HomeMy WebLinkAbout24 - Professional Services Agreements - Advanced Engineering & Environmental Services, LLC - Motor Control Center Replacement Project at WRF1
PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of , between THE CITY OF BOZEMAN, a
self-governing municipal corporation organized and existing under its Charter and the laws of the State of
Montana, 121 N. Rouse Ave., Bozeman, Montana, 59771 (OWNER) and Advanced Engineering and
Environmental Services, LLC (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 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:
ARTICLE 1 - ENGINEERING SERVICES
1.1. The detailed description of the specific project components is described as follows:
Final Design, Bidding, and Construction Phase services for the WRF MCC Replacement project as further detailed
in Exhibit C – Scope and Fee Description.
1.2. The scope of services under this contract is 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
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 Grant Meyer, PE.
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 James Sletten. 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.
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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 Brian Heaston, PE.
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 (record 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 - NA
4.2 PRELIMINARY DESIGN PHASE - NA
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.
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 and an electronic copy of the Contract Documents (including design
drawings, specifications and contracts).
The Final Phase will be complete and submitted within 68 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.
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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 one set of original signature
executed contract documents 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:
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 described here-in shall not be modified except as the ENGINEER
and OWNER 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, grade, and blue top 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.
4.5.1.4 Ascertain that the Contractor has secured required permits 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.
4.5.1.8 Review and approve, for conformance with the project technical specifications all shop
drawings, and other Contractor submittals required by 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.
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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 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.
4.5.2. Resident Project Representative - NA.
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 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.
4.6. PROJECT DOCUMENTATION
ENGINEER shall furnish OWNER with (a) one mylar copy, two paper copies, and an electronic copy 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.
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 this 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 this 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.
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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.
ARTICLE 6 - COMPENSATION FOR ENGINEERING SERVICE
6.1 LUMP SUM AGREEMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER
6.1.1 Payment. The OWNER shall for design phase services performed as Basic Engineering Services under
sections 4.1 through 4.3 of this Agreement pay a total sum in the amount of $ 9,498 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:
$ 8,548 (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 this 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 4.4 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 Project Documentation Services an amount not to
exceed $ 47,152 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 3.69 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
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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.
6.2.1.3 Costs Exceeding 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 2.8 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 up
to an amount not to exceed $ 700 which includes $ 0 for consultants employed by the Engineer and $ 700
for all other reimbursable expenses. The estimated reimbursable expenses are identified in Exhibit " D ".
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 , 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 the actual 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 maximum billable
Direct Labor Costs are:
Labor Category Maximum billable Direct Labor Costs
Instrumentation and Controls 4 $60.34/hour
Engineer 2 $42.40/hour
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Project Manager 3 $72.02/hour
Project Coordinator 4 $40.87/hour
Senior Designer 2 $52.75/hour
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 and 6.2. 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 its 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 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
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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 agrees that all hiring by ENGINEER of persons performing this Agreement shall be on the basis of merit
and qualifications.
The ENGINEER will have a policy to provide equal employment opportunity in accordance with all applicable state and
federal anti-discrimination laws, regulations, and contracts.
The ENGINEER 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 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.
ENGINEER represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal
Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act). ENGINEER must report to the City any
violations of the Montana Equal Pay Act that Contractor has been found guilty of within 60 days of such finding for
violations occurring during the term of this Agreement.
ENGINEER shall require these nondiscrimination terms of its subcontractors providing services under this
Agreement.
The ENGINEER shall require these nondiscrimination terms of its sub-consultants providing services under this agreement.
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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
In providing services under this agreement, the ENGINEER will perform in a manner consistent with the degree of care and
skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. If any service
should be found 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 non-performance 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:
9.7.1 The ENGINEER shall, consistent with the standard care, comply with those Federal, State, and Local
laws and ordinances applicable to the work to be done.
