HomeMy WebLinkAbout08- Bozeman Swim Center Natatorium HVAC Improvements ProjectMMI 0417.057
BOZEMAN SWIM CENTER NATATORIUM HVAC IMPROVEMENTS
PROJECT
PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of December 22, 2008, between THE CITY OF
BOZEMAN, a Municipal Corporation, P.O. Box 1230, Bozeman, Montana, 59715
(OWNER) and Morrison-Maierle, Inc., P.O. Box 1113, Bozeman, Montana, 59718,
(ENGINEER).
Whereas the accomplishment ofthe 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 and surveying services for the project.
Whereas the ENGINEER represents that it is willing and qualified to perform the professional
engineering and surveying services for this project described in this Agreement.
Therefore, in consideration of the foregoing recitals and the mutual covenants and conditions
contained herein, the parties agree as follows:
The conditions and provisions set forth in the attached EXHIBIT A -ENGINEER'S STATUS
DURING CONSTRUCTION, E~XnT~T~D,_ ~_T mT_n~ TLTT~ TlT TTTL~'''
n~DnATC'TaTi TTT~C' AATTI ~~TTATTnRTC' n~ ATTTUnDTTV n~ Tug DL'C'TTIRATT DDnT~(''T
~rvrTVrar o~zQr~v~z~flrnzr~ico~~z~r
D~~~S~ITA~~ EXHIBIT C -ENGINEERING FEE PROPOSAL AND SCOPE OF
SERVICES FOR BOZEMAN SWIM CENTER NATATORIUM HVAC IMPROVEMENTS
PROJECT and ~~rurarT n TrT~Tr"!TATL'L'DTT~T!_ ~~~ ~c•rr>\anT~ 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:
Development of construction and bidding documents and providing construction phase services for the
demolition and replacement of the existing HVAC system for the natatorium.
1.2. The scope of services under this contract are set forth in this agreement and the attached EXHIBITS.
ARTICLE 2 -ENGINEER'S RESPONSIBII,ITIES
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.
MMI 0417.057
2.2. The ENGINEER shall furnish all Iabor, 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 aPrincipal-In-Charge for the duration of the project. The Principal-In-Charge shall
be Kurt W. Keith, P.E.
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 Jennifer A. Burgett, P.E. 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.
2.8. The ENGINEER shall rebid the project as needed, and redesign elements of the project, should bids come in over
the contract budget. This service will be at no cost to the OWNER.
ARTICLE 3 - OWNER'S RE5PONSIBII,ITIES
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 Dan McCarthy.
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
4.1.1 Consult with OWNER to clarify and define OWNER's requirements for the Project and review
available data.
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.
MMI 0417.057
q
l ~ A~..:..t F ...«..t:,.« ..F C«°.,:..1 T .,, «..,....~«.°«t T\:..t ~:.,t~ /CTTI\ T.:, _..«+...+..: ~
~:
i+,•~;`'
:~
i
. ~
~
i
j
vav~
e
. ,
,
e e
,~h .,,,..t.. ..11,..,.., «,.° °t,. ° 1. °..°:«.. [3°« ,,., il°.7 ~~T..t.,t D.~..;°., t f''.,~td~
4.2 PRELIMINARY DESIGN PHASE
P ENGINEER shall:
4.2.1. In consultation with OWNER determine general scope, extent and character of the Project.
4.2.2. ENGINEER shall then prepare a n~°'~~^~«°^~ T`°°~^^ D°«^~*, preliminary plans and spa~ie~s-a~~
for the Project.
Ii~i~d-fie:
MMI 0417.057
~'L~ D 'r .i D' l.r F [i7 'Tl. L'AT!'7ATL'L'D ~L.., 11 .,i,r~:
err r ~
4z?6 r >, 1 ~ 1 .' a e 1 ~is• The EI*T61~Tl~lil?~
roar ..;rte .,.7 0.,:1 1.., o
~•
4.2.7. Preliminary Plans and Specifications. Prepare preliminary construction plans and specifications with
information which addresses the special features of each project task.
4.2.8. Based on the information contained in the preliminary design documents, ENGINEER will submit an
opinion of probable Total Project Costs to the OWNER.
