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PSA - Construction Inspection Services for Seitz Park Reconstruction Proj No. 117-093A - Lochmueller Group
ELIZABETH A. MARADIK GARY A. GILOT JORDAN V. GATHERS JOSEPH R. MOLNAR 1316 COUNTY-CITY BUILDING 227 W. JEFFERSON BOULEVARD SOUTH BEND, INDIANA 46601-1830 PHONE 574/ 235-9251 FAX 574/ 235-9171 CITY OF SOUTH BEND JAMES MUELLER, MAYOR BOARD OF PUBLIC WORKS February 23, 2021 Ms. Susan Al-Abbas Lochmueller Group, Inc. 112 West Jefferson Blvd, Suite 500 South Bend, Indiana 46601 BStutzman@lochgroup.com RE: Professional Services Agreement Dear Ms. Al-Abbas: At its February 23, 2021 meeting, the Board of Public Works approved the above referenced agreement for construction inspection services for Seitz Park Reconstruction Project No. 117-093A in an amount not to exceed $576,480. 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, /s/ Anne Fuchs Anne Fuchs, Clerk Enclosures AF/lh EJCDC E-500 Standard Form of Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by AMERICAN COUNCIL OF ENGINEERING COMPANIES ______________________ ASSOCIATED GENERAL CONTRACTORS OF AMERICA ______________________ AMERICAN SOCIETY OF CIVIL ENGINEERS _______________________ PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Laws and Regulations. EJCDC E-500 Standard Form of Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. Copyright © 2008 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202) 347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asce.org Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA 22201-3308 (703) 548-3118 www.agc.org The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (EJCDC C-700, 2007 Edition). Their provisions are interrelated, and a change in one may necessitate a change in the other. For guidance on the completion and use of this Agreement, see EJCDC User’s Guide to the Owner-Engineer Agreement, EJCDC E-001, 2009 Edition. TABLE OF CONTENTS Page ARTICLE 1 – SERVICES OF ENGINEER .................................................................................................... 1 1.01 Scope ............................................................................................................................................. 1 ARTICLE 2 – OWNER’S RESPONSIBILITIES............................................................................................ 1 2.01 General .......................................................................................................................................... 1 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 ........................................................................................... 3 6.01 Standards of Performance ............................................................................................................ 3 6.02 Design Without Construction Phase Services ............................................................................. 5 6.03 Use of Documents ........................................................................................................................ 5 6.04 Insurance ....................................................................................................................................... 7 6.05 Suspension and Termination ........................................................................................................ 7 6.06 Controlling Law ............................................................................................................................ 9 6.07 Successors, Assigns, and Beneficiaries ........................................................................................ 9 6.08 Dispute Resolution........................................................................................................................ 9 6.09 Environmental Condition of Site................................................................................................ 10 6.10 Indemnification and Mutual Waiver .......................................................................................... 10 6.11 Miscellaneous Provisions ........................................................................................................... 11 ARTICLE 7 – DEFINITIONS ........................................................................................................................ 12 7.01 Defined Terms ............................................................................................................................ 12 ARTICLE 8 – EXHIBITS AND SPECIAL PROVISIONS .......................................................................... 15 8.01 Exhibits Included ........................................................................................................................ 15 8.02 Total Agreement ......................................................................................................................... 16 8.03 Designated Representatives ........................................................................................................ 16 8.04 Engineer's Certifications ............................................................................................................. 16 Page 1 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES 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 Engineer pursuant to this Agreement. Engineer may use such requirements, programs, THIS IS AN AGREEMENT effective as of Feb. 9th , 2021 (“Effective Date”) between Board of Public Works, City of South Bend, Indiana (“Owner”) and Lochmueller Group, Inc. (“Engineer”). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: Seitz Park Construction Inspection - Project Number 117-093A ("Project"). Engineer's services under this Agreement are generally identified as follows: Construction Inspection Page 2 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. instructions, reports, data, and information in performing or furnishing services under this Agreement. ARTICLE 3 – SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering services as of the Effective Date. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer’s services is impaired, or Engineer’s services are delayed or suspended, then the time for completion of Engineer’s services, and the rates and amounts of Engineer’s compensation, shall be adjusted equitably. C. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer’s services, and the rates and amounts of Engineer’s compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer’s performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled, as its sole remedy, to the recovery of direct damages, if any, resulting from such failure. ARTICLE 4 – INVOICES AND PAYMENTS 4.01 Invoices A. Preparation and Submittal of Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 35 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: 1. amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day; and 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. 2. Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner has paid in full all non-disputed amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. C. Disputed Invoices: If Owner contests an invoice, Owner shall promptly advise Engineer of the specific basis for doing so, may withhold only that portion so contested, and must pay the undisputed portion. D. Legislative Actions: If after the Effective Date any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer’s services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which a factor of 1.0 shall be applied. Owner shall reimburse Engineer for the cost of such invoiced new taxes, fees, and charges; such reimbursement shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 – OPINIONS OF COST 5.01 Opinions 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. 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 Page 4 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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-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 with Laws and Regulations, and Policies and Procedures: 1. 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 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 Page 5 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. failure of a contractor to comply with Laws and Regulations applicable to such contractor’s furnishing and performing of its work. I. Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor’s failure to furnish and perform the Work in accordance with the Contract Documents. J. Engineer shall not provide or have any responsibility for surety bonding or insurance-related advice, recommendations, counseling, or research, or enforcement of construction insurance or surety bonding requirements. K. Engineer shall not be responsible for the acts or omissions of any Contractor, Subcontractor, or Supplier, or of any of their agents or employees or of any other persons (except Engineer’s own agents, employees, and Consultants) at the Site or otherwise furnishing or performing any Work; or for any decision made regarding the Contract Documents, or any application, interpretation, or clarification, of the Contract Documents, other than those made by Engineer. L. While at the Site, Engineer's employees and representatives shall comply with the specific applicable requirements of Contractor's and Owner's safety programs of which Engineer has been informed in writing. 6.02 Design Without Construction Phase Services A. Engineer shall be responsible only for those Construction Phase services expressly required of Engineer in Exhibit A, Paragraph A1.05. With the exception of such expressly required services, Engineer shall have no design, Shop Drawing review, or other obligations during construction and Owner assumes all responsibility for the application and interpretation of the Contract Documents, review and response to Contractor claims, contract administration, processing Change Orders, revisions to the Contract Documents during construction, construction surety bonding and insurance requirements, construction observation and review, review of payment applications, and all other necessary Construction Phase engineering and professional services. Owner waives all claims against the Engineer that may be connected in any way to Construction Phase engineering or professional services except for those services that are expressly required of Engineer in Exhibit A, Paragraph A1.05. 6.03 Use of Documents A. The Owner acknowledges the Engineer’s construction documents, including all electronic files, as instruments of professional services. Nevertheless, the final construction documents, including all electronic files, prepared under this agreement shall become the property of the Owner upon completion of services and payment in full of all monies due to the Engineer. The Owner shall not reuse or make any modification to the construction documents without the prior written authorization of the Engineer. All Documents are instruments of service in respect to this Project, and Engineer shall retain an ownership and property interest therein (including the copyright and the right of reuse at the discretion of the Engineer) whether or not the Project is completed. 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 Page 6 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. the items that the other party intended to send. Files in electronic media format of text, data, graphics, or other types that are furnished by one party to the other are furnished only for convenience, not reliance by the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user’s sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. If the parties agree to other electronic transmittal procedures, such are set forth in Exhibit J. C. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data’s creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any transmittal errors detected within the 60-day acceptance period will be corrected by the party delivering the electronic files. D. When transferring documents in electronic media format, the transferring party makes no representations as to long-term compatibility, usability, or readability of such documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the documents’ creator. E. Owner may make and retain copies of Documents for information and reference in connection with use on the Project by Owner. Engineer grants Owner a limited license to use the Documents on the Project, extensions of the Project, and for related uses of the Owner, subject to receipt by Engineer of full payment for all services relating to preparation of the Documents and subject to the following limitations: (1) Owner acknowledges that such Documents are not intended or represented to be suitable for use on the Project unless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project, on any other project, or for any other use or purpose, without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the Documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner’s sole risk and without liability or legal exposure to Engineer or to its officers, directors, members, partners, agents, employees, and Consultants; (3) Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from any use, reuse, or modification of the Documents without written verification, completion, or adaptation by Engineer; and (4) such limited license to Owner shall not create any rights in third parties. F. If Engineer at Owner’s request verifies the suitability of the Documents, completes them, or adapts them for extensions of the Project or for any other purpose, then Owner shall compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer. G. At completion of any survey services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all survey data and drawings, upon which it will become the property of the Owner. H. At completion of any traffic study services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all data and models, upon which it will become the property of the Owner. Page 7 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. I. At completion of any geotechnical or material investigation services and upon payment of monies due the Engineer for those services, the Engineer shall provide the owner with all data, upon which it will become the property of the Owner. 6.04 Insurance A. Engineer shall procure and maintain insurance as set forth in Exhibit G, “Insurance.” Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. B. Owner shall procure and maintain insurance as set forth in Exhibit G, “Insurance.” Owner shall cause Engineer and its Consultants to be listed as additional insureds on any general liability policies and as loss payees on any property insurance policies carried by Owner which are applicable to the Project. C. Owner shall require Contractor to purchase and maintain policies of insurance covering workers' compensation, general liability, property damage (other than to the Work itself), motor vehicle damage and injuries, and other insurance necessary to protect Owner's and Engineer's interests in the Project. Owner shall require Contractor to cause Engineer and its Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project. D. Owner and Engineer shall each deliver to the 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 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 that renewal will not be refused, until at least 30 days prior written notice has been given to Owner and Engineer and to each other additional insured (if any) to which a certificate of insurance has been issued. G. At any time, Owner may request that Engineer or its Consultants, at Owner’s sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements. 6.05 Suspension and Termination A. Suspension: 1. By Owner: Owner may suspend the Project for up to 90 days upon seven days written notice to Engineer. 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. 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. C. Effective Date of Termination: The terminating party under Paragraph 6.05.B may set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. D. Payments Upon Termination: 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 furnished in accordance with Page 9 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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.B 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: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Subcontractor, Supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 3. Owner agrees that the substance of the provisions of this Paragraph 6.07.C shall appear in the Contract Documents. 6.08 Dispute Resolution A. Owner and Engineer agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to invoking the procedures of Exhibit H or other provisions of this Agreement, or exercising their rights under law. Page 10 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. B. If the parties fail to resolve a dispute through negotiation under Paragraph 6.08.A, then either or both may invoke the procedures of Exhibit H. If Exhibit H is not included, or if no dispute resolution method is specified in Exhibit H, then the parties may exercise their rights under law. 6.09 Environmental Condition of Site A. Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other Constituents of Concern located at or near the Site, including type, quantity, and location. B. Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. C. If Engineer encounters or learns of an undisclosed Constituent of Concern at the Site, then Engineer shall notify (1) Owner and (2) appropriate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. D. It is acknowledged by both parties that Engineer’s scope of services does not include any services related to Constituents of Concern. If Engineer or any other party encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove the Constituents of Concern; and (2) warrants that the Site is in full compliance with applicable Laws and Regulations. E. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer’s services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the time of completion, or both; or (2) terminating this Agreement for cause on 30 days notice. F. Owner acknowledges that Engineer is performing professional services for Owner and that Engineer is not and shall not be required to become an "owner" “arranger,” “operator,” “generator,” or “transporter” of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended, which are or may be encountered at or near the Site in connection with Engineer’s activities under this 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, Page 11 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. employees, or Consultants. This indemnification provision is subject to and limited by the provisions, if any, agreed to by Owner and Engineer in Exhibit I, “Limitations of Liability." B. Indemnification by Owner: Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants as required by Laws and Regulations and to the extent (if any) required in Exhibit I, Limitations of Liability. C. Environmental Indemnification: To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, members, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, and all court, arbitration, or other dispute resolution costs) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (1) any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (2) nothing in this paragraph shall obligate Owner to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence or willful misconduct. D. Percentage Share of Negligence: To the fullest extent permitted by law, a party’s total liability to the other party and anyone claiming by, through, or under the other party for any cost, loss, or damages caused in part by the negligence of the 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 party’s negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. E. Mutual Waiver: To the fullest extent permitted by law, Owner and Engineer waive against each other, and the other’s employees, officers, directors, members, agents, insurers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to the Project. 6.11 Miscellaneous Provisions A. Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival: All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severability: Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be 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. Page 12 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. D. Waiver: A party’s non-enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. Accrual of Claims: To the fullest extent permitted by law, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. ARTICLE 7 – DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) terms (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above, in the exhibits, or in the following provisions: 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 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 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. 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. 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. Page 14 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 20. Project – The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 21. Radioactive Material – Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 22. Record Drawings – Drawings depicting the completed Project, prepared by Engineer as an Additional Service and based solely on Contractor's record copy of all Drawings, Specifications, addenda, change orders, work change directives, field orders, and written interpretations and clarifications, as delivered to Engineer and annotated by Contractor to show changes made during construction. 23. Reimbursable Expenses – The expenses incurred directly by Engineer in connection with the performing or furnishing of Basic and Additional Services for the Project. 24. Resident Project Representative – The authorized representative of Engineer assigned to assist Engineer at the Site during the Construction Phase. As used herein, the term Resident Project Representative or "RPR" includes any assistants or field staff of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative, if any, are as set forth in Exhibit D. 25. Samples – Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 26. Shop Drawings – All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 27. Site – Lands or areas to be indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. 28. Specifications – That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 29. Subcontractor – An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 30. Substantial Completion – The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the 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. 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. 31. Supplier – A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 32. Total Project Costs – The sum of the Construction Cost, allowances for contingencies, and the total costs of services of Engineer or other design professionals and consultants, together with such other Project-related costs that Owner furnishes for inclusion, including but not limited to cost of land, rights-of-way, compensation for damages to properties, Owner’s costs for legal, accounting, insurance counseling and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. 