9.7.2 For claims, causes of action, losses, or damages (collectively, “Claims”) asserted by third-parties and
arising out of the performance of professional services by the ENGINEER, the ENGINEER shall indemnify and
hold the Owner and the Owner’s officers, directors, and employees harmless from such Claims, including
reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent such Claims are
caused by the negligence or intentional misconduct of the ENGINEER, its employees and its consultants in the
performance of professional services under this Agreement. The ENGINEER’S obligation to indemnify and hold
the Owner and the Owner’s officers and employees harmless under this section 9.7.2 does not include a duty to
defend.
9.7.3 For Claims asserted by third-parties that do not arise out of the performance of professional services by
the ENGINEER, the ENGINEER shall, to the extent covered by the ENGINEER’S insurance, defend, indemnify,
and hold the Owner and the Owner’s officers, directors, and employees harmless from such Claims, including
reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent such Claims are
caused by the negligence or intentional misconduct of the ENGINEER, its employees and its consultants.
9.7.4 In the event the OWNER is found proportionately responsible for any damages ultimately awarded to a
plaintiff or plaintiffs in any lawsuit, the ENGINEER will be responsible for only those damages, costs, or liabilities
as are attributable to the ENGINEER’S percent of fault as compared with 100% of the fault giving rise to the
damages. Should the OWNER be found responsible for negligence by its own officers, directors, agents or
employees, then in that event the OWNER agrees to reimburse the ENGINEER for the reasonable attorney’s fees
and costs incurred in any defense of the OWNER in an amount proportional to the fault attributed to the OWNER.
The indemnity required herein shall not be limited by reason of the specification of any particular insurance
coverage in this Agreement.
9.7.5 Should either OWNER or ENGINEER be held responsible, for any damages, costs or liabilities resulting
from intentional misconduct by any officer, director, agent or employee in connection with the work specified in
this Agreement, then in that event, that party shall indemnify and hold harmless the other as to any damages, costs
or liabilities that result from or arise out of that intentional misconduct, including reasonable attorney’s fees and
costs which shall include costs and salary of the city attorney or other in-house counsel. Further, notwithstanding
the obligations set forth in paragraphs 9.7.2 and 9.7.3 above, the ENGINEER agrees to defend OWNER where the
OWNER’S alleged liability arises from intentional misconduct by the ENGINEER. Should the OWNER be found
responsible for intentional misconduct by its own officer, director, agent or employee, then OWNER agrees to
reimburse ENGINEER for the reasonable attorney’s fees and costs incurred in any defense of the OWNER.
9.7.6 The ENGINEER shall perform this agreement as an independent contractor, and as such, is responsible
to the OWNER only as to the 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
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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 Coverage Limits
Employers' Liability: $ 1,000,000. per accident
General Liability:
Bodily Injury & Property Damage
Single and combined $ 1,000,000. per accident
General Aggregate: $ 2,000,000.
Excess Liability Coverage (umbrella) $1,000,000. each occurrence
Automobile:
Bodily Injury covering all $ 1,000,000 each person
automobiles, trucks,
tractors, trailers, or $ 1,000,000 each occurrence
other automotive equip-
ment whether owned or
rented by Engineer or
owned by employees of
Engineer.
Property Damage covering $ 1,000,000 each occurrence
all automobiles, trucks,
tractors, trailers or other
automotive equipment whether
owned or rented by Engineer
or owned by employees of
Engineer
OR
Bodily Injury & Property $1,000,000 each occurrence
Damage Single and combined
In addition to the above insurance coverage, the ENGINEER shall secure and maintain, until the work is completed and
accepted by the OWNER, and without naming OWNER as an additional insured, professional errors and omissions coverage
as follows:
Professional Errors & Omissions: $ 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
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The parties admit and agree the documents produced under this agreement are not intended or represented to be suitable for
reuse by OWNER or any other individual on any other project. Any reuse without written verification or adaptation by
ENGINEER will be at OWNER’s sole risk and without liability or legal exposure to ENGINEER, or to ENGINEER’s
independent professional associates or consultants. Files in electronic media format of text, data, graphics, or of other types
that are furnished by ENGINEER to OWNER are only for convenience of owner. Any conclusion or information obtained
or derived from such electronic files will be at the user's sole risk.
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.
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.
