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Home My WebLink AboutPSA - Design Services New Fellows Booster Station – Donohue & Associates ELIZABETH A. MARADIK GARY A. GILOT JORDAN V. GATHERS JOSEPH R. MOLNAR MURRAY L. MILLER 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 September 28, 2021 Mr. Steven P. Gress Donohue & Associates, Inc. 209 N. Main St., Suite 206 South Bend, IN 46601 sgress@donohue-associates.com RE: Professional Services Agreement Dear Mr. Gress: At its September 28, 2021 meeting, the Board of Public Works approved the above referenced agreement for design services for the Fellows Booster Pumping Station to replace the existing and aging system in the amount of $270,500. 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 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. THIS IS AN AGREEMENT effective as of September 28 ,2021 (“Effective Date”) between Board of Public Works, City of South Bend, Indiana (“Owner”) and Donohue & Associates, Inc.(“Engineer”). Owner's Project, of which Engineer's services under this Agreement are a part, is generally identified as follows: New Fellows Booster Pumping Station ("Project"). Engineer's services under this Agreement are generally identified as follows: Design and bidding services associated with the replacement of the Fellows Booster Pumping Station with a new packaged booster pumping station and associated improvements. 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. C. Owner shall be responsible for, and Engineer may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use such requirements, programs, instructions, reports, data, and information in performing or furnishing services under this Agreement. ARTICLE 3 –SCHEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer is authorized to begin rendering services as of the Effective Date. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer’s services is impaired, or Engineer’s services are delayed or suspended, then the time for completion of Engineer’s services, and the rates and amounts of Engineer’s compensation, shall be adjusted equitably. C. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer’s services, and the rates and amounts of Engineer’s compensation, shall be adjusted equitably. D. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer’s performance of its services. E. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled, as its sole remedy, to the recovery of direct damages, if any, resulting from such failure. ARTICLE 4 –INVOICES AND PAYMENTS 4.01 Invoices A.Preparation and Submittal of Invoices: Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 35 30 days of receipt. 4.02 Payments A.Application to Interest and Principal: Payment will be credited first to any interest owed to Engineer and then to principal. B.Failure to Pay: If Owner fails to make any payment due Engineer for services and expenses within 30 days after receipt of Engineer’s invoice, then: Page 3 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright ©2008 National Society of Professional Engineers for EJCDC. All rights reserved. 1. amounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day; and 2. Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner has paid in full all non-disputed amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. C.Disputed Invoices: If Owner contests an invoice, Owner shall promptly advise Engineer of the specific basis for doing so, may withhold only that portion so contested, and must pay the undisputed portion. D.Legislative Actions: If after the Effective Date any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer’s services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which a factor of 1.0 shall be applied. Owner shall reimburse Engineer for the cost of such invoiced new taxes, fees, and charges; such reimbursement shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 –OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. Engineer’s opinions of probable Construction Cost are to be made on the basis of Engineer’s experience and qualifications and represent Engineer’s best judgment as an experienced and qualified professional generally familiar with the construction industry. However, because Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors’ methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. If Owner requires greater assurance as to probable Construction Cost, Owner must employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit A. If a Construction Cost limit is established between Owner and Engineer, such Construction Cost limit and a statement of Engineer’s rights and responsibilities with respect thereto will be specifically set forth in Exhibit F, “Construction Cost Limit,” to this Agreement. 5.03 Opinions of Total Project Costs A. The services, if any, of Engineer with respect to Total Project Costs shall be limited to assisting the Owner in collating the various cost categories which comprise Total Project Costs. Engineer assumes no responsibility for the accuracy of any opinions of Total Project Costs. Page 4 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright ©2008 National Society of Professional Engineers for EJCDC. All rights reserved. ARTICLE 6 –GENERAL CONSIDERATIONS 6.01 Standards of Performance A.Standard of Care: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineer’s services. B.Technical Accuracy: Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer’s services. Engineer shall correct deficiencies in technical accuracy without additional compensation, unless such corrective action is directly attributable to deficiencies in Owner-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. Engineer shall comply with such policies and procedures, subject to the standard of care set forth in Paragraph 6.01.A, and to the extent compliance is not inconsistent with professional practice requirements. 