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HomeMy WebLinkAboutPSA - Christopher Burke Engineering - Chet Waggoner Court Inspection Services1316 COUNTY -CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND. INDIANA 46601-1830 CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR BOARD OF PUBLIC WORKS September 13, 2016 Mr. Jon D. Stolz, P. E. Christopher M. Burke Engineering, LLC Suite 500 220 West Colfax Avenue South Bend, IN 46601 PHONE 574'235-9251 FAX 574'235-9171 RE: Professional Services Agreement— Chet Waggoner Court Inspection Services Dear Mr. Stolz: The Board of Public Works, at its meeting held on September 13, 2016, approved the above referenced agreement in the amount not to exceed $41,500.00. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure GARY A. GILOT DAVID P. RELOs ELIZABETH A. MARADIK JAMES A. MUELLER THERESE J. DORAU This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Laws and Regulations. AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE EJCDC- ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by ACEC A... c n . Ib - l' .na.... SCEAmerican Society of Civil Engineers AGC of America i ofAW.X:4rnrj.%[e4. Ci Nru.rnu fhNfgifA 1 QWf1[V Pouple. 4 A Y PNjed>. National Society of 001-0 Professional Engineers Arolessianal fnpineersin Wivate Practice AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS EJCDC E-500 Standard Form of Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (EJCDC C-700, 2007 Edition). Their provisions are interrelated, and a change in one may necessitate a change in the other. For guidance on the completion and use of this Agreement, see EJCDC User's Guide to the Owner -Engineer Agreement, EJCDC E-001, 2009 Edition. Copyright © 2008 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703)684-2882 www.nspe.or¢ American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202)347-7474 www.acec.or¢ American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asee.org Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA 22201-3308 (703)548-3118 www.agc.org The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC E-500 Standard Form of Agreement Between Owner and Engineer for Professional Services. Copyright (0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. TABLE OF CONTENTS Page ARTICLE 1 — SERVICES OF ENGINEER..................................................................................................... 1 1.01 Scope.............................................................................................................................................I ARTICLE 2 — OWNER'S RESPONSIBILITIES............................................................................................1 2.01 General..........................................................................................................................................I ARTICLE 3 — SCHEDULE FOR RENDERING SERVICES........................................................................ 2 3.01 Commencement............................................................................................................................2 3.02 Time for Completion.................................................................................................................... 2 ARTICLE 4 — INVOICES AND PAYMENTS................................................................................................ 2 4.01 Invoices......................................................................................................................................... 2 4.02 Payments....................................................................................................................................... 2 ARTICLE5 — OPINIONS OF COST............................................................................................................... 3 5.01 Opinions of Probable Construction Cost...................................................................................... 3 5.02 Designing to Construction Cost Limit.......................................................................................... 3 5.03 Opinions of Total Project Costs................................................................................................... 3 ARTICLE 6 — GENERAL CONSIDERATIONS............................................................................................ 3 6.01 Standards of Performance............................................................................................................. 3 6.02 Design Without Construction Phase Services.............................................................................. 5 6.03 Use of Documents......................................................................................................................... 5 6.04 Insurance....................................................................................................................................... 7 6.05 Suspension and Termination........................................................................................................ 7 6.06 Controlling Law............................................................................................................................ 9 6.07 Successors, Assigns, and Beneficiaries........................................................................................ 9 6.08 Dispute Resolution...................................................................................................................... 10 6.09 Environmental Condition of Site................................................................................................10 6.10 Indemnification and Mutual Waiver..........................................................................................10 6.11 Miscellaneous Provisions........................................................................................................... I I ARTICLE7 — DEFINITIONS........................................................................................................................12 7.01 Defined Terms............................................................................................................................12 ARTICLE 8 —EXHIBITS AND SPECIAL PROVISIONS...........................................................................15 8.01 Exhibits Included........................................................................................................................15 8.02 Total Agreement.........................................................................................................................16 8.03 Designated Representatives........................................................................................................ 16 8.04 Engineer's Certifications............................................................................................................. 16 EJCDC...-- ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of , ("Effective Date") between Board of Public Works, City of South Bend, Indiana ("Owner") and Christopher B. Burke Engineering, LLC (CBBEL) ("Engineer"). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Chet Waggoner Court; Project No.: 116-005 ("Project"). Engineer's services under this Agreement are generally identified as follows: The project includes Part -Time Construction Observation and Administration services for the construction of Chet Waggoner Court including; pavement, sidewalk, curb, water main, storm sewer, sanitary sewer, eroision control, pavement markings, and incidental construction all more particulary described in the contract documents for City Project 116-005. Owner and Engineer further agree as follows: ARTICLE 1— SERVICES OF ENGINEER 1.01 Scope A. Engineer shall provide, or cause to be provided, the services set forth herein and in Exhibit A and Exhibit D. ARTICLE 2 — OWNER'S RESPONSIBILITIES 2.01 General A. Owner shall have the responsibilities set forth herein and in Exhibit B. B. Owner shall pay Engineer as set forth in Exhibit C. Page 1 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Owner shall be responsible for, and Engineer may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use such requirements, programs, instructions, reports, data, and information in performing or furnishing services under this Agreement. ARTICLE 3 — SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering services as of the Effective Date. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer's services is impaired, or Engineer's services are delayed or suspended, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. C. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer's performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled, as its sole remedy, to the recovery of direct damages, if any, resulting from such failure. ARTICLE 4 — INVOICES AND PAYMENTS 4.01 Invoices A. Preparation and Submittal of Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. 4.02 Payments A. Application to Interest and Principal: Payment will be credited first to any interest owed to Engineer and then to principal. B. Failure to Pay: If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer's invoice, then: Page 2 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright © 2008 National Society of Professional Engineers for EJCDC. A0 rights reserved. 1. amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day; and 2. Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner has paid in full all non -disputed amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. C. Disputed Invoices: If Owner contests an invoice, Owner shall promptly advise Engineer of the specific basis for doing so, may withhold only that portion so contested, and must pay the undisputed portion. D. Legislative Actions: If after the Effective Date any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer's services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which a factor of 1.0 shall be applied. Owner shall reimburse Engineer for the cost of such invoiced new taxes, fees, and charges; such reimbursement shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 — OPINIONS OF COST 5.01 Opinions ofProbable Construction Cost A. Engineer's opinions of probable Construction Cost are to be made on the basis of Engineer's experience and qualifications and represent Engineer's best judgment as an experienced and qualified professional generally familiar with the construction industry. However, because Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors' methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. If Owner requires greater assurance as to probable Construction Cost, Owner must employ an independent cost estimator as provided in Exhibit B. 5.02 NOT USED 5.03 Opinions of Total Project Costs A. The services, if any, of Engineer with respect to Total Project Costs shall be limited to assisting the Owner in collating the various cost categories which comprise Total Project Costs. Engineer assumes no responsibility for the accuracy of any opinions of Total Project Costs. ARTICLE 6 — GENERAL CONSIDERATIONS 6.01 Standards of Performance A. Standard of Care: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and Page EJCDC E-500 Agreement Between Owner and Engineer for Professional Services laid © 2008 National Societv of Professional Enaineers for EJCDC. All riehts reserved. in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineer's services. B. Technical Accuracy: Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer's services. Engineer shall correct deficiencies in technical accuracy without additional compensation, unless such corrective action is directly attributable to deficiencies in Owner -furnished information. C. Consultants: Engineer may employ such Consultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. D. Reliance on Others: Subject to the standard of care set forth in Paragraph 6.0 LA, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. E. Compliance with Laws and Regulations, and Policies and Procedures: Engineer and Owner shall comply with applicable Laws and regulations. 