the sanitary
sewer. A potential location that appears to accomplish these goals is depicted in Figure 1 with a red circle at
approximate waterline station 6+60.This scope of services describes services to be completed by DOWL including
survey, utility locates, hydrologic and hydraulic modeling, and development of construction drawings.This scope
does not include development of project specifications or bid documents; construction administration or
inspection services;geotechnical design or investigations;or survey staking.
Figure 1:2007 Water Renovations,Sheet W11—Vicinity of Church St. and Main St.
ABANDON SOUTH CONNECTION
Ta EwmNc 6'NAIN
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WSTALL CONCRETE
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Church Street Stormwater Improvement Project-Page 1
Task 1— Hydrology and Hydraulics
DOWL has developed an initial basin model using the program Autodesk Storm and Sanitary Analysis (ASSA) as
part of DOWL's work on the Rouse Ave reconstruction project.This model will be updated for use on the current
project. Updates are anticipated to include the following:
• Verification and updates(if necessary)to the pipe invert elevations and slope between existing manholes
in the immediate vicinity of the proposed treatment structure location,
• Modeling increased pipe sizes to understand potential future upgrades to the storm drain system,and
• Updates to the design storms based on precipitation depths and intensities at the Bozeman Airport
precipitation gage for select recurrence interval storms published in Appendix B, Table B1 of the MDT
Hydrology manual.The data published in Appendix B were developed in 2017 by DOWL and represent the
best available precipitation data for the City of Bozeman.
Hydrologic modeling and hydraulic routing of precipitation events will be completed using the ASSA model of the
existing storm drain system.The results of this modeling will be used to select a water quality treatment structure
size appropriate for the Church St.storm drain and to determine the likely future pipe size after the level of service
of the pipe is improved.We understand that the City typically sizes pipes for the 25-year precipitation event,and
that the water quality event is somewhat flexible and is often driven by the size of the unit that is realistic given
other project constraints. The City believes that a 6-ft diameter Contech CDS water quality structure may be the
upper limit for treatment structure size at this location given potential utility conflicts. The ASSA modeling will
provide estimates of peak flows for the water quality storm as well as more severe precipitation events; these
peakflows will be used to determine the final structure size based on the Washington State Department of Ecology
general use level designation for pretreatment of total suspended solids.
Task 2— Utility Locates and Survey
Survey base mapping will be developed for the project corridor. Services performed under this task will include
requesting utility locates, survey of utilities, and topographic survey of the project corridor. The survey extents
will include the Church St.project corridor between Main Street and the alley south of Main St.DOWL will develop
and submit a utility locate request and will survey the locations of utilities within the project corridor. Rim
elevations and measure-downs to pipe inverts will be performed to document existing pipe elevations and sizes.
The survey will be completed in NAD83 state plane coordinates and using the vertical datum NAVD88.
Task 3—Construction Documents and Design Documentation
Services performed under this task will include development of final construction drawings stamped and sealed
by an Engineer licensed in the State of Montana and a design memo documenting the basis of the design.
The survey base mapping will be used to determine the final structure location and final elevations for the finished
unit. Pipe elevations in the storm drain will be linearly interpolated at the location of the treatment structure.
Based on the results of the hydraulic modeling performed to estimate potential future pipe size, dissimilar pipe
fittings will be used to connect the new treatment structure with up-sized pipe stubs to the existing storm drain
Church Street Stormwater Improvement Project-Page 2
pipe. DOWL will provide a recommendation regarding the size of the pipe stubs used to accommodate potential
future increase in pipe size;the final size of the pipe stubs will be determined through discussion with the City.
Construction Drawing submittals will be made at 75% design and final design. A design review meeting will be
conducted after the 75%submittal. Final construction drawings will include a bid quantities sheet itemized with
project materials,type, and quantity.
Schedule
The services described in this scope of work will be completed by the end of May 2019. This is based on an
assumed notice to proceed date of approximately April V.
Compensation
The table below outlines DOWL's fee for the services included:
Task Description Estimated
Fee
Task 1. Hydrology and Hydraulics $ 5,570.00
Task 2. Utility Locates and Survey $ 3,640.00
Task 3. Construction Documents and-Design Documentation $ 6,745.00
Tota 1 $15,955.00
Church Street Stormwater Improvement Project-Page 3