3. This Agreement is based on Laws and Regulations and Owner-provided written policies and procedures as of the Effective Date. Changes after the Effective Date to these Laws and Regulations, or to Owner-provided written policies and procedures, may be the basis for modifications to Owner’s responsibilities or to Engineer’s scope of services, times of performance, or compensation. F. Engineer shall not be required to sign any documents, no matter by whom requested, that would result in the Engineer having to certify, guarantee, or warrant the existence of conditions whose existence the Engineer cannot ascertain. Owner agrees not to make resolution of any dispute with the Engineer or payment of any amount due to the Engineer in any way contingent upon the Engineer signing any such documents. G. The general conditions for any construction contract documents prepared hereunder are to be the “Standard General Conditions of the Construction Contract” as prepared by the Engineers Joint Page 5 EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright ©2008 National Society of Professional Engineers for EJCDC. All rights reserved. Contract Documents Committee (EJCDC C-700, 2007 Edition, or later edition as agreed to by Owner) unless both parties mutually agree to use other general conditions by specific reference in Exhibit J. H. Engineer shall not at any time supervise, direct, control, or have authority over any contractor work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety at the Site, nor for any failure of a contractor to comply with Laws and Regulations applicable to such contractor’s furnishing and performing of its work. 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 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. 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 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. 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. 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. 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. 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. 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. 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 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. 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 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. 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. 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. 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. 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. 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, 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. 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. 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. 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. 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. 6.Construction Cost – The cost to Owner of those portions of the entire Project designed or specified by Engineer. Construction Cost does not include costs of services of Engineer or other design professionals and consultants; cost of land or rights-of-way, or compensation for damages to properties; Owner’s costs for legal, accounting, insurance counseling or auditing services; interest or financing charges incurred in connection with the Project; or the cost of other services to be provided by others to Owner pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 7.Constituent of Concern – Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. (“CERCLA”); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§1801 et seq.; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. (“RCRA”); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.C. §§7401 et seq.; and (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 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. 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. 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. 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. 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. 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. 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. 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. C. Exhibit C, Payments to Engineer for Services and Reimbursable Expenses. D. Exhibit D, Duties, Responsibilities and Limitations of Authority of Resident Project Representative.NOT INCLUDED E. Exhibit E, Notice of Acceptability of Work.NOT INCLUDED 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 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 Donohue & Associates, Inc. By: By: Title:Elizabeth A. Maradik, President Title: Steven P. Gress, PE, Vice President By: Title:Gary A. Gilot, Member By: Title:Jordan V. Gathers, Member By: Title:Joseph R. Molnar, Member By: Title:Murray Miller, Member Attest: Title:Anne Fuchs, Clerk Date: Date: Engineer License or Firm's Certificate No. 391 873 700 State of: Indiana Address for giving notices:Address for giving notices: 227 West Jefferson Boulevard South Bend, Indiana 46601 209 N. Main Street, Suite 206 South Bend, Indiana 46601 Designated Representative (Paragraph 8.03.A): Designated Representative (Paragraph 8.03.A): Kara M. Boyles, Ph.D., P.E.Jeremy