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HomeMy WebLinkAboutProfessional Services Agreement - Lawson Fisher Assoc. - 2018 VPA Improvements13 '16 COUNTY -CITY BUILDING 227 W. JFFFERSON 13OULEVARD Souni BEND. INDIANA 46601-1830 CITY OF Souni BiEND PETE BUTTI(�G �AY BO�ARD, OF PUBLIC W( February 13, 2018 Michael Guzik Lawson -Fisher Associates P.C. 525 W. Washington Avenue South Bend, IN 46601 RE: Professional Services Agreement Dear Mr. Guzik: PHONE 574/235-9251 FAX 574/235-9171 The Board of Public Works, at its meeting held on February 13, 2018, approved the above referenced agreement regarding the Venues, Parks, and Ails Department's proposed improvements for 2018 in the amount not to exceed $250,000. Enclosed please find a copy of the agreement for your records. If you have any further questions regarding this matter, please call this office at (574) 235- 9251. Sincerely, Linda M. Martin, Clerk Enclosure c: Kara Boyles, Engineering GARY A. Gu,o-r SUZANNA A FRI'TZBERG Et.1ZABETIj A. MARADIK JAMEs A. MUELLER THERESE J. DORAU NMI FOR RV! E K S S-- P-91 k 1-4FA'Yl�- THIS IS AN AGREEMENT effective as of February 13, 2018 ("Effective Date") between Board of Public Works, City of South Bend, Indiana ("Owner") and Lawson -Fisher Associates P.C., 525 West Washington Ave., South Bend, IN 46601 ("Engineer"). Owner's Project, of which Engineer's services Linder this Agreement are apart, is generally identified as follows: South Bend Parks Improvements Program Manager. - Owner and Engineer fuither agree as follows: ARTICLE I — SERVICES OF ENGINEER 1.01 SCOI)e 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 Engineer pursuant to this Agreement. Engineer may use such requirements, programs, instructions, reports, data, and information in performing or furnishing services under this Agreement. Page 11 EJCDC E-500, Agruement Between Omier and Engineer for Professional Services Copyright (0 2008 National Society of Professional Engineers for EJCDC. All rights reserved, ARTICLE 3 — SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering services as of the Effective Date. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer's services is impaired, or Engineer's services are delayed or suspended, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. C. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer's performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled, as its sole remedy, to the recovery of direct damages, if any, resulting from such failure. ARTICLE 4 — INVOICES AND PAYMENTS 4.01 Invoices A. Preparation and Submittal of Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 35 days of receipt. 4.02 Payments A. Application to Interest and Principal: Payment will be credited fast 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: li ■:e lll�lr.rrea wa�wWrrl�t4YL� Y� � 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, Page z EJCDC E-500 Agreement Between owner and Engineer for Professional Services Copyright c0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. C. Disputed Invoices: If Owner contests an invoice, Owner shall promptly advise Engineer of the specific basis for doing so, may withhold only that portion so contested, and must pay the undisputed portion. D. Legislative Actions: If after the Effective Date any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer's services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which a factor of 1.0 shall be applied. Owner shall reimburse Engineer for the cost of such invoiced new taxes, fees, and charges; such reimbursement shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 — OPINIONS OF COST 5.01 Opinions 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 Constiliction 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 Linfit 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. ARTICLE 6 — GENERAL CONSIDERATIONS 6.01 Standards of Pei formance 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. Page 3 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. B. Technical Accuracy: Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer's services. Engineer shall correct deficiencies in technical accuracy without additional compensation, unless such corrective action is directly attributable to deficiencies in Owner -furnished information. C. Consultants: Engineer may employ such Consultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. D. Reliance on Others: Subject to the standard of care set forth in Paragraph 6.01.A, 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 ivith Laivs 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 set -vices 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 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. Page 4 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Cnginee•s for EJCDC. All rights reserved. 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 YVithoirt 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 Al.05. 6.03 Use of Documents A. The Owner acknowledges the Engineer's construction documents, including all electronic files, as instruments of professional services. Nevertheless, the final construction documents, including all electronic files, prepared under this agreement shall become the property of the Owner upon completion of services and payment in full of all monies due to the Engineer. The Owner shall not reuse or make any modification to the construction documents without the prior written authorization of the Engineer. All D epA are instraments of se. ..;,.v ; -Feel to this Projeet, and Engineer- shal-I Vetain -AR ownership and propetly intei:est therein (ineluding ht and the 6104 at the diseretion of the Engineer) whether- or not the Prej meted. 