2. Prior to the Effective Date, Owner provided to Engineer in writing any and all policies and procedures of Owner applicable to Engineer's performance of services under this Agreement. Engineer shall comply with such policies and procedures, subject to the standard of care set forth in Paragraph 6.01.A, and to the extent compliance is not inconsistent with professional practice requirements. 3. This Agreement is based on Laws and Regulations and Owner -provided written policies and procedures as of the Effective Date. Changes after the Effective Date to these Laws and Regulations, or to Owner -provided written policies and procedures, may be the basis for modifications to Owner's responsibilities or to Engineer's scope of services, times of performance, or compensation. F. Engineer shall not be required to sign any documents, no matter by whom requested, that would result in the Engineer having to certify, guarantee, or warrant the existence of conditions whose existence the Engineer cannot ascertain. Owner agrees not to make resolution of any dispute with the Engineer or payment of any amount due to the Engineer in any way contingent upon the Engineer signing any such documents. G. The general conditions for any construction contract documents prepared hereunder are to be the "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Documents Committee (EJCDC C-700, 2007 Edition) unless both parties mutually agree to use other general conditions by specific reference in Exhibit J. H. Engineer shall not at any time supervise, direct, control, or have authority over any contractor work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety at the Site, nor for any failure of a Page 4 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. contractor to comply with Laws and Regulations applicable to such contractor's furnishing and performing of its work. I. Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. J. Engineer shall not provide or have any responsibility for surety bonding or insurance -related advice, recommendations, counseling, or research, or enforcement of construction insurance or surety bonding requirements. K. Engineer shall not be responsible for the acts or omissions of any Contractor, Subcontractor, or Supplier, or of any of their agents or employees or of any other persons (except Engineer's own agents, employees, and Consultants) at the Site or otherwise furnishing or performing any Work; or for any decision made regarding the Contract Documents, or any application, interpretation, or clarification, of the Contract Documents, other than those made by Engineer. L. While at the Site, Engineer's employees and representatives shall comply with the specific applicable requirements of Contractor's and Owner's safety programs of which Engineer has been informed in writing. 6.02 Design Without Construction Phase Services A. Engineer shall be responsible only for those Construction Phase services expressly required of Engineer in Exhibit A, Paragraph A1.05. With the exception of such expressly required services, Engineer shall have no design, Shop Drawing review, or other obligations during construction and Owner assumes all responsibility for the application and interpretation of the Contract Documents, review and response to Contractor claims, contract administration, processing Change Orders, revisions to the Contract Documents during construction, construction surety bonding and insurance requirements, construction observation and review, review of payment applications, and all other necessary Construction Phase engineering and professional services. Owner waives all claims against the Engineer that may be connected in any way to Construction Phase engineering or professional services except for those services that are expressly required of Engineer in Exhibit A, Paragraph A1.05. 6.03 Use of Documents A. The Owner acknowledges the Engineer's construction documents, including all electronic files, as instruments of professional services. Nevertheless, the final construction documents, including all electronic files, prepared under this agreement shall become the property of the Owner upon completion of services and payment in full of all monies due to the Engineer. The Owner shall not reuse or make any modification to the construction documents without the prior written authorization of the Engineer. All r,eeiimefits are instfum nts of Sen4ee in e..«o,.t to al.:.. D....: e,.t and C«..:«oo« ..t...11 ..va,.:« ,.« :«Fo«o .....«e...l.:« and .....,.interest therein Prejeet is ,.emple'va Owner shall not rely in any way on any Document unless it is in printed form, signed or sealed by the Engineer or one of its Consultants. Page 5 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. B. Either party to this Agreement may rely that data or information set forth on paper (also known as hard copies) that the party receives from the other party by mail, hand delivery, or facsimile, are the items that the other party intended to send. Files in electronic media format of text, data, graphics, or other types that are furnished by one party to the other are furnished only for convenience, not reliance by the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. If the parties agree to other electronic transmittal procedures, such are set forth in Exhibit J. C. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any transmittal errors detected within the 60-day acceptance period will be corrected by the party delivering the electronic files. D. When transferring documents in electronic media format, the transferring party makes no representations as to long-term compatibility, usability, or readability of such documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the documents' creator. E. Owner may make and retain copies of Documents for information and reference in connection with use on the Project by Owner. Engineer grants Owner a limited license to use the Documents on the Project, extensions of the Project, and for related uses of the Owner, subject to receipt by Engineer of full payment for all services relating to preparation of the Documents and subject to the following limitations: (1) Owner acknowledges that such Documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the Documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner's sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and Consultants; (3) Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from any use, reuse, or modification of the Documents without written verification, completion, or adaptation by Engineer; and (4) such limited license to Owner shall not create any rights in third parties. F. If Engineer at Owner's request verifies the suitability of the Documents, completes them, or adapts them for extensions of the Project or for any other purpose, then Owner shall compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer. G. At completion of any survey services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all survey data and drawings, upon which it will become the property of the Owner. H. At completion of any traffic study services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all data and models, upon which it will become the property of the Owner. Page 6 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. I. At completion of any geotechnical or material investigation services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all data, upon which it will become the property of the Owner. 6.04 Insurance A. Engineer shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. B. Owner shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Owner shall cause Engineer and its Consultants to be listed as additional insureds on any general liability policies and as loss payees on any property insurance policies carried by Owner which are applicable to the Project. C. Owner shall require Contractor to purchase and maintain policies of insurance covering workers' compensation, general liability, property damage (other than to the Work itself), motor vehicle damage and injuries, and other insurance necessary to protect Owner's and Engineer's interests in the Project. Owner shall require Contractor to cause Engineer and its Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project. D. Owner and Engineer shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of Engineer's services and at renewals thereafter during the life of the Agreement. E. All policies of property insurance relating to the Project shall contain provisions to the effect that Engineer's and its Consultants' interests are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery against Engineer or its Consultants, or any insureds, additional insureds, or loss payees thereunder. F. All policies of insurance shall contain a provision or endorsement that the coverage afforded will not be canceled or reduced in limits by endorsement, and thatrenewal will not be refused, until at least 30 days prior written notice has been given to Owner and Engineer and to each other additional insured (if any) to which a certificate of insurance has been issued. G. At any time, Owner may request that Engineer or its Consultants, at Owner's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements. 6.05 Suspension and Termination A. Suspension: By Owner: Owner may suspend the Project for up to 90 days upon seven days written notice to Engineer. Page 7 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 2. By Engineer: Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement if Engineer's performance has been substantially delayed through no fault of Engineer. B. Termination: The obligation to provide further services under this Agreement may be terminated: 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. b. By Engineer: 1) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer's responsibilities as a licensed professional; or 2) upon seven days written notice if the Engineer's services for the Project are delayed or suspended for more than 90 days for reasons beyond Engineer's control. 