Roschyk, PE Title: City Engineer Title: Area Manager Phone Number: (574) 235-5933 Phone Number: 574-213-6124 Facsimile Number: (574) 235-9171 Facsimile Number: 514-288-0195 E-Mail Address:kboyles@southbendin.gov E-Mail Address:jroschyk@donohue-associates.com 09-22-2021 September 28, 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 7 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated September 28, 2021. Engineer’s Services Article 1 of the Agreement is supplemented to include the following agreement of the parties. PART 1 – PROJECT UNDERSTANDING A1.01 Project Background: The City of South Bend’s Water Works Utility (Owner), owns and operates a public water system that serves customers within the Owner’s corporate limits. The utility operates nine well fields and delivers water to more than 112,000 customers via 550+ miles of water main. The water distribution service area consists of four interconnected pressure zones. The Owner’s South Pressure Zone is currently supplied water via three (3) sources: ·Fellows Booster Station (BS) ·Locust BS ·Erskine Well Field With maximum day demands in the range of 3.9 to 5.2 MGD (per a June 2016 Technical Memorandum), the South Pressure Zone is primarily supplied water via the Fellows BS and its theoretical firm capacity of 17.3 MGD. However, Fellows BS and its six pumps are of an age in excess of their expected service life and are in need of refurbishment, if not replacement. The Owner has indicated that maintenance of the existing BS equipment has become very difficult and unreliable due to a decrease in parts availability and a growth of age-related issues to various pumping and electrical components. The Locust BS has a theoretical firm capacity of 2.3 MGD, however the configuration of the downstream distribution network is such that the Owner has stated concerns that the associated head losses will only provide adequate pressure to the western portion of the South Pressure Zone. The Erskine Well Field consist of a single 2.9 MGD well, and thus has a theoretical firm capacity of 0 MGD. However, the Erskine well also has a history of water quality data that occasionally result in compliance concerns. As such, the Owner prefers to limit its use as much as possible and has weighed options for decommissioning this well all together. A1.02 Goals and Objectives: A.Engineer will develop the procurement and bidding packages required to replace the existing Fellows BS with a new packaged booster pumping station. Project components will include: 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. 1.Modeling analysis of supplying water to the South Pressure Zone during different scenarios of Fellows BS operability (e.g. staged availability, no availability, etc.). a.The Owner owns and maintains a WaterCAD hydraulic model of the Owner’s water distribution system. It is assumed that said model adequately represents the system as it currently exists. Both Engineer and the Owner agree that the Owner will provide Engineer with the most up-to-date version of the model for use as part of this project. 2.Development of procurement drawings and specifications for a new packaged booster pumping station, which will likely include: a.Four (4) 3,200 gpm pumps on VFDs b.Emergency Generator and Automatic Transfer Switch c. Associated SCADA communication & controls 3.At this time, the Owner has indicated that the replacement BS will preferably consist of four (4) 3,200 gpm variable frequency drive (VFD) pumps. Due to the uncertainty of this pumping configuration’s potential effect on the existing distribution network, Engineer’s efforts shall include running a series of hydraulic model scenarios (not more than three) that would test the hydraulic capacities of the system and propose various pump sizes and numbers of units. This modeling will be done utilizing the Owner provided model mentioned previously. 4.The new station shall have horizontal split case booster pumps. The acceptable manufacturers of those pumps will be collaboratively determined by the Owner and Engineer. 5.The new booster pumps shall be specified to run on VFDs in order to provide smooth flow transitions and to reduce surges in the system. 6.The new booster station will include a new emergency standby generator (exterior) with a sound attenuating enclosure and an automatic transfer switch. This generator will be minimally sized to continuously run three (3) of the new booster station pumps at 70% of their maximum speed. 7.The station is to be provided with modern controls and supervisory control and data acquisition (SCADA) components. Engineer will coordinate the preliminary SCADA design with the Owner and potential packaged booster station manufacturers. 8.The new booster station shall be fitted with a bridge crane over the pumps, so that motors, pumps, valve and fittings can be lifted out of (or into) their positions and out to an open work area, where maintenance personnel can easily commence with work on these components. The goal is that Owner personnel should not have to set up portable gantries or cranes to remove or work on the pumps and their appurtenances. 9.The water mains within the Fellows BS property include very old cast iron and ductile iron pipes. It is anticipated that many of these pipes have served their useful life and as such, are in need of replacement. As part of this preliminary design, Engineer will include main 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. replacements, as directed by the Owner and as indicated by the results of the WaterCAD model outputs. 10.It is currently assumed that the new Fellows BS will be located on the Fellows BS property, directly west of the existing facilities. 11.A power and harmonic mitigation study will be performed to verify that the existing electric service to the site can effectively power the new booster pumping station. Engineer shall provide Basic and Additional Services as set forth below. PART 2 – SCOPE OF SERVICES A1.03 Engineer will perform the following Professional Services: A.Engineer’s project team members will meet with the applicable South Bend Water Works and Engineering staff in a Project Kick-Off Meeting (Workshop #1). During said workshop, the Owner will provide to Engineer the existing relevant project information, such as existing water main drawings, design summary information and record drawings for the existing Fellows BS, WaterCAD background information, and other data. The project team will review the project goals and objectives, and project schedule. During this meeting, the Water Division staff will outline its expectations for scenarios of pump station operation that it wishes for Engineer to model using WaterCAD. Engineer will then perform a field visit to review the existing Fellows BS facility. Within 14 calendar days of Workshop #1, Engineer will provide the Owner and its team members a PDF copy of the meeting minutes, for review and comment. B.Engineer will complete the topographic survey of the site, which will be used in conjunction with Owner provided drawings/documents as the basis of the project site drawings for design activities. Said survey will not include any boundary surveys or title work and will be used for design purposes only. Refer to Figure A-1 for the approximate survey limits. C.Engineer will provide a geotechnical study of the anticipated new booster station location. The study will be based on three (3) soil borings (two at 20-feet deep and one at 40-feet deep), which will be located in the field after consultation with the Owner, but are anticipated to be located as indicated in Figure A-2. D.Using the information provided by the Owner during Workshop #1, Engineer will compile up to three (3) modeling run scenarios to determine if the desired pumping configuration of the new booster pumping station can meet system demands and what additional upgrades might be needed to achieve that goal. Upon completion of the modeling runs, Engineer will assemble a brief Technical Memorandum that outlines the modeling procedures and assumptions and which summarizes the modeling results. 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. E.Engineer will then meet with the Owner staff in Workshop #2, at which time the Modeling Technical Memorandum will be reviewed and discussed. If it is determined that the modeling resulted in satisfactory information to fully development of the new booster station design, the project shall continue in accordance with this Scope of Services. However, if it is determined that additional modeling is required, the Engineer and the Owner will determine additional modeling requirements and agree upon an updated project scope, compensation, and schedule. Within 14 calendar days of Workshop #2, Engineer will provide the Owner and its team members a PDF copy of the meeting minutes, for review and comment. F.Following Workshop #2, Engineer will proceed with the development of the draft Procurement Documents for the Owner’s use in procuring a new packaged booster station. At the same time, Engineer will also complete the preliminary Project Design (30%), which will include the site improvements associated with the new booster pumping station. Engineer will also perform initial utility coordination at this time. In addition, an opinion of the probable construction cost will be prepared based on the preliminary design documents. Engineer will provide the Owner with three (3) hard copies and one electronic (PDF) copy of the draft Procurement Documents and the preliminary Project Design (30%) plus the preliminary opinion of the probable construction cost for their review. G.Engineer and the Owner will meet for Workshop #3, at which time they will review and discuss the draft Procurement Documents and the preliminary design (30%). Within 14 calendar days of Workshop #3, Engineer will provide the Owner and its team members a PDF copy of the meeting minutes, for review and comment. H.Following Workshop #3, Engineer will finalize the Procurement Documents for the packaged booster pumping station and assist the Owner with Procurement Services. As part of these services, Engineer will coordinate with the selected package booster pumping station manufacturer to identify the specific details required to complete the Project Design bid documents. I.In conjunction with the Procurement Services, Engineer will complete the final review Project Design bid documents (95%) and update the opinion of the probable construction cost. Engineer will provide the Owner with three (3) hard copies and one electronic (PDF) copy of the final review Project Design (95%) bid documents and probable construction cost for their review. J.Engineer and the Owner will meet for Workshop #4, at which time they will review and discuss the final review Project Design (95%) bid documents. Within 14 calendar days of Workshop #4, Engineer will provide the Owner and its team members a PDF copy of the meeting minutes, for review and comment. K.Following Workshop #4, Engineer will finalize the Project Design bid documents for IDEM construction permit application. Engineer will coordinate with IDEM and the Owner regarding 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. permit review comments and incorporate those comments into the final Project Design bid documents. L.Following IDEM construction permit review and incorporation of those comments, Engineer will finalize the Project Design bid documents for public bid and provide Bid Phase Services. As part of these services, Engineer will coordinate with the Owner regarding bid advertisements, bidder questions, pre-bid meeting and other associated services. PART 3 – ADDITIONAL SERVICES A2.01 Additional Services Requiring Owner’s Written Authorization A.If authorized in writing by Owner for a negotiated additional fee, Engineer shall furnish or obtain from others Additional Services of the types listed below. 