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 Page 5 EJCDC E-500 Agreement Behveen Owner and Ungineer for Professional services Copyright c0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. electronic files will be at the user's sole risk. If there is a discrepancy between the electronic files and the hard copies, the herd 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 longterm 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 firll 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 there for extensions of the Project or for any other purpose, then Owner shall compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer. G. At completion of any survey services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all survey data and drawings, upon which it will become the property of the Owner. H. At completion of any traffic study services and upon payment of monies clue 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. Page G EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 6.04 Insurance A. Engineer shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. B. Owner shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Owner- shcause Engineer and its Consultants te be listed as additional insureds on any general liability polici - 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. OwnerandEngineer shall each -deliver to the Owner other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of Engineer's services and at renewals thereafter during the Iife 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. P. 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 refilsed, until at least 30 days prior written notice has been given to Owner and Engineer and to each other additional insured (if any) to which a certificate of insurance has been issued. G. At any time, Owner may request that Engineer or its Consultants, at Owner's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements. 6.05 Suspension and Termination A. Suspension: I . By Owner: Owner may suspend the Project for up to 90 days upon seven days written notice to Engineer. 1 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. Page 7 EJCDC G-500 Agreement Between Owner and Engineer for Professional Senices Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. B. Termination: The obligation to provide further services under this Agreement may be terminated: 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 Rirnish 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 clue 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. C. Effective Date of Termination: The terminating patty 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: 1. 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 f imished 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. Page 8 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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: Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Subcontractor, Supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. Owner agrees that the substance of the provisions of this Paragraph 6.07.0 shall appear in the Contract Documents. 6.08 Dispute Resolution B. if the paAies fail to Feselve a dispate t4ough negotiation tinder ParagEaph 6.08,A, then e4her A-1-4 bath m&y invoke the PFaeedtires of E-1hi'^it- H: If Exhibit H is not included, or if no dispute resolution method is specified in Exhibit H, then the parties may exercise their rights under law. Page 9 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright D 2008 National society of Professional Engineers for EJCDC. All rights reserved. 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 Rill compliance with applicable Laws and Regulations. E. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer's services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2) terminating this Agreement for cause on 30 days notice. F. Owner acknowledges that Engineer is performing professional services for Owner and that Engineer is not and shall not be required to become an "owner" "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are or may be encountered at or near the Site in connection with Engineer's activities under this Agreement. 6.10 Indemnification and Allutual Ylraiver A. Indemnification by Engineer: To the f illest 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 I, "Limitations of Liability." B. Indemnification by avner: 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 I, Limitations of Liability. Page 10 EJCDC E-500 Agreement Behveen owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Environinental Indemnification: To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, and all court, arbitration, or other dispute resolution costs) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (1) any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (2) nothing in this paragraph shall obligate Owner to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence or willful misconduct. D. Percentage Share of Negligence: To the fullest extent permitted by law, a party's total liability to the other party and anyone claiming by, through, or under the other party for any cost, loss, or damages caused in part by the negligence of the 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 patty's negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. E. ALlutual Waiver: To the filllest extent permitted by law, Owner and Engineer waive against each other, and the other's employees, officers, directors, members, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project. 6.11 Miscellaneous Provisions A. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severabilio3 : 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 party's non -enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. Accrual of'Clahns: To the fullest extent permitted by law, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. Page rl EJCDC E-500 Agreement Between owner and Engineer for Professional Services Copyright cO 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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: additional Services — The services to be performed for or fi rnished 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 fiirnished to Owner by Engineer in accordance with Part 1 of Exhibit A of this Agreement. 5. Construction Contract — The entire and integrated written agreement between Owner and Contractor concerning the Work. 6. Construction Cost — The cost to Owner of those portions of the entire Project designed or specified by 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 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. Consultants — individuals or entities having a contract with Engineer to filrnish 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 Page 12 EJCDC E-500 Agreement Whvicen Owner and Engineer for Professional Services Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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 T17aste — The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 16. Lmvs and Regulations; Laivs 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. C4ner — 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 11crterial — 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 Page 13 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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 filrnished by Owner upon which the Work is to be performed, including rights -of -way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. 28. Specifications — That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 29. Subcontractor — An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 30. Substantial Completion — The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 31. Supplier — A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 32. Total Project Costs — The sum of the Construction Cost, allowances for contingencies, and the total costs of services of Engineer or other design professionals and consultants, together with such other Project -related costs that Owner furnishes for inclusion, including but not limited to cost of land, rights -of -way, compensation for damages to properties, Owner's costs for legal, accounting, insurance counseling and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. Page 14 EJC11C E-500 Agreement Between Osvncr and Engineer for Professional services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 33. Work— The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and fi rnishing, 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. F. ambit F, Eonst-ruetien-CoLi NOT INCLUDED G. Exhibit G, Insurance. 14. Exhibit H, Dispute Resolution. NOT INCLUDED Exhibit 1, Limitations of Liability. J. Exhibit J, Special Provisions. K. Exhibit K, Amendment to Owner Engineef .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 fiirnished 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: Page 15 EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright OO 2008 National Society of Professional Engineers for EJCDC. All rights reserved. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the selection process or in the Agreement execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the selection process or the execution of the Agreement to the detriment of Owner, or (b) to deprive Owner of the benefits of free and open competition, "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 execration of the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective fate of which is indicated on page 1. Owner: City of South Bend, Indiana Board of Public Works By: l Title: Gary A. Gilot, President By: - _.. Title: Elizabeth A. Maradik, Member By: Title: Therese J. Do'rau, Member -- By: Title: James A. Mueller, Member By: Title: Suzanna . T it b' ember Attest:. 1:,w Title: Vda Martin, Clerk Date: J/ t.3 I -0 t 4° Engineer: Lawson -Fisher Associates P.C. By: Title: Michael J. Guzik, P . Vice -President By: d Title Paul A. Hummel, P.E. President Date: Engineer License or F irm's Certificate No. 10001145 State of: Indiana ryage 10 EJCDC E-500 Agreement Between Ownerand Engineer for professional services Copyright (0 2008 National Society of Professional Engineers for B X11C. All rights reserved. Address for giving notices: 227 West Jefferson Boulevard -South Bend, Indiana 46601 Designated Representative (Paragraph 8.03.A): Kara M. Bovles, Ph.D., P.E. Title: City Engineer Phone Number: (574)235-5933 Facsimile Number: (574) 235-9171 E-Mail Address: kholes c Address for giving notices: 525 West Washington Avenue South Bend, Indiana 46601 Designated Representative (Paragraph 8.03.A): Michael J. Guzik, P.E. Title: Vice -President Phone Number: (574) 234-3167 Facsimile Number: (574) 236-1330 E-Mail Address: mguzik�la,,vson-fjsher.com Pagct7 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyriglit (D 2008 National Society of Professional Engineers for EJCDC. All rights reserved. Page I (Exhibit J - Special Provisions) 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 6 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated February 13, 2018. 