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HomeMy WebLinkAboutPSA - Jones Petrie Rafinski - Design of Leighton Plaza and Field SurveysThis 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 - ==o @END—, map ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by ACEC AACRICAN C0ONC11 OF I'16INE CRING (p%IPAN IEN AS, Cl American Society of Civil Engineers AGC of America THE+�C�CInT€DGf>wfR�tiR'rraiR�""R"fRbQ��ilulGti gwlilq Fc�rple. Quaklfy P�wiecis. o�,� National Society of Professional Engineers Professional ERglnears In Private Practice, AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA FWVJt I_rLI002I"":%y 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 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. CL 75 0, a1 7, I M.nffi,UM ;< : ., ; aw .� 'Mr, 71 a• g E �� 3 2 � . 1.0 p } mol f TABLE OF CONTENTS Page ARTICLE I — SERVICES OF ENGINEER... ....... .......................................................................................... 1 1.01 Scope............................................................................................................................................. 1 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 ARTICLE 5 — 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............................................................................................ 4 6.01 Standards of Performance............................................................................................................. 4 6.02 Design Without Construction Phase Services.............................................................................. 5 6.03 ................................. Use of Documents.................................................................................... .... 5 6.04 Insurance....................................................................................................................................... 7 6.05 Suspension and Termination........................................................................................................ 8 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.......................................................................................... 11 6.11 Miscellaneous Provisions........................................................................................................... 11 ARTICLE 7 — DEFINITIONS........................................................................................................................ 12 7.01 Defined Terms............................................................................................................................ 12 ARTICLE 8 — EXHIBITS AND SPECIAL PROVISIONS........................................................................... 15 9.01 Exhibits Included........................................................................................................................ 15 8.02 Total Agreement......................................................................................................................... 16 8.03 Designated Representatives........................................................................................................ 16 8.04 Engineer's Certifications............................................................................................................. 16 J, k( �-- -, �, D C II --MEOW 110=- u,. ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of ADU , �� ("Effective Date") between Department of Public Works, City of South Bend, Indiana ("Owner") and Jones Petrie Rafinski Corporation (JPR) ("Engineer"). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Downtown East-West Streetsca es (#117-041), ("Project"). Engineer's services under this Agreement are generally identified as follows: Refer to Exhibit A 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. 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. 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 Page I EJCDC E-500 Agreement Between owner and Engineer for Professional Services Copyright© 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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 far 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 EdCDC. All rights reserved. 4-. afnaLints due Engineep will be ineFeased at the rate of 0 rate of WeFest perfflitted by > if id th > 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. Disported 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 of Probable 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 Designing to Construction Cost Limit A. If a Construction Cost limit is established between Owner and Engineer, such Construction Cost limit and a statement of Engineer's rights and responsibilities with respect thereto will be specifically set forth in Exhibit F, "Construction Cost Limit," to this Agreement. 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. Page 3 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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 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-furnishcd 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. provided to Engineer in writing. 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 Page 4 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for E,ICDC. All rights reserved. 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 contractor to comply with Laws and Regulations applicable to such contractor's furnishing and performing of its work. 1. 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 Page 5 EJC➢C E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJC➢C. All rights reserved. the prior written authorization of the Engineer. All D ents . instruments f fespeet te this Wqjeet, and Engineer shall retain an ewnership and pfepe" interest thereH'4 (inelud!Hg the eapyright and the right of reuse at the disefetion of the Engineer-) vAethef or- n 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. 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. Page 6 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright C 2008 Rational Society of Professional Engineers for EJCDC. All rights reserved. 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. 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. " " Ownev shall applieable 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. 0wneF and Engineer shall each -deliver to the Owner e 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 Page 7 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for I JCDC. All rights reserved. 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: 1. By Owner: Owner may suspend the Project for up to 90 days upon seven days written notice to Engineer. 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. Page 8 --- — EJCDC E-500 Agreement Between Owner find Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Effective Date of Termination: The terminating party under Paragraph 6.05.13 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: I. 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.D.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: I. 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. Page 9 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright C 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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. 