33. Work – The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. ARTICLE 8 – EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included: A. Exhibit A, Engineer’s Services. B. Exhibit B, Owner’s Responsibilities. C. Exhibit C, Payments to Engineer for Services and Reimbursable Expenses. D. Exhibit D, Duties, Responsibilities and Limitations of Authority of Resident Project Representative. E. Exhibit E, Notice of Acceptability of Work. F. Exhibit F, Construction Cost Limit. NOT INCLUDED G. Exhibit G, Insurance. H. Exhibit H, Dispute Resolution. NOT INCLUDED I. Exhibit I, Limitations of Liability. J. Exhibit J, Special Provisions. NOT INCLUDED K. Exhibit K, Amendment to Owner-Engineer Agreement. NOT INCLUDED L. Exhibit L, SME Scope and Fee Document. 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. 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: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the selection process or in the Agreement execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the selection process or the execution of the Agreement to the detriment of Owner, or (b) to deprive Owner of the benefits of free and open competition; 3. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the selection process or affect the execution of the Agreement. Page 17 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: Engineer: City of South Bend, Indiana Board of Public Works Lochmueller Group, Inc. By: By: Title: Elizabeth A. Maradik, President Title: Susan D. Al-Abbas, PE, Regional Manager By: Title: Gary A. Gilot, Member By: Title: Jordan V. Gathers, Member By: Title: Joseph R. Molnar, Member By: Title: Attest: Title: Anne Fuchs, Clerk Date: Date: February 9, 2021 Engineer License or Firm's Certificate No. 19400098 State of: Indiana Address for giving notices: Address for giving notices: 227 West Jefferson Boulevard South Bend, Indiana 46601 112 West Jefferson Blvd., Suite 500 South Bend, IN 46601 Designated Representative (Paragraph 8.03.A): Designated Representative (Paragraph 8.03.A): Kara M. Boyles, Ph.D., P.E. Susan Al-Abbas, PE Title: City Engineer Title: Regional Manager Phone Number: (574) 235-5933 Phone Number: 574-334-5460 Facsimile Number: (574) 235-9171 Facsimile Number: E-Mail Address: kboyles@southbendin.gov E-Mail Address: salabbas@lochgroup.com February 23, 2021 Page 1 (Exhibit A – Engineer’s Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT A, consisting of 6 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. 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 Engineering Personnel A. For the fulfillment of all services outlined in this Appendix, the Engineer shall provide: 1. One (1) full-time Resident Project Representative and an Inspector as required for a period of time as outlined in Section A1.03. Working hours will be 8 hours per day, Monday through Friday with occasional overtime, as needed. The Owner will provide additional field staff as necessary. 2. The qualifications and experiences of personnel provided by the Engineer are subject to approval by the Owner. No personnel shall be assigned to the project until Owner approval is obtained. 3. The Resident Project Representative shall take directions from and report to the Owner’s Project Coordinator on all matters concerning contract compliance and administration. 4. The Resident Project Representative shall coordinate project activities with the Owner's Project Coordinator. A1.02 Description of Services A. Construction Schedule: Review the construction schedule prepared by the Contractor for compliance with the Contract, and give to the Owner detailed documentation concerning its acceptability. B. Conferences: Attend pre-construction conferences as directed by the Owner, arrange a schedule of progress meetings, and such other job conferences as required for the timely and acceptable conduct of the job, and submit such schedules prepared, to the Owner for notification to those who are expected to attend. Record for the Owner, as directed, minutes of such meetings. The Engineer shall be available for conferences as requested by the Owner. The Owner may review and inspect the activities whenever desired during the life of the Agreement. C. Liaison: Serve as the Owner's liaison with the contractor, working principally through the Contractor's field superintendent or such other person in authority as designated by the Contractor. Acting in liaison capacity, the Resident Project Representative shall be thoroughly familiar with the plans and specifications applicable to the project to insure that all provisions therein are complied with. Any deviation observed shall be reported to the Owner by the Resident Project Representative. Page 2 (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. D. Assist the Owner in obtaining from the Contractor additional details or information when needed at the job site for proper execution of work. E. Assist City Staff with Shop Drawings. F. Review of Work, Inspection and Tests: 1. Conduct on-site inspections for the Owner of the work in progress as a basis for determining that the project is proceeding in accordance with the Contract Documents. 2. Assist City Staff with verififcation that required testing has been accomplished. G. Modification: Consider and evaluate the Contractor's suggestions for modifications in drawings and/or specifications and report them with recommendations to the Owner. H. Records: 1. Prepare and maintain at the job site orderly files of correspondence, reports of job conferences, shop drawings and other submissions, reproductions of original Contract Documents, including all addenda, change orders and additional drawings subsequent to the award of the Contract, progress reports and other project related documents. 2. City Staff will keep a diary or log book, recording hours on the job site, weather conditions, list of visiting officials, decisions, general observations, and specific observations with regard to test procedures. 3. Prepare the Final Estimate as required by the Owner. I. Reports: Furnish to the Owner at periodic intervals, as required, progress reports of the project, including the Contractor's compliance with the approved construction schedule. J. Progress Estimates: Prepare progress estimates for periodic partial payments to the Contractor and deliver to the Owner for review and processing. The payments to the Contractor shall be based on estimates of the value of work performed and materials complete in place in accordance with the contract. K. Project Responsibility: The Resident Project Representative shall assist City Staff with documentation of pay quantities and estimates, and the maintenance of appropriate records related to the construction of this project. L. Work Schedule and Suspension: The Engineer's crew shall be required to regulate their work week to conform to the contractor's hours in accordance with the directions of the Owner’s Project Coordinator and project budget. M. Contract Administration: The Engineer shall administer the contract in accordance with the Owner’s procedures. N. Utility Relocation Inspection: Resident Project Representative will assist City Staff with monitor the relocation of utilities within the project limits to verify that conflicts between the project construction and utilities are minimal. O. Conflict of Interest: The Engineer acknowledges and agrees that the Engineer, a firm associated with the Engineer or an individual associated with the Engineer cannot accept or prepare falsework drawings and shop drawings for the contractor, material supplier of the contractor or for any of the contractor's subcontractors on this project. For purposes 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. of this section a firm is associated with the Engineer if the firm and Engineer have a common director, common officer or a common owner. For purposes of this section an individual is associated with the Engineer if the individual is an employee of the Engineer or an employee of a firm associated with the Engineer. P. Duration of Construction Phase: The Construction Phase will commence with the execution of the first Construction Contract for the Project or any part thereof and will terminate upon written recommendation by Engineer for final payment to Contractors. If the Project involves more than one prime contract as indicated in Paragraph A1.03.C, then Construction Phase services may be rendered at different times in respect to the separate contracts. Subject to the provisions of Article 3, Engineer shall be entitled to an equitable increase in compensation if Construction Phase services are required after the original date for completion and readiness for final payment of Contractor as set forth in the Construction Contract. Q. Limitation of Responsibilities: Engineer shall not be responsible for the acts or omissions of any Contractor, Subcontractor or Supplier, or other individuals or entities performing or furnishing any of the Work, for safety or security at the Site, or for safety precautions and programs incident to Contractor's Work, during the Construction Phase or otherwise. Engineer shall not be responsible for the failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. R. Means and Methods: The Engineer is not responsible for advising or assuming control over any aspect of the means, methods, techniques, sequences or procedures of Contractor’s work. S. Safety: The Engineer is not responsible for advising or assuming control over security or safety practices, precautions, and programs in connection with the activities or operations of Owner or Contractor. T. The Engineer and Owner shall follow Exhibit A1 and Exhibit A2 in regard to staffing and roles and responsibilities. A1.03 Vibratory Exploration A. Provide remote vibration monitoring during the pile driving activities. A1.04 Plan, Estimate and Specifications Review A. Provide assistance to the City in the review of the project plans, estimate and specification book. A1.05 Schedule A. The project schedule, as defined in the Contract Documents is general as follows. Anticipated Bid Date: November 24, 2020 Anticipated Completion Date: June 31, 2022 Page 4 (Exhibit A – Engineer’s Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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 statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by Owner or others. 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by Engineer or its design requirements including, but not limited to, changes in size, complexity, Owner’s schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date or are due to any other causes beyond Engineer’s control. 4. Services resulting from Owner’s request to evaluate additional Study and Report Phase alternative solutions beyond those identified in Paragraph A1.01.A.4. 5. Services required as a result of Owner’s providing incomplete or incorrect Project information to Engineer. 6. Providing renderings or models for Owner’s use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of financial feasibility and cash flow studies, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting Owner in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by Owner. 8. Furnishing services of Consultants for other than Basic Services. 9. Services attributable to more prime construction contracts than specified in Paragraph A1.03.D. 10. Services during out-of-town travel required of Engineer other than for visits to the Site or Owner’s office. 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. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by Owner; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by Owner for the Work or a portion thereof. 13. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required by Exhibit F. 14. Providing construction surveys and staking to enable Contractor to perform its work other than as required under Paragraph A1.05.A.6, and any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 15. Providing Construction Phase services beyond the original date for completion and readiness for final payment of Contractor. 16. Providing assistance in responding to the presence of any Constituent of Concern at the Site, in compliance with current Laws and Regulations. 17. Preparing Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor, and furnishing such Record Drawings to Owner. 18. Preparation of operation and maintenance manuals. 19. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other dispute resolution process related to the Project. 20. Providing more extensive services required to enable Engineer to issue notices or certifications requested by Owner. 21. Assistance in connection with the adjusting of Project equipment and systems. 22. Assistance to Owner in training Owner’s staff to operate and maintain Project equipment and systems. 23. Assistance to Owner in developing procedures for (a) control of the operation and maintenance of Project equipment and systems, and (b) related record-keeping. 24. Overtime work requiring higher than regular rates. 25. Other services performed or furnished by Engineer not otherwise provided for in this Agreement. Page 6 (Exhibit A – Engineer’s Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. A2.02 Additional Services Not Requiring Owner’s Written Authorization A. Engineer shall advise Owner in advance that Engineer is will immediately commence to perform or furnish the Additional Services of the types listed below. For such Additional Services, Engineer need not request or obtain specific advance written authorization from Owner. Engineer shall cease performing or furnishing such Additional Services upon receipt of written notice from Owner. 1. Services in connection with work change directives and change orders to reflect changes requested by Owner. 2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than “or-equal” items; services after the award of the Construction Contract in evaluating and determining the acceptability of a proposed "or equal" or substitution which is found to be inappropriate for the Project; evaluation and determination of an excessive number of proposed "or equals" or substitutions, whether proposed before or after award of the Construction Contract. 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work (advance notice not required), (2) the presence at the Site of any Constituent of Concern or items of historical or cultural significance, (3) Work damaged by fire or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. 5. Services (other than Basic Services during the Post-Construction Phase) in connection with any partial utilization of any part of the Work by Owner prior to Substantial Completion. 6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. 7. Services during the Construction Phase rendered after the original date for completion of the Work referred to in A1.05.B. 8. Reviewing a Shop Drawing more than three times, as a result of repeated inadequate submissions by Contractor. 9. While at the Site, compliance by Engineer and its staff with those terms of Owner's or Contractor's safety program provided to Engineer subsequent to the Effective Date that exceed those normally required of engineering personnel by federal, state, or local safety authorities for similar construction sites. Page 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. This is EXHIBIT B, consisting of 3 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. Owner’s Responsibilities Article 2 of the Agreement is supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of Owner as set forth in this Agreement, Owner shall at its expense: A. Provide Engineer with all criteria and full information as to Owner’s requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and 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. C. Following Engineer’s assessment of initially-available Project information and data and upon Engineer’s request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable Engineer to complete its Basic and Additional Services. Such additional information or data would generally include the following: 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. D. Give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of the presence at the Site of any Constituent of Concern, or of any other development that affects the scope or time of performance of Engineer’s services, or any defect or nonconformance in Engineer’s services, the Work, or in the performance of any Contractor. Page 2 (Exhibit B – Owner's Responsibilities) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 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: 1. Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services. 2. Legal services with regard to issues pertaining to the Project as Owner requires, Contractor raises, or Engineer reasonably requests. 3. Such auditing services as Owner requires to ascertain how or for what purpose Contractor has used the moneys paid. J. Place and pay for advertisement for Bids in appropriate publications. K. Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. L. Furnish to Engineer data as to Owner’s anticipated costs for services to be provided by others (including, but not limited to, accounting, bond and financial, independent cost estimating, insurance counseling, and legal advice) for Owner so that Engineer may assist Owner in collating the various cost categories which comprise Total Project Costs. M. If Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to represent Owner at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of Engineer. N. If more than one prime contract is to be awarded for the Work designed or specified by Engineer, designate a person or entity to have authority and responsibility for coordinating the activities among the various prime Contractors, and define and set forth the duties, responsibilities, and limitations of authority of such individual or entity and the relation thereof to the duties, 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. responsibilities, and authority of Engineer as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin. O. Attend the pre-bid conference, bid opening, pre-construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment visits to the Project. P. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of Owner, prior to their incorporation into the Work with appropriate professional interpretation thereof. Q. Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this paragraph. R. Inform Engineer in writing of any specific requirements of safety or security programs that are applicable to Engineer, as a visitor to the Site. S. Perform or provide the following additional services: [Here list any such additional services]. A. Period of Service: The compensation amount stipulated in Compensation Packet BC-1 is conditioned on a period of service not exceeding 20 months. If such period of service is extended, the compensation amount for Engineer's services shall be appropriately adjusted. Page 1 Exhibit C – Compensation Packet RPR-2: Resident Project Representative Services Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. COMPENSATION PACKET RPR-2: Resident Project Representative – Standard Hourly Rates Article 2 of the Agreement is supplemented to include the following agreement of the parties: C2.04 Compensation for Resident Project Representative Basic Services – Standard Hourly Rates Method of Payment A. Owner shall pay Engineer for Resident Project Representative Basic Services as follows: 1. Resident Project Representative Services: For services of Engineer’s Resident Project Representative under Paragraph A1.05A of Exhibit A, an amount equal to the cumulative hours charged to the Project by each class of Engineer’s personnel times Standard Hourly Rates for each applicable billing class for all Resident Project Representative services performed on the Project, plus related Reimbursable Expenses and Engineer’s Consultant’s charges, if any. The total compensation under this Paragraph is estimated to be $576,480.00 based upon full-time RPR services on an eight-hour workday, Monday through Friday, with occasional overtime, as needed. B. Compensation for Reimbursable Expenses: 1. For those Reimbursable Expenses that are not accounted for in the compensation for Basic Services under Paragraph C2.01, and are directly related to the provision of Resident Project Representative or Post-Construction Basic Services, Owner shall pay Engineer at the rates set forth in Appendix 1 to this Exhibit C. 2. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto; ; providing and maintaining field office facilities including furnishings and utilities; subsistence and transportation of Resident Project Representative and assistants; toll telephone calls and mobile phone charges; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project-related items in addition to those required under Exhibit A. In addition, if authorized in advance by Owner, Reimbursable Expenses will also include expenses incurred for the use of highly specialized equipment. 3. The amounts payable to Engineer for Reimbursable Expenses, if any, will be those internal expenses related to the Resident Project Representative Basic Services that are actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such services, the latter multiplied by a factor of 1.0. 4. The Reimbursable Expenses Schedule will be adjusted annually (as of January 1, 2021) to reflect equitable changes in the compensation payable to Engineer. Page 2 Exhibit C – Compensation Packet RPR-2: Resident Project Representative Services Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. C. Other Provisions Concerning Payment Under this Paragraph C2.04: 1. Whenever Engineer is entitled to compensation for the charges of Engineer’s Consultants, those charges shall be the amounts billed by Engineer’s Consultants to Engineer times a factor of 1.0. 2. Factors: The external Reimbursable Expenses and Engineer’s Consultant’s factors include Engineer’s overhead and profit associated with Engineer’s responsibility for the administration of such services and costs. 3. Estimated Compensation Amounts: a. Engineer’s estimate of the amounts that will become payable for specified services are only estimates for planning purposes, are not binding on the parties, and are not the minimum or maximum amounts payable to Engineer under the Agreement. b. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to Engineer that the total compensation amount thus estimated will be exceeded, Engineer shall give Owner written notice thereof, allowing Owner to consider its options, including suspension or termination of Engineer's services for Owner's convenience. Upon notice Owner and Engineer promptly shall review the matter of services remaining to be performed and compensation for such services. Owner shall either exercise its right to suspend or terminate Engineer's services for Owner's convenience, agree to such compensation exceeding said estimated amount, or agree to a reduction in the remaining services to be rendered by Engineer, so that total compensation for such services will not exceed said estimated amount when such services are completed. If Owner decides not to suspend Engineer's services during negotiations and Engineer exceeds the estimated amount before Owner and Engineer have agreed to an increase in the compensation due Engineer or a reduction in the remaining services, then Engineer shall be paid for all services rendered hereunder. 