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 A 1.01 Program Planning Phase A. The Engineer shall assess the status for existing projects currently under design development. This will include review of the current project scope, budget, and timetable. Budget review would include current construction estimates, design fees, construction inspection costs, and other peripheral costs attributed to the project. B. Receive from the Owner a list of proposed projects and develop a program schedule for projects currently underway and others still under consideration. The Engineer shall develop a comprehensive Gannt program schedule for all projects, phases and ancillary work for planning, monitoring and reporting. C. The Engineer will facilitate proposed projects that are not yet underway in coordination with the Owner. This will involve reviewing proposed project scopes, assisting with developing request for proposals and consultant selection, establishing project development timetables, and identifying deliverables. D. In coordination with the owner, the engineer shall monitor the overall program management plan. The following tasks will be performed monitoring the program: 1. Program scope. The Engineer will monitor project priorities, reviewing the inner relationships and dependencies between projects, and reviewing project assessments and alternative analysis in coordination with the Owner. 2. Program schedule. The engineer will provide oversight on the overall program schedule and make regular reports to the owner. The program schedule shall include project design, bid, construction, and inspection timetables. 3. Program fiinding. The engineer based on information received from the owner will monitor funding resources for the overall program. The sources are likely to include proceeds from bonds, tax incremental finance, regional cities, and other fiinding sources. These available resources will be allocated for delivering the overall program. E. As may be required, the Engineer will provide information to the Owner for the purpose of review and prioritizing project firnding requirements. This review and update is expected to be provided on a regular basis in coordination with the Owner. F. The Engineer will provide assistance to the Owner as requested for developing design team criteria, work categories and selection process for proposed projects. This may include reviewing request Pager _ (Exhibit A — Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional services Copyright D 2008 National society orProressiowil Engineers for EJCDC. All rights reserved. for proposals, selection and evaluation processes, and participation in project scope meetings to review scope, fee, and schedules G. In coordination with the owner, the Engineer will develop a change management process for administering the overall program. This management process shall facilitate and provide oversight and Owner control of the scope, fees, construction costs, and schedule for each proposed project. This process is also expected to extend into and continue through construction for administering cost controls and if necessary realigning Owner resources and priorities as may be required. A1.02 Monitor Program A. The Engineer shall continually monitor the scope of each project in the program. Project elements included will be the purpose and need or expected outcome, coordination with other projects, and consistency with the overall program. This may also include analysis of potential alternatives, constructability reviews, and oversight of designer or owner initiated changes. B. Working with the Owner's consultants, the Engineer will provide oversight on each project's schedule within the overall program. This schedule review and oversight will include both design and construction phases for administration of schedule changes and potential cascading effects on the overall Program. In coordination with Owner consultants, long lead items necessary for construction will, be identified for potential early procurement by the Owner. C. The Engineer will work with respective project consultants for developing budget costs for all project phases to include design, construction and inspection. Budget changes will be administered in coordination with the Owner consistent with program priorities. This work will include review and reporting of proposed changes for project design fees, construction estimates, construction costs, and inspection fees. D. As directed by the Owner, the Engineer shall work with the Owner's consultants for the purpose of facilitating a value engineering process, schedule compression, or both. E. The engineer will provide as may be requested by the owner administration and oversight through construction. The services will include the following: 1. Project coordination with the overall program schedule. 2. Tracking design and construction changes that will include modifications to scope, budget, and time. 3. Monitoring progress reports and change orders through both development and construction. F. In coordination with the Owner, the Engineer will identify and facilitate the development of project packages as may be requested or necessary. Through project development, the Engineer shall reconcile project Special Provisions, Specifications, Details and pay items as may be necessary to resolve potential conflicts within project packages or the overall program. __.. Page 2 (Exhibit A -- Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright D 2008 National Society of Professional Engineers for EJCDC. All rights reserved. A1.03 Project Coordination A. Project coordination shall be performed by the engineer to facilitate cooperation and communication between the owner's consultants. Tasks expected to be performed shall include the following: 1. Maintaining point of contact information for each project team. 2. Monitoring and oversight of existing and proposed project work and disturbed limits for identifying limit requirements or overlaps and coordination of project boundaries or limits. This shall also involve activities and coordination efforts for privately developed projects that are adjacent to program projects as may be directed by the Owner. 3. Project estimate requirements will be coordinated among project consultants for consistent reporting within the overall program. 4. As may be requested by the owner, draw schedules may be developed to address design or construction firnding requirements for consistent reporting within the overall program. 