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 Page 10 ---------- EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright © 2009 National Society of Professional Engineers for EJCDC. All rights reserved. may be encountered at or near the Site in connection with Engineer's activities under this Agreement. 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 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 1, "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 patty'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 party 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 parry'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 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. 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 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 patty'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 statutoty 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: 1. 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 I of Exhibit A of this Agreement. Construction Contract — The entire and integrated written agreement between Owner and Contractor concerning the Work. Construction Cost — The cost to Owner of those portions of the entire Project designed or specified by Engineer. 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 Page 12 EJCDC E-500 Agreement Between owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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. 7. 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. §§ 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 furnished 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. Page 13 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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 — Polychlorinated biphenyls. 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. 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. 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. Subconti-actor — An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a pant 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 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, tmterialman, 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 set -vices, 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 pans 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. Exhibit E, Notice of Acceptability of Work. E, P*tF, C—enstmetien Cosh 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. ,� i .. ..✓ Amos ,( _.. i 1W�ArlktAl.�.�� ►i�I�1Ra'Il. �A 'Yi y R 7 r I U. • I o fSOL I 'II , _ii'r'r�''f; ���r,ra�-l:rena�r I.,�� �Ir�•. — Za- 4 01, lPNT� �H Ilan J IC�t.i d'�1 ��'.!iA'_'-'��� F:i�•�i''i�,4�,'�,i��'� i'�'fy���IF!t.•Ir.�l '1?r* .ikt��'�T, I � A it I1�• i�Y F �� ;:It�l�t:'"<X�i � �i �11k',. ��1 I:t�V'� • 'IIY I � ! T l � T ' iT `�4'�I%ir 1111 — �{{ff �i ilN •, ' IWN: AAX R ,• . - r� i i � � � l - -T ,�%���.�� ��k ��x',-F4��:�;1 �•t'�ndi� .�� �Y.. ,}.. I 'r � - � - - --..—. —_ e I � � _ to � rl:ll ti�ia•Y�FI�'"�f{ �- .,I •I 1, �.'' IPA! 4+ 1v I F ir"w1hr,i Io-ft fRi , Ir .s5', Y ~iLa Ilri'r M •/1117�= JC3i f� :L7t f..f I — . Y . 1I [ !C4 1I , P jy G. Exhibit G, Insurance. K Exhibit 14, Dispute .NOT INCLUDED I. Exhibit 1, Limitations of Liability. Exhibit J, Special Provisions. rr Exhibit rr Amendment is Owner Engineer A ent NOT INCLUDED 8.02 Total Agreement: 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 anything 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. This is EXHIBIT A, consisting of 13 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Engineer's 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 Downtown South Bend Cross Streets The City of South Bend is looking to complete the downtown Two -Way Street project by incorporating the established streetscape details and amenities on the adjoining east -west cross streets. The streets that are to be a part of the Downton Cross Street project include Colfax Avuenue, Washington Street, Jefferson Boulevard, and Wayne Street, between Lafayette Boulevard and Dr. Martin Luther King, Jr. Boulevard. In addition, the block of Michigan Street, between Colfax Avenue and LaSalle is to be a part of the project. The City has approximately $1 million allocated for the first phase of the Downtown Cross Street project. It is anticipated that the project Iimits for this initial phase are to include the north section of Michigan Street between LaSalle Avenue Colfax Avenue, and Colfax Avenue between Main Street and Dr. Martin Luther King, Jr. Drive. In addition, portions of Washington Street, between Main Street and Dr. Martin Luther King, Jr. Boulevard may be a part of the project depending on the estimated construction budget, Therefore, the Scope of Services for the development of the Construction Documents identified below are only for the first phase of the Downtown South Bend Cross Streets project. A. Topo -graphic Survey Activities: The Engineer has reviewed the proposed concept drawing, aerial photographs as well as driven the site limits, shown in Attachment B, to obtain a thorough understanding of the task at hand. The cross street corridors include the following roadways: Colfax Avenue, Washington Street, Jefferson Boulevard, and Wayne Street. The western limit for each roadway is the centerline of Lafayette Boulevard and the eastern limit the centerline of St. Joseph Street. Topographic information will be collected within the rights -of -way of each Street. There are approximately 5,200 lineal feet of roadway within the project limits. A cursory review of sanitary and storm structures would indicate that there are approximately 240 structures that need to be investigated or verified for this project. There is a significant amount of vehicular traffic within the project limits; therefore, it will be imperative that safety measures be followed to ensure the safety of the field crews as well as the safety of the public. The Engineer will provide the following information as it pertains to the survey tasks: 1. Request utility locates per the Indiana 811 Call Before You Dig call center. We will conduct a pre -survey utility coordination meeting prior to the commencement of the field investigation so that the utility companies will have an understanding of the project goals. Page r (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. Please note that the utilities located by this company do not include any private utilities. Should private utilities exist within the project limits it may be necessary to contact a private utility locating company to have these lines marked in the field. Fees associated with a private utility locating company are provided as an Allowance, as identified in Exhibit C. 2. Correspondence with utility companies to facilitate the locate process. This may include requesting record utility information so the location of the utilities may be graphically depicted on the drawings. 3. Perform research to acquire subdivision plats, prior surveys, and roadway plans. 4. Establish both horizontal and vertical control throughout the project limits utilizing both GPS survey grade equipment as well as conventional survey equipment. 5. Collect the topographic information within the project limits, including but not limited to, sanitary and storm structures, edges of pavement and curb lines, building comers, observed utilities, trees and spot and finish floor elevations. 6. Collect invert information for the sanitary and storm structures within the project limits. 