3) Engineer shall have no liability to Owner on account of such termination. c. Notwithstanding the foregoing, this Agreement will not terminate under Paragraph 6.05.B.1.a if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof, provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, a. By Owner effective upon Engineer's receipt of notice from Owner. b. By Engineer effective upon Owner's receipt of notice from Engineer. C. Effective Date of Termination: The terminating party under Paragraph 6.05.B may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. D. Payments Upon Termination: Page 8 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. A0 rights reserved. In the event of any termination under Paragraph 6.05, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished in accordance with this Agreement and all Reimbursable Expenses incurred through the effective date of termination. Upon making such payment, Owner shall have the limited right to the use of Documents, at Owner's sole risk, subject to the provisions of Paragraph 6.03.E. 2. In the event of termination by Owner for convenience or by Engineer for cause, Engineer shall be entitled, in addition to invoicing for those items identified in Paragraph 6.05.131.1, to invoice Owner and to payment of a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with Engineer's Consultants, and other related close-out costs, using methods and rates for Additional Services as set forth in Exhibit C. 6.06 Controlling Law A. This Agreement is to be governed by the law of the state or jurisdiction in which the Project is located. 6.07 Successors, Assigns, and Beneficiaries A. Owner and Engineer are hereby bound and the successors, executors, administrators, and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 6.07.13 the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Subcontractor, Supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 3. Owner agrees that the substance of the provisions of this Paragraph 6.07.0 shall appear in the Contract Documents. Page 9 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 6.08 Dispute Resolution A. Owner and Engineer agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to invoking the procedures of Exhibit H or other provisions of this Agreement, or exercising their rights under law. B. If the parties fail to resolve a dispute through negotiation under Paragraph 6.08.A, then either or both may invoke the procedures of Exhibit H. If Exhibit H is not included, or if no dispute resolution method is specified in Exhibit H, then the parties may exercise their rights under law. 6.09 Environmental Condition of Site A. Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other Constituents of Concern located at or near the Site, including type, quantity, and location. B. Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. C. If Engineer encounters or learns of an undisclosed Constituent of Concern at the Site, then Engineer shall notify (1) Owner and (2) appropriate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. D. It is acknowledged by both parties that Engineer's scope of services does not include any services related to Constituents of Concern. If Engineer or any other party encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove the Constituents of Concern; and (2) warrants that the Site is in full compliance with applicable Laws and Regulations. E. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer's services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2) terminating this Agreement for cause on 30 days notice. F. Owner acknowledges that Engineer is performing professional services for Owner and that Engineer is not and shall not be required to become an 'owner" `'arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are or may be encountered at or near the Site in connection with Engineer's activities under this greement. 6.10 Indemnification and Mutual Waiver A. Indemnification by Engineer: To the fullest extent permitted by law, Engineer shall indemnify and hold harmless Owner, and Owner's officers, directors, members, partners, agents, consultants, and Page 10 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright © 2008 National Society of Professional Engineers for EJCDC. AB rights reserved. employees from reasonable claims, costs, losses, and damages arising out of or relating to the Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Engineer or Engineer's officers, directors, members, partners, agents, employees, or Consultants. This indemnification provision is subject to and limited by the provisions, if any, agreed to by Owner and Engineer in Exhibit I, "Limitations of Liability." B. Indemnification by Owner: Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants as required by Laws and Regulations and to the extent (if any) required in Exhibit 1, Limitations of Liability. C. Environmental Indemnification: To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, and all court, arbitration, or other dispute resolution costs) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (1) any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (2) nothing in this paragraph shall obligate Owner to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence or willful misconduct. D. Percentage Share of Negligence: To the fullest extent permitted by law, a party's total liability to the other party and anyone claiming by, through, or under the other party for any cost, loss, or damages caused in part by the negligence of the parry and in part by the negligence of the other party or any other negligent entity or individual, shall not exceed the percentage share that the party's negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. E. Mutual Waiver: To the fullest extent permitted by law, Owner and Engineer waive against each other, and the other's employees, officers, directors, members, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project. 6.11 Miscellaneous Provisions A. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severability: Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be Page 11 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright 0 2008 National society of Professional Engineers for EJCDC. All rights reserved. valid and binding upon Owner and Engineer, which agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. D. Waiver: A party's non -enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. Accrual of Claims: To the fullest extent permitted by law, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. ARTICLE 7 — DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) terms (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above, in the exhibits, or in the following provisions: l . Additional Services — The services to be performed for or furnished to Owner by Engineer in accordance with Part 2 of Exhibit A of this Agreement. 2. Agreement — This written contract for professional services between Owner and Engineer, including all exhibits identified in Paragraph 8.01 and any duly executed amendments. 3. Asbestos — Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 4. Basic Services — The services to be performed for or furnished to Owner by Engineer in accordance with Part 1 of Exhibit A of this Agreement. 5. Construction Contract — The entire and integrated written agreement between Owner and Contractor concerning the Work. 6. Construction Cost — The cost to Owner of those portions of the entire Project designed or specified by Owner Construction Cost does not include costs of services of Engineer or other design professionals and consultants; cost of land or rights -of -way, or compensation for damages to properties; Owner's costs for legal, accounting, insurance counseling or auditing services; interest or financing charges incurred in connection with the Project; or the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. Constituent of Concern — Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. ("CERCLA"); (b) the Hazardous Materials Transportation Act, 49 U.S.C. Page 12 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services -- Copyright ©2008 National Society of Professional Engineers for EJCDC. All rights reserved. §§1801 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. ("RCRA"); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; and (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 8. Consultants — Individuals or entities having a contract with Engineer to furnish services with respect to this Project as Engineer's independent professional associates and consultants; subcontractors; or vendors. 9. Contract Documents — Those items so designated in the Construction Contract, including the Drawings, Specifications, construction agreement, and general and supplementary conditions. Only printed or hard copies of the items listed in the Construction Contract are Contract Documents. Approved Shop Drawings, other Contractor submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 10. Contractor — The entity or individual with which Owner has entered into a Construction Contract. 11. Documents — Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or famished in appropriate phases by Engineer to Owner pursuant to this Agreement. 12. Drawings — That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 13. Effective Date — The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, the date on which this Agreement is signed and delivered by the last of the parties to sign and deliver. 14. Engineer — The individual or entity named as such in this Agreement. 15. Hazardous Waste — The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 16. Laws and Regulations; Laws or Regulations — Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 17. Owner — The individual or entity with which Engineer has entered into this Agreement and for which the Engineer's services are to be performed. Unless indicated otherwise, this is the same individual or entity that will enter into any Construction Contracts concerning the Project. 18. PCBs — Polychlorinatedbiphenyls. Page 13 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 19. Petroleum — Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -hazardous waste and crude oils. 20. Project — The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 21. Radioactive Material — Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 22. Record Drawings — Drawings depicting the completed Project, prepared by Engineer as an Additional Service and based solely on Contractor's record copy of all Drawings, Specifications, addenda, change orders, work change directives, field orders, and written interpretations and clarifications, as delivered to Engineer and annotated by Contractor to show changes made during construction. 23. Reimbursable Expenses — The expenses incurred directly by Engineer in connection with the performing or furnishing of Basic and Additional Services for the Project. 