4. To the extent necessary to verify Engineer’s charges and upon Owner’s timely request, Engineer shall make copies of such records available to Owner at cost. Page 1 Exhibit C – Compensation Packet AS-1: Additional Services – Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. COMPENSATION PACKET AS-1: Additional Services – Standard Hourly Rates Article 2 of the Agreement is supplmented to include the following agreement of the parties: C2.05 Compensation for Additional Services – Standard Hourly Rates Method of Payment A. Owner shall pay Engineer for Additional Services, if any, as follows: 1. General: For services of Engineer’s personnel engaged directly on the Project pursuant to Paragraph A2.01 or A2.02 of Exhibit A, except for services as a consultant or witness under Paragraph A2.01.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. 3. The amounts payable to Engineer for Reimbursable Expenses, if any, will be the Additional Services-related internal expenses actually incurred or allocated by Engineer, plus all invoiced external Reimbursable Expenses allocable to such Additional Services, the latter multiplied by a factor of 1.0 . 4. The Reimbursable Expenses Schedule will be adjusted annually (as of January 1, 2021) 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 1.0. Page 2 Exhibit C – Compensation Packet AS-1: Additional Services – Standard Hourly Rates Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 2. Factors: The external Reimbursable Expenses and Engineer’s Consultant’s Factors include Engineer’s overhead and profit associated with Engineer’s responsibility for the administration of such services and costs. 3. To the extent necessary to verify Engineer’s charges and upon Owner’s timely request, Engineer shall make copies of such records available to Owner at cost. Page 1 Exhibit C – Appendix 2: Standard Hourly Rates Schedule 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 Appendix 1 to EXHIBIT C, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. 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: Page 2 Exhibit C – Appendix 2: Standard Hourly Rates Schedule EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. The estimate for the vibratory exploration is $17,500. In addition, we recommend an additional $2,500 budget for additional services (e.g. additional site visit(s) to move the seismographs, additional consultation with the project team and owners of the nearby structures, etc.). This would increase the recommended budget for vibration monitoring services to $20,000. We can provide additional vibration monitoring on a per month basis for the 3 seismographs and recommend a budget of $3,500 per month. Page 3 Exhibit C – Appendix 2: Standard Hourly Rates Schedule 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 Appendix 2 to EXHIBIT C, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. 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. 1. 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: Classification 2020 2021 2022 Senior Project Manager $219.74 $219.74 $225.01 Project Manager $168.86 $173.76 $177.93 RPR, Regular Rate $149.76 $155.79 $159.53 RPR, Overtime Rate $172.80 $180.44 $184.77 Construction Engineer, Regular Rate $131.22 $134.37 $137.59 Construction Engineer, Overtime $152.70 $156.36 $160.11 Construction Inspector, Regular Rate $93.26 $95.96 $98.26 Construction Inspector, Overtime Rate $108.01 $111.14 $113.81 Page 4 Exhibit C – Appendix 2: Standard Hourly Rates Schedule EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. PROJECT:Seitz Park Reconstruction Phase 1 Construction Inspection Client Name:City of South Bend Project Number:117-093A TOTAL TOTAL DESCRIPTION Senior PM Project Manager HOURS DOLLARS / TASK / TASK October-20 20 0 $0.00 November-20 20 0 $0.00 December-20 21 0 $0.00 Total Hours, 2020 0 0 0 0 0 0 0 0 0 $0.00 Average Hourly Rate Per Classification:$219.74 $168.86 $149.76 $172.80 $131.22 $152.70 $93.26 $108.01 Total Cost - 2020 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 January-21 19 0 $0.00 February-21 19 1.0 1.0 152.0 154 $24,073.58 March-21 23 1.0 1.0 184.0 186 $29,058.86 April-21 22 1.0 1.0 176.0 46.0 224 $36,112.78 May-21 20 1.0 1.0 160.0 40.0 202 $32,537.50 June-21 22 1.0 1.0 176.0 46.0 88.0 312 $44,557.26 July-21 21 1.0 1.0 168.0 44.0 84.0 298 $42,566.22 August-21 22 1.0 1.0 176.0 42.0 88.0 308 $43,835.50 September-21 21 1.0 1.0 168.0 84.0 254 $34,626.86 October-21 20 1.0 1.0 160.0 162 $25,319.90 November-21 20 1.0 1.0 160.0 162 $25,319.90 December-21 21 1.0 1.0 2 $393.50 Total Hours, 2021 11 11 1,680 218 0 0 344 0 2,264 $338,401.86 Average Hourly Rate Per Classification:$219.74 $173.76 $155.79 $180.44 $134.37 $156.36 $95.96 $111.14 Total Cost - 2021 $2,417.14 $1,911.36 $261,727.20 $39,335.92 $0.00 $0.00 $33,010.24 $0.00 January-22 20 0 $0.00 February-22 19 1.0 152.0 153 $24,426.33 March-22 23 1.0 184.0 80.0 265 $37,392.30 April-22 21 1.0 168.0 44.0 80.0 293 $42,969.74 May-22 21 1.0 168.0 44.0 80.0 293 $42,969.74 June-22 22 1.0 176.0 46.0 80.0 303 $44,615.52 July-22 20 1.0 160.0 161 $25,702.56 August-22 23 0 $0.00 September-22 21 0 $0.00 October-22 20 0 $0.00 November-22 20 0 $0.00 December-22 21 0 $0.00 Total Hours, 2022 0 6 1,008 134 0 0 320 0 1,468 $218,076.20 Average Hourly Rate Per Classification:$225.01 $177.93 $159.53 $184.77 $137.59 $160.11 $98.26 $113.81 Total Cost - 2022 $0.00 $1,067.58 $160,805.19 $24,759.26 $0.00 $0.00 $31,444.17 $0.00 Lochmueller Group Total $2,417.14 $2,978.94 $422,532.39 $64,095.18 $0.00 $0.00 $64,454.41 $0.00 3,732 $556,478.06 TOTAL :$556,478.06 TOTAL (ROUNDED):$556,480.00 Contract Fee $556,480.00 STAFF HOURS BY CLASSIFICATION Working Days per Month Construction Engineer III Construction Engineer III OT Construction Engineer II Construction Engineer II OT Construction Inspector II Construction Inspector II OT Page 1 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT D, consisting of 5 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. [Note to User: Delete this Exhibit D if Engineer will not be providing Resident Project Representative Services under Paragraph A1.05.A.2] Duties, Responsibilities, and Limitations of Authority of Resident Project Representative Article 1 of the Agreement is supplemented to include the following agreement of the parties: D1.01 Resident Project Representative C. Engineer shall furnish a Resident Project Representative (“RPR”) to assist Engineer in observing progress and quality of the Work. The RPR may provide full time representation or may provide representation to a lesser degree. D. Through RPR's observations of Contractor’s work in progress and field checks of materials and equipment, Engineer shall endeavor to provide further protection for Owner against defects and deficiencies in the Work. However, Engineer shall not, during such RPR field checks or as a result of such RPR observations of Contractor’s work in progress, supervise, direct, or have control over Contractor’s Work, nor shall Engineer (including the RPR) have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, for security or safety at the Site, for safety precautions and programs incident to any contractor’s work in progress, or for any failure of a contractor to comply with Laws and Regulations applicable to such contractor’s performing and furnishing of its work. The Engineer (including RPR) neither guarantee the performances of any contractor nor assumes responsibility for Contractor’s failure to furnish and perform the Work in accordance with the Contract Documents. In addition, the specific terms set forth in Paragraph A1.05 of Exhibit A of the Agreement are applicable. E. The duties and responsibilities of the RPR are as follows: 1. General: RPR is Engineer’s representative at the Site, will act as directed by and under the supervision of Engineer, and will confer with Engineer regarding RPR’s actions. RPR’s dealings in matters pertaining to the Contractor’s work in progress shall in general be with Engineer and Contractor. RPR’s dealings with Subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with Owner only with the knowledge of and under the direction of Engineer. 2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and schedule of values prepared by Contractor and consult with Engineer concerning acceptability. 3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences and other project-related meetings, and prepare and circulate copies of minutes thereof. Page 2 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 4. Liaison: a. Serve as Engineer’s liaison with Contractor. Working principally through Contractor’s authorized representative or designee, assist in providing information regarding the intent of the Contract Documents. b. Assist Engineer in serving as Owner’s liaison with Contractor when Contractor’s operations affect Owner’s on-Site operations. c. Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. 5. Interpretation of Contract Documents: Report to Engineer when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by Engineer. 6. Shop Drawings and Samples: a. Record date of receipt of Samples and approved Shop Drawings. b. Receive Samples which are furnished at the Site by Contractor, and notify Engineer of availability of Samples for examination. c. Advise Engineer and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by Engineer. 7. Modifications: Consider and evaluate Contractor’s suggestions for modifications in Drawings or Specifications and report such suggestions, together with RPR’s recommendations, to Engineer. Transmit to Contractor in writing decisions as issued by Engineer. 8. Review of Work and Rejection of Defective Work: a. Conduct on-Site observations of Contractor’s work in progress to assist Engineer in determining if the Work is in general proceeding in accordance with the Contract Documents. b. Report to Engineer whenever RPR believes that any part of Contractor’s work in progress will not produce a completed Project that conforms generally to the Contract Documents or will imperil the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise Engineer of that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection, or approval. 9. Inspections, Tests, and System Start-ups: Page 3 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. a. Consult with Engineer in advance of scheduled inspections, tests, and systems start-ups. b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate Owner’s personnel, and that Contractor maintains adequate records thereof. c. Observe, record, and report to Engineer appropriate details relative to the test procedures and systems start-ups. d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections, and report to Engineer. 10. Records: a. Maintain at the Site orderly files for correspondence, reports of job conferences, reproductions of original Contract Documents including all change orders, field orders, work change directives, addenda, additional Drawings issued subsequent to the execution of the Construction Contract, Engineer’s clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing and Sample submittals received from and delivered to Contractor, and other Project-related documents. b. Prepare a daily report or keep a diary or log book, recording Contractor’s hours on the Site, weather conditions, data relative to questions of change orders, field orders, work change directives, or changed conditions, Site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to Engineer. c. Record names, addresses, fax numbers, e-mail addresses, web site locations, and telephone numbers of all Contractors, Subcontractors, and major Suppliers of materials and equipment. d. Maintain records for use in preparing Project documentation. e. Upon completion of the Work, furnish original set of all RPR Project documentation to Engineer. 