HomeMy WebLinkAbout16- Design Nine, Fiber Optic Engineering and Project Management Services ti
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this , day of ,2016, by
and between the CITY OF BOZE MAN, MONTANA, a self governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse
Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771,
hereinafter referred to as "City," and, Design Nine, a private contractor, with a mailing address of
2000 Kraft Drive, Suite 2200,Blacksburg, VA 24060 hereinafter referred to as"Contractor."
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged,the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Attachment "A" and by this
reference made a part hereof.
2. Term/Effective Date: This Agreement is effective upon the date of its 2016
execution and will terminate June 30,2017.
3. Scope of Work: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement
and the Scope of Services, unless specifically provided otherwise,the Agreement governs.
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4. Payment: City agrees to pay Contractor the amount specified in the Scope of
Services. Any alteration or deviation from the described services that involves additional costs
above the Agreement amount will be performed by Contractor after written request by the City, and
will become an additional charge over and above the amount listed in the Scope of Services. The
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City must agree in writing upon any additional charges.
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5. Contractor's Representations: To induce City to enter into this Agreement, !i
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
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Scope of Services, and with all local conditions and federal, state and local laws, ordinances,rules,
and regulations that in any manner may affect cost, progress or performance of the Scope of
Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement;that it will perform said services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this
Agreement shall not infringe upon or violate the rights of any third party, whether rights of
copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever,
or violate any federal, state and municipal laws. The City will not determine or exercise control as
to general procedures or formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that
Contractor is an independent contractor for purposes of this Agreement and is not to be considered
an employee of the City for any purpose. Contractor is not subject to the terms and provisions of
the City's personnel policies handbook and may not be considered a City employee for workers'
compensation or any other purpose. Contractor is not authorized to represent the City or otherwise
bind the City in any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers' Compensation
Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter
71, MCA. Contractor shall maintain workers' compensation coverage for all members and
employees of Contractor's business,except for those members who are exempted by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers' compensation coverage by an insurer licensed and authorized to provide workers'
compensation insurance in the State of Montana; or (2) proof of exemption from workers'
compensation granted by law for independent contractors.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
Contractor shall post a legible statement of all wages and fringe benefits to be paid to the
Contractor's employees and the frequency of such payments (i.e., hourly wage employees shall be
paid weekly). Such posting shall be made in a prominenfand accessible location at the Contractor's
Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016--June 2017
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normal place of business and shall be made no later than the first day of services provided under
this Agreement. Such posting shall be removed only upon expiration or termination of this
Agreement.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes and for any claims regarding underpaid prevailing wages.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered,to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and
hold harmless the City, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the City) from and against any and all claims, demands, actions,fees
and costs (including attorney's fees and the costs and fees of and expert witness and consultants),
losses, expenses, liabilities (including liability where activity is inherently or intrinsically
dangerous) or damages of whatever kind or nature connected therewith and without limit and
without regard to the cause or causes thereof or the negligence of any party or parties that may be
asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or
resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the
Contractor; (ii)any negligent,reckless,or intentional misconduct of any of the Contractor's agents.
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For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or
willful misconduct of the Contractor or Contractor's agents or employees.
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Such obligations shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity that would otherwise exist. The indemnification obligations of this Section
must not be construed to negate, abridge, or reduce any common-law or statutory rights of the
indemnitee(s)which would otherwise exist as to such indemnitee(s).
Contractor's indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should an indemnitee described herein be required to bring an action against the Contractor
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to assert its right to defense or indemnification under this Agreement or under the Contractor's E
applicable insurance policies required below the indemnitee shall be entitled to recover reasonable
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Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
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costs and attorney fees incurred in asserting its right to indemnification or defense but only if a
court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or
was obligated to indemnify the indemnitee for a claim(s)or any portion(s)thereof.
In the event of an action filed against City resulting fiom the City's performance under this
Agreement,the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City or its officers, agents
or employees, including the right of contribution for loss or damage to person or property arising
from, growing out of, or in any way connected with or incident to the performance of this
Agreement except "responsibility for his own fraud, for willful injury to the person or property of
another,or for violation of law,whether willful or negligent"as per 28-2-702,MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor's expense
secure insurance coverage through an insurance company or companies duly licensed and
authorized to conduct insurance business in Montana which insures the liabilities and obligations
specifically assumed by the Contractor in this Section. The insurance coverage shall not contain any
exclusion for liabilities specifically assumed by the Contractor in subsection(a)of this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City and Contractor
shall furnish to the City an accompanying certificate of insurance and accompanying endorsements
in amounts not less than as follows:
• Workers' Compensation—statutory;
• Employers' Liability- $1,000,000 per occurrence; $2,000,000 annual aggregate;
• Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
• Automobile Liability - $1,000,000 property damage/bodily injury; $2,000,000
annual aggregate; and
• Professional Liability-$1,000,000 per claim; $2,000,000 annual aggregate.
Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
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The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers,
agents, and employees, shall be endorsed as an additional or named insured on a primary non-
contributory basis on both the Commercial General and Automobile Liability policies. The
insurance and required endorsements must be in a form suitable to City and shall include no less
than a sixty (60) day notice of cancellation or non-renewal. The City must approve all insurance
coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City
within two (2) business days of Contractor's receipt of notice that any required insurance coverage
will be terminated or Contractor's decision to terminate any required insurance coverage for any
reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
8. Termination for Contractor's Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement,or otherwise breaches any terms
or conditions of this Agreement, the City may, by written notice, terminate this Agreement
and the Contractor's right to proceed with all or any part of the work ("Termination Notice
Due to Contractor's Fault"). The City may then take over the work and complete it, either
with its own resources or by re-letting the contract to any other third party.
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b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
C. Any termination provided for by this Section 8 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits f
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City's Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement City may terminate
this Agreement by written notice to Contractor ("Notice of Termination for City's
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Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
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Convenience"). The termination shall be effective in the manner specified in the Notice of
Termination for City's Convenience and shall be without prejudice to any claims that the
City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work, incurring
additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the City. Contractor shall do only such work
as may be necessary to preserve, protect, and maintain work already completed or
immediately in progress.
C. In the event of a termination pursuant to this Section 13, Contractor is
entitled to payment only for those services Contractor actually rendered on or before the
receipt of the Notice of Termination for City's Convenience.
d. The compensation described in Section 13(e) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity,
lost productivity, field office overhead, general conditions costs, or lost profits damages of
any nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within ten (10) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
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11. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be David Pine in the Economic Development Department or such other
individual as City shall designate in writing. Whenever approval or authorization from or
communication or submission to City is required by this Agreement, such communication or
submission shall be directed to David Fine as the City's Representative and approvals or
authorizations shall be issued only by such Representative; provided, however, that in
exigent circumstances when City's Representative is not available, Contractor may direct its
communication or submission to other designated City personnel or agents as listed above
and may receive approvals or authorization from such persons.
b. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be Andrew Cohill, or such other individual as Contractor
shall designate in writing. Whenever direction to or communication with Contractor is
required by this Agreement, such direction or communication shall be directed to
Contractor's Representative; provided, however, that in exigent circumstances when
Contractor's Representative is not available, City may direct its direction or communication
to other designated Contractor personnel or agents.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities, and pay all
fees and charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers'
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County,
and State building and electrical codes, the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations,
14. Nondiscrimination: The Contractor will have a policy to provide equal
employment opportunity in accordance with all applicable state and federal anti-discrimination
laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a
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Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
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person from employment, or discriminate against a person in compensation or in a term, condition,
or privilege of employment because of race, color, religion, creed, political ideas, sex, age,marital
status, national origin, actual or perceived sexual orientation, gender identity, physical or mental
disability, except when the reasonable demands of the position require an age, physical or mental
disability,marital status or sex distinction. The Contractor shall be subject to and comply with Title
VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations
promulgated thereunder. The Contractor shall require these nondiscrimination terms of its sub-
Contractors providing services under this agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training:
Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or
illegal drugs, by any employee or agent engaged in services to the City under this Agreement while
on City property or in the performance of any activities under this Agreement. Contractor
acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S.
Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse
prevention plans and related testing. City shall have the right to request proof of such compliance
and Contractor shall be obligated to furnish such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing his employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged,modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor's rights, including the right to compensation or duties arising
hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor's compliance with the
requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
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18. Non-Waiver: A waiver by either party any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party's right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent
default or breach,
19. Attorney's Fees and Costs: That in the event it becomes necessary for either Party
of this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement
or to give any notice required herein, then the prevailing Party or the Party giving notice shall be
entitled to reasonable attorneys fees and costs, including fees, salary, and costs of in-house counsel
to include City Attorney.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level personnel
from each party duly authorized to execute settlement agreements. Upon mutual agreement of the
parties, the parties may invite an independent, disinterested mediator to assist in the negotiated
settlement discussions.
b. If the parties are unable to resolve the dispute within thirty 30 days from the
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date the dispute was first raised, then such dispute may only be resolved in a court of competent
jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor's indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
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23. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
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24. Severability: 1f any portion of this Agreement is held to be void or unenforceable, f
the balance thereof shall continue in effect.