24. Resident Project Representative — The authorized representative of Engineer assigned to assist Engineer at the Site during the Construction Phase. As used herein, the term Resident Project Representative or "RPR" includes any assistants or field staff of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative, if any, are as set forth in Exhibit D. 25. Samples — Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 26. Shop Drawings — All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 27. Site — Lands or areas to be indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights -of -way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. 28. Specifications — That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 29. Subcontractor — An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 30. Substantial Completion — The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Page 14 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 31. Supplier — A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 32. Total Project Costs — The sum of the Construction Cost, allowances for contingencies, and the total costs of services of Engineer or other design professionals and consultants, together with such other Project -related costs that Owner furnishes for inclusion, including but not limited to cost of land, rights -of -way, compensation for damages to properties, Owner's costs for legal, accounting, insurance counseling and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. 33. Work— The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. ARTICLE 8 — EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included: A. Exhibit A, Engineer's Services. B. Exhibit B, Owner's Responsibilities. C. Exhibit C, Payments to Engineer for Services and Reimbursable Expenses. D. Exhibit D, Duties, Responsibilities and Limitations of Authority of Resident Project Representative. E. Netiee of A ece„tability of WM' NOT INCLUDED n &Ehibit c r,,.....t_.,,. ien r'..^t r Omit NOT INCLUDED x . arrtxmcr-corzva-aocxvnoar-cm-tr� C Exhibit G 1....,,..an e NOT INCLUDED Resolution. NOT INCLUDED I. Exhibit I, Limitations of Liability. j. Exhibit r C'..eei �� NOT INCLUDED K. EgEhibit v n...,,..ament t,. n..,ne_ Enginee. kgreemel# NOT INCLUDED Page 15 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 8.02 Total Agreement: o A. This Agreement, (together with the exhibits identified above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument based on the format of Exhibit K to this Agreement. 8.03 Designated Representatives: A. With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer's and Owner's representatives with respect to the services to be performed or furnished by Engineer and responsibilities of Owner under this Agreement. Such an individual shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of the respective party whom the individual represents. 8.04 Engineer's Certifications: A. Engineer certifies that it has not engaged in corrupt, fraudulent, or coercive practices in competing for or in executing the Agreement. For the purposes of this Paragraph 8.04: "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the selection process or in the Agreement execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the selection process or the execution of the Agreement to the detriment of Owner, or (b) to deprive Owner of the benefits of free and open competition; 3. 'coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the selection process or affect the execution of the Agreement. Page 16 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: City of South Bend, Indiana Engineer: Christopher B. Burke Engineering, LLC Board of Public Works By; Z- By: Title: �' 't -Gary A. Gilo , President Title: Jon D. Stolz, P.E., Mar aging Vice President By: /-- Title: Wvid P. Relos, Member By: Title: James A. Mueller, F' By: 0& W' . Title: Elizabeth A. Maradik, Member RE Title: Therese J. DdVaW Member Attest: Title: ina Martin, Clerl. Date: q fi 3 Jol ( Date: Address for giving notices: 227 West Jefferson Boulevard South Bend, Indiana 46601 Designated Representative (Paragraph 8.03.A): Patrick Corbitt Kerr, Ph.D., P.E. Title: City Engineer Phone Number: (574) 235-5931 Facsimile Number: (574) 235-9171 E-Mail Address: pckerrgsouthbendin.gov September 1, 2016 Engineer License or Firn:1's Certificate No. PC81100049 State of: Indiana Address for giving notices: 220 West Colfax Avenue, Suite 500 South Bend. Indiana 46601 Designated Representative (Paragraph 8.03.A): Jason J. Duff, P.E. Title: Senior Civil Engineer Phone Number: (574) 282-8001 Facsimile Number: (574) 282-8003 E-Mail Address: jdurr@cbbel-in.com Page 17 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT A, consisting of 8 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Services Article 1 of the Agreement is supplemented to include the following agreement of the parties. Engineer shall provide Basic and Additional Services as set forth below. PART 1-BASIC SERVICES A1.01 Construction Phase A. Upon written authorization from Owner, Engineer shall: 1. General Administration of Construction Contract: Consult with Owner and act as Owner's representative as provided in the Construction Contract. The extent and limitations of the duties, responsibilities, and authority of Engineer as assigned in the Construction Contract shall not be modified, except as Engineer may otherwise agree in writing. All of Owner's instructions to Contractor will be issued through Engineer, which shall have authority to act on behalf of Owner in dealings with Contractor to the extent provided in this Agreement and the Construction Contract except as otherwise provided in writing. 2. Resident Project Representative (RPR): Provide the services of an RPR at the Site to assist the Engineer and to provide more extensive observation of Contractor's work. Duties, responsibilities, and authority of the RPR are as set forth in Exhibit D. The furnishing of such RPR's services will not limit, extend, or modify Engineer's responsibilities or authority except as expressly set forth in Exhibit D. 3. NOT USED 4. Pre -Construction Conference: Participate in a Pre -Construction Conference prior to commencement of Work at the Site. 5. Schedules: Receive, review, and assist in determining the acceptability of any and all schedules that Contractor is required to submit to Ern m:-.--�— - including the Progress Schedule, Schedule of Submittals, and Schedule of Values. Page 1 (Exhibit A - Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 7. Visits to Site and Observation of Construction: In connection with observations of Contractor's Work while it is in progress: a. Make visits to the Site at intervals appropriate to the various stages of construction, as to observe as an experieneed and qualified design professional the progress of Contractor's executed Work. Such visits and observations by Engineer, and the Resident Project Representative, if an),, are not intended to be exhaustive or to extend to every aspect of Contractor's Work in progress or to involve detailed inspections of Contractor's Work in progress beyond the responsibilities specifically assigned to Engineer in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on Engineer's exercise of professional judgment; as assisted b the Resident o_,.:^et Representative if any. Based on information obtained during such visits and observations, Engineer will determine in general if the Work is proceeding in accordance with the Contract Documents, and Engineer shall keep Owner informed of the progress of the Work. b. The purpose of Engineer's visits to, and representation by the Resident Project Representative, if -any, at the Site, will be te enable Engineer to be4ker ^ out duties and Fespensibilities assigned to and undei4aken by Engineer- during the Cons4eetien Phase, and, in addition, by the exereise of Engineer's e&i4s as an ^a and qualified design pr,c nal, to provide for Owner a greater degree of confidence that the completed Work will conform in general to the Contract Documents and that Contractor has implemented and maintained the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Engineer shall not, during such visits or as a result of such observations of Contractor's Work in progress, supervise, direct, or have control over Contractor's Work, nor shall Engineer have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by Contractor, for security or safety at the Site, for safety precautions and programs incident to Contractor's Work, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish or perform the Work in accordance with the Contract Documents. 8. Defective Work: Reject Work if, on the basis of Engineer's observations, Engineer believes that such Work (a) is defective under the standards set forth in the Contract Documents, (b) will not produce a completed Project that conforms to the Contract Documents, or (c) will imperil the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 9. Clarifications and Interpretations; Field Orders: With Owner's approval, issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Page 2 (Exhibit A - Engineer's Services) EJCDC E500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. Subject to any limitations in the Contract Documents, Engineer may issue field orders authorizing minor variations in the Work from the requirements of the Contract Documents. 10. Change Orders and Work Change Directives: Review change orders and work change directives with Owners and prepare change orders and work change directives as required. 11. Shop Drawings and Samples: Review and appreve or take ether appropriate actien, in respect to Shop Dfavvings and - data vihieh G.Ontraeter is required to submit, but only fer eang3mianee with the infiafmation given in the Gentiraet Deeumeftts and eempatibility with the design e ept of the eemple«ed D.-e:ee« a a funetioning whele as indieated by Uhe Contraet Deeumettts. Sueh reviews of methods,Mm.en ........ u.ruw. ..... uv...*wuu w ---a ..t.«i r y�eedu a of e ..tmeti.. t.. a t7 . utie andgramsineident thereto. Engineer Shall meet an), Eentraeter's submittal sehedaie that Engineer has aeee. ted The Engineer shall receive shop drawings, check for completeness, forward to the Owner for review, and return reviewed shop drawings to the contractor. The Engineer shall alert the Contractor when it is observed that materials or equipment are being or about to be installed before approval of shop drawings. Engineer shall track the shop drawing process using a submittal log. substitute or "or equal" materials and equipment proposed by Gentracter, DELETED 13.Inspections and Tests: Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. Engineer's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. Engineer shall be entitled to rely on the results of such tests. Page 3 (Exhibit A - Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 15. Applications for Payment: Review progress estimates for periodic partial payments to the Contractor and deliver to the Owner for review and processing. The payments to the Contractor will be based on estimates of the value of work performed and materials completed in place in accordance with the contract. 