11. Reports: a. Furnish to Engineer periodic reports as required of progress of the Work and of Contractor’s compliance with the progress schedule and schedule of Shop Drawing and Sample submittals. b. Draft and recommend to Engineer proposed change orders, work change directives, and field orders. Obtain backup material from Contractor. c. Furnish to Engineer and Owner copies of all inspection, test, and system start-up reports. Page 4 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. d. Immediately notify Engineer of the occurrence of any Site accidents, emergencies, acts of God endangering the Work, damage to property by fire or other causes, or the discovery of any Constituent of Concern. 12. Payment Requests: Review applications for payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to Engineer, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the Site but not incorporated in the Work. 13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Contract Documents to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered to Engineer for review and forwarding to Owner prior to payment for that part of the Work. 14. Completion: a. Participate in visits to the Project to determine Substantial Completion, assist in the determination of Substantial Completion and the preparation of lists of items to be completed or corrected. b. Participate in a final visit to the Project in the company of Engineer, Owner, and Contractor, and prepare a final list of items to be completed and deficiencies to be remedied. c. Observe whether all items on the final list have been completed or corrected and make recommendations to Engineer concerning acceptance and issuance of the Notice of Acceptability of the Work (Exhibit E). F. Resident Project Representative shall not: 1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including “or-equal” items). 2. Exceed limitations of Engineer’s authority as set forth in this Agreement. 3. Undertake any of the responsibilities of Contractor, Subcontractors or Suppliers. 4. Advise on, issue directions relative to, or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor’s work. 5. Advise on, issue directions regarding, or assume control over security or safety practices, precautions, and programs in connection with the activities or operations of Owner or Contractor. 6. Participate in specialized field or laboratory tests or inspections conducted off-site by others except as specifically authorized by Engineer. Page 5 (Exhibit D - Resident Project Representative) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 7. Accept shop drawing or sample submittals from anyone other than Contractor. 8. Authorize Owner to occupy the Project in whole or in part. Page 1 (Exhibit E – Notice of Acceptability of Work) 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 E, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER: CONTRACTOR: OWNER’S CONSTRUCTION CONTRACT IDENTIFICATION: EFFECTIVE DATE OF THE CONSTRUCTION CONTRACT: ENGINEER: NOTICE DATE: To: ___________________ Owner And To: ___________________ Contractor From: ___________________ Engineer The Engineer hereby gives notice to the above Owner and Contractor that the completed Work furnished and performed by Contractor under the above Contract is acceptable, expressly subject to the provisions of the related Contract Documents, the Agreement between Owner and Engineer for Professional Services dated , , and the terms and conditions set forth in this Notice. By: Title: Dated: Page 2 (Exhibit E – Notice of Acceptability of Work) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK The Notice of Acceptability of Work (“Notice”) is expressly made subject to the following terms and conditions to which all those who receive said Notice and rely thereon agree: 1. This Notice is given with the skill and care ordinarily used by members of the engineering profession practicing under similar conditions at the same time and in the same locality. 2. This Notice reflects and is an expression of the professional judgment of Engineer. 3. This Notice is given as to the best of Engineer’s knowledge, information, and belief as of the Notice Date. 4. This Notice is based entirely on and expressly limited by the scope of services Engineer has been employed by Owner to perform or furnish during construction of the Project (including observation of the Contractor’s work) under Engineer’s Agreement with Owner and under the Construction Contract referred to in this Notice, and applies only to facts that are within Engineer’s knowledge or could reasonably have been ascertained by Engineer as a result of carrying out the responsibilities specifically assigned to Engineer under such Agreement and Construction Contract. 5. This Notice is not a guarantee or warranty of Contractor’s performance under the Construction Contract referred to in this Notice, nor an assumption of responsibility for any failure of Contractor to furnish and perform the Work thereunder in accordance with the Contract Documents. 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. This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. 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: Statutory b. Employer’s Liability -- 1) Each Accident: $1,000,000.00 2) Disease, Policy Limit: $1,000,000.00 3) Disease, Each Employee: $1,000,000.00 c. General Liability -- 1) Each Occurrence (Bodily Injury and Property Damage): $1,000,000.00 2) General Aggregate: $2,000,000.00 d. Excess or Umbrella Liability -- 1) Each Occurrence: $6,000,000.00 2) General Aggregate: $6,000,000.00 e. Automobile Liability --Combined Single Limit (Bodily Injury and Property Damage): Each Accident $1,000,000.00 f. Professional Liability – 1) Each Claim Made $2,000,000.00 2) Annual Aggregate $2,000,000.00 g. Other (specify): $________________ Page 2 (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. The City of South Bend is a municipal corporation organized under the laws of the State of Indiana, and is self-insured under provisions of Indiana statutes and local ordinance. Specifically, the City of South Bend maintains blanket insurance coverage over real and personal property, and is covered by a non-reverting insurance premium and liability reserve fund created by the City of South Bend, Ordinance #6657-79, pursuant to Indiana Code 34-13-3-4, as amended from time to time. Under said statute, the City’s liability is limited to: 1) Seven hundred thousand dollars ($700,000) for a cause of action that accrues on or after January 1, 2008; and 2) Five million dollars ($5,000,000) for injury to or death of all persons in that occurrence,; and 3) A governmental entity or an employee of a governmental entity acting within the scope of employment is not liable for punitive damages. B. 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.B: 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 1 (Exhibit I – Limitations of 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 I, consisting of 1 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. 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 Consultantss (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 $_____________ 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 of 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 L, consisting of 7 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated Feb 9, 2021. The Kramer Building 43980 Plymouth Oaks Blvd. Plymouth, MI 48170-2584 T (734) 454-9900 www.sme-usa.com © 2020 SME P01657.20+092520 1 September 25, 2020 Ms. Emily McKinnon, PE Smithgroup 201 Depot Street Second Floor Ann Arbor, Michigan 48104 Via Email: Emily.McKinnon@smithgroup.com (PDF file) RE: Proposal for Vibration Monitoring Services Seitz Park Reconstruction – Phase I South Bend, Indiana SME Proposal No. P01657.20 Dear Ms. McKinnon: SME would be pleased to provide vibration monitoring services for the subject project. This proposal has been revised based on your request for proposal during our recent discussion and email correspondence. PROJECT DESCRIPTION The project is located at Seitz Park in South Bend, Indiana. The project is divided up into three areas (Areas A, B, and C). Area B encompasses that portion of the park that is part of the University of Notre Dame Hydroelectric Project. Area B is located between Areas A and C. The northern area, Area A, is a roughly 50-foot wide strip of shoreline that is located just north of Area B, and stretches about 500 feet along the Saint Joseph R iver to Colfax Avenue. The southern area, Area C, is also a roughly 50-foot wide strip of shoreline (with an expanded at the northern end of Area C for vehicular parking) that is located just south and east of the East Race, and the Saint Joseph River, and stretches about 600 feet along the waterfront until reaching E. Jefferson Boulevard. The walkway along the river is going to be replaced in Areas A through B as part of the Phase 1 work (refer to attached Sheet G100 provided by Smithgroup). The proposed replacement plans include driving steel pile foundations (e.g. pipe piles or sheet piles) to support the new walkway. We assume the axial capacity of the driven piles will be less than 36 kips. During the pile driving operation, you requested we perform vibration monitoring services between the site and some of the nearby existing buildings. No vibration measurement specification or criteria was prepared for this project. You indicate the structures of concern include the Cascades building, Fish ladder structure, and Stephenson Mills building. We understand the project will begin April of 2021 and continue through May 2022 for final completion. However, the duration for pile driving is planned April 2021 through July 2021 (4 months). © 2020 SME P01657.20+092520 2 SCOPE OF SERVICES Based on our understanding of the project, we envision the vibration monitoring services will include the following 1. Prepare a vibration monitoring plan identifying the proposed locations of the portable seismographs relative to the proposed construction site and the ne arby existing buildings. Distribute the vibration monitoring plan to the project team for review and comment. 2. Perform a site visit to review the proposed monitoring locations, and make adjustments to the locations based on site-specific conditions. 3. Mobilize, maintain, and demobilize three (portable) remote monitoring seismographs. The portable seismographs are each equipped with a tri-axial geophone sensor, which connects to a main data processing and storage unit. Each sensor will be buried, or placed directly on the ground surface and covered with a sandbag, at the monitoring locations. Each data processing unit will be placed in a locked box with 1-foot long augers installed into the ground (or Hilti- anchored into the existing paved surface) to protect the equipment from weather and theft. 