7. Prepare a CAD drawing of the existing site conditions that will include a surface model with contours for design purposes. 8. If required, the Engineer shall prepare a Location Control Route Survey for the roadways associated with this project. The Location Control Route Survey will be necessary to facilitate the right-of-way engineering phase, should any additional area be needed for right- of-way. Fees for preparation of a Location Control Route Survey are not included in this proposal. B. Utility Coordination: The Engineer will facilitate utility coordination with the various City and private utilities related to the location of existing facilities, potential utility relocation efforts and potential new connections. C. 30% Submittal - Schematic Design Phase: Upon completion of the topographic survey and after base plan has been developed, the Engineer team will commence with the 30% Construction Documents that will include Colfax Avenue and Washington Street. The team will utilize the previously developed plans and details developed for the Two-way Street Development project as a basis from which to begin the detail design phase for the cross streets. It is understood that this project will incorporate the overall character of the Two- way Street Conversion improvements developed on Main Street and Dr. Martin. Luther King, Jr. Boulevard. The scope of services that will be provided during the Schematic Design Phase are as follows: I. Upon receiving the Notice to Proceed, the Engineer shall conduct and facilitate a Strategic Kick -Off Meeting to collect information and input on desired outcomes, programming, existing and proposed utility requirements, desired vehicular and pedestrian circulation patterns, aesthetic requirements, project schedule, and to develop the overall project management chain of communication. 2. The Engineering team will conduct an in-house team meeting to discuss goals, objectives, and project schedule for this phase of the project and to identify any potential issues or challenges that shall be addressed. Page 2 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright OO 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 3. The Engineer will coordination with the City of South Bend on known location of existing building and utility vaults. The Engineer will walk the project boundaries with the City to review these locations and may identify possible areas for further investigation. Measurement of the vaults both horizontally and vertically may be required. The measurements, if necessary, will be considerd as a reimbursable expense and is identified in the Reimbursable Expense section below. 4. Preliminary Maintenance of Traffic Plan: Upon receiving the Notice to Proceed the Engineer will prepare various schemes for the Maintenance of Traffic Plan. These schemes will be presented to the City for discussion purposes and to determine the most appropriate plan. 5. After obtaining the initial input, the Engineer team will commence with the development of the Schematic Design and will further define the overall design and layout. This will include, but not be limited to, roadway improvements, pedestrian pathways, general grades and utilities, proposed site amenities (lighting, pavement patterns, etc.) and general landscape improvements. 6. Progress Meeting #1: Once a base plan that includes the general geometry of the proposed roadway and pedestrian pathways has been prepared the Engineer will conduct a progress/coordination meeting with City of South Bend Staff to present the initial plans and to obtain input and to ensure that the project in proceeding in the proper direction. 7. Based on the input from Progress Meeting #1, the team will further define the overall design and will determine potential project challenges and opportunities. 8. The Engineer will prepare a Preliminary Opinion of Probable Cost and begin the development of a Phasing Plan based on known project funding. 9. Due to the project schedule and funding sources, the project will be prepared with multiple Divisions. The Engineer will delineate the phasing limits and will present a phasing plan to the Owner for review and approval. 10. Progress Meeting 92: Upon refinement of the 30% Design package and preparation of the Preliminary Opinion of Probable cost, the Engineer will conduct another progress meeting with the City of South Bend Staff to present the plans and preliminary estimates. 11. The Engineer will further refine the Schematic Design based on the input collected from the Progress Meeting #2 and will submit the required plans and documentations to the City for review. In addition, based on the available construction budget funding, The Engineer will work with the City to determine the appropriate phasing plan from which the development of individual Construction Documents, Special Provisions and related Bidding Documents will be prepared. 12. Stakeholder Meeting: The Engineer will assists the City of South Bend staff to present the 30% drawing to the various stakeholders and business to obtain input and comments on the 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. project approach and design. Comments received will be incorporated into the plans and phasing options. 13. Deliverables for the 30% submittal to the Owner will be provided in PDF format. D. 60% Submittal - Design. Development Phase After acceptance by Owner of the 30% Submittal (Schematic Design) documents, revised opinion of probable Construction Cost, and any other deliverables subject to any Owner -directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from Owner, the Engineer shall: 1. Based on the data collected, the team will move into the development of the 60% Submittal package. This will include, but not be limited to, further definition of the roadway improvments, pedestrian walkways, street lighting, grading, utility connections, site amenities, landscaping. 2. The Engineer's team will meet to review the plan documents and to continue the coordination efforts to ensure that the necessary elements of the plan development are on track and on schedule. 3. Preliminary Maintenance of Traffic Plan: The Engineer will continue to define the Maintenance of Traffic Plan based on meetings with the City. 4. Progress Meeting #3: The Engineer will coordinate and facilitate a progress meeting to review with the City of South staff the plans and to ensure that project is coordinated with the various departments and that the project is on schedule. 5. Based on the input from Progress Meeting #3, the team will continue to develop the 60% submittal plans and will begin to develop construction specifications. 6. The Engineer will revise the Preliminary Opinion of Probable Cost based on the refinements to the plans. 7. Progress Meeting #4: Upon refinement of the 60% Design package and refinement of the Preliminary Opinion of Probable cost, the Engineer will conduct Progress Meeting #4 with the City of South Bend staff to present the plans and preliminary estimates. 8. The Engineer will further refine the 60% plans based on the input collected from the Progress Meeting #4, and will submit the required plans and documentations to the City for review. 9. As the project construction limits are greater than one (1) acre, the project will subject to the City of South Bend's Pre and Post Construction Stormwater Management Plan and Rule 5 or Erosion Control Plan. The Engineer will prepare the required plans and documents and submit them accordingly. 10. Deliverables for the 60% submittal to the Owner will be provided in PDF format. Page 4 (Exhibit A — Engineer's Services) EJCaC E-500 Agreement Between Owner and Engineer For Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. E. 90% Submittal — Phase One Final Construction Documents After acceptance by Owner of the 60% Submittal documents, revised opinion of probable Construction Cost, and any other deliverables subject to any Owner -directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from Owner, the Engineer shall: 1. The Engineer team will meet to review the plan documents and to continue the coordination efforts to ensure that the necessary elements of the plan development are on track and on schedule. 2. Maintenance of Traffic Plan: a Maintenance of Traffic plan will be prepared specifically for the identified Division phases. 3. Based on the data collected including comments from the City review, the Engineer will move into the development of the 90% Submittal package. Further refinement to the design based on input collected. 4. Progress Meeting 95: The Engineer will coordinate and facilitate a progress meeting to review with the City of South Bend Staff the plans and to ensure that project is coordinated with the various departments and that the project is on schedule. 5. Based on the input from Progress Meeting #5, the team will continue to develop the 90% submittal plans and will begin to develop construction specifications. 6. The Engineer will further define the Preliminary Cost Estimate based on the refinements to the plans. 7. Progress Meeting #6: Upon refinement of the 90% Submittal package and refinement of the Preliminary Cost Estimate, The Engineer will conduct Progress Meeting #6 with the City of South Bend Staff to present the plans, preliminary estimates, special provisions and bid tabs. This meeting will also include the various stakeholders to review the overall layout and connections to their properties. 8. The Team will further refine the 90% plans based on the input collected from the Progress Meeting #6 and will submit the required plans and documentations for to the Owner for review. 9. Stakeholder Meeting: The Engineer will assist the City of South Bend staff in conducting a meeting with the stakeholders and affected business related to the identified Phase One project limits. Comments and input collected during this meeting will be incorparted into the final stages of the Construction Documents development. 10. Deliverables for the 90% submittal to the Owner will be provided in PDF format. A. 100% Submittal —Final Construction Documents After acceptance by Owner of the Phase One 90% Submittal documents, revised opinion of probable Construction Cost, and any other deliverables subject to any Owner -directed Page 5 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between owner and Engineer for Professional Services Copyright CO 2005 National Society of Professional Engineers for EJCDC. All rights reserved. modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from Owner, the Engineer shall: 1. The Engineer will meet to review the plait documents and to continue the coordination efforts to ensure that the necessary elements of the plan development are on track and on schedule. 2. Based on the comments provided by the City of South Bend staff, the Engineer will prepare the construction documents, specifications and cost estimates for bidding purposes. 3. The Engineer will finalize the project Cost Estimate. 4. Progress Meeting #7: Upon refinement of the 100% Design package and finalization of the cost estimate, the Engineer will conduct Progress Meeting #8 with the City of South Bend staff to present the final plans, cost estimates, special provisions and bid tabs. 5. The Team will submit the 100% Submittal package to the Owner for final review and comments prior to project bidding. 6. Deliverables for the 100% submittal to the Owner will be provided in PDF format. B. Biddin or r Negotiatin Phase: After acceptance by Owner of the bidding documents and the most recent opinion of probable Construction Cost as determined from the 100% Construction Document submittal, and upon written authorization by Owner to proceed, Engineer shall: 1. Assist Owner in advertising for and obtaining bids or proposals for the Work and, where applicable, and maintain a record of prospective bidders to whom Bidding Documents have been issued. 2. Coordinate and facilitate a Pre -Bid Meeting with the potential bidding contractors. 3. issue addenda as appropriate to clarify, correct, or change the bidding documents. 4. Provide information or assistance needed by Owner in the course of any negotiations with prospective contractors. 5. Consult with Owner as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by prospective contractors for those portions of the Work as to which such acceptability is required by the bidding documents. 6. if bidding documents require, the Engineer shall evaluate and determine the acceptability of "or equals" and substitute materials and equipment proposed by bidders. 7. Attend the Bid opening, prepare Bid tabulation sheets, and assist Owner in evaluating Bids or proposals and in assembling and awarding contracts for the Work. Page b (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. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. C. Construction Services (Hourly, Not to Exceed): Periodic reviews of site construction will be completed to ensure the contractor(s) is providing the level of quality that is required for the project. It is anticipated that the site work will be constructed in two phases. The construction administration services will include: 1. Reviews of site construction, when requested by the City, will be completed to ensure the Contractor(s) is providing the level of quality that is required for the project; The Engineer will provide clarification/interpretations of the Contract Documents if such interpretations are necessary for the proper execution or progress of work; 2. The Engineer shall render written recommendations on claims, disputes and other matters in question between the owner and contractor relating to the execution or progress of the project as provided by the Contract Documents; 3. Review and approve, or take other appropriate action and forward to the client for final disposition, the contractor's submittals such as Shop Drawings, Product Data and Samples with respect to Contract Documents produced by the Engineer; 4. Prepare responses to Request for Information (RFI) provided by the contractor; 5. Provide field reports describing observations, problems and recommended solutions; 6. Provide punch lists and based on site observations; 7. Conduct a Final Punch List site review; Conduct inspections to determine the date or dates of Substantial Completion and the date of Final Completion; 9. Review and approve, or take other appropriate action on, the contractor's list of items to be completed or corrected. Page 7 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 Rational Society of Professional Engineers for EJCDC. All rights reserved. A 1.02 Leighton Plaza Improvente►tts The Leightton Plaza Plaza project will include the installation of a commissioned Dr.Martin Luther King, Jr. and Father Hesburgh sculpture created by Tuck Langland and water fountain, relocation of the Leighton Plaza medallion, site furnishings, and landscaping. The proposed site improvements will be located within the existing Leighton Plaza which is on top of an underground parking garage. Careful attention to the placement of the project elements in terms of footings and weight will be required. It is understood that the sculpture and its footings shall be installed before June, 2017 with a desire to include other elements as well in this timeframe. A. Topographic Survey Activities The survey limits for the Leighton Plaza Improvements are within east -west portion of the plaza bordered by the existing buildings along the north and south sides and by the existing parking garage to the east. Planters, seatwalls, lights columns, stone columns, walkways, grades and edge of pavement along Main Street will be located. B. Coordination and Pre -Engineering; 1. Attend a project kick-off meeting with the City of South Bend and the Sculptor to review the overall project scope, goals, and design intent. Anticipated weight and anchoring methods of the sculpture is to be provided by the Sculptor. Coordinate and participate in one (I) utility coordination meeting to discuss the proposed project to and to identify any possible utility conflicts. The Engineer will review the provided Leighton Plaza drawings and structural plan to determing the optimal location of the sculpture and water feature. The Engineer will conduct a site visit to review the existing conditions, parking garage and structural layout. 4. The Engineer will utilize the proposed conceptual layout showing the location of the sculpture, water feature and relocated medallion, provided by City, to prepare a base plan from which to develop the necessary Construction Documents and Specificiation. 5. The Engineer will prepare an Opinion of Probable cost for this project development. b. Present the revised concept plan and cost estimate to the City of South Bend. C. Construction Documents; 1. Based upon feedback from the concept plan, the engineer will develop Design Development Plans (30% submittal), details and specifications. 2. The engineer will submit the development plans, details and specificaitions for review and coordination with the City of South Bend. 3. The engineer will attend a meeting with the City to review the comments and feedback. 4. The Engineer will develop the Construction Documents including plans and specifications based on input form the design development drawings review. The plans will include: .. 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 reserver]. A. Demolition B. Dimension / Layout C. Utility and Grading D. Lighting E. Landscape F. Construction details G. Special Provisions 1. The Engineer will submit the construction documents and special provisions to the City for review 2. The engineer will attend up to four (4) meetings with the City to review their comments. 3. The Engineer will make the necessary revisions to the documents per review comments. D. Bidding orNggotiating Phase: After acceptance by Owner of the bidding documents and the most recent opinion of probable Construction Cost as determined from the 100% Construction Document submittal, and upon written authorization by Owner to proceed, Engineer shall: 4. Assist Owner in advertising for and obtaining bids or proposals for the Work and, where applicable, and maintain a record of prospective bidders to whom Bidding Documents have been issued. 5. Coordinate and facilitate a Pre -Bid Meeting with the potential bidding contractors. 6. Issue addenda as appropriate to clarify, correct, or change the bidding documents. 7. Provide information or assistance needed by Owner in the course of any negotiations with prospective contractors. 8. Consult with Owner as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by prospective contractors for those portions of the Work as to which such acceptability is required by the bidding documents. 9. If bidding documents require, the Engineer shall evaluate and determine the acceptability of "or equals" and substitute materials and equipment proposed by bidders. 10. Attend the Bid opening, prepare Bid tabulation sheets, and assist Owner in evaluating Bids or proposals and in assembling and awarding contracts for the Work. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A. Construction Services (Hourly, Not to Exceed): Periodic reviews of site construction will be completed to ensure the contractor(s) is providing the level of quality that is required for the project. It is anticipated that the site work will be constructed in two phases. Page 9 (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. The construction administration services will include: 1. Reviews of site construction, when requested by the City, will be completed to ensure the Contractor(s) is providing the level of quality that is required for the project; 2. The Engineer will provide clarification/interpretations of the Contract Documents if such interpretations are necessary for the proper execution or progress of work; 3. The Engineer shall render written recommendations on claims, disputes and other matters in question between the owner and contractor relating to the execution or progress of the project as provided by the Contract Documents; 4. Review and approve, or take other appropriate action and forward to the client for final disposition, the contractor's submittals such as Shop Drawings, Product Data and Samples with respect to Contract Documents produced by the Engieer; 5. Prepare responses to Request for Information (RFI) provided by the contractor; 6. Provide field reports describing observations, problems and recommended solutions; 7. Provide punch lists and based on site observations; 8. Conduct a Final Punch List site review; 9. Conduct inspections to determine the date or dates of Substantial Completion and the date of Final Completion; 10. It is understood that the sculpture, lighting and possibly the fountain are to be installed by June 21, 2017. If not possible due to construction timing, the proposed planting pots, landscaping, and site furniture are to be installed and provided shortly thereafter. 11. Review and approve, or take other appropriate action on, the contractor's list of items to be completed or corrected. A 1.03 Michigan Street Improvements The City of South Bend is in the planning stage to to repave the drive lanes on Michigan Street from Colfax Avenue to Western Avenue. As part of this planning effort it has been discussed if the existing 90-degree parking spaces should remain or whether they should be reconfigured as angle parking. The City is also interested is whether adding parking spaces on the east side of Michigan Street between Colfax Avenue an Washington Street is feasible. A. Topographic Survey Activities The Engineer has reviewed the proposed concept drawing, aerial photographs as well as driven the site limits, shown in Attachment B, to obtain a thorough understanding of the task at hand. The survey limits for the Michigan Street Corridor are as follows: Western Avenue intersection is the southern limit and the northern limit is where Michigan Street intersects St. Joseph Street. Topographic information will be collected within the right-of-way of Michigan Street. A total .................. Page 10 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCAC. All rights reserved. length of the project limits is approximately 2,400 lineal feet of roadway. Survey work for this project will exclude intersection work collect for the Cross Streets task. A cursory review of sanitary and storm structures would indicate that there are approximately 100 structures that need to be investigated or verified for this project. There is a significant amount of vehicular traffic within the project limits; therefore, it will be imperative that safety measures be followed to ensure the safety of the field crews as well as the safety of the public. The Engineer will provide the following information as it pertains to the survey tasks: 1. Request utility locates per the Indiana 811 Call Before You Dig call center. We will conduct a pre -survey utility coordination meeting prior to the commencement of the field investigation so that the utility companies will have an understanding of the project goals. Please note that the utilities located by this company do not include any private utilities. Should private utilities exist within the project limits it may be necessary to contact a private utility locating company to have these lines marked in the field. Fees associated with a private utility locating company are provided as an Allowance, as identified in Exhibit C. 2. Correspondence with utility companies to facilitate the locate process. This may include requesting record utility information so the location of the utilities may be graphically depicted on the drawings. 3. Perform research to acquire subdivision plats, prior surveys, and roadway plans. 4. Establish both horizontal and vertical control throughout the project limits utilizing both GPS survey grade equipment as well as conventional survey equipment. 5. Collect the topographic information within the project limits, including but not limited to, sanitary and storm structures, edges of pavement and curb lines, building corners, observed utilities, trees and spot and finish floor elevations. 6. Collect invert information for the sanitary and storm structures within the project limits. 7. Prepare a CAD drawing of the existing site conditions that will include a surface model with contours for design purposes. 8. If required, the Engineer shall prepare a Location Control Route Survey for the roadways associated with this project. The Location Control Route Survey will be necessary to facilitate the right-of-way engineering phase, should any additional area be needed for right- of-way. Fees for preparation of a Location Control Route Survey are not included in this proposal. PART 2 — ADDITIONAL SERVICES A2,01 Additional Services 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 Page 11 (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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. 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 required as a result of Owner's providing incomplete or incorrect Project information to Engineer. 5. Providing renderings or models for Owner's use. G. 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. 7. Furnishing services of Consultants for other than Basic Services. 8. Services during out-of-town travel required of Engineer other than for visits to the Site or Owner's office. 9. 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 constructability 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. 10. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by Owner for the Work or a portion thereof. 11. 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. 12. 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. Page 12 (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. 13. Providing more extensive services required to enable Engineer to Issue notices or certifications requested by Owner. 14. Assistance in connection with the adjusting of Project equipment and systems. 15. Assistance to Owner in training Owner's staff to operate and maintain Project equipment and systems. 16. 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 B. 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, 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. PART 3 — PROJECT SCHEDULE A3.01 Project Schedule A. Refer to Attached E for the anticipated project schedule. 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. Page 13 (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: B. 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 furnish 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. C. 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. D. 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: 1. 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. E. 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 Page 1 (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. 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. F. Authorize Engineer to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as required. G. Arrange for safe access to and make all provisions for Engineer to enter upon public and private properly as required for Engineer to perform services under the Agreement. H. 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. 1. Provide reviews, approvals, and permits 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. J. Recognizing and acknowledging that Engineer's services and expertise do not include the following services, provide, as required for the Project: I. 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. K. Place and pay for advertisement for Bids in appropriate publications. L. 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 constructability review. M. 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. N. 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 S— Owner's Responsibilities) E1CDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright (0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. O. 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. P. 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. Q. 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. R. Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this paragraph. S. Inform Engineer in writing of any specific requirements of safety or security programs that are applicable to Engineer, as a visitor to the Site. T. Perform or provide the following additional sefviees: fAkei;e fi-st an�stieh additional servieesT. Page 3 (Exhibit B — Owner's Responsibilities) EJCDC E-100 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT C, consisting of 4 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-1: Basic Services — Lump Sum 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 (other than Resident Project Representative) — Lump Sum Method of Payment A. Owner shall pay Engineer for Basic Services set forth in Exhibit A, except for services of Engineer's Resident Project Representative, if any, as follows: 1. A Lump Sum amount of $189,710.00 based on the following estimated distribution of compensation: A. Downtown South Bend Cross Streets 1) Topographic Survey Activities: $51,860.00 2) Utility Coordination: $1,850.00 3) 30% Submittal -- Schematic Design Phase: $13,500.00 4) 60% Submittal — Design Development Phase: $18,000.00 5) 90% Submittal - Construction Documents $30,375.00 6) 100% Submittal - Construction Documents $10,125.00 7) Bidding and Negotiating Phase $4,500.00 8) Construction Services (Hourly, Not to Exceed) $13,500.00 Total Estimate Lump Sum Fee, Downtown Cross Streets $143,710.00 B. Leiahton Plaza Scullature and Water Feature 1) Topographic Survey Activities: $3,765.00 2) Coordination and Pre -Engineering: $1,150.00 3) Construction Documents: $9,500.00 4) Bidding and Negotiating Phase: $1,150.00 5) Construction Services, (Hourly, Not to Exceed) $3,250.00 Total Estimated Lump Sum Fee, Leighton Plaza $18,815.00 C. Michigan Street Improvements 1) Topographic Survey Activities: $27,185.00 Total Estimated Lump Sum Fee, Michigan Street $27,185.00 2. Engineer may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the Owner. Page t Exhibit C ---Compensation Packet BC-1: Basic Services (ather than RPR) — Lump Sum Methad 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. 3. The Lump Sum includes compensation for Engineer's services and services of Engineer's Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for labor, overhead, profit, and Reimbursable Expenses. 4. The portion of the Lump Sum amount billed for Engineer's services will be based upon Engineer's estimate of the percentage of the total services actually completed during the billing period B. Allowance: If required, an allowance for the investigation and measurements of underground building vaults within the public right-of-way, billed on a Time and Expense basis is as follows: 1. Allowance: Vault Locates, if required $2,550.00 C. Period of Service: The compensation amount stipulated in Compensation Packet BC-1 is conditioned on a period of service not exceeding 12 months. If such period of service is extended, the compensation amount for Engineer's services shall be appropriately adjusted. Page 2 Exhibit C —Compensation Packet BC-1: Basic Services (other than RPR) -- Lump Sum 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 AS-1: Additional Services — Standard Hourly Rates Article 2 of the Agreement is supplemented 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: 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 A2.01.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 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; 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. 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 1.00. 4, The Reimbursable Expenses Schedule will be adjusted annually (as of ^) to reflect equitable changes in the compensation payable to Engineer. C. Other Provisions Concerning Payment For Additional Services: 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 1.00. Page 1 Exhibit C —Compensation Packet AS-3- Additional Services -- Salary Costs Times a Factor Method of Payment EJCDC E-500 Agreement Between Owner and Engineer far Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 2. Fciclors: 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. To the extent necessary to verify Engineer's charges and upon Owner's timely request, Engineer shall mace copies of such records available to Owner at cost. Page 2 Exhibit C — Compensation Packet AS-3: Additional Services — Salary Costs Times a Factor Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 Nafional Society of Professionnl Engineers for EJCDC. All rights reserved. This is Appendix 1 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 $ /page 8"xI V Copies/Impressions /page Blue Print Copies /Sq. ft. Reproducible Copies (Mylar) /sq. ft. Reproducible Copies (Paper) /sq. ft. Mileage (auto) /mile Field Truck Daily Charge /day Mileage (Field Truck) /mile Field Survey Equipment /day Confined Space Equipment /day plus expenses Resident Project Representative Equipment /month Specialized Software /hour CAD Charge /hour CAE Terminal Charge /hour Video Equipment Charge /day, $ /week, or $ /month Electrical Meters Charge Jweek, or $ /month Flow Meter Charge /week, or $ /month Rain Gauge /week, or $ /month Sampler Charge /week, or $ /month Dissolved Oxygen Tester Charge /week Fluorometer /week Laboratory Pilot Testing Charge /week, or $ /month Soil Gas Kit Iday Submersible Pump Iday Water Level Meter Iday, or $ /month Soil Sampling /sample Groundwater Sampling /sample Health and Safety Level D Iday Health and Safety Level C Iday Electronic Media Charge /hour Long Distance Phone Calls at cost Mobile Phone Iday Meals and Lodging at cost Page 1 Exhibit C— Appendix is Reimbursable Expenses Schedule 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 Appendix 2 to EXHIBIT C, consisting of 1 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: 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: Principal Officer $165.00 Senior Licensed Staff $123.00 Licensed Staff $112.00 Project Manager $112.00 Graduate Staff $ 88.00 Senior Technician $ 78.00 Resident Project Representative $ 78.00 Administrative Assistant $ 75.00 Senior Draftsperson $ 75.00 Utility Operations Field Technician $ 72.00 Secretarial 1 Clerical $ 67.00 Technician $ 67.00 Draftsperson $ 67.00 4 Pet -son Construction Survey Crew $214.00 3 Person Construction Survey Crew $191.00 2 Person Construction Survey Crew $149.00 1 Person Construction Survey Crew $118.00 4 Person Survey Crew $181.00 3 Person Survey Crew $165.00 2 Person Survey Crew $144.00 1 Person Survey Crew $103.00 Page I Exhibit C — Appendix 2: Standard Hourly Rates Schedule EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 Nntional Society of Professional Engineers far EJCDC. All rights reserved. This is EXHIBIT G, consisting of 3 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Insurance Paragraph 6.04 of the Agreement is supplemented to include the following agreement of the parties. G6.04 Insurance G. The limits of liability for the insurance required by Paragraph 6.04.A and 6.04.13 of the Agreement are as follows: 1. By Engineer: A. Workers' Compensation: B. Employer's Liability -- 1) Each Accident: 2) Disease, Policy Limit: 3) Disease, Each Employee: C. General Liability -- 1) Each Occurrence (Bodily Injury and Property Damage) 2) General Aggregate: D. Excess or Umbrella Liability -- 1) Each Occurrence: 2) General Aggregate: Statutory $500,000 $500,000 $500,000 $1,000,000 $2,000,000 $5,000,000 $5,000,000 E. Automobile Liability --Combined Single Limit (Bodily Injury and Property Damage): Each Accident $1,000,000 F. Professional Liability- 1) Each Claim Made $1,000,000 2) Annual Aggregate $2,000,000 G. Other (specify): $0,00 ---- - Page 1 (Exhibit G - Insurance) 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 Owner: A. Workers' Compensation: Statutory B. Employer's Liability -- 1) Each Accident $ 2) Disease, Policy Limit $ 3) Disease, Each Employee $ C. General Liability -- 1) General Aggregate: $ 2) Each Occurrence (Bodily injury and Property Damage): $ D. Excess Umbrella Liability -- 1) Each Occurrence: $ 2) General Aggregate: $ E. Automobile Liability --Combined Single Limit (Bodily Injury and Property Damage): Each Accident: $ R Other (specify): $ H. Additional Insureds: 1. The following persons or entities are to be listed on Owner's general liability policies of insurance as additional insureds, and on any applicable property insurance policy as loss payees, as provided in Paragraph 6.04.13: -- - Page 2 (Exhibit G - Insurance) E.ICDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. a. Engineer b. Engineer's Consultant C. Engineer's Consultant 2. During the term of this Agreement the Engineer shall notify Owner of any other Consultant to be listed as an additional insured on Owner's general liability and property policies of insurance. 