16. DELETED 17. DELETED 18. DELETED 19. DELETED B. Duration of Construction Phase: The Construction Phase will commence with the execution of the first Construction Contract for the Project or any part thereof and will terminate upon final closeout of the project, which will be seven (7) working days after the December 9, 2016 completion date set forth in the Contract Documents. If the Project involves more than one prime contract as indicated in Paragraph A1.03.C, then Construction Phase services may be rendered at different times in respect to the separate contracts. Subject to the provisions of Article 3, Engineer shall be entitled to an equitable increase in compensation if Construction Phase services (including Resident Project Representative services, if any) are required after the original date for completion and readiness for final payment of Contractor as set forth in the Construction Contract. C. Limitation of Responsibilities: Engineer shall not be responsible for the acts or omissions of any Contractor, Subcontractor or Supplier, or other individuals or entities performing or furnishing any of the Work, for safety or security at the Site, or for safety precautions and programs incident to Contractor's Work, during the Construction Phase or otherwise. Engineer shall not be responsible for the failure of any Contractor to perform or fumish the Work in accordance with the Contract Documents. A1.02 Post -Construction Phase A. Upon written authorization from Ownerduring the Post -Construction Phase Engineer shall: Together with Owner, visit the Project to observe any apparent defects in the Work, assist Owner in consultations and discussions with Contractor concerning correction of any such defects, and make recommendations as to replacement or correction of defective Work, if any. Page 4 (Exhibit A - Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 2. Together with Owner or Owner's representative, visit the Project within one month before the end of the correction period to ascertain whether any portion of the Work is subject to correction. .sre............ B. The Post -Construction Phase services may commence during the Construction Phase and will be subject to the duration of the contract schedule as described in the duration of construction phase. PART 2 —ADDITIONAL SERVICES A2.01 Additional Sen4ces Requiring Owner's Written Authorization A. If authorized in writing by Owner, Engineer shall furnish or obtain from others Additional Services of the types listed below. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans, or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by Owner or others. 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by Engineer or its design requirements including, but not limited to, changes in size, complexity, Owner's schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date or are due to any other causes beyond Engineer's control. 4. Services resulting from Owner's request to evaluate additional Study and Report Phase alternative solutions beyond those identified in Paragraph A1.01.A.4. 5. Services required as a result of Owner's providing incomplete or incorrect Project information to Engineer. 6. Providing renderings or models for Owner's use. Page 5 (Exhibit A - Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. AB rights reserved. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of financial feasibility and cash flow studies, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting Owner in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by Owner. 8. Furnishing services of Consultants for other than Basic Services 9. Services attributable to more prime construction contracts than specified in Paragraph Al.03.D. 10. Services during out-of-town travel required of Engineer other than for visits to the Site or Owner's office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by Owner; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by Owner for the Work or a portion thereof. 13. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required by Exhibit F. 14. Providing construction surveys and staking to enable Contractor to perform its work other than as required under Paragraph A1.05.A.6, and any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 15. Providing Construction Phase services beyond the original date for completion and readiness for final payment of Contractor. 16. Providing assistance in responding to the presence of any Constituent of Concern at the Site, in compliance with current Laws and Regulations. Page 6 (Exhibit A - Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 17. Preparing Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor, and furnishing such Record Drawings to Owner. 18. Preparation of operation and maintenance manuals. 19. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other dispute resolution process related to the Project. 20. Providing more extensive services required to enable Engineer to issue notices or certifications requested by Owner. 21. Assistance in connection with the adjusting of Project equipment and systems. 22. Assistance to Owner in training Owner's staff to operate and maintain Project equipment and systems. 23. Assistance to Owner in developing procedures for (a) control of the operation and maintenance of Project equipment and systems, and (b) related record -keeping. 24. Overtime work requiring higher than regular rates. 25. Other services performed or furnished by Engineer not otherwise provided for in this Agreement. A2.02 Additional Services Not Requiring Owner's Written Authorization A. Engineer shall advise Owner in advance that Engineer is will immediately commence to perform or furnish the Additional Services of the types listed below. For such Additional Services, Engineer need not request or obtain specific advance written authorization from Owner. Engineer shall cease performing or furnishing such Additional Services upon receipt of written notice from Owner. 1. Services in connection with work change directives and change orders to reflect changes requested by Owner. 2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than "or - equal" items; services after the award of the Construction Contract in evaluating and determining the acceptability of a proposed "or equal" or substitution which is found to be inappropriate for the Project; evaluation and determination of an excessive number of proposed "or equals" or substitutions, whether proposed before or after award of the Construction Contract. Page 7 (Exhibit A - Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work (advance notice not required), (2) the presence at the Site of any Constituent of Concern or items of historical or cultural significance, (3) Work damaged by fire or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. 5. Services (other than Basic Services during the Post -Construction Phase) in connection with any partial utilization of any part of the Work by Owner prior to Substantial Completion. 6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. 7. Services during the Construction Phase rendered after the original date for completion of the Work referred to in A1.05.B. 8. Reviewing a Shop Drawing more than three times, as a result of repeated inadequate submissions by Contractor. 9. While at the Site, compliance by Engineer and its staff with those terms of Owner's or Contractor's safety program provided to Engineer subsequent to the Effective Date that exceed those normally required of engineering personnel by federal, state, or local safety authorities for similar construction sites. Page 8 (Exhibit A - Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT B, consisting of 3 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Owner's Responsibilities Article 2 of the Agreement is supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of Owner as set forth in this Agreement, Owner shall at its expense: A. Provide Engineer with all criteria and full information as to Owner's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and famish copies of all design and construction standards which Owner will require to be included in the Drawings and Specifications; and furnish copies of Owner's standard forms, conditions, and related documents for Engineer to include in the Bidding Documents, when applicable. B. Furnish to Engineer any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. Following Engineer's assessment of initially -available Project information and data and upon Engineer's request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable Engineer to complete its Basic and Additional Services. Such additional information or data would generally include the following: l . Property descriptions. 2. Zoning, deed, and other land use restrictions. 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions relating to existing surface or subsurface structures at the Site, or hydrographic surveys, with appropriate professional interpretation thereof. 5. Environmental assessments, audits, investigations, and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 6. Data or consultations as required for the Project but not otherwise identified in the Agreement or the Exhibits thereto. Pagel (Exhibit B — Owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. D. Give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of the presence at the Site of any Constituent of Concern, or of any other development.that affects the scope or time of performance of Engineer's services, or any defect or nonconformance in Engineer's services, the Work, or in the performance of any Contractor. E. Authorize Engineer to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as required. F. Arrange for safe access to and make all provisions for Engineer to enter upon public and private property as required for Engineer to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by Engineer (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as Owner deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. Provide reviews, approvals, and pen -nits from all governmental authorities having jurisdiction to approve all phases of the Project designed or specified by Engineer and such reviews, approvals, and consents from others as may be necessary for completion of each phase of the Project. 1. Recognizing and acknowledging that Engineer's services and expertise do not include the following services, provide, as required for the Project: 1. Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services. 2. Legal services with regard to issues pertaining to the Project as Owner requires, Contractor raises, or Engineer reasonably requests. 