Professional Services Agreement with Design Nine,Inc,for
Construction Engineering and Project Management Services
March 2016—June 2017
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25. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs,legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written, made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of
this Agreement by reference.
**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
Page 10 of 12
IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and
year first above written.
CITY OF BOZEMAN,MONTANA � � NIA)A)6;—
NC'
CONTRACTOR(Type ame A ove)
By , v
Chris Kukulski, City Manager
Print Name:
Print Title: ANiAq w Co 14-11 G, ?Ae ss 'b&VF
APPROVED AS TO FORM:
By
Greg`Sullivan, Bozeman City Attorney
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Professional Services Agreement with Design Nine,Inc,for
Construction Engineering and Project Management Services
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March 2016—June 2017
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ATTACHMENT A
BOZEMAN MIDTOWN URBAN RENEWAL DISTRICT
MARCH 2O16—JUNE 2017
SCOPE OF SERVICES
FIBER OPTIC ENGINEERING AND PROJECT MANAGEMENT SERVICES
a. Fiber Optic Engineering and Project Management Services
i. Design Nine will provide the detailed services specified in the attached Scope
of Work document.
The above-referenced general scope may be applied to several projects within the Downtown
Urban Renewal District or the Midtown Urban Renewal District and may be extended by task
order during the term of the agreement.
Professional Services Agreement with Design Nine,Inc.for
Construction Engineering and Project Management Services
March 2016—June 2017
Page 12 of 12
DESIGN NINE
we build networks that perform
Construction Management and Inspection
Design Nine will oversee the construction administration and inspection,including managing our partner engineering firms in
this process.Access Consulting is the Engineer of Record and will be participating at a high level as well as providing final red-
lines back to the City of Bozeman.TD&H Engineering provide construction oversight and a daily walk-out with the contractor.
TD&H will also be available for unscheduled meetings with the contractor or the City as needed if conflicts arise in the field.
Our services will include:
• Perform Kick-off pre-construction meeting with Contractor,review all shop drawings and materials and insurance and bonding
submittals.
• Coordinate a weekly construction update to Economic Development Staff and the Downtown Bozeman Partnership to facili-
tate effective communication of potential disruptions to businesses,residents and property owners.The update will clearly
articulate the areas where work is expected to occur and the likely expected disruptions.
. Track progress of construction activities against schedule.
• Perform four bi-weekly construction progress meeting with Engineer of Record to review drawings and capture any significant
location changes.
. Meet daily with construction firm to assess progress,review potential conflicts with other utilities or obstacles.
• Verify all utility locates have been called in and marked.
Verify all potholing has been performed for any crossings of existing utilities for current days work.
• Confirm depth of conduit for previous days work.
• Note any significant location changes from previous days work.
. Develop contingency plans for delays to get project back on track. s
Inspect all ground rod and locate wire installations.
. Coordinate any required site inspections required by the City of Bozeman,including final walk-through and punch list cre-
ation.
• Inspect completed construction to ensure that all work meets industry and local government standards.
. Verify conduit proofing.
. Monitor contractor completion of punch list and re-work tasks.
• Provide construction red-lines to City of Bozeman.
Fee Schedule
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Design Nine will bill the City of Bozeman monthly based upon a time and materials basis with a Not To Exceed amount of
$47,500(Downtown TIF Portion o€NTE is$28,500,North 7th Urban Renewal District portion of NTE is$19,000)for the com-
pletion of all work and deliverables.Timesheets will accompany all bills.All normal and ordinary travel expenses will be billed
at actual cost and travel costs incurred are included in the Not to Exceed amount.Receipts will be provided for all travel expens-
es.
Professional Services as described in the attached Scope of Work shall be completed based upon the following schedule.
Hourly Rates a
Work requested outside of the Scope of Work will be billed at the rates below,per written orders.
Rate Schedule for Staff Hourly Rate N
Principal Engineer $115.00
Project Manager/Senior Network Engineer $115.00 j
Network Engineer $98.00
Engineer $98.00 �
Construction Inspector $85.00
GIS/CAD and drafting work $58.00
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Financial And Contractual
Invoices are payable within 45 days.Interest is,therefore,charged in the event of non-payment within 60 days.An interest rate
of 1%per month will be charged to the unpaid balance.
This proposal assumes that the construction will take approximately 9 weeks to complete with construction ending in mid June.
design nine,inc. • 2000 kraff drive,suite 2200 • blackstwrg,va 24060 • 540.951.4400 • info@designnine.com • www.desiarmine.com fi
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