4.2.9. ENGINEER shall prepare and furnish complete copies of preliminary bidding documents
r~er~ 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 aplan-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 12 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.
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 within 21 calendar days following written authorization from OWNER to
ENGINEER to proceed with that phase of services.
MMI 0417.057
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 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 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 apre-construction conference.
4.5.1.3 Review Contractors' construction schedules and operations, '
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.
MM[ 0417.057
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.
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.
4.5.1.13 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.
4.5.3 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- NOT PART OF INITIAL SCOPE OF SERVICES
,~
~~
4.7. CONSTRUCTION TESTING- NOT PART OF INITIAL SCOPE OF SERVICES
MMI 0417.057
ARTICLE 5 -ADDITIONAL SERVICES
5.1. If OWNER wishes ENGINEER to perform any of the following Additional Services, OWNER shall so instruct
ENGINEER in writing, and ENGINEER shall perform or obtain from others such services and will be paid therefor as
provided in the Agreement:
5.1.1. Legal land surveys performed to obtain data for preparing easements and rights-of--way descriptions.
5.1.2. Preparation of applications and supporting documents for governmental agencies in addition to those
required under Basic Services; preparation or review of environmental studies and related services; and
assistance in obtaining environmental approvals.
5.1.3. Services resulting from significant changes in the general scope, extent or character of the Project or
major changes in documentation previously accepted by OWNER where changes are due to causes beyond
ENGINEER's control.
5.1.4. Providing renderings or models.
5.1.5. Preparing documents for alternate bids requested by OWNER for work not executed or for out-of-
sequence work.
5.1.6. Providing other services not otherwise provided for in the Agreement, including services normally
furnished by the OWNER as elsewhere herein described.
5.1.7. Furnishing the services of independent professional associates or consultants for other than Basic
Services.
5.2. When required by the Contract Documents in circumstances beyond ENGINEER'S control, ENGINEER shall
perform or obtain from others any of the following Additional Services as circumstances require during construction and
without waiting for specific instructions from OWNER, and ENGINEER will be paid therefor as provided in this
Agreement:
5.2.1. Services in connection with work directive changes and change orders to reflect the changes requested
by OWNER if the resulting change in compensation for Basic Services is not commensurate with the additional
services rendered.
5.2.2. Services in making revisions to Drawings and Specifications occasioned by the OWNER'S acceptance
of substitutions proposed by Contractor(s); services after the award of each contract in evaluating and
determining the acceptability of an unreasonable or excessive number of substitutions proposed by Contractor;
and evaluating an unreasonable or extensive number of claims submitted by Contractor(s) or others in connection
with the work.
5.2.3. Services resulting from significant delays, changes or price increases occurring as a direct result of
materials, equipment or energy shortages.
5.2.4. Additional or extended services during construction made necessary by (1) work damage by fire or
other causes during construction, (2) a significant amount of defective or neglected work of any Contractor, (3)
acceleration of the progress schedule involving services beyond normal working hours, (4) default by any
Contractor.
MM10417.057
ARTICLE 6 -COMPENSATION FOR ENGINEERING SERVICE
6.1 LUMP SUM AGREEMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER (NOT
APPLICABLE)
$1-9(}:834 ~ c ,.~, , e .
1 v2 D • C w a 1 T• 1 1 r' t F •t, t, 'b rl. c• _
!2h 0/ x~ v cooxb F c~ t l~ P' b r 1. N 4. -'tr .7 r +l, l1lElATCD
/Sllo% of a vxF, F ~~ a t'1 •1, A ~ Dl Cr 'F •' i. 1~'1 }7 1•** ti t~
!~]00o F,lac ~g xvvj a t'1 +l, Dl Cr 'F' t' 4. 1. lh.~'rt a t +ii
(1~17ATAD .i rl. 't'
i
6.2 DIRECT LABOR COST PAYMENT FOR BASIC SERVICES AND EXPENSES OF ENGINEER.
Design, bidding, construction and project documentation services performed as Basic Engineering Services under sections
4.2, 4.3, 4.4 and 4.5 including preliminary design, final design, bidding phase, and General Administration of Construction
Contract, ,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 $20,425 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 3.09 for services rendered which shall cover Direct Labor, Direct
Labor Overhead, General & Administrative Overhead and Profit, plus reimbursable expenses as
provided in 6.2.2.
6.2.1.2 Notification. At any time during the construction that it becomes apparent that the
Construction Phase and Project Documentation Services rendered under this Agreement will exceed the
negotiated compensation for these services, and prior to performing services in excess of the contract
ceiling, the ENGINEER shall give OWNER written notice thereof. Promptly thereafter OWNER and
ENGINEER shall review the scope and progress of the project work. ENGINEER shall obtain written
authorization from OWNER, prior to any additional costs being incurred under paragraph 6.2.1.3. If it
is determined that due to a change in project scope under paragraph 5.2.1, the ENGINEER is entitled to
additional compensation, OWNER and ENGINEER may negotiate terms as provided under 6.2.1.1.
The amount and terms of any additional compensation under 6.2.1.1 or 6.2.1.3 shall be negotiated and
agreed in writing pursuant to 9.16.
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
MMI 0417.057
Cost times a factor of 2.6087 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 $19.115.00 which includes $ 0 for consultants employed by the Engineer and
$1.310.00 for all other reimbursable expenses. The estimated reimbursable expenses are identified in Exhibit
"C-2 ".
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 3.09, 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.
73 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:
Principals $ 59.00 /hour
Supervising Engineer III $ 48.00 /hour
Supervising Engineer II $ 47.00 /hour
Supervising Engineer I $ 42.00 /hour
Senior Engineer II $ 38.00 /hour
Senior Engineer I $ 35.00 /how
Design Engineer II $ 32.00 /hour
Design Engineer I $ 29.00 /hour
Staff Engineer $ 26.50 /hour
Engineer Intern $ 24.50 /hour
Survey Manager $ 43.00 /hour
Land Surveyor II $ 30.00 /hour
Land Surveyor I $ 28.00 /hour
Survey Technician $ 24.00 /hour
Engineer Technician II $ 28.50 /hour
CADD Drafter $ 21.00 /hour
MMI 0417.057
Engineer Technician I $ 24.00 /hour
Two Person Survey Crew $ 46.00 /hour
Clerical $ 19.00 /hour
* Non professional classified employees subject to time and one-half over time rates.
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 maybe 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
10
MMI 0417.057
the OWNER within ten (10) days copies of all data, design drawings, specifications, reports, estimates,
summaries and such other information and materials as may have been accumulated by the ENGINEER in
performing this Agreement, whether completed or in process.
9.1.4 In the event this Contract is terminated prior to completion, the original copies of the ENGINEER'S
data, recommendations, plans, specifications, analysis and other related documents prepared by the ENGINEER
prior to said termination shall be delivered to and become the property of the OWNER.
9.1.5 Upon termination, the OWNER may take over the work and may award another party an Agreement to
complete the work under this Agreement.
9.1.6 OWNER'S right to terminate is in addition to any other remedies OWNER may have under the law.
9.2 INSPECTION AND AUDIT
All books, papers, records, payrolls, vouchers and invoices relating to costs and expenditures incurred as to the
performance of the services by the ENGINEER hereunder shall be made available to the OWNER, or their authorized
representatives for audit and review, at the ENGINEER'S respective offices at all reasonable times during the contract
period and for three years from the date of final payment.
9.3 EMPLOYMENT
The ENGINEER warrants that he has not employed or retained any company or persons, other than a bona fide employee,
working solely for the ENGINEER, to solicit to secure this contract, and that he has not paid or agreed to pay any
company or person, other than bona fide employees working solely for the ENGINEER, any fee, commission, percentage,
brokerage fee, gifts or any other considerations contingent upon or resulting from the award or making of this Contract.
For breach or violation of this warranty, the OWNER shall have the right to annul the Contract without liability or in its
discretion to deduct from the price or consideration or otherwise recover the full amount of such fee, commission,
percentage, brokerage fee, gift or contingent fee.
All employees of the ENGINEER or other persons while engaged in the performance of work or services required by the
ENGINEER shall be considered employees of the ENGINEER only and not of the OWNER.
9.4 NONDISCRIMINATION
The ENGINEER will not discriminate on the basis of race, color, religion, creed, political ideas, sex, age, marital status,
national origin or disability in employment or provision of services. The ENGINEER shall be subject to and comply with
Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated
thereunder.
9.5 SUBLETTING OR ASSIGNING OF WORK
The ENGINEER shall not sublet or assign any of the work covered herein without prior written approval of the OWNER.
9.6 STANDARD OF CARE
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.
11
MM[ 0417.057
9.7.2 The ENGINEER agrees to defend, indemnify and hold harmless the OWNER, its officers, directors,
agents and employees from and against any suit, cause of action, claim, cost, expenses, obligation and liability of
any character, including attorney's fees, which is brought or asserted for any bodily injury, death, or physical
damage to property received or sustained by any person, persons, property, business or any other entity, arising
out of or resulting from, or in connection with the ENGINEER'S negligent performance of the work specified in
this agreement.
9.7.3. The ENGINEER agrees to defend, indemnify and hold harmless the OWNER, its officers, directors,
agents and employees, should OWNER, its officers, directors, agents or employees be named as a defendant in
any action where the OWNER'S alleged liability arises from the negligent performance of the ENGINEER'S
work herein described. The obligations of the ENGINEER to defend, indemnify and hold harmless the OWNER
will apply to any suit, cause of action, claim, cost or obligation including, without limitation, those alleged under
the common law or pursuant to a federal or state statute or regulation including those arising in tort, trespass,
nuisance, and strict liability.
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 defend, 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
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: 100 000 per accident
General Liability:
12
MMI 0417.057
Bodily Injury & PropertyDamage
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,_ $1,000,000 each occurrence
tractors, trailers, or
other automotive equip-
ment whether owned or
rented by Engineer or
owned by employees of
Engineer.
Property Damage covering 100 000 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
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
13
MMI 0417.057
If patentable discoveries or inventions should result from work required herein, all rights accruing from such discoveries
or inventions shall be joint property of the ENGINEER and the OWNER. Provided that the OWNER, state agencies or
political subdivisions and the United States Government shall have the irrevocable, nonexclusive, nontransferable and
royalty-free license to use each invention in the manufacture, use and disposition, according to law, of any article or
material, and in the use of any method that may be developed as part of the work described and contemplated herein.
9.13 RECORDS
The ENGINEER shall maintain accounting records and other evidence pertaining to the cost incurred and to make the
records available at all reasonable times during the Contract term and for one (1) year from the date of final payment.
Such accounting records and other evidence pertaining to the cost incurred will be made available for inspections by
OWNER.
9.14 SUCCESSORS IN INTEREST
The covenants, agreements and all statements in this Contract apply to and shall be binding on the heirs, personal
representatives, successors and assigns of the respective parties.
9.15 ATTORNEY'S FEES AND COSTS
That in the event it becomes necessary for either Party of this Contract to retain an attorney to enforce any of the terms or
conditions of this Contract or to give any notice required herein, then the prevailing Party or the Party giving notice shall
be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City
Attorney.
9.16 MODIFICATIONS AND AMENDMENTS
That any amendment or modification of this Contract or any provisions herein shall be made in writing or executed in the
same manner as this original document and shall after execution become a part of this Contract.
In witness Whereof, the Parties hereto do make and execute this Agreement.
CITY OF BO~ZEMAN, MONTANA
BY:~~1 u.' J ~ \
(City Manager)
ENGINEER
~_. _..~ /
BY: `--~-_
i e-President)
DATE: ~ ~' Z Z ~ d
ATTEST:
BY:
( ~ k) -
N:\0417\Bozeman Swim Center Natatorium\City of Bozeman PSA.doc
DATE: ~a, ~t ~~ r~DU .~
14
MMI 0417.057
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
December 22. 2008, between CITY OF BOZEMAN (OWNER) and MORRISON-MAIERLE, INC.
(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. VISI'T'S 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 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.