4. Coordinate the schedule for the installation and demobilization of each of the units with the Owner and the Contractor. We plan to perform one site visit to move the seismographs from Area A to Area B (or vice-versa) once the pile driving is completed in the one area, and prior to commencing the pile driving in the other area. 5. Provide remote vibration monitoring during the pile driving activities. The seismographs will be set up with remote transmission equipment to send an e-mail and/or cellular text message if the vibration levels (PPV’s) are recorded over a threshold level. The proposed threshold level is 0.25 inches per second (ips), and the proposed vibration limit level is 0.5 ips. We plan to have the vibration equipment triggers set for 0.25 ips. If the seismograph(s) is/are triggered, it will record a 0.25-second period prior to the trigger, and a 3-second period after the trigger to capture the general waveform of the vibration. The intent of recording the waveforms is to determine if an activity occurred that was a single isolated event (e.g., dropping equipment on the ground) or an intermittent transient event (e.g., pile driving). NOTE: We request information regarding the time/date of specific vibrations events be provided to us for review and comparison with the vibration measurements related to the specific events recorded by the seismographs. We also request SME be alerted prior to pile driving activities, particularly if those activities are expected to result in significant vibrations. The Contractor’s onsite personnel recording the date/time of the vibration events will need to sync up with the time recorded on the seismographs to enhance precision when relating vibration events to the vibration readings. 6. Provide a summary of the vibration measurements for each Area. The (two) summaries will include a general description of the vibration monitoring set up, peak vibration values recorded (in terms of peak particle velocity), select reports from each seismograph that represent our findings, and conclusions/comments regarding the potential impact the vibrations (from the pile driving) could have on the nearby existing structures. 7. Provide up to two hours of consultation regarding the findings from the seismographs. ASSUMPTIONS AND LIMITATIONS The following items are not included in our scope, but could be provided on a time and materials fee basis. 1. Additional visits to move seismograph locations (not including the visit for initial set up, an interim visit to move the seismographs from one Area to the other Area, and a final visit to demobilize ). 2. Based on the proximity of the seismographs to the proposed vibration inducing equipment, we have allotted for no more than one trigger above the 0.25 ips limit per seismograph, per week. In © 2020 SME P01657.20+092520 3 the event of an alert, we would call the Contractor’s onsite personnel for feedback on the suspect vibration source, and note the reported cause on the report. Additional recommendations, data analysis, or managing of seismograph trigger alerts would be provided on a time and materials basis. PROFESSIONAL SERVICES FEE The estimate fee for our services is $17,500. We plan to perform these services on a time and materials basis using the attached fee schedules. In addition, we recommend an additional $2,500 budget for additional services (e.g. additional site visit(s) to move the seismographs, additional consultation with the project team and owners of the nearby structures, etc.). This would increase the recommended budget for vibration monitoring services to $20,000. We can provide additional vibration monitoring on a per month basis for the 3 seismographs and recommend a budget of $3,500 per month. If further services are required for this project that extend beyond the scope of services outlined in this proposal, we will contact you for authorization. SCHEDULE We can begin coordinating the vibration monitoring plan within about one week after we receive authorization to proceed. Setting up the wireless vibration monitoring equipment (e.g. seismographs, modems, solar panels, protective boxes, etc.) will require approximately two additional weeks. The site visit for the initial setup, and for the additional two future site visits (to move the seismographs, and to demobilize the seismographs from the site), will each take one day to complete. Once the seismographs are operational, we expect the data (above the trigger level) that is recorded from the seismographs will be provided on a near real-time interval via an email or text message. We can complete the summary reports within about two weeks after we remove the seismographs from the site. Please contact us if these schedules do not meet your needs. AUTHORIZATION The SME General Conditions sheet attached to this proposal will govern our services . Please complete the SME General Conditions sheet in the space provided and return it to us. We look forward to teaming with you on this project. If you have questions concerning this proposal, please contact us. Sincerely, SME Joel W. Rinkel, PE (MI) Christopher G. Naida, PE Group Leader – Geotechnical Services Senior Consultant Attachments: Fee Schedule FS0 and FS8 (01/20) SME General Conditions – Commercial (03/15) © 2020 SME FS:0 (01/20) 1 FEE SCHEDULE – PERSONNEL AND EXPENSES PERSONNEL Technician I .............................................................................................................. Per Hour............... 65.00 Technician II ............................................................................................................. Per Hour............... 75.00 Technician III ............................................................................................................ Per Hour............... 85.00 Technician IV ........................................................................................................... Per Hour............. 100.00 Laboratory Technician .............................................................................................. Per Hour............. 105.00 Certified Welding Inspector (CWI) ........................................................................... Per Hour............. 110.00 Field Engineer/Geologist/Specialist, Survey Technician ......................................... Per Hour............. 105.00 Staff Engineer/Geologist/Architect/Specialist........................................................... Per Hour............. 115.00 Senior Staff Engineer/Geologist/Architect/Specialist, Surveyor ............................... Per Hour............. 125.00 Project Engineer/Geologist/Architect/Consultant .................................................... Per Hour............. 140.00 Civil Designer, Licensed Surveyor, Materials/Welding Consultant .......................... Per Hour............. 140.00 Survey Crew Chief ................................................................................................... Per Hour............. 150.00 Senior Project Engineer/Geologist/Architect/Consultant ........................................ Per Hour............. 165.00 Project Manager, Senior Civil Designer, Senior Licensed Surveyor ....................... Per Hour............. 165.00 Level III NDT ............................................................................................................ Per Hour............. 175.00 Senior Consultant, Senior Project Manager ............................................................. Per Hour............. 200.00 Certified Professional (Ohio VAP), Certified Industrial Hygienist............................. Per Hour............. 200.00 Principal Consultant, Chief Consultant, Project Director ......................................... Per Hour............. 240.00 CADD Technician ..................................................................................................... Per Hour............... 85.00 CADD Operator ........................................................................................................ Per Hour............... 95.00 Senior CADD Operator ............................................................................................ Per Hour............. 115.00 Log Processor .......................................................................................................... Per Hour............... 90.00 Administrative Assistant ........................................................................................... Per Hour............... 75.00 Senior Administrative Assistant ............................................................................... Per Hour............... 95.00 Minimum 4 Hours Per Day for field work. Overtime rate (Applies to all field work in excess of 8 hours per day, before 8:00 am or after 5:00 pm Monday through Friday or anytime Saturday, Sunday, or Holiday) ................................ Standard Rate x 1.5 Expert Testimony and Depositions (including preparation time) ..................... Rates available upon request TRANSPORTATION AND EXPENSES Vehicle Mileage Charge ........................................................................................... Per Mile .................. 0.80 Out-of-town Expenses (Airfare, Lodging, Subsistence, etc.) ................................................... At Cost + 20% Subcontract Expenses, Equipment Rental .............................................................................. At Cost + 20% Direct Expenses (Prints, Permits, Maps, etc.) ......................................................................... At Cost + 20% Hard Copies of Report ............................................................................................. Per Copy .............. 75.00 Plotting 24 x 36 (Black & White) .............................................................................. Each ..................... 10.00 Plotting 24 x 36 (Color) ............................................................................................ Each ..................... 20.00 Other Services including Drilling, Equipment use, and Laboratory Testing ........ See Appropriate Fee Schedule © 2020 SME FS:8 (01/20) 1 FEE SCHEDULE – VIBRATION/GEODYNAMIC SEE PERSONNEL AND EXPENSES FEE SCHEDULE FOR STAFF RATES EQUIPMENT Bison Crosshole Hammer and Accessories ..................................................... Per Day ...................... 800.00 DEWESoft Data Acquisition System/Computer ............................................... Per Day ................... 2,000.00 DEWESoft Data Acquisition System/Computer and Video Camera ................ Per Day ................... 2,500.00 Generator ......................................................................................................... Per Day ...................... 135.00 Geophones ....... Low Frequency ....................................................................... Per Day ........................ 55.00 In–hole ................................................................................... Per Day ...................... 130.00 Inclinometer Monitoring Equipment ................................................................. Per Day ...................... 235.00 Pile Dynamics Analyzer ................................................................................... Per Day ................... 1,100.00 Seismograph – Model 7100 ............................................................................. Per Day ...................... 210.00 Per Week ................... 525.00 Per Month .................. 925.00 Seismograph – Model 8100 ............................................................................ Per Day ...................... 325.00 Per Week ................... 800.00 ES-3000 System for Surface Wave Surveys ................................................... Per Day ................... 1,100.00 Triaxial Accelerometers and Current Source Power Unit ................................ Per Day ...................... 325.00 Water Pump ..................................................................................................... Per Day ...................... 