1.Hydrant and/or other field testing associated with calibration of the Owner’s existing water distribution model. 2.Calibration and/or system wide analysis of the Owner’s existing water distribution model, except as identified in the previously mentioned Scope of Services. 3.Modeling and/or design of improvements associated with the operation of any other existing or proposed booster pumping station, including: Locust Booster Station, Topsfield Booster Station and any others. 4.Unless noted otherwise in the SCOPE OF SERVICES, permitting services including: local/state/federal agency correspondence, coordination and/or application development/submittal. 5.Design of a new, below-grade, booster pumping station. 6.Design of a new, at grade, constructed in-place, booster pumping station. 7.Electrical utility/service improvement analysis and/or design. 8.Restoration and/or improvement design (or analysis) of the existing ground storage reservoir. 9.Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans, or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. Page 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. 10.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. 11.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. 12.Services associated with the development of any studies and/or reports, except as identified in PART 2 of this EXHIBIT A. 13.Services required as a result of Owner’s providing incomplete or incorrect Project information to Engineer. 14.Providing renderings or models for Owner’s use. 15.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. 16.Services during out-of-town travel required of Engineer other than for visits to the Site or Owner’s office. 17.Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructability review requested by Owner; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 18.Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by Owner for the Work or a portion thereof. 19.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. 20.Providing Construction Phase services. 21.Providing assistance in responding to the presence of any Constituent of Concern at the Site, in compliance with current Laws and Regulations. Page 7 (Exhibit A – Engineer’s Services) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. 22.Preparing Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor, and furnishing such Record Drawings to Owner. 23.Preparation of operation and maintenance manuals. 24.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. 25.Providing more extensive services required to enable Engineer to issue notices or certifications requested by Owner. 26.Assistance in connection with the adjusting of Project equipment and systems. 27.Assistance to Owner in training Owner’s staff to operate and maintain Project equipment and systems. 28.Assistance to Owner in developing procedures for (a) control of the operation and maintenance of Project equipment and systems, and (b) related record-keeping. 29.Overtime work requiring higher than regular rates. 25. Other services performed or furnished by Engineer not otherwise provided for in this Agreement. 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 September 28, 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.Identify a person authorized to act as the Owner’s representative to respond to questions and make decisions on behalf of Owner, accept completed documents, approve payments to Engineer, and serve as liaison with Engineer as necessary for Engineer to complete its Services. B.Provide Engineer with all criteria and full information as to Owner’s requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which Owner will require to be included in the Drawings and Specifications; and furnish copies of Owner’s standard forms, conditions, and related documents for Engineer to include in the Bidding Documents, when applicable. C.Furnish to Engineer any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. D.Following Engineer’s assessment of initially-available Project information and data and upon Engineer’s request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable Engineer to complete its Basic and Additional Services. Such additional information or data would generally include the following: 1.Water distribution models. 2.Design and record drawings for existing facilities. 3.Property descriptions. 4.Zoning, deed, and other land use restrictions. 5.Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 6.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. 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. 