9.17 CONSENT TO ELECTRONIC SIGNATURES
The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic
Transactions Act, Title 30, Chapter 18, Part 1, MCA.
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In witness Whereof, the Parties hereto do make and execute this Agreement.
CITY OF BOZEMAN, MONTANA ENGINEER
BY: BY:
(City Manager) (Operations Manager)
DATE: DATE:
ATTEST:
BY:
(City Clerk)
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EXHIBIT A
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
ENGINEER'S STATUS DURING CONSTRUCTION
This Exhibit is attached to, made a part of and incorporated by reference with the Agreement made on
, between CITY OF BOZEMAN (OWNER) and ADVANCED ENGINEERING AND
ENVIRONMENTAL SERVICES, LLC (ENGINEER) providing for professional engineering services.
ARTICLE 10 - ENGINEER'S STATUS DURING CONSTRUCTION
10.1. OWNER’S REPRESENTATIVE
ENGINEER will be OWNER's representative during the construction period. The duties and
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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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
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.
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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.
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EXHIBIT C
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
SCOPE AND FEE DESCRIPTION
DESIGN SERVICES
Scope of work including expenses:
o Project Management:
Includes various meetings with staff, invoicing, communication, and other
various tasks.
o Final Design:
Addition of a downtime specification per city’s maximum downtime limit for
each MCC.
o Bidding:
Bidding clarification / questions.
Answer questions from potential bidders.
o Construction:
Construction project review meetings.
Meeting with city staff, electrician, and systems integrator.
Contractor questions
Answer questions from selected contractor.
Construction management.
Administration of submittals and RFI’s.
Pay apps and other items.
Shop drawing Review.
Record drawing development.
PERSONNEL†
Name Labor Classification
James Sletten I&C Technician IV
Cody Shevich, PE Engineer II
Adam Wahler, PE Engineer V
Peter Manfredini Senior Designer II
Kami Emith Senior Project Coordinator
†The Labor Categories of Personnel assigned to this Task Order shall be subject to adjustment annually (as of January 1) to reflect
equitable changes in the compensation payable to Consultant. This adjustment will not increase the total estimated compensation amount
unless approved in writing by the City.
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Fee Estimate Summary:
Anticipated Schedule:
Owner Review 5/1/2024.
Prep for Bid 5/20/2024.
Bidding 5/27/2024
Construction 4/1/2025.
Project Name
Project Location Subtotal Labor Subs Expenses Total
Hours
2024 Billing Rate
040 - FINAL DESIGN 47 $9,498 $0 $0 $9,498
050 - BIDDING 44 $9,520 $0 $200 $9,520
060 - CONSTRUCTION 186 $37,132 $0 $500 $37,632
277
56,150$ -$ 700$ 56,650$
010 - PROJECT MANAGEMENT $0
040 - FINAL DESIGN $9,498
050 - BIDDING $9,520
060 - CONSTRUCTION $37,632
Total Fee $56,650
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EXHIBIT D
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
SCOPE AND FEE DESCRIPTION
ADVANCED ENGINEERING AND ENVIRONMENTAL SERVICES, LLC
2024 HOURLY FEE AND EXPENSE SCHEDULE
Reimbursable Expense Rates
Transportation $0.75/mile
Survey Vehicle $0.95/mile
Laser Printouts/Photocopies $0.30/copy
Plotter Printouts $1.00/s.f.
UAS - Photo/Video Grade $100.00/day
UAS – Survey $50.00/day
Total Station – Robotic $35.00/hour
Mapping GPS $25.00/hour
Fast Static/RTK GPS $50.00/hour
All-Terrain Vehicle/Boat $100.00/day
Cellular Modem $75.00/month
Web Hosting $26.00/month
Legal Services Reimbursement $280.00/hour
Outside Services cost * 1.15
Geotechnical Services cost * 1.30
Out of Pocket Expenses cost * 1.15
Rental Car cost * 1.20
Project Specific Equipment Negotiable
* Position titles are for labor rate grade purposes only.
These rates are subject to adjustment each year on January 1.
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