3. Such auditing services as Owner requires to ascertain how or for what purpose Contractor has used the moneys paid. J. Place and pay for advertisement for Bids in appropriate publications. K. Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. L. Furnish to Engineer data as to Owner's anticipated costs for services to be provided by others (including, but not limited to, accounting, bond and financial, independent cost estimating, insurance counseling, and legal advice) for Owner so that Engineer may assist Owner in collating the various cost categories which comprise Total Project Costs. M. If Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to represent Owner at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of Engineer. Page 2 (Exhibit B — Owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. N. If more than one prime contract is to be awarded for the Work designed or specified by Engineer, designate a person or entity to have authority and responsibility for coordinating the activities among the various prime Contractors, and define and set forth the duties, responsibilities, and limitations of authority of such individual or entity and the relation thereof to the duties, responsibilities, and authority of Engineer as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin. O. Attend the pre -bid conference, bid opening, pre -construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment visits to the Project. P. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of Owner, prior to their incorporation into the Work with appropriate professional interpretation thereof. Q. Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this paragraph. R. Inform Engineer in writing of any specific requirements of safety or security programs that are applicable to Engineer, as a visitor to the Site. S. Perform or provide the following additional services: [Here list any such additional services]. Page 3 (Exhibit B — Owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT C, consisting of 7 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Payments to Engineer for Services and Reimbursable Expenses COMPENSATION PACKET BC-2: Basic Services — Standard Hourly Rates Article 2 of the Agreement is supplemented to include the following agreement of the parties: ARTICLE 2 — OWNER'S RESPONSIBILITIES C2.01 Compensation For Basic Services— Standard Hourly Rates Method of Payment A. Owner shall pay Engineer for Basic Services set forth in Exhibits A an D as follows: 1. An amount equal to the cumulative hours charged to the Project by each class of Engineer's personnel times Standard Hourly Rates for each applicable billing class for all services performed on the Project, plus Reimbursable Expenses and Engineer's Consultants' charges, if any. 2. Engineer's Reimbursable Expenses Schedule and Standard Hourly Rates are attached to this Exhibit C as Appendices 1 and 2. 3. The total compensation for services under Paragraph C2.01 is estimated to be $ 41,500.00 Not to Exceed based on the following estimated distribution of compensation: a. Construction Phase $ 37,000.00 b. Post -Construction Phase $ 4,500.00 4. Engineer may alter the distribution of compensation between individual phases of the work noted herein to be consistent with services actually rendered, but shall not exceed the total estimated compensation amount unless approved in writing by Owner. See also C2.03.C.2 below. 5. The total estimated compensation for Engineer's services included in the breakdown by phases as noted in Paragraph C2.01.A.3 incorporates all labor, overhead, profit, Reimbursable Expenses and Engineer's Consultants' charges. 6. The amounts billed for Engineer's services under Paragraph C2.01 will be based on the cumulative hours charged to the Project during the billing period by each class of Engineer's employees times Standard Hourly Rates for each applicable billing class, plus Reimbursable Expenses and Engineer's Consultants' charges. Page 1 Exhibit C -Compensation Packet BC-2: Basic Services (other than RPR) - Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 7. The Standard Hourly Rates and Reimbursable Expenses Schedule will be adjusted annually to reflect equitable changes in the compensation payable to Engineer. C2.02 Compensation For Reimbursable Expenses A. Owner shall pay Engineer for all Reimbursable Expenses at the rates set forth in Appendix I to this Exhibit C. B. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto; providing and maintaining field office facilities including furnishings and utilities; toll telephone calls and mobile phone charges; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project -related items in addition to those required under Exhibit A. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. C. The amounts payable to Engineer for Reimbursable Expenses will be the Project -related internal expenses actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a factor of 1.12 C2.03 Other Provisions Concerning Payment A. Whenever Engineer is entitled to compensation for the charges of Engineer's Consultants, those charges shall be the amounts billed by Engineer's Consultants to Engineer times a factor of 1.12 B. Factors. The external Reimbursable Expenses and Engineer's Consultants' factors include Engineer's overhead and profit associated with Engineer's responsibility for the administration of such services and costs. Page 2 Exhibit C -Compensation Packet BC-2: Basic Services (other than RPR) - Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright D 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Estimated Compensation Amounts: 1. Engineer's estimate of the amounts that will become payable for specified services are only estimates for planning purposes, are not binding on the parties, and are not the minimum or maximum amounts payable to Engineer under the Agreement. 2. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to Engineer that the total compensation amount thus estimated will be exceeded, Engineer shall give Owner written notice thereof, allowing Owner to consider its options, including suspension or termination of Engineer's services for Owner's convenience. Upon notice, Owner and Engineer promptly shall review the matter of services remaining to be performed and compensation for such services. Owner shall either exercise its right to suspend or terminate Engineer's services for Owner's convenience, agree to such compensation exceeding said estimated amount, or agree to a reduction in the remaining services to be rendered by Engineer, so that total compensation for such services will not exceed said estimated amount when such services are completed. If Owner decides not to suspend the Engineer's services during the negotiations and Engineer exceeds the estimated amount before Owner and Engineer have agreed to an increase in the compensation due Engineer or a reduction in the remaining services, then Engineer shall be paid for all services rendered hereunder. D. To the extent necessary to verify Engineer's charges and upon Owner's timely request, Engineer shall make copies of such records available to Owner at cost. Page 3 Exhibit C -Compensation Packet BC-2: Basic Services (other than RPR) - Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. COMPENSATION PACKET RPR-2: Resident Project Representative — Standard Hourly Rates Article 2 of the Agreement is supplemented to include the following agreement of the parties: C2.04 Compensation for Resident Project Representative Basic Services — Standard Hourly Rates Method of Payment A. Owner shall pay Engineer for Resident Project Representative Basic Services as follows: 1. Resident Project Representative Services: For services of Engineer's Resident Project Representative under Paragraph A1.05A of Exhibit A, an amount equal to the cumulative hours charged to the Project by each class of Engineer's personnel times Standard Hourly Rates for each applicable billing class for all Resident Project Representative services performed on the Project, plus related Reimbursable Expenses and Engineer's Consultant's charges, if any. The total compensation under this Paragraph is included in Exhibit 3 Paragraph C2.01.A based upon part-time RPR services of 20 hours per week,. Monday through Friday, over a 16 week construction schedule. B. Compensation for Reimbursable Expenses: 1. For those Reimbursable Expenses that are not accounted for in the compensation for Basic Services under Paragraph C2.01, and are directly related to the provision of Resident Project Representative or Post - Construction Basic Services, Owner shall pay Engineer at the rates set forth in Appendix 1 to this Exhibit C. 2. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto;providing and maintaining field office facilities including furnishings and utilities; subsistence and transportation of Resident Project Representative and assistants; toll telephone calls and mobile phone charges; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project -related items in addition to those required under Exhibit A. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. 3. The amounts payable to Engineer for Reimbursable Expenses, if any, will be those internal expenses related to the Resident Project Representative Basic Services that are actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such services, the latter multiplied by a factor of 1.12 4. The Reimbursable Expenses Schedule will be adjusted annually to reflect equitable changes in the compensation payable to Engineer. Page 1 Exhibit C - Compensation Packet RPR-2: Resident Project Representative Services Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Other Provisions Concerning Payment Under this Paragraph C2.04: 1. Whenever Engineer is entitled to compensation for the charges of Engineer's Consultants, those charges shall be the amounts billed by Engineer's Consultants to Engineer times a factor of 112. 2. Factors: The external Reimbursable Expenses and Engineer's Consultant's factors include Engineer's overhead and profit associated with Engineer's responsibility for the administration of such services and costs. 3. Estimated Compensation Amounts: a. Engineer's estimate of the amounts that will become payable for specified services are only estimates for planning purposes, are not binding on the parties, and are not the minimum or maximum amounts payable to Engineer under the Agreement. b. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to Engineer that the total compensation amount thus estimated will be exceeded, Engineer shall give Owner written notice thereof, allowing Owner to consider its options, including suspension or termination of Engineer's services for Owner's convenience. Upon notice Owner and Engineer promptly shall review the matter of services remaining to be performed and compensation for such services. Owner shall either exercise its right to suspend or terminate Engineer's services for Owner's convenience, agree to such compensation exceeding said estimated amount, or agree to a reduction in the remaining services to be rendered by Engineer, so that total compensation for such services will not exceed said estimated amount when such services are completed. If Owner decides not to suspend Engineer's services during negotiations and Engineer exceeds the estimated amount before Owner and Engineer have agreed to an increase in the compensation due Engineer or a reduction in the remaining services, then Engineer shall be paid for all services rendered hereunder. 