3. The Owner shall be listed on Engineer's general liability policy as provided in Paragraph 6.04.A. Page 3 (Exhibit G - Insurance) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for E.ICDC. All rights reserved. A _ CERTIFICATE OF LIABILITY INSURANCE °0110912017Y' YRDIwCER PH: 734A25-9710 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION DESIGNPRO INSURANCE GROUP P.Q. 90x 51110$ ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. LIVONIA, MI 48151 {734) 425-9710 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A! RLI INSURANCE COMPANY JONES PETRIE RAFINSKI CORP. INSURER B: 325 S. L AFAYETTE BLVD. INSURER c: SOUTH BEND, IN 46601 INSURER D: INSURER E: Sorm it THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAIL) CLAIMS. gyp' TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPI TIAN LIMITS CENERAL LIABILITY EACHOCCU1401LOCE 1000000 A X COMMEROAL GENERAL LIABILITY CLAIM -MALE ElOCCUR #PS80002637 11-27.16 11.27-17 DAMAGE TO RENTED ; 1 DDD ODD MFOFXP An nne ; 10000 PIzRWJNALSA0V1hhJukY ; 1,000,000 GENERAL AGGREGAIE S 2 000 DDD GEN'L AGGREGATE LIMIT APPUES PER PRODUCTS - COMPIOP AG3 2000,000 X POLICY 1 O- LOG AUTOMOBILE LIABILITY ANY AUTO CCMBINEU SINGLE LIMIT {Ea xaeerp ; 1,D00,000 BOUILY INLURY (Per Person) 5 A ALL OWNED AUTOS X SCHEDULED AUTOS X PREDAUros X NO�I.OYJNED AUTOS #PSAD001634 11-27-16 11-27-17 BOD€LY IN.URY IPaF Ort dual) a rAeOPERTY r ucc Z DAMAGE ; GARAGELIABILITY A{ITO CM FA ACODFNT 5 OTFIER Tt1AN EA AGC 5 ANY AUTO S AUTO ONLY. A('G EXCESS I UMBRELLA LIABILITY X OCCUR CLA'AIS MADE EACHO(X.'URREhICE ; 5000000 AOOREGATE ; 5,000,000 A DEDUCTIBLE #PSE0001833 11-27-16 11-27.17 Y Y1 RETEwoN S NIL ; A WORKER'S COMPENSATION AND EMPLOYERS' LIABILITY ANY PR0Pk1;I0R(PARiNERIEXECUiIVE YIN OM indER�EnNHftEXCtVDED7 I1 ycs 4cszt rmd3er SPECIAL PROViSIONSL^ekw #PSWO002310 11-27-16 11-27.17 x W TATI - OTIT- EL EACk ACCIDEhR : SOO DOD E.L. DISEASE - EA EMPLOYE 4 500.000 E.L 500000 OTHER A ARCHITECTS/ENGINEERS #RDP0026975 11-27.16 11-27-17 PER CLAIM LIMIT : $1,000,000 PROFESSIONAL LIABILITY I I AGGREGATE LIMIT: $2.000,000 DESCRIPTION OF OPERATIONSA.00ATIONSIVERiCLES1ERCLUSIONS ADDED BY ENDORSEMENTiSPECIAL PROVI316NS CFRTIFICATF Hrn nFR tle Mf.01 I ATIMI SHOULD ANY OF 7HE ABOVE CESCR}BED POLICIES BE CANCELLED BEFORE THE EXPIRATION FOR PROPOSAL PURPOSES ONLY DATE THEREOF, THE }SSDING INSURER WILL ENDEAVOR TO MAIL 30 DAYswRI nrN NGTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPoN THE INSURER. ITS AGLNTS OR REPRESENTATIVES AUTHORIZED REPRESENTATIVE ACORD 76 i2oum!I IA 1988-2009 ACORD CORPORATION. All rights reserved, The ACORD name and Logo are registered marks of ACORD Page 4 (Exhibit G - Insurance) 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 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated , Limitations of Liability Paragraph 6.10 of the Agreement is supplemented to include the following agreement of the parties; A. Limitation of Engineer's Liability Engineer's Liability Limited to Amount of Insurance Proceeds: Engineer shall procure and maintain insurance as required by and set forth in Exhibit G to this Agreement. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, the total liability, in the aggregate, of Engineer and Engineer's officers, directors, members, partners, agents, employees, and Consultants to Owner and anyone claiming by, through, or under Owner for any and all claims, losses, costs, or damages whatsoever arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability, breach of contract, indemnity obligations, or warranty express or implied, of Engineer or Engineer's officers, directors, members, partners, agents, employees, or Consultants (hereafter "Owner's Claims"), shall not exceed the total insurance proceeds paid on behalf of or to Engineer by Engineer's insurers in settlement or satisfaction of Owner's Claims under the terms and conditions of Engineer's insurance policies applicable thereto (excluding fees, costs and expenses of investigation, claims adjustment, defense, and appeal). If no such insurance coverage is provided with respect to Owner's Claims, then the total liability, in the aggregate, of Engineer and Engineer's officers, directors, members, partners, agents, employees, and Consultants to Owner and anyone claiming by, through, or under Owner for any and all such uninsured Owner's Claims shall not exceed $ [or] 2. Exclusion of Special, Incidental, Indirect, and Consequential Damages: To the fullest extent permitted by law, and notwithstanding any other provision in the Agreement, consistent with the terms of Paragraph 6.10. the Engineer and Engineer's officers, directors, members, partners, agents, Consultants, and employees shall not be liable to Owner or anyone claiming by, through, or under Owner for any special, incidental, indirect, or consequential damages whatsoever arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or causes, including but not limited to any such damages caused by the negligence, professional errors or omissions, strict liability, breach of contract, indemnity obligations, or warrantyexpress or implied of Engineer or Engineer's officers, directors, members, partners, agents, employees, or Consultants, and including but not limited to: ....... Page 1 (Exhibit 1 - Limitations an Liability) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 Natianal Society of Professional Engineers for EJCDC. All rights reserved. 3. Agreement Not to Claim for Cost of Certain Change Orders: Owner recognizes and expects that certain Change Orders may be required to be issued as the result in whole or part of imprecision, incompleteness, errors, omissions, ambiguities, or inconsistencies in the Drawings, Specifications, and other design documentation furnished by Engineer or in the other professional services performed or furnished by Engineer render this Agreement ("Covered Change Orders"). Accordingly, Owner agrees not to sue or to make any claim directly or indirectly against Engineer on the basis of professional negligence, breach of contract, or otherwise with respect to the costs of approved Covered Change Orders unless the costs of such approved Covered Change Orders exceed % of Construction Cost, and then only for an amount in excess of such percentage, Any responsibility of Engineer for the costs of Covered Change Orders in excess of such percentage will be determined on the basis of applicable contractual obligations and professional liability standards. For purposes of this paragraph, the cost of Covered Change Orders will not include any costs that Owner would have incurred if the Covered Change Order work had been included originally without any imprecision, incompleteness, error, omission, ambiguity, or inconsistency in the Contract Documents and without any other error or omission of Engineer related thereto. Nothing in this provision creates a presumption that, or changes the professional liability standard for determining if, Engineer is liable for the cost of Covered Change Orders in excess of the percentage of Construction Cost stated above or for any other Change Order. Wherever used in this paragraph, the term Engineer includes Engineer's officers, directors, members, partners, agents, employees, and Consultants. 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 2 - (Exhibit I - Limitations on Liability) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. III