5. Schedule coordination through both development and construction for the purpose of minimizing potential conflicts. 6. Assist with Owner's consultant reviews for ensuring contract document provisions are adequate for ensuring the completion of the project and consistent with the overall program. B. The Engineer shall monitor and provide oversight on the following tasks through each project's development: 1. Utility coordination and attendance at Owner coordinated regular utility coordination meetings 2. Environmental considerations, permit needed, outside jurisdiction agency requirements, and commitments 3. Traffic maintenance and coordination with other city projects 4. Administration of the program change management process A1.04 Program Contract Administration A. The Engineer shall monitor and provide oversight on program projects through each respective construction phase. The following tasks will be monitored as directed or required: 1. Provide oversight and limited review of notice to bidders and construction packages for consistency with the overall program and estimates. 2. As projects near design development completion, coordinate with city staff for construction inspection with city or outside resources. 3. Monitor bid process for each project, through coordination of pre -bid meetings, bid tabulations, contractor awards, notice to proceed and other items as directed. 4. Provide oversight to construction phasing and work sequence for coordination within the program. 5. As may be necessary, reconcile differences between design contracts when conflicts arise between pay items, special provisions, specifications and details. 6. Provide oversight to ensure compliance with environmental considerations, commitments, and regulatory permit requirements. 7. Attendance at pre -construction meetings for projects in the program as may be necessary or directed. 8. Provide assistance as requested with contractor and vendor payments in conjunction with city staff review approvals. 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 E.JCDC. All rights reserved. 9. Provide research and guidance on other state processes and coordination that may be needed through state regulatory agencies (i.e. IDNR, INDOT, etc.) B. For each project in the program, the Engineer shall monitor ongoing construction activities that parallel the efforts of others under the direction of the Owner. This monitoring shall include project budget management, document controls, testing, progress payments and post construction activities. Al .05 Program Meetings A. The Engineer shall be available as directed for meetings with City policy makers and other staff as may be requested or directed. B. As may be requested by the Owner, the Engineer shall prepare meeting minutes or other documentation as may be directed. A1.06 Program Reports A. The Engineer shall prepare and make reports as may be necessary under the direction of the Owner. These reports may include information from or through Owner consultants developing projects in the program. B. As may be necessary through program oversight, the Engineer shall manage information on project updates, funding changes, schedule modifications, milestones realized and other progress for use by policy makers in regular reports to be presented to others. The Engineer will support these efforts from a compendium of information readily available through program oversight and administration. PART 2 — ADDITIONAL SERVICES A2.01 Additional Services Regzzir°ing Otivner•'s Written Azitliorization A. If authorized in writing by Owner, Engineer shall ftirnish or obtain from others Additional Services of the types listed below. Preparation of applications and supporting documents (in addition to those furnished tinder Basic Services) for private or governmental grants, loans, or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by Owner or others. 3. Providing renderings, models or other presentation materials for Owner's use. 4. 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 Page 4 (ExhibitA— Engineer's Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright c0 2008 National Societe of Professional Engineers for EJCDC. All rights reserved. process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by Owner. 5. Furnishing services of Consultants for other than Basic Services. 6. Providing construction surveys and staking to enable Contractor(s) or Consultant(s) to perform its work, and any type of property surveys or related engineering services needed for the transfer of interests in real property, and providing other special field surveys. 7. Preparing Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor(s) or Consultant(s) for projects in the program, and furnishing such Record Drawings to Owner. 8. Preparation of operation and maintenance manuals for projects in the program. 9. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other dispute resolution process related to the Program. 10. Overtime work requiring higher than regular rates. 11. Other services performed or ftimished by Engineer not otherwise provided for in this Agreement. 12. Providing special surveys, environmental studies and other submissions beyond those already described required for approvals by authorities or others having jurisdiction. 13. Providing services of other consultants than those described and included in the scope of services. 14. Preparation or review of other studies, assessments or impact statements. A2.02 Additional Services Not Requiring Owner's YVritten Aarthorization A. Engineer shall advise Owner in advance that Engineer is commencing 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 Rimishing 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 resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work (advance notice not required), (2) the presence at the Site of any Constituent of Concern or items of historical or cultural significance, (3) Work damaged by fire or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working horns, or (6) default by Contractor. Page 5 (Exhibit A -- Engineer's Services) EJCDC E-500 Agreement Between owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 4. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. 5. Reviewing a Shop Drawing more than three times, as a result of repeated inadequate submissions by Contractor. 6. While at the Site, compliance by Engineer and its staff with those terms of Owner's or Contractor's safety program provided to Engineer subsequent to the Effective Date that exceed those normally required of engineering personnel by federal, state, or local safety authorities for similar construction sites. PART 3 -- SCHEDULE A3.01 Professional Design Services A. No work shall begin on the project tinder this agreement until the Consultant receives a written notice to proceed from the Owner. B. The terin of this Contract shall be for professional services rendered through calendar year 2018. The Owner will have the option to renew each subsequent year for both time and money until completion of the program. Page G (Exhibit r1 -- Engineer's Services) EJCDC E-500 Agreement Between Owncr 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 February 13, 2018. Owner's Res Article 2 of the Agreement is supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of Owner as set forth in this Agreement, Owner shall at its expense: A. Provide Engineer with all criteria and fiill 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. B. Furnish to Engineer any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. _ .. - �. 00�1 ............... :- 2. Zonifig, deed, and other land use restriettens: data, ineluding establishing relevant , easement, re f fenee riglit points. of way, and other- speeial surveys of to the Site, physical conditions relating existing surface or subsurface struetures at Of 5. Envir-opumental investigations, impact assessments, tal audits, to the Pvqjeet, and the statements, and Site, other- relevant eF 6. Data Itlatip-M-S suittiral studies as for the Project but and adjaeefft areas. identified in the Agreement or eonsu .1, — , *, ,ts theFet las I-equired e. not otherwise Page 1 (Exhibit D --- Owner's Responsibilities) EJCDC 1'.-500 Agreement Between Owner and Engineer for Professional Set -vices, Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. .---s, the Wofk, or in the perfanHanee of afiy Contract E. Authorize Engineer to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as required. F. Arrange for safe access to and make all provisions for Engineer to enter upon public and private property as required for Engineer to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by Engineer (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as Owner deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. Provide reviews, approvals, and 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. I. 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. J. Place and pay for advertisement for Bids in appropriate publications. K. Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructability review. L. Furnish to Engineer data as to Owner's anticipated costs for services to be provided by others (including, but not limited to, accounting, bond and financial, independent cost estimating, insurance counseling, and legal advice) for Owner so that Engineer may assist Owner in collating the various cost categories ,vhich comprise Total Project Costs. M. If Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to represent Owner at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of Engineer. N. If more than one prime contract is to be awarded for the Work designed or specified by Engineer, designate a person or entity to have authority and responsibility for coordinating the activities among the various prime Contractors, and define and set forth the duties, responsibilities, and Page 2 (Exhibit B— owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright 0 2008 \allonal Society of Professional Engineers for EJCDC. All rights reserved. limitations of authority of such individual or entity and the relation thereof to the duties, responsibilities, and authority of Engineer as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin. O. Attend the pre -bid conference, bid opening, pre -construction conferences, and other job related meetings, and Substantial G o4npletion and final payment visits to the Pfejec4. samples,P. Provide the services of an independent testing laboratory to perform a4l inspeetions, tests, and- aMr-ava4s of materials, and equipment fequir-ed by the Contract Documents, of to eva the Work with appFopriate professional interpretation thereaf Q. Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this paragraph. R. Inform Engineer in writing of any specific requirements of safety or security programs that are applicable to Engineer, as a visitor to the Site. S. Perform or provide the following additional services: Page 3 (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. SUGGESTED FORMAT (for use with E-500, 2008 Edition) This is EXHIBIT C, consisting of 5 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated February 13, 2018. Payments to Engineer for Services and Reimbursable Expenses Article 2 of the Agreement is supplemented to include the following agreement of the parties: ARTICLE 2 — OWNER'S RESPONSIBILITIES C2.01 Compensationfor Basic Services A. Owner shall pay Engineer for Basic Services set forth in Exhibit A at Standard Hourly Rates Method of Payment not to exceed $250,000.00. The total shall not exceed $250,000.00 unless an amendment is executed which increases the maximum amount payable. B. The Engineer will be paid for actual hours of work performed by essential personnel exclusively on this agreement. The base period for hourly billing rate schedule shown shall be effective on January lst of each year, Adjustments will be the 12 month percent change, as of December 31, 20XX as compared to the previous year as listed in the "Employment Cost Index Wage and Salaries (not seasonally adjusted), for private industry worker, professional, scientific and technical services", as issued each December by the US Department of Labor, Bureau of Labor Statistics, Base = December 2005 =100. � r r w r 3 r Page I Exhibit C —Basic Services (other than RPR and Post -Construction) — Lump Suns iMethod of Payment EJCDC E-500 Agreement Behveen Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for E3CDC. All rights reserved. 