4. To the extent necessary to verify Engineer's charges and upon Owner's timely request, Engineer shall make copies of such records available to Owner at cost. Page 2 Exhibit C - Compensation Packet RPR-2: Resident Project Representative Services Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. V O N - a o . ry a <W O �uiwP\ 6 F V y, il,'1 aa\lgayrl III mod; ,Ip — O U � G O ---�-nnu.wn--n LTV K pj W ¢ ❑ I u w u q W � v v. �. n u, u. u, v, .r. L61'fS V 0.1 h IT , u t,. , I O C z o G � V Q C WIJJIII:)S i(I W W F W ..1 {L F N OJ c U 3WHd Page 1 Exhibit C - Compensation Packet RPR-5: Resident Project Representative ServicesSalary Costs Times a Factor Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 Rational Society of Professional Engineers for EJCDC. All rights reserved. COMPENSATION PACKET AS-1: Additional Services — Standard Hourly Rates Article 2 of the Agreement is supplmented to include the following agreement of the parties: C2.05 Compensation for Additional Services —Standard Hourly Rates Method of Payment A. Owner shall pay Engineer for Additional Services, if any, as follows: 1. General: For services of Engineer's personnel engaged directly on the Project pursuant to Paragraph A2.01 or A2.02 of Exhibit A, except for services as a consultant or witness under Paragraph A2.0l .A.20, (which if needed shall be separately negotiated based on the nature of the required consultation or testimony) an amount equal to the cumulative hours charged to the Project by each class of Engineer's personnel times Standard Hourly Rates for each applicable billing class for all Additional Services performed on the Project, plus related Reimbursable Expenses and Engineer's Consultant's charges, if any. B. Compensation For Reimbursable Expenses: 1. For those Reimbursable Expenses that are not accounted for in the compensation for Basic Services under Paragraph C2.01 and are directly related to the provision of Additional Services, Owner shall pay Engineer at the rates set forth in Appendix I to this Exhibit C. 2. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto; providing and maintaining field office facilities including furnishings and utilities; toll telephone calls and mobile phone charges; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project -related items in addition to those required under Exhibit A. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. 3. The amounts payable to Engineer for Reimbursable Expenses, if any, will be the Additional Services -related internal expenses actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such Additional Services, the latter multiplied by a factor of 1.12 4. The Reimbursable Expenses Schedule will be adjusted annually to reflect equitable changes in the compensation payable to Engineer. C. Other Provisions Concerning Payment For Additional Services: Page 1 Exhibit C - Compensation Packet AS-1: Additional Services - Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 1. Whenever Engineer is entitled to compensation for the charges of Engineer's Consultants, those charges shall be the amounts billed by Engineer's Consultants to Engineer times a factor of 1.1 2. Factors: The external Reimbursable Expenses and Engineer's Consultant's Factors include Engineer's overhead and profit associated with Engineer's responsibility for the administration of such services and costs. 3. To the extent necessary to verify Engineer's charges and upon Owner's timely request, Engineer shall make copies of such records available to Owner at cost. Page 2 Exhibit C - Compensation Packet AS-1: Additional Services - Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for FACDC. All rights reserved. This is Appendix I to EXHIBIT C, consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Reimbursable Expenses Schedule Current agreements for engineering services stipulate that the Reimbursable Expenses are subject to review and adjustment per Exhibit C. Reimbursable expenses for services performed on the date of the Agreement are: Fax 8"xl I" Copies/Impressions Blue Print Copies Reproducible Copies (Mylar) Reproducible Copies (Paper) Mileage (auto) Field Truck Daily Charge Mileage (Field Truck) Field Survey Equipment Confined Space Equipment Resident Project Representative Equipment $ /page /page /sq. ft. /sq. ft. /sq. ft. .55 /mile /day /mile /day /day plus expenses /month Specialized Software /hour CAD Charge /hour CAE Terminal Charge /hour Video Equipment Charge /day, $ /week, or $ /month Electrical Meters Charge /week, or $ /month Flow Meter Charge /week, or $ /month Rain Gauge /week, or $ /month Sampler Charge /week, or $ /month Dissolved Oxygen Tester Charge /week Fluorometer Laboratory Pilot Testing Charge Soil Gas Kit Submersible Pump Water Level Meter Soil Sampling Groundwater Sampling Health and Safety Level D Health and Safety Level C Electronic Media Charge Long Distance Phone Calls Mobile Phone /week /week, or $ /month /day /day /day, or $ /month /sample /sample /day /day /hour at cost /day Meals and Lodging at cost [Note to User: Customize this Schedule to reflect anticipated reimbursable expenses on this specific Project] Page 1 Exhibit C - Appendix 1: Reimbursable Expenses Schedule EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. A0 rights reserved. This is Appendix 2 to EXHIBIT C, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Standard Hourly Rates Schedule A. Standard Hourly Rates: 1. Standard Hourly Rates are set forth in this Appendix 2 to this Exhibit C and include salaries and wages paid to personnel in each billing class plus the cost of customary and statutory benefits, general and administrative overhead, non -project operating costs, and operating margin or profit. 2. The Standard Hourly Rates apply only as specified in Article C2. B. Schedule: Hourly rates for services performed on or after the date of the Agreement are: Personnel ($/Hr) EngineerVI.....................................................................................................................................216 EngineerV...................................................................................................................................... 190 EngineerIV..................................................................................................................................... 168 EngineerIII...................................................................................................................................... 139 EngineerI/II.................................................................................................................................... III ResourcePlanner V........................................................................................................................ 151 ResourcePlanner IV....................................................................................................................... 139 ResourcePlanner III...................................................................................................................... 125 ResourcePlanner 1/I1 ...................................................................................................................... 105 Engineering Technician IV............................................................................................................ 145 EngineeringTechnician III............................................................................................................. 130 EngineeringTechnician I/II............................................................................................................ 105 CADII............................................................................................................................................. 121 CADI.............................................................................................................................................. 107 GISSpecialist III............................................................................................................................ 130 GISSpecialist 1/11............................................................................................................................. 95 Environmental Resource Specialist V........................................................................................... 151 Environmental Resource Specialist IV.......................................................................................... 139 Environmental Resource Specialist III........................................................................................... 125 Environmental Resource Specialist I/II......................................................................................... 105 Environmental Resource Technician............................................................................................... 99 Administrative.................................................................................................................................. 69 EngineeringIntern ............................................................................................................................ 