HomeMy WebLinkAboutTetra Tech Professional Services Agreement for StoryMill Landfill Corrective Measures Assessment PROFESSIONAL SERVICES AGREEMENT
THIS IS AN AGREEMENT made as of April 15, 2014, between THE CITY OF BOZEMAN, a Municipal
Corporation, Bozeman, Montana, P.O Box 1230, Bozeman MT 59771-1230 (OWNER) and Tetra Tech Inc,
851 Bridger Drive,Bozeman,Montana,59715(ENGINEER).
Whereas the accomplishment of the work and services described in this Agreement is essential to the OWNTER'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:
The conditions and provisions set forth in the attached EXHIBIT A Engineer's Status During Construction,
EXHIBIT B A Listing of the Duties,Responsibilities and Limitations of Authority of the Resident Project
Representative-,and EXHIBIT C Proposed Scope of Work, Story Mill Landfill CMA,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:
In concert with the City of Bozeman and Montana Department of Environmental Quality Solid Waste
Division,develop a site-specific conceptual model which accurately characterizes the fate and transport of
Volatile Organic Compounds(VOC's)in the area of the Story Mill Landfill using the historic data that
have been collected to date from the various activities conducted in association with the landfill. These
activities include,but are not necessary limited to,the following:
a. Long-term monitoring database which includes groundwater data(quality and quantity);
b. Soil vapor data analytical results(generally collected off of the landfill from soil vapor
probes,sub-slabs,some indoor air,etc.);
In concert with the City of Bozeman and Montana Department of Environmental Quality Solid Waste
Division develop preliminary recommendations for an update to the previously approved "Corrective
Measures Assessment,City of Bozeman Sanitary Landfill" prepared by Maxim Technologies,Inc.in 1995.
This update will include,but not be necessarily limited to,the following steps:
a.Conceptual remedial system design
b.Recommendation for the collection of supporting/supplemental data as necessary to complete a full-
scale system design.
In concert with the City of Bozeman and Montana Department of Environmental Quality Solid Waste
Division(DEQ) Implement the final project design of a corrective action system using the following steps:
a.Prepare and obtain DEQ approval of a preliminary design(report,drawings and specifications)
b.Prepare and obtain approval of a final design(report,drawings and specifications)
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c.In concert with the city and DEQ prepare Construction Bidding Documents
d.In concert with the city and DEQ provide Construction Phase Engineering Services including but
not limited to provision of a Resident Project Representative,contract administration,invoice review
and approval.
e.In concert with the city and DEQ provide post-construction services including but not limited to
record drawing submittal,system performance monitoring.
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 environmental 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 Kirk Miller.
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 Larry CawlfieId,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.
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 Rick Hixson.
3.2 The OWNER shall have the right of review and examination of the ENGINEER'S work at all times.
3.3 The OWNER shall make available all records(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
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The ENGINEER shall render professional Engineering Services as follows:
4.1 PRE-DESIGN INVESTIGATION PHASE
After written authorization to proceed,ENGINEER shall:
4.1.1 Consult with OWNER to clarify and define OWNER's requirements for the Project and review
available data.
4.1.2 Advise OWNER as to the necessity of OWNER's providing or obtaining from others, data or services
and assist OWNER in obtaining such data or services.
4.I.3 Conduct Tasks 100 (Update Conceptual Model), 200 (Soil Vapor Extraction Pilot Test) and 300
(Optimize Existing Landfill Gas Extraction System)as described in Exhibit C.
4.1.4. Coordinate closely with the City and provide frequent updates as described in Task 600 in Exhibit C.
4,1.5. Furnish 8 copies and an electronic copy of any Studies, Memoranda, or Report documents
generated for this task and review them in person with OWNER.
4.1.6 If, in the process of conducting this phase of the work, the ENGINEER discovers any information or
data which materially affects the need for or the planning of subsequent phases of this work,the Engineer shall
advise the OWNER and,in concert with the OWNER,revise subsequent phases of the work.
The Pre-design Investigation Phase will be completed and submitted within 100 calendar days following written
authorization from OWNER to ENGINEER to proceed with that phase of services.
4.2 PRELIMINARY DESIGN PHASE
After acceptance of the pre-design report and receipt of written authorization to proceed with the Preliminary Design
Phase,ENGINEER shall:
4.2.1. In consultation with OWNER determine general scope,extent and character of the Project.
4.2.2. Conduct Task 400(Prepare Corrective Measures Assessment Report)as described in Exhibit C.
4.2.3. Coordinate closely with the City and provide frequent updates as described in Task 600 in Exhibit C.
4.2.4. Furnish 8 copies and an electronic copy of any Studies, Memoranda, or Report documents
generated for this task and review them in person with OWNER.
4.2.5. If, in the process of conducting this phase of the work, the ENGINEER discovers any information or
data which materially affects the need for or the planning of subsequent phases of this work, the Engineer shall
advise the OWNER and,in concert with the OWNER,revise subsequent phases of the work.
The Preliminary Design Phase will be completed and submitted within 200 calendar days following completion of the Pre-
Design Investigation Phase and with written authorization from OWNER to ENGINEER to proceed with that phase of
services.
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4.3 FINAL DESIGN PHASE
No work will be conducted for this phase.Additional work may follow the Preliminary Design Phase. That work will be
described in a separate task order or contract developed at a later date.
4.4 BIDDING OR NEGOTIATING PHASE
No work will be conducted for this phase. Additional work may follow the Final Design Phase. That work will be
described in a separate task order or contract developed at a later date.
4.5 CONSTRUCTION PHASE
No work will be conducted for this phase. Additional work may follow the Bidding or Negotiating Stage. That
work will be described in a separate task order or contract developed at a later date.
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
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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 $ 288.762.91 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:
$ 222,806.91 (77%of design fee)until the Pre-design Investigation and resulting report or reports have
been submitted to the OWNER.
$ 58,000 (20%of design fee)until the Draft Corrective Measures Assessment Report has been
submitted to the OWNER and review authorities.
$ 7.956 (3%of design fee)until the Final Corrective Measures Assessment Report has 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 Engineers estimate of the proportion of the total services actually completed at the time of billing,
subject to any Iimitations on Payments based on completion of tasks or specific retainage requirements pursuant
to the payment provisions of the Agreement.
6.1 A 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 4A) 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 $0 except as provided under 6.2.1.2 and 6.2.4.
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6.2.1.1 Costs Compensation. Compensation for these services shall be based on the ENGINEER's
Direct Labor Cost times a factor of 3.1 for services rendered which shall cover Direct Labor, Direct
Labor Overhead,General&Administrative Overhead and Profit.
6.2.1.2 Notification. At any time during the construction that it becomes apparent that the
Construction Phase and Project Documentation Services rendered under this Agreement will exceed the
negotiated compensation for these services, and prior to performing services in excess of the contract
ceiling, the ENGINEER shall give OWNER written notice thereof. Promptly thereafter OWNER and
ENGINEER shall review the scope and progress of the project work. ENGINEER shall obtain written
authorization from OWNER,prior to any additional costs being incurred under paragraph 6.2.1.3. If it
is determined that due to a change in project scope under paragraph 5.2.1,the ENGINEER is entitled to
additional compensation, OWNER and ENGINEER may negotiate terms as provided under 6.2.1.1.
The amount and terms of any additional compensation under 6.2.1.1 or 6.2.1.3 shall be negotiated and
agreed in writing pursuant to 9.16.
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 3.1 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 $0 which includes $0 for consultants employed by the Engineer and $0
for all other reimbursable expenses.
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$0, 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.
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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:
Principal Engineer $ /hour
Project Manager/Snr Eng. $ /hour
Project Manager/Snr Hydrogeologist $ /hour
Project Hydrogeologist $ /hour
Technician 2 $ /hour
CADD Drafter $ /hour
Scientist 1 $ /hour
Construction Inspector $ /hour
Two Person Survey Crew- $ /hour
Word Processor $ /hour
Direct Labor Costs will not be used as a basis for payment for the tasks described in this contract. If future task
orders or amendments to this contract will use Direct Labor Costs as a basis for payment,labor rates will be added at that
time.
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.
ARTICLES-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,
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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'default. If termination for convenience
is effected by the OWNER, the equitable adjustment shall include a reasonable profit, as determined by owner,
for services or other work performed. The equitable adjustment for any termination shall provide for payment to
the ENGINEER for services rendered and expenses incurred prior to the termination,in addition to termination
settlement costs reasonably incurred by the ENGINEER relating to commitments which had become firm prior to
the termination.
9.1.3 Upon receipt of a termination action under paragraph 9.1.2, the ENGINEER shall (1) promptly
discontinue all affected work(unless the notice directs otherwise),and(2)deliver or otherwise make available to
the OWNER within ten (10) days copies of all data, design drawings, specifications, reports, estimates,
summaries and such other information and materials as may have been accumulated by the ENGINEER in
performing this Agreement,whether completed or in process.
9.1.4 In the event this Contract is terminated prior to completion, the original copies of the ENGINEER'S
data, recommendations,plans,specifications, analysis and other related documents prepared by the ENGINEER
prior to said termination shall be delivered to and become the property of the OWNER.
9.1.5 Upon termination,the OWNER may take over the work and may award another party an Agreement to
complete the work under this Agreement.