'w r............. min C2.03 Compensation for Basic Services - Standard Hourly Rates Alfethod of Payment (HNTE) A. Owner shall pay Engineer for Basic Services set forth in Exhibit A and as described and identified in Paragraph C2.01 with compensation as HNTE as follows: 1. An amount equal to the cumulative horns charged to the Project by each class of Engineer's personnel times Standard Hourly Rates for each applicable billing class for all services performed on the Project, plus Reimbursable Expenses and Engineer's Consultants' charges, if any. 2. Engineer's Reimbursable Expenses Schedule and Standard Hourly Rates are attached to this Exhibit C as Appendices 1 and 2. 3. Engineer may alter the distribution of compensation between individual phases of the work or other identified work noted herein to be consistent with services actually rendered, but shall not exceed the total estimated compensation amount unless approved in writing by Owner. See also C2.04.C:2 below. 4. The total estimated compensation for Engineer's services included in the breakdown by phases as noted in Paragraph C2.01 incorporates all labor, overhead, profit, Reimbursable Expenses and Engineer's Consultants' charges for items identified as HNTE. 5. The amounts billed for Engineer's services under Paragraph C2.01 will be based on the cumulative hours charged to the Project during the billing period by each class of Engineer's employees times Standard Hourly Rates for each applicable billing class, plus Reimbursable Expenses and Engineer's Consultants' charges. 6. If amounts billed under this compensation method are within ten percent (10%) of the maximum amount payable prior to the satisfactory completion of the described services, the Engineer shall notify Owner and the status will be evaluated. 7. The Standard Hourly Rates and Reimbursable Expenses Schedule will be adjusted annually (as of January 1) to reflect equitable changes in the compensation payable to Engineer. C2.04 Compensation for Reimbursable Expenses A. Owner shall pay Engineer for all Reimbursable Expenses at the rates set forth in Appendix 1 to this Exhibit C. B. Reimbursable Expenses include the following categories: import tie and subsistenee :, eide„t thereto; providing and niaii+taiaing field office facilities including furnishings and utilities3 tell te-1ephone-calls and ,,,, bile phone ehape,;-reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project -related items in addition to those required under Exhibit Page 2 Exhibit C —Basic services (other than 11PR and Post -Construction) — Lump Sung 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. A. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. C. The amounts payable to Engineer for Reimbursable Expenses will be the Project -related internal expenses actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a factor of 1.05. C2.05 Other Provisions Concerning Payinent A. Whenever Engineer is entitled to compensation for the charges of Engineer's Consultants, those charges shall be the amounts billed by Engineer's Consultants to Engineer times a factor of 1.00. B. Factors. The external Reimbursable Expenses and Engineer's Consultants' factors include Engineer's overhead and profit associated with Engineer's responsibility for the administration of such services and costs. C. Estimated Compensation Amounts: 1. Engineer's estimate of the amounts that will become payable for specified, services are only estimates for planning purposes, are not binding on the parties, and are not the minimum or maximum amounts payable to Engineer tinder the Agreement. 2. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to Engineer that the total compensation amount thus estimated will be exceeded, Engineer shall give Owner written notice thereof, allowing Owner to consider its options, including suspension or termination of Engineer's services for Owner's convenience. Upon notice, Owner and Engineer promptly shall review the matter of services remaining to be performed and compensation for such services. Owner shall either exercise its right to suspend or terminate Engineer's services for Owner's convenience, agree to such compensation exceeding said estimated amount, or agree to a reduction in the remaining services to be rendered by Engineer, so that total compensation for such services will not exceed said estimated amount when such services are completed. If Owner decides not to suspend the Engineer's services during the negotiations and Engineer exceeds the estimated amount before Owner and Engineer have agreed to an increase in the compensation due Engineer or a reduction in the remaining services, then Engineer shall be paid for all services rendered hereunder. 3. To the extent necessary to verify Engineer's charges and upon Owner's timely request, Engineer shall make copies of such records available to Owner at cost. Page 3 Exhibit C —Basic Services (other than RPR and Post -Construction) -- Lump Sum Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Lngineers for E.JCDC. 