60 Information Technician 1/II.............................................................................................................. 69 Page I Exhibit C - Appendix 2: Standard Hourly Rates Schedule EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. Ali rights reserved This is EXHIBIT D, consisting of 5 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Duties, Responsibilities, and Limitations of Authority of Resident Project Representative Article 1 of the Agreement is supplemented to include the following agreement of the parties: D 1.01 Resident Project Representative A. Engineer shall furnish a Resident Project Representative ("RPR") to assist Engineer in observing progress and quality of the Work. At the Owners request, the RPR will provide Parttime representation.At the Owner's request, RPR will be available an average 20 hours per week and it is anticipated that the construction duration will not exceed 14 weeks with a project closeout duration of 2 weeks after final completion of construction. Due to the part-time nature of the RPR's involvement, it is acknowledged that neither the RPR or Engineer will be on -site during all construction activities. Therefore, it is not possible for some portions of the work to be observed to determine whether they are in conformance with the Contract Documents. Engineer has advised Owner of the risks associated with limiting site visits to part-time which include the possibility of construction delays, damage to existing property and infrastructure, and non -conforming work being undetected by Engineer or RPR. Owner has acknowledged said risks and agrees that the Engineer shall not be liable for anyadditional risks or any damages incurred by the owner as a result of the part-time nature of the Engineer's site visits. B. Through RPR's observations of Contractor's work in progress and field checks of materials and equipment, Engineer shall endeavor to provide further protection for Owner against defects and deficiencies in the Work. However, Engineer shall not, during such RPR field checks or as a result of such RPR observations of Contractor's work in progress, supervise, direct, or have control over Contractor's Work, nor shall Engineer (including the RPR) have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, for security or safety at the Site, for safety precautions and programs incident to any contractor's work in progress, or for any failure of a contractor to comply with Laws and Regulations applicable to such contractor's performing and furnishing of its work. The Engineer (including RPR) neither guarantee the performances of any contractor nor assumes responsibility for Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. In addition, the specific terms set forth in Paragraph A1.05 of Exhibit A of the Agreement are applicable. C. The duties and responsibilities of the RPR are as follows: General: RPR is Owner's representative at the Site, will act as directed by and under the supervision of the Owner, and will confer with Owner regarding RPR's actions. RPR's dealings in matters pertaining to the Contractor's work in progress shall in general be with Owner and Contractor. RPR's dealings with Subcontractors shall only be through or Page 1 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional services. Copyright © 2008 National society of Professional Engineers for EJCDC. All rights reserved. with the full knowledge and approval of Contractor. ADDADD sh.,l�llly. .-deate with Ovffier- only with the luiewledge of and under the 2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and schedule of values prepared by Contractor and consult with Owner concerning acceptability. 3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences and other project -related meetings, and prepare and circulate copies of minutes thereof. 4. Liaison: a. Serve as Owner's liaison with Contractor. Working principally through Contractor's authorized representative or designee, assist in providing information regarding the intent of the Contract Documents. b. Assist Engineer in serving as Owner's liaison with Contractor when Contractor's operations affect Owner's on -Site operations. c. Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. 5. Interpretation of Contract Documents: Report to Owner when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by Owner. 6. Shop Drawings and Samples: a. Record date of receipt of Samples and approved Shop Drawings. b. Receive Samples which are furnished at the Site by Contractor, and notify Owner of availability of Samples for examination. c. Advise Owner and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by Owner. 7. Modifications: Consider and evaluate Contractor's suggestions for modifications in Drawings or Specifications and report such suggestions, to Owner. Transmit to Contractor in writing decisions as issued by Owner 8. Review of Work and Rejection of Defective Work: Page 2 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. a. Conduct on -Site observations of Contractor's work in progress to assist Owner in determining if the Work is in general proceeding in accordance with the Contract Documents. b. Report to Owner whenever RPR believes that any part of Contractor's work in progress will not produce a completed Project that conforms generally to the Contract Documents or will imperil the integrity of the design concept of the completed Project as a functioning whole as indicated in 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 Ownerr of that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection, or approval. 9. Inspections, Tests, and System Start-ups: a. Consult with Owner in advance of scheduled inspections, tests, and systems start-ups. b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate Owners personnel, and that Contractor maintains adequate records thereof. c. Observe, record, and report to Owner appropriate details relative to the test procedures and systems start-ups. d. When present, accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections, and report to Owner. 10. Records: a. Maintain at the Site orderly files for correspondence, reports of job conferences, reproductions of original Contract Documents including all change orders, field orders, work change directives, addenda, additional Drawings issued subsequent to the execution of the Construction Contract, Owners's clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing and Sample submittals received from and delivered to Contractor, and other Project -related documents. b. Prepare a daily report or keep a diary or log book, recording Contractor's hours on the Site, weather conditions, data relative to questions of change orders, field orders, work change directives, or changed conditions, Site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to Owner. c. Record names, addresses, fax numbers, e-mail addresses, web site locations, and telephone numbers of all Contractors, Subcontractors, and major Suppliers of materials and equipment. Page 3 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright OO 2008 National Society of Professional Engineers for EJCDC. All rights reserved. d. Maintain records for use in preparing Project documentation. e. Upon completion of the Work, fumish original set of all RPR Project documentation to Owner. 11. Reports: a. Furnish to Owner periodic reports as required of progress of the Work and of Contractor's compliance with the progress schedule and schedule of Shop Drawing and Sample submittals. b. Draft and recommend to Owner proposed change orders, work change directives, and field orders. Obtain backup material from Contractor. c. Furnish to Owner copies of all inspection, test, and system start-up reports. d. Immediately notify Owner of the occurrence of any Site accidents, emergencies, acts of God endangering the Work, damage to property by fire or other causes, or the discovery of any Constituent of Concern. 12. Payment Requests: Review applications for payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to Owner, 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. 13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Contract Documents to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered toto Owner prior to payment for that part of the Work. 14. Completion: a. Participate in visits to the Project to determine Substantial Completion, assist in the detennination of Substantial Completion and the preparation of lists of items to be completed or corrected. b. Participate in a final visit to the Project in the company of Engineer, Owner, and Contractor, and prepare a final list of items to be completed and deficiencies to be remedied. Page 4 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. c. Observe whether all items on the final list have been completed or corrected and make recommendations to Owner concerning acceptance and issuance of the Notice of Acceptability of the Work (Exhibit E). D. Resident Project Representative shall not: 1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including "or -equal" items). 2. Exceed limitations of Engineer's authority as set forth in this Agreement. 3. Undertake any of the responsibilities of Contractor, Subcontractors or Suppliers. 4. Advise on, issue directions relative to, or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor's work. 5. Advise on, issue directions regarding, or assume control over security or safety practices, precautions, and programs in connection with the activities or operations of Owner or Contractor. 6. Participate in specialized field or laboratory tests or inspections conducted off -site by others except as specifically authorized by Engineer. 7. Accept shop drawing or sample submittals from anyone other than Contractor. 8. Authorize Owner to occupy the Project in whole or in part. Page 5 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT I, consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Limitations of Paragraph 6.10 of the Agreement is supplemented to include the following agreement of the parties: A. Limitation of Engineer's Liability 1. Engineer shall indemnify and hold harmless Owner up to the amount of this contract fee (for services) from loss or expense, including reasonable attorney's fees for claims for personal injury (including death) or property damage to the extent caused by the sole negligent act, error or omission of ...,.,. Engineer._f ne sueb .b ,ed t . Yre0dwith Oy.,ner'q G-Ia:.....a then the total l:abil:t.. in the a ,.at.. of Engineer ,l C . Rants to Owner ,. and anyone elaiffl1..L L. h,, or under QmmeF f raft),and all such ....:..sure. O-AB r' Claims shall fiat a B. Indemnification by Owner: To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court, arbitration, or other dispute resolution costs) arising out of or relating to the Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Owner or Owner's officers, directors, members, partners, agents, employees, consultants, or others retained by or under contract to the Owner with respect to this Agreement or to the Project. Page 1 (Exhibit I - Limitations on Liability) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright t0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 09/02/16 Name Toy Villa 7 Department Engineering BPW Date 09/13/16 Phone Extension 5920 Required Prior to Submittal to Board Legal ❑ Attorney Name Controller El greater review is required for all Contracts $5,000.00 or more and greater than one year in length per the City Purchasing Policy Purchasing ❑ Check the Appropriate Item Type — Required for AU Submissions ❑ Agreement ❑ Contract ❑ Proposal ❑Addendum ® Professional Services ❑ Resolution ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Change Order No. ❑ C/O & PCA No. ❑ PCA ❑ Ease/Encroach. ❑ Traffic Control ❑ Other: Company or Vendor Name New Vendor MBE/WBE Contractor MBE/WBE Contractor Requested Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Amount of Christopher B. Burke Engineering, LLC ❑ Yes ® No ❑ If Yes, Approved by Purchasing I -I MBE ❑ WBE RWDA TIF 324.1050.460.31.02 $ 41,500.00 (Not To Exceed) ❑ Required Contractor's Certification Form Attached (Non - Collusion, Non -Discrimination, Non -Debarment. E-Verifv. Iran. etc Increase Decrease Previous Amount Current Percent of Change New Amount Total Percent of Change: Copy Original ® ❑ ® ❑ ❑ ❑ Aaron Kobb For Change Orders On Dispersal After Approval