A-1
MMI 0417.057
10.6. REJECTING DEFECTNE 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 UNTT 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.
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.
A-2
MMI 0417.057
EXHIBIT B (REMOVED)
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
C-2
MMI 0417.057
EXHIBIT C
FEE AGREEMENT AND PROJECT SCHEDULE
C-2
.M
ORRISON
~~ MAIERLE, Wc.
An Employee-Owned Company
December 8, 2008
Dan McCarthy
Aquatic Director Bozeman Swim Center
P.O. Box 1230
Bozeman, MT 59771-1230
ENGINEERS
SCIENTISTS
SURVEYORS
PLANNERS
2880 TECHNOLOGY BLVD. W. 802EMAN, MT 59715 406-587-0721 FAX 406-587-1176
Re: Revised Mechanical, Electrical and Structural Engineering Services -Bozeman Swim
Center Natatorium HVAC Improvements
Dear Dan:
We appreciate this opportunity to provide you with this revised proposal for Mechanical, Electrical
and Structural engineering services. Based on our current understanding of the required scope of
services as outlined in Appendix A attached to this letter, the following is a distribution of fees for
each discipline/phase in the project (revised fees reflecting the December 1St meeting are listed in
red):
E Ineer 11Support MechanciallPM Structural/Electrical
Basic Services: Hours Fee Hours Fee Hours Fee Total
Site Evaluation 4 $400 2 $200 ;600
Speafications 12 $1,200 6 $600 ;1,800
Pennit and Construction Drawing Preparation 25 $1,875 25 $2,500 16 $1,600 ;5,975
Outside Meetings 8 $800 2 $200 ;1,000
Preparation of Bid Documents 16 $1,200 32 $3,200 3 $300 ;4,700
Evaluation of Bids 20 $2,000 ;2,000
Recommendation For Awarding the Bid 8 $800 ;800
Construction Over-site and Administration 2 $150 12 $1,200 2 $200 ;1,550
Building Equipment Start-up 8 $800 ;800
Coordination of One-year Warranty Walk-through 4 $400 ;400
Draft Initial Contract with City of Bozeman 4 $400 4 $400 ;800
Totals: 43 $3,225 137 $13,700 35 $3,500 20 425
We anticipate providing these services on an hourly, not-to-exceed basis. Once we receive
authorization from your firm to proceed, we will develop our Standard Agreement for Professional
Services for your review and signature. Upon receipt of the signed Agreement, we will proceed with
scheduling your project and beginning our work.
(See City of Bozeman Swim Center Natatorium HVAC Improvements Design Schedule)
Sincerely,
Morrison-Male ` ,Inc.
e ife A. Burgett, P.E., LEED AP
echanical Engineer/Project Manager
Attachments: Appendix A
"Providing resources in partnership with clients to achieve their goals"
MORRISON
MAIERLE, I>\rc.
An Emp/oy~ee-Owned Company
Appendix A -Scope/Fee Assumptions and Limitations
Our engineering fee was based on the following anticipated scope of services:
• For the purposes of this fee estimate, we have assumed a single bid package will be developed
for bidding of the work. We have assumed multiple systems will not be fully developed for
pricing and/or bidding. We will assist in the selection of engineering systems in accordance
with the objectives and goals of the Owner in regards to cost, constructability, schedule, etc.
• We are of the understanding this project will not pursue LEED certification.
• Due to an accelerated schedule, detailed planning, communication, and the timely exchange of
design information by all parties will be required. To minimize ourfee, we have not included any
contingencies to cover significant changes or redesign caused by other parties or factors that
are not within our direct control. If significant changes outside of our control occur after we have
initiated our engineering design, we will require payment for this work as an additional service.
Prior to proceeding with any additional work, we will require written authorization from you or an
authorized representative.
• Morrison-Maierle, Inc. (MMI) will provide engineering design and analysis based on the
requirements of the 2006 Intemational Building Code (IBC), the 2006 Uniform Plumbing Code
(UPC), National Fire Protection Association (NFPA) codes.