9.1.6 OWNER'S right to terminate is in addition to any other remedies OWNER may have under the law.
9.2 INSPECTION AND AUDIT
All books, papers, records, payrolls, vouchers and invoices relating to costs and expenditures incurred as to the
perfonnance 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.
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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 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.
The ENGINEER shall require these nondiscrimination terms of its sub-consultants providing services under this
agreement.
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 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
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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 fortis 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:
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Type of Coverage Limits
Employers'Liability; $ 100.000.per accident
General Liability:
Bodily Iniury&Property Damage
Single and combined $ 1.000.000v 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 $ 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.
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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
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.
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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 BOZEMAN,MONTANA ENGINEER
BY:C" _ _ BY:
(City Manager) (Authorized Signatory)
DATE: ^ 2 DATE: May 27,2014.
ATTF�1�
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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 (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'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. ENGINEERS 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
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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.
I0.8. 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 B
TO AGREEMENT BETWEEN OWNER AND
ENGINEER FOR PROFESSIONAL SERVICES
A LISTING OF THE DUTIES,RESPONSIBILITIES AND
LIMITATIONS OF AUTHORITY OF THE RESIDENT PROJECT REPRESENTATIVE.
This Exhibit is attached to, made a part of and incorporated by reference with the Agreement made on
between CITY OF BOZEMAN(OWNER)and (ENGINEER)providing
for professional engineering services.
ARTICLE 11 - DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY OF THE
RESIDENT PROJECT REPRESENTATIVE
ENGINEER shall furnish a Resident Project Representative (RPR), assistants and other field staff to assist
ENGINEER in observing performance of the work of Contractor.
Through more extensive on-site observations of the work in progress and field checks of materials and equipment by
the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and
deficiencies in the work of CONTRACTOR; but, the furnishing of such services will not make ENGINEER
responsible for or give ENGINEER control over construction means, methods, techniques,sequences or procedures
or for safety precautions or programs, or responsibility for CONTRACTOR's failure to perform the Work in
accordance with the Contract Documents and in particular the specific limitations set forth in section 4.5 of the
Agreement are applicable.
The duties and responsibilities of the RPR are limited to those of ENGINEER in this agreement and in the
construction Contract Documents, and are further limited and described as follows:
I LI. GENERAL
RPR is ENGINEER's agent at the site, will act as directed by and under the supervision of ENGINEER, and
will confer with ENGINEER regarding RPR's actions. RPR's dealings in matters pertaining to the on-site work shall
in general be with ENGINEER and CONTRACTOR keeping OWNER advised as necessary. RPR's dealings with
subcontractors shall only be through or with the full knowledge and approval of CONTRACTOR. RPR shall
generally communicate with OWNER with the knowledge of and under the direction of ENGINEER.
11.2. DUTIES AND RESPONSIBILITIES OF RPR
11.2.1. Schedules: Review the progress schedule, schedule of Shop Drawing submittals and schedule of
values prepared by CONTRACTOR and consult with ENGINEER concerning acceptability.
11.2.2. Conferences and Meetings: Attend meetings with CONTRACTOR, such as preconstruction
conferences, progress meetings, job conferences and the project-related meetings, and prepare and circulate
copies of minutes thereof.
11.2.3. Liaison:
11.2.3.1.Serve as ENGINEER's liaison with CONTRACTOR, working principally through
CONTRACTOR's superintendent and assist in understanding the intent of the Contract Documents; and
assist ENGINEER in serving as OWNER's liaison with CONTRACTOR.
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11.2.3.2.Assist in obtaining from OWNER additional details or information, when required for proper
execution of the Work.
11.2.4. Shop Drawings and Samples:
11.2.4.1. Record date of receipt of Shop Drawings and samples.
11.2.4.2. Receive samples which are furnished at the site by CONTRACTOR, and notify
ENGINEER of availability of samples for examination.
11.2.4.3. Advise ENGINEER and CONTRACTOR of the commencement of any Work
requiring Shop Drawing or sample if the submittal has not been approved by
ENGINEER.
11.2.5, Review of Work.Reiection of Defective Work.Inspections and Tests:
11.2.5.1.Conduct on-site observations of the Work in progress to assist ENGINEER in
determining if the Work is in general proceeding in accordance with the Contract Documents.
11.2.5.2.Report to ENGINEER whenever RPR believes that any Work is unsatisfactory, faulty or
defective or does not conform to the Contract Documents, or has been damaged, or does not meet
the requirements of any inspection, test or approval required to be made; and advise ENGINEER
of Work that RPR believes should be corrected or rejected or should be uncovered for observation,
or requires special testing, inspection or approval.