7.Environmental assessments, audits, investigations, and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 8.Data or consultations as required for the Project but not otherwise identified in the Agreement or the Exhibits thereto. E.Owner shall be responsible for all requirements and instructions that it furnishes to Engineer pursuant to this Agreement, and for the accuracy and completeness of all reports, data, programs, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use and rely upon such requirements, instructions, reports, data, programs, and information in performing or furnishing services under this Agreement, subject to any express limitations or reservations provided by Owner applicable to the furnished items. F.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. G.Authorize Engineer to provide Additional Services as set forth in Part 3 of Exhibit A of the Agreement as required. H.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. I.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. J.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. K.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. L.Place and pay for advertisement for Bids in appropriate publications. 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. M.Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructability review. N.Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this paragraph. O.Inform Engineer in writing of any specific requirements of safety or security programs that are applicable to Engineer, as a visitor to the Site. Page 1 Exhibit C –Compensation Packet BC-1: Basic Services (other than RPR) – Lump Sum Method of Payment EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright © 2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT C, consisting of 1 page, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated September 28, 2021. Payments to Engineer for Services and Reimbursable Expenses COMPENSATION PACKET BC-1: Basic Services – Lump Sum Article 2 of the Agreement is supplemented to include the following agreement of the parties: ARTICLE 2 – OWNER’S RESPONSIBILITIES C2.01 Compensation for Basic Services – Lump Sum Method of Payment A.Owner shall pay Engineer for Basic Services set forth in Exhibit A, as follows: 1.A Lump Sum amount of $270,500 based on the following estimated distribution of compensation: a.Project Management $26,800 b.Modeling & Field Services $42,800 c. Procurement Documents $61,600 d.Construction Documents $117,600 e.IDEM Permitting Services $7,100 f.Bidding Phase Services $14,600 2.Engineer may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the Owner. 3.The Lump Sum includes compensation for Engineer’s services and services of Engineer’s Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for labor, overhead, profit, and Reimbursable Expenses. 4.The portion of the Lump Sum amount billed for Engineer’s services will be based upon Engineer’s estimate of the percentage of the total services actually completed during the billing period. B.Period of Service: The compensation amount stipulated in Compensation Packet BC-1 is conditioned on a period of service not exceeding eleven (11) months. If such period of service is extended, the compensation amount for Engineer's services shall be appropriately adjusted. Page 1 (Exhibit G - Insurance) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright ©2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated September 28,2021. Insurance Paragraph 6.04 of the Agreement is supplemented to include the following agreement of the parties. G6.04 Insurance A.The limits of liability for the insurance required by Paragraph 6.04.A and 6.04.B of the Agreement are as follows: 1.By Engineer: a.Workers’ Compensation:Statutory b.Employer’s Liability -- 1)Each Accident:$ 1,000,000 2)Disease, Policy Limit:$ 1,000,000 3)Disease, Each Employee:$ 1,000,000 c.General Liability -- 1)Each Occurrence (Bodily Injury and Property Damage):$ 2,000,000 2)General Aggregate:$ 4,000,000 d.Excess or Umbrella Liability -- 1)Each Occurrence:$ 6,000,000 2)General Aggregate:$ 6,000,000 e.Automobile Liability --Combined Single Limit (Bodily Injury and Property Damage): Each Accident $ 1,000,000 f.Professional Liability – 1)Each Claim Made $ 1,000,000 2)Annual Aggregate $ 1,000,000 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 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. 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 on Liability) EJCDC E-500 Agreement Between Owner and Engineer for Professional Services. Copyright ©2008 National Society of Professional Engineers for EJCDC. All rights reserved. This is EXHIBIT I, consisting of 1 page, referred to in and part of the Agreement between Owner and Engineer for Professional Services dated September 28,2021. 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 Consultants (hereafter “Owner’s Claims”), shall not exceed the total insurance proceeds paid on behalf of or to Engineer by Engineer’s insurers in settlement or satisfaction of Owner’s Claims under the terms and conditions of Engineer’s insurance policies applicable thereto (excluding fees, costs and expenses of investigation, claims adjustment, defense, and appeal). If no such insurance coverage is provided with respect to Owner’s Claims, then the total liability, in the aggregate, of Engineer and Engineer’s officers, directors, members, partners, agents, employees, and Consultants to Owner and anyone claiming by, through, or under Owner for any and all such uninsured Owner’s Claims shall not exceed $_____________ 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. FIGURE A-1 TOPOGRAPHIC SURVEY LIMITS CITY OF SOUTH BEND NEW FELLOWS BOOSTER PUMPING STATION SOUTH BEND, INDIANA FIGURE A-2 GEOTECHNICAL SOIL BORING LOCATIONS CITY OF SOUTH BEND NEW FELLOWS BOOSTER PUMPING STATION SOUTH BEND, INDIANA