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 February 13, 2018. 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; Reproducible Copies (Paper) $0.35 /sq. ft. Mileage (ast) $0 36 Anile Page 1 _,.. Exhibit C — Appendix t: Reimbursable Expenses Schedule t+ JCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for E3CDC. 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 February 13, 2018. 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 listed as provided on the following schedule: Principal $288.00 /hour Engineer V $222.00 /hour Engineer IV $188.00 /hour Engineer HI $147.00 /hour Engineer II $129.00 /hour Engineer I $115.00 /hour Engineer Intern II $102.00 /hour Engineer Intern I $ 91.00 /hour Engineer Assistant $ 76.00 /hour Land Surveyor III $156.00 /hour Land Surveyor II $129.00 /hour Survey Technician II $115.00 /hour Survey Technician 1 $ 70.00 /hour Technician IV $143.00 /hour Technician III $ 98.00 /hour Technician 11 $ 91.00 /hour Technician I $ 70.00 /hour Construction Inspector 2 $129.00 /hour Construction Inspector 1 $ 95.00 /hour Project Information II $121.00 /hour Project Information I $ 78.00 /hour Page 1 Mbibit C — Appendix 2: Standard Hourly Rates Schedule EJCDC E-500 Agreement Bet►veen Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCIIC. All rights reserved. This is EXHIBIT G, consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated February 13 2018. Insurance Paragraph 6.04 of the Agreement is supplemented to include the following agreement of the parties. G6.04 Insurance A. The limits of liability for the insurance required by Paragraph 6.04.A and 6.04.B 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 $1,000,000 $1,000,000 $1,000,000 $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 $2,000,000 2) Annual Aggregate $2,000,000 g. Other (specify): $ N/A B. Additionallnsitr•ecls: 1. The Owner shall be listed on Engineer's general liability policy as provided in Paragraph 6.04.A. _._ _....... _..... � _.._._ Page I (Exhibit G - Insurance) rJCDC P-500 Agreement Between Owner and Tngincer for Professional services. Copyright C 2008 National Society of Professional Engincers for ) JCDC. All rights reserved. This is EXHIBIT I, consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated February 13, 2018. 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 1. 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 insuranee eeb )Vided with 1:espeet to a a by, th&-eugh, ef under- Owfier fer any and all sueh uninsured Owner's Claiffls shall flot exeeed B. Indemnification by Owner: To the fiillest 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 I (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. This is EXHIBIT J. consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated February 13, 2018. 1 Provisions Paragraph(s) of the Agreement is/are amended to include the following agreement(s) of the parties: [ Not Used ] Page i (Exhibit J - Special Provisions) EJCDC E-500 Agreement 13chveen Owner and Engineer for Professional Services. Copyright 0 2008 National Society of Professional Engineers for EJCDC. All rights reserved. ILI January 25, 2018 Ms. Kara M. Boyles, Ph.D., P.E. City Engineer City of South Bend 1316 County -City Buildling 227 West Jefferson Boulevard South Bend, IN 46601 RE: South Bend Parks Program Manager Dear Ms. Boyles: PAULA. HUMMEL, P.E. PIPER C. TITTLE, P.E. WCHAEL J. GUZI1K, P.E. 9030,64 GREGORY L. HOLDEN, P.E. JON E. RIEMKE, P.E. JEFFREY L. McKEAN, P.E, RANDOLPH J. LINDLEY, P.E. CHRISTOPHER J. JETER, P.E. DENNIS A. ZEBELL, P,E. BENJAMIN P. HOLDEN, P.E. DAN G. DELGADO, P.E, MICHAEL F. JOHNSTON, P.E. JEFFREY M. BYRD, P.E. JARED M. HUSS, P.IE. SKY K. MEDORS, P.E. AARON W. BLANK, P.L.S., P.E. BREAGAN P. EICHER, P.E. RICHARD A. CHAPMAN, II, P.E. THOMAS J. McNICHOLAS, P.E. KEVIN J. SIEDLECKI, P.E. CHRISTOPHER M. VANHULLE, P.E. MICHELLE M.G. SLACK, P.L.S. MAX WATKINS, P.E,, S.E. Lawson -Fisher Associates P.C. appreciates the opportunity to submit this agreement for professional services in support of the City's Venues Parks & Arts proposed improvements. This agreement sets forth services for the calendar year 2018 with, the option to renew by amendment for both time and money each year thereafter. If you have any questions, please feel free to contact me directly. Again, thank you for the consideration. Very truly yours, LAWSON-FISHER ASSOCIATES P.C. 4el JP. Vice President / Senior Civil Engineer MJG/cas Encls, 525 WEST WASHINGTON AVENUE * SOUTH BEND, INDIANA 46601 * 574-234-3,167 * 674-236-1330 (FAX) BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 02/01/2018 Department Name Kara Boyles Division/Bureau Public Works Engineering BPW Date 02/13/2018 Phone Extension 5933 Legal ® Attorney Name: Clara McDaniels Controller ❑ Controller review is required for all Contracts $5,000.00 or more and greater than one year in length per the City Purchasing Policy Purchasing ❑ ❑ Bid Opening ❑ Quote Opening ❑ Change Order No. ❑ Ease/Encroach. F� Other: General Release ❑ Bid Award ❑ Quote Award ❑ C/O &PCANo ❑ Traffic Control: ❑ Req. to Advertise ❑ Title Sheet El Company or Vendor Name LFA Z Yes ❑ No If Yes, Approved by New Vendor Purchasing MBEIWBE Contractor ❑ MBE ❑ WBE MBEIWBE Contractor Requested ❑ No Yes Name of Company Project Name South Bend Parks Program Manager Project Number 118-012 Funding Source Parks Account No. Amount $250,000.00 Terms of Contract Not to Exceed Purpose/Description Professional services in support of the City's Venues Parks and Arts proposed improvements for the calendar year of 2018. ❑ Required Contractor's Certification Forms Attached (Non Collusion, Non -Discrimination, Non -Debarment, E-Verify, Iran, etc.) Amount of ❑ Increase $ ❑ Decrease $ ............................... Copy Original ® ❑ Kara Boyles, City Engineer ❑ ❑