11.2.5.3.Verify that tests, equipment and systems startup and operating and maintenance training
are conducted in the presence of appropriate personnel, and the CONTRACTOR maintains
adequate records thereof; and observe, record and report to ENGINEER appropriate details
relative to the test procedures and startup.
11.2.5.4.Accompany visiting inspectors representing public or other agencies having jurisdiction
over the Project,record the results of these inspections and report to ENGINEER.
11.2.6. Internretation of Contract Documents: Report to ENGINEER when clarifications and
interpretations of the Contract Documents are needed and transmit to CONTRACTOR clarifications and
interpretations as issued by ENGINEER.
11.2.7. Modifications: Consider and evaluate CONTRACTOR's suggestions for modifications in
Drawings or Specifications and report with RPR's recommendations to ENGINEER, Transmit to
CONTRACTOR decisions as issued by ENGINEER.
11.2.8. Records:
11.2.8.1.Maintain at the job site orderly files for correspondence,reports of job conferences,Shop
Drawings and samples, reproductions of original Contract Documents including all Work
Directive Changes, Addenda, Change Orders, Field Orders, additional Drawings issued
subsequent to the execution of the Contract,ENGINEER's clarifications and interpretations of the
Contract Documents,progress reports,and other Project related documents.
11.2.8.2.Keep a detailed and accurate diary or log book, recording CONTRACTOR hours on the
job site, weather conditions, prime and subcontractor daily work force, daily log of equipment
onsite or on standby, data relative to questions of Work Directive Changes, Change Orders or
changed conditions,list of job site visitors,daily activities,decisions, observations in general,and
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specific observations in more detail as in the case of observing test procedures;and send copies to
ENGINEER.
11.2.8.3.Record names, addresses and telephone numbers of all CONTRACTORS, subcontractors
and major suppliers of materials and equipment.
11.2.9. Reports:
11.2.9.1.Furnish ENGINEER periodic reports as required of progress of the Work and of
CONTRACTORS compliance with the progress schedule and schedule of Shop Drawing and
sample submittals.
11.2.9.2.Consult with ENGINEER in advance of scheduled major tests, inspections or start of
important phases of the Work.
11.2.9.3.Draft proposed Change Orders and Work Directive Changes, obtaining backup material
from CONTRACTOR and recommend to ENGINEER Change Orders, Work Directive Changes,
and Field Orders.
11.2.9.4.Report immediately to ENGINEER and OWNER upon the occurrence of any accident.
11.2.10. Payment Requests: Review applications for payment with CONTRACTOR for compliance with
the established procedure for their submission and forward with recommendations to ENGINEER, noting
particularly the relationship of the payment requested to the schedule of values, Work completed and
materials and equipment delivered at the site but not incorporated in the Work.
11.2.11. Certificates. Maintenance and Operation Manuals: During the course of the Work, verify that
certificates, maintenance and operation manuals and other data required to be assembled and furnished by
CONTRACTOR are applicable to the items actually installed and in accordance with the Contract
Documents,and have this material delivered to ENGINEER for review and forwarding to OWNER prior to
final payment for the Work.
11.2.12, Completion:
11.2.12.1. Submit to CONTRACTOR, and ENGINEER a list of observed items requiring
completion or correction before ENGINEER may issue a Certificate of Substantial Completion.
11.2.12.2 Assess completion or correction of items noted under 11.2.12.1,advise ENGINEER on
their status, and make recommendation to Engineer regarding issuance of a Certificate of
Substantial completion.
11.2.12.3. Conduct final inspection in the company of ENGINEER, OWNER, and
CONTRACTOR and prepare a final list of items to be completed or corrected.
11.2,12.4. Observe that all items on final list have been completed or corrected and make
recommendations to ENGINEER concerning final acceptance.
11.3. )LIMITATIONS OF AUTHORITY
Resident Project Representative:
11.3.1. Shall not authorize any deviation from the Contract Documents or substitution of materials or
equipments,unless authorized by ENGINEER.
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11.3.2. Shall not exceed limitations of ENGINEER's authority as set forth in the Agreement or the
Contract Documents.
11.3.3. Shall not undertake any of the responsibilities of CONTRACTOR, subcontractors or
CONTRACTOR's superintendent.
11.3.4. Shall not advise on, issue directions relative to or assume control over any aspect of the means,
methods, techniques, sequences or procedures of construction unless such advice or directions are
specifically required by the Contract Documents.
11.3.5. Shall not advise on, issue directions regarding or assume control over safety precautions and
programs in connection with the Work.
11.3.6. Shall not accept Shop Drawing or sample submittals from anyone other than CONTRACTOR.
11.3.7. Shall not authorize OWNER to occupy the Project in whole or in part.
11.3.8. Shall not participate in specialized field or laboratory tests or inspections conducted by others
except as specifically authorized by ENGINEER.
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