• Drawings will be produced by MMI in AutoCAD 2008 for Mechanical, Electrical and Structural
disciplines. All drawings will use the MMI's typical drawing conventions. Final Construction
Drawing deliverables will be in the form of electronically transmitted pdf's to the City of
Bozeman and it is assumed that production and distribution of bid documents will be completed
by Morrison-Maierle, Inc.
Additionally, the following specific scope/limitations apply to the identified disciplines:
Mechanical (HVAC) and Electrical:
• We anticipate coordinating the HVAC and plumbing systems with our electrical and structural
department.
• We anticipate providing drawings detailing the demolition ofthe existing HVAC system (Henry)
and its associated ductwork. Then, providing plans for new equipment and ductwork to meet
the International Mechanical Code requirements as well as the ASHRAE guidelines for
natatorium design.
• We have assumed that aone-year warranty walk-through will be provided to ensure full function
of the new mechanical system.
• We do not anticipate changes to the electrical service equipment. Our role, as we understand
will be to show electrical demolition that serves HVAC equipment to be replaced and provide
power layout and circuiting to the new HVAC equipment.
Structural:
• We assume that existing structural plans are available, showing existing structural system
information.
We anticipate no seismic retrofitting is desired or required.
~ We anticipate only dealing with review and support requirement for duct openings at the east
wall of the natatorium (i.e. no roof-top units or other structural modifications).
Page 2 of 2
"Providing resources in partnership with clients to achieve their goals"
MMI 0417.057
EXHIBIT C-2
ESTIMATED REIMBURSIBLE EXPENSES
Estimated Reimbursable Expenses
Hours
Sets Fee per
Unit
Total
Morrison-Maierle Tech Charge (Computer use, faxes,
in house printin ,etc.)
215
$4
$860
Bid Documents - (Full Size Drawin and S c Books 6 $75 $450
Totals: 215 6 $79 1310
C-2
N
m
a
N
L +'~
C ~ ~
~ ~ ~
U ~ ~
t
a. vy
tn~=
~U~y
~ ~ 0
m ~ N
~' •L ~`
~ ,~ O
U as
Z
N ' ~ tt ,
~. ~ `~
In ~~~:`
~r
i
a
fr
s
N M In W CO CD ~ '- eN- ~ ~
O1 00 O O O O O O O O 01 W CTi W to
O~ O O O O O O O O O O O O O O
t0 N ~ In to O ~ 1(1 d In in f0 M_ t0 M_
(p ~ r r M 7 3 N N f~ C7 ~ C i-
,L '- LL .3C L LL F- F- lL d 7 O LL ~ LL
F- ti F- F- 3 M ~
OD Cp 00 O O p~ W O O~ O) O O a) 61
O O O O O O O O O O O O O O O
r to N IA CO N IA l0 O h t0 1~ t0 n
N N N N N N N ~ ~.
r .- C 7 ._ N N C1 M C d
~ ~ C 7 '- O t lL '- '- C m O ~
LL ~ CO ~ F IL '~ F- IL IL ~ 17 ~ H
M N N N T N N T N N N T N T N
>. T T T A T T lp T T T /0 T (p T
~ 'O 'O ~ ~ 9 'O V L 'O ~ ~ 'O ~ 'O
9 r r r r
p t0 O Q V R ~ V
p~ N ~ r r fD
rV~~
~, r ~, ~ a
,~
~ W [ii ~/1 p. ,,.i
'~
d
0
V
Q
~ W
G
` ~
~7' ~ 'c~` S:
1fi
tF'
C O`
a C
~ O C
~ C
g C `r ~ -~-~
~,
w
~
~ a~ ~ d t m ~~ r
~ ;-
~ ~ o ~ c v ~ ~ z
rn ~ ~ m
~ m
b w
' m
' ~ a3i
> ° ~ oa ° C O '~ ~=
~ ~
~6 o
V v
l6 >
Q'
Q. y
CO >
d' >
Q' o
7
Q'
N c
m .
m
U d
r 4
~ ' ~s
y
Ol
~
Cr
~
d
~
U
d
~
N
~
ill
N
~
d
~
~`
tj ~
N 1`i
F
~
v
m ~ In O U Q m U Z U ~~ ~