525.00 Other Equipment .............................................................................................. Rate Available Upon Request Other Expenses (Cost of materials used in conjunction with the equipment and tests described above including cables, storage media and other materials) ............................................................. At Cost + 20% © 2015 SME SME General Conditions – Commercial (03/15) 1 SME GENERAL CONDITIONS 1. DEFINITIONS: In this Agreement, the party agreeing to have the services performed is the “CLIENT.” The CLIENT’s CLIENT shall be referred to as the “OWNER.” Unless expressly stated otherwise, SME, its employees, agents, subconsultants and subcontractors, are collectively referred to as “SME.” The “services” to be provided under this Agreement are defined in SME’s Proposal and subsequent written amendments, change orders, or otherwise-authorized additional services. 2. INVOICING AND PAYMENT: SME will submit invoices to CLIENT monthly and a final bill upon completion of services. Payment is due upon presentation of invoice to the CLIENT and is past due 30 days from date of the invoice. CLIENT agrees to pay a service charge of 1-1/2% per month, or the maximum rate allowed by law, whichever is greater, on past due accounts. 3. INSTRUMENTS OF SERVICE: All reports, field data, field notes, laboratory test data, calculations, estimates, and other documents prepared by SME in connection with this Project shall be considered instruments of service, and shall remain the property of SME. SME grants CLIENT and OWNER a limited license to use such instruments of service for the purpose of designing, constructing, maintaining or repairing work that is part of this Project. Any reuse of SME’s instruments of service for any purpose other than the limited license granted herein is prohibited and SME shall have no responsibility to CLIENT, OWNER or third parties for unauthorized use of its instruments of services. 4. RECORDS RETENTION: SME will retain pertinent records relating to the services performed for CLIENT for a period of time consistent with SME’s File Management Plan, a copy of which will be provided to CLIENT upon request. During that period, the records will be made available to the CLIENT at reasonable times. At the end of the retention period indicated in SME’s File Management Plan, SME may, in its sole discretion, dispose of all such records. 5. SME MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH REGARDS TO ITS SERVICES. 6. TERMINATION: Either party may terminate this Agreement upon at least 7 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof. Such termination will not be effective if that substantial failure is remedied before expiration of the period specified in the written notice. This Agreement shall also be automatically terminated upon a suspension of the Project for more than 3 months. In the event of termination, CLIENT will pay SME for services performed to the termination notice date plus reasonable termination expenses. In the event of termination, or suspension, prior to completion of all reports contemplated by this Agreement, SME may complete such analyses and records as are necessary to complete the files and may also complete a report on the services performed to the date of notice of termination or suspension. The expenses of termination or suspension include all direct costs of completing such analyses, records, and reports. 7. DISPUTES: If any dispute arising out of or relating to this Agreement, or its breach, is not settled through direct discussions, the parties agree that as a condition precedent to litigation or arbitration, they will endeavor for 30 days following written notice by one party to the other of a dispute or breach, to settle the dispute by mediation with the assistance of a neutral mediator. In any litigation or arbitration, if applicable, the parties agree that the prevailing party is entitled to recover all reasonable costs incurred in defense or prosecution of the claim, including its staff time, court costs, attorney’s fees, and other claim-related expenses. Notwithstanding, SME has no obligation to mediate with CLIENT prior to litigation when collecting fees owed by CLIENT. 8. AUTHORIZATION: By signing these General Conditions, CLIENT agrees to accept the proposal, including these General Conditions and any Special Conditions, as the Agreement governing SME’s services and the relationship between the parties. If CLIENT gives SME other-than-written authorization to proceed with services after receiving SME’s written proposal, CLIENT accepts the proposal, these General Conditions, and any Special Conditions, as the Agreement governing SME’s services, and the Agreement is effective, except for those provisions that CLIENT objects to in writing within 7 days following the other-than-written authorization. 9. SAFETY: SME will be responsible only for the safety of SME employees. Unless otherwise explicitly described in our scope of services, the scope of services does not include job or site safety for, or supervision or direction of, the work of others. The presence of SME on the job site should not be construed to in any way relieve the CLIENT, other contractors, or other parties on the site of the obligation and responsibilities for their personal safety and the safety of their employees, consultants, and subcontractors. 10. INSURANCE: SME and its staff are protected by worker’s compensation insurance and SME has coverage under General Liability and Professional Liability insurance policies. SME will provide CLIENT with evidence of such policies upon written request. SME is not responsible for any loss, damage or liability arising from acts of CLIENT, its agents, staff, and other consultants employed by CLIENT. 11. INDEMNIFICATION: To the fullest extent permitted by law, CLIENT shall hold harmless, defend, and indemnify SME from and against all claims, damages, losses and expense, including reasonable attorney fees, arising out of the performance of SME’s services or the materials of others in connection with the Project regardless of whether or not such claim, damage, loss or expense is caused in part by SME; provided however, that this obligation shall not apply to claims, damage, loss or expense caused solely by negligence of SME. © 2015 SME SME General Conditions – Commercial (03/15) 2 12. GOVERNING LAW: The parties agree that this Agreement shall be governed in all respects by the laws of the State of Michigan. 13. LIMITATION OF LIABILITY: In consideration for SME’s undertaking to perform services at the rates set forth on the Fee Schedule attached to SME’s proposal or the lump sum fee provided, CLIENT agrees to limit all potential liability of SME to CLIENT, its employees, agents, successors and assigns, for any and all claims, losses, breaches, damages or expenses arising from, or relating to SME’s performance of services on this Project, such that SME’s total aggregate liability to CLIENT, its employees, agents, successors and assigns shall not exceed $50,000 or SME’s total fee for the services rendered on the Project, whichever is greater. The CLIENT understands that it may negotiate a higher limit of liability in exchange for an appropriate increase in SME’s fee. a) CLIENT further agrees that it will require all of its contractors and consultants on this project and their respective subcontractors and subconsultants, be bound by an identical limitation of SME’s aggregate liability in their agreements for work on this Project. b) CLIENT further agrees that it will require all of its contractors and subcontractors defend and indemnify CLIENT and SME from any and all loss or damage, including bodily injury or death, arising from contractor or subcontractors performance of work on this Project, regardless of whether or not such claim, damage, loss or expense is caused in part by SME provided however, that this obligation shall not apply to claims, damage, loss or expense caused by the sole negligence or fault of SME. 14. PERIOD OF LIMITATION: Notwithstanding any period of limitations that might otherwise apply, the parties agree that no action, claim or proceeding of any kind, whether in tort, contract or equity arising out of SME’s services may be brought against SME more than two years after the first to occur of the following events: (i) the date of CLIENT’s acceptance, use or occupancy of the Project that is the subject of this engagement, or (ii) the date of SME’s last service in connection with this Project. 15. ADDITIONAL SERVICES: If SME provides services at the request of CLIENT, in addition to those described in the scope of work contained in SME’s proposal, CLIENT agrees that these general conditions including any Special Conditions shall apply to all such additional services. 16. AGREEMENT: This Agreement includes SME’s Proposal, these General Conditions, and any other Special Conditions, Fee Schedules, or other documents provided with SME’s Proposal. This Agreement constitutes the entire contractual relationship between the parties and cannot be changed except by a written instrument signed by both parties. All preprinted Terms and Conditions on CLIENT’s Purchase Order(s) or acknowledgement forms are inapplicable to this Agreement. In the event any provision of this Agreement is held invalid or unenforceable, the other provisions will remain in full force and effect, and binding upon the parties. All the terms of this Agreement, including provisions relating to limitation and allocation of liability, shall survive the completion and/or termination of this Agreement. This Agreement cannot be assigned by either party without the written consent of the other party. Please complete and return the signed General Conditions to SME to indicate acceptance of this proposal and to initiate work on the referenced project. The CLIENT’s signature or direction to proceed also indicates that he/she has read or has had the opportunity to read the General Conditions and agrees to be bound by such General Conditions. SME PROPOSAL Proposal No.: Project Name: Project Location: CLIENT PROPOSAL AND AGREEMENT ACCEPTANCE (Please Print or Type) CLIENT Signature: Date: Printed Name: Title: CLIENT (Company) Name: Address: Telephone No.: Email: BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM Date 12/10/2020 Name Sue Ellen Doudrick/Patrick Sherman Department DPW BPW Date 2/23/2021 Phone Extension 3057 Review and Approval Required Prior to Submittal to Board Diversity Compliance and Inclusion Officer Officer Name BPW Attorney Attorney Name Dept. Attorney Attorney Name Purchasing Check the Appropriate Item Type – Required for All Submissions Professional Services Agreement Contract Proposal Open Market Contract Amendment/Addendum Special Purchase, QPA Bid Opening Bid Award Req. to Advertise Title Sheet Quote Opening Quote Award Reject Bids/Quotes Proposal Opening C/O & PCA No. PCA Chg. Order, No. Traffic Control Resolution Other: Ease./Encroach Required Information Company or Vendor Name Lochmueller Group New Vendor Yes If Yes, Approved by Purchasing No MBE/WBE Contractor MBE WBE Completed E-Verify Form Attached Yes No Project Name Seitz Park Reconstruction Project Number 117-093A Funding Source REDA TIF, Park Bond Account No. PR-00007087 Amount $576,480 Terms of Contract Hourly, NTE Purpose/Description PSA for Construction Inspection services for Seitz Park Reconstruction. For Change Orders Only Amount of Increase Decrease $ ($ ) Previous Amount $ Current Percent of Change: Increase Decrease % ( %) New Amount $ Total Percent of Change: Increase Decrease % ( %) Time Extension Amount: New Completion Date: