1a Gen Municipal Agreements
CITY OF
CHANHASSEN
690 City (mt" Drive. PO Bux 147
Chanhlllien. Minnesota 55317
Phone 612.937.1900
General Fax 612.937.5739
Engineering Fax 612.937.9152
Public Safety Fax 612.934.2524
mb www.ci.chanhassen.mn.us
~Ov
-
MEMORANDUM
TO:
Scott A. Botcher, City Manager
FROM:
Teresa Burgess, Public Works Director/City Engine~~
.-:< '0-'
May 22, 2000
DATE:
SUBJ:
Approval of Consultant Service General Municipal Agreements
with HTPO, BRW, and WSB
Staff recommends approval of the Attached Agreements with HTPO, BRW, and
WSB. Legal Counsel has reviewed the agreements.
The City uses consultant services to augment the City's Engineering Department.
These services are selected based on proposals received in response to a project
work scope prepared by the City.
Normal practice is to have a general agreement with the consultant firm. A
supplemental agreement is written off of this general agreement for each project.
This allows the individual project agreements to be much shorter and eliminates
the duplication from agreement to agreement.
Staff would prefer to have one standard general agreement for use with all
Consultant Engineering firms; however, it is necessary to have agreements in
place in the interim. The City currently has City Council-authorized projects with
HTPO, BRW, and WSB. The City does not have current general municipal
agreements with these firms.
Approval of these agreements does not authorize additional work with any of the
firms.
Attachment: Agreements
c: Dave Hutton, WSB
Laurie Johnson, HTPO
Jon Horn, BRW
g:\eng\consultant agreement staff report ~ 6-12.doc
The City of Chanhassen. A fi'Owin£ community with ,"an lakes. Qualiw schook. a charmi.. dnwnwwn. thrivin. businesses. and beauti/ùl Darks. A mat olaa In li,lI'. work. and olA.
WSB & ASSOCIATES, INC.
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made as of the day of , 19
by and between the City ofChanhassen, hereinafter referred to as City, and WSB & Associates, Inc., hereinafter
referred to as Engineer, with offices located at 350 Westwood Lake Office, 8441 Wayzata Boulevard,
Minneapolis, Minnesota 55426.
Witnesseth, that the City and Engineer, for the consideration herein named, agree as follows:
SECTION 11 GENERAL CONTRACT PROVISIONS
These provisions shall be as set forth in Exhibit A.
SECTION 2 I SCOPE OF WORK
The scope of work to be perfonned by Engineer is set forth in
Exhibit C. The work and services to be perfonned hereunder
and described in Exhibit A shall be referred to herein and in
the. General Contract Provisions as the Project.
SECTION 31 COMPENSATION
Compensation to Engineer for services described in this
agreement shall be as designated in the attached Exhibit D and
as hereinafter described.
SECTION 4 I WORK SCHEDULE
The anticipated schedule is set forth in Exhibit C.
CITY OF CHANHASSEN
ADDRESS:
690 CITY CENTER DRIVE
CHANHASSEN. MN 55317'()147
BY:
SIGNATURE:
TITLE:
BY:
SIGNATURE:
TITLE:
DATE:
SECTION 61 EXHIBITS
The following initialed Exhibits are attached to and made a
part of this Agreement:
./' Exhibit A - General Contract Provisions
.ðxhibit B - Defmitions
v1>xhibit C - Scope of Work
.0Exhibit D - Compensation
~xhibit E - Insurance Schedule
.JL Exhibit F - Fee Schedule
Exhibit G - Fee Curve
SECTION 7 I ACCEPTANCE OF AGREEMENT
All work and services described in this agreement shall be
perfonned by Engineer only after written acceptance of the
City. The undersigned hereby accept the terms and conditions
of this agreement and Engineer is hereby authorized to
perfonn the services described herein.
WSB & ASSOCIATES. INC.
ADDRESS:
350 WESTWOOD LAKE OFFICE
8441 WAYZATABOULEVARD
MINNEAPOLIS. MINNESOTA 55426
BY: fLL~' 8~
SIGNATURE A 'L1
TITLE: ¡); ú; ¡J ..<l=.; OBVr
BY~ + A. Wf::{s;-
SIGNATURE: ~ WI.l. '
TITLE: ?~,S\'M
DATE: 5-~-Q)
Professional Services Agreement
0512000
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Page I of I
EXHIBIT A
WSB & ASSOCIATES, INC.
GENERAL CONTRACT PROVISIONS
ARTICLE 1 . GENERAL
These general contract provisions are incorporated in and
become a part of the Agreement to which it is attached
between WSB & Associates. Inc., hereinafter referred to as
Engineer, and the other party to the Agreement, City of
Chanhassen, hereinafter referred to as City, wherein the City
engages the Engineer to provide certain services more
particularly described in Exhibit C, Scope of WorK. Either party
may be hereinafter referred to as party or, collectively, parties.
The starting date will commence when authorized by the City.
ARTICLE 2 - CHANGED CONDITIONS
If the Engineer determines and the client agrees that any
S8IVices it has been directed or requested to perform are
beyond the scope as set forth in Exhibit C or that, due to
changed conditions or changes in the method or manner of
administration of the Project, the Engineer's effort required to
perform its services under this Agreement exceeds the·
estimate which formed the basis for the Engineer's
compensation, Engineer shall promptly notify the City of that
fact. Additional work and additional compensation for such
work, and the extension of time for completion thereof, shall be
set forth in a supplemental agreement entered into by the
parties prior to proceeding with any additional work or related
expenditures. Such supplemental agreement shall be
incorporated in and become a part of this Agreement. In
absence of said supplemental agreement, amounts of
compensation and time for completion shall be equitably
adjusted.
ARTICLE 3 - TERMINATION
This Agreement may be terminated by either party upon thirty
days' written notice without cause. In the event of termination,
copies of plans. reports, specifications, electronicdrawingJdata
files (CADD), field data, notes, and other documents whether
written. printed or recorded on any medium whatsoever,
finished or unfinished, prepared by the Engineer pursuant to
this Agreement and pertaining to the work or to the Project,
(hereinafter -Instruments of Service-), shall be made available
to the City pursuant to Article 4. All provisions of this
Agreement allocating responsibility or liability between the City
and Engineer shall survive the completion of the services
hereunder andlor the termination of this Agreement.
ARTICL~ 4· REUSE AND DISPOSiTION OF INSTRUMENTS
OF SERVICE
During the course of the work, the Engineer (shan, if
requested,) make available to the City copy(ies) of the
Instruments of Service. At the time of completion or
termination of the work, the Engineer may make available to
the City upon (I) payment of amounts due and owing for work
performed and expenses incurred to the date and time of
termination, and (ii) fulfillment of the City's obligation under this
Agreement. Any use or re·use of such Instruments of Service
by the City or others without written verification or adaption by
the Engineer except for the specific purpose intended will be
at the City's risk and fuillegai responsibility.
Under no circumstances shall transfer of Instruments of
Service be deemed a sale by Engineer, and Engineer makes
no warranties, either expressed or implied, of merchantability
and fitness for any particular purpose.
ARTICLE 5 . AGREEMENT
As used herein Agreement means:
(1) The agreement for engineering, surveying and
planning services;
(2) These general contract provisions;
(3) The attached exhibits; and
(4) The supplemental agreement, where applicable.
As to superseding effect, the attached exhibits shall govern
over these general provisions, and the supplemental
agreement, where applicable, shall govern over attached
exhibits and these general provisions.
The Agreement constitutes the entire understanding between
the Engineer and City. The Agreement supersedes all prior
written or oral understanding and may only be amended,
supplemented, modified or cancelled by a duly executed
written instrument.
ARTICLE 6 - RESPONSIBILITiES
A. In order to permit the Engineer to perform the services
required under this Agreement, the City shaU, in proper time
and sequence and where appropriate to the Project, at no
expense to the Engineer:
1. Provide available information as to its requirements for the
Project.
2. Guarantee access to and make all provisions for the
Engineer to enter upon public and private lands to enable
the Engineer to perform its work under this Agreement.
3. Provide such legal, accounting and insurance counseling
services as may be required for this Project, (such as
review of insurance certificates, bonding clarifications and
legal questions regarding property acquisition or
assessment).
4. Notify the Engineer whenever the City observes or
otherwise becomes aware of any defect in the Project.
5. The City Councilor a person or persons designated, shall
act as City's representative with respect to the services to
be rendered under this Agreement. The City's
representative shan have the authority to transmit and
receive instructions and information and to interpret and
define the City's policies with respect to services rendered
by the Engineer.
6. Furnish data (and professional interpretations thereof)
prepared by or services performed by others, including
where applicable, but not limited to, previous reports, core
borings, probings and sub-surface explorations,
hydrographic and hydrogeologic surveys, laboratory tests
and inspection of samples, materials and equipment;
appropriate professional interpretations of the foregoing
data; environmental assessment and impact statements:
property, boundary, easement, right-of·way, topographic
and utility surveys; property description; zoning, deed and
other land use restrictions; and other special data not
itemized in Exhibit B.
7. Review all reports, sketches, drawings. specifications and
other documents prepared and presented by the Engineer,
obtain advice of legal, accounting and insurance
counselors or others as City deems necessary for such
examinations and render in writing decisions pertaining
thereto within reasonable times so as not to delay the
performance by the Engineer of the services to be
rendered pursuant to this Agreement.
8. Provide record drawings and specifications for all existing
physical plants of facilities which are pertinent to the
Project.
9. Where available provide other services, materials, or data
as may be set forth in Exhibits C.
10. Bear all costs incidental to compliance with the
requirements of this article.
Exhibit A
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11. Provide the foregoing in a manner sufficiently timely so as
not to delay the performance by the Engineer of the
services in accordance with the Conb'act Documents.
B. Engineer shall be entiUed to rely on the accuracy and
completeness of information or services fumished by the City
or others employed by the City. Engineer shall endeavor to
verify the information provided and shall prompUy notify the
City if the Engineer discovers that any information or seNices
fumlshed by the City Is in error or Is inadequate for its purpose.
ARTICLE 7 - OPINIONS OF COST
Opinion, ~ any, of probable cost, construction cost, financial
evaluations, feasibIlity studies, economic analyses of altemate
solutions and utilitarian considerations of operations and
maintenance costs provided for are made or to be made on the
basis of the Engineer's experience and Qualifications and
represent the Engineer's best judgement as an experienced
and Qualified professional design firm. The parties
acknowledge, however, that the Engineer does not have
control over the cost of labor, material, equipment or services
furnished by others or over market conditions or contractor's
methods of determining their prices, and any evaluation of any
facility to be constructed or acquired, or work of necessity must
be speculative until completion of construction or acquisition.
Accordingly, the Engineer does not guarantee that proposals,
bids or actual costs will not vary from opinions, evaluations or
studies submitted by the Engineer.
ARTICLE 8 - INSURANCE
Engineer has procured Insurance in the types and amounts set
forth in Exhibit E.
The City acknowfedges that professional liability (errors and
omissions) insurance is unavailable to cover claims arising out
of the performance or failure to perform professional services,
including, but not limited to the preparation of reports, designs,
drawings and specifications related to the investigation,
detection, abatement, replacement, modification, removal or
disposal at
(1) Hazardous or toxic materials: or
(2) Materials or processes containing asbestos.
As used herein, hazardous or toxic materials shall include but
not be limited to any solid, liquid, gaseous or thermal irritant,
contaminant, or hazardous waste as defined by Federal and
State law and cases construing such definition. Waste
includes materials to be recycled, reconditioned or reclaimed.
The City agrees not to hold the Engineer responsible for the
presence, handling, removal, abatement, or disposal of any
asbestos or hazardous or toxic substances.
it is acknowledged by both parties that Englneefs scope of
services does not include any services related to asbestos or
hazardous or toxic materials. In the event the Engineer or any
other party encounters asbestos or hazardous or toxic
materials at the Job site, or should it become known in any way
that such materials may be present at the job site or any
adjacent areas that may affect the performance of the
Engineer's services, the Engineer may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the project until the City
retains appropriate specialist consultant{s) or contractor(s) to
identify, abate and/or remove the asbestos or hazardous or
toxic materials, and warrant that the Job site is in full
compliance with applicable laws and regulations.
ARTiCLE 9 - ASSIGNMENT
This Agreement, intended to secure the service of individuals
empioyed by and through the Engineer, shall not be assigned
or transferred without written consent of the City.
ARTICLE 10 - CONTROLLING LAW
This Agreement is to be governed by the laws of the State of
Minnesota.
ARTICLE 11 - NON-DISCRIMINATION
Engineer will comply with the provisions of applicable Federal,
State and Local Statutes, Ordinances, and Regulations
pertaJning to human rights and non-discrimination.
ARTICLE 12 - CONFLICT RESOLUTION
In an effort to resolve any conflicts that arise during the design
or construction of the project or following the completion of the
project, the City and Engineer agree that all disptltes between
them arising out of or relating to this Agreement shall be
submitted to non-binding mediation unless the parties mutually
agree otherwise.
The City and Engineer further agree to include a similar
mediation provision in all agreements with independent
contractors and consultants retained for the project and to
require all independent contractors and consultants also to
Include a similar mediation provision in all agreements With
subcontractors, subconsultants, suppliers or fabricators so
retained, thereby providing for mediation as the primary
method for dispute resolution between the parties to those
agreements.
ARTICLE 13 - ATTORNEYS' FEES
In the event of any litigation arising from or related to the
services provided under this Agreement, the prevailing party
will be entitled to recovery of all reasonable costs incurred,
including staff time, court costs, reasonable attomeys' fees and
other related expenses.
ARTiCLE 14 - CONFIDENTIAliTY
The Engineer agrees to keep confidential and not to disclose
to any person or entity, other than the Engineer's employees,
subconsultants and the general contractor and subcontractors,
if appropriate, any data and information not previously known
to and generated by the Engineer or furnished to the Engineer
and marked CONFIDENTIAL by the City. These pro.isions
shall not apply to information in whatever form that comes into
the public domain, nor shall it restrict the Engineer from giving
notices required by law or complying with an order to provide
information or data when such order is issued by a court,
administrative agency or other authority with proper
jurisdiction, or if it Is reasonably necessary for the Engineer to
defend himself or herself from any suit or ciaim.
ARTICLE 15 - LOCATION OF UNDERGROUND
iMPROVEMENTS
The Engineer and/or his or her authorized subconsultant will
conduct the research that in his or her professional opinion is
necessary and will prepare a plan indicating the locations
intended for subsurface penetrations with respect to assumed
locations of underground improvements. Such services by the
Engineer or his or her subconsultant will be performed in a
manner consistent with the ordinary standard of care. The City
recognizes that the research may not identify all underground
improvements and that the information upon which the
Engineer relies may contain errors or may not be completed.
The City agrees that the Engineer will not be held responsible
for the location and existence of underground utilities as
located by Gopher State One Call.
ARTICLE 16 - BETTERMENT
If, due to the Engineer's error, any rSQuired item or component
of the project is omitted from the Engineer's construction
documents, the Engineer shall not be responsible for paying
the cost to add such item or component to the extent that such
item or component would have been otherwise necessary to
the project or otherwise adds value or betterment to the
Exhibit A
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project. In no event will the Engineer be responsible for any
cost or expense that provides betterment, upgrade or
enhancement of the project.
ARTICLE 17 - CONSTRUCTION OBSERVATION
The Engineer shall visit the project at appropriate intervals
during construction to become familiar with the progress and
quality of the contractors' work and to determine if the work is
proceeding in general accordance with the Contract
Documents. The City has not retained the Engineer to make
detailed inspections or to provide exhaustive or continuous
project review and observation services. For City-observed
projects, the Engineer shall accept the construction of the
project as being completed according to the construction
documents upon a similar justification by the City observer.
The Engineer does not guarantee the performance of, and
shan have no responsibility for, the acts or omissions of any
contractor, subcontractor, supplier or any other entity furnishing
materials or performing any work on the project.
If the City desires more extensive project observation or full·
time project representation, the City shall request such
services be provided by the Engineer as Additional Services in
accordance with the terms of this Agreement. In this instance,
the Engineer shall accept the construction of the project as
being completed according to the construction documents.
However, the Engineer does not guarantee the performance
of, and shall have no responsibility for, the acts or omissions
of any contractor, subcontractor, supplier or any other entity
furnishing materials or performing any work on the project.
ARTICLE 18 -INDEMNIFICATION
The Engineer agrees, to the fullest extent permitted by law, to
indemnify and hold the City harmless from any damage,
liability or cost (including reasonable attorneys' fees and costs
of defense) to the extent caused by the Engineer's negligent
acts, errors or omissions in the performance of professional
services under this Agreement and those of his or her
subconsultants or anyone for whom the Engineer is legally
liable.
The Engineer is not obligated to Indemnify the City in any
manner whatsoever for the City's own negligence.
Engineer will exercise usual and customary professional care
to comply with applicable federal, state, county and local
ordinances and statues in the performance of any engineering,
surveying, and planning service to the City. '
Exhibit A
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AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT, made and executed this 23rd day of May, 2000 by and between City of
Chanhassen hereinafter referred to as the "CITY", and Hansen Thorp Pellinen Olson, Inc.,
hereinafter referred to as the "CONSULTANT",
WITNESSETH:
CITY and CONSULTANT, for the consideration hereinafter stated, agree as follows:
I. CONSULTANT hereby covenants and agrees to provide professional services for general
municipal engineering.
II. CITY agrees to pay and CONSULTANT agrees to receive and accept payment for
services as set forth in the CONSULTANT Standard Fee Schedule attached hereto, or in
accordance with a proposal prepared by CONSULTANT and accepted by CITY.
III. Payments to CONSULTANT by CITY shall be made as follows:
CONSULTANT shall submit itemized bills for services provided to CITY on a monthly
basis. Bills submitted shall be paid in the same manner as other claims made to CITY,
For work reimbursed on an hourly basis, CONSULTANT shall indicate for each
employee, the number of hours worked, rate of pay for each employee, a computation of
amounts due for each employee, and the total amount due,
For reimbursable expenses, CONSULTANT shall provide such documentation as
reasonably required by CITY when requested.
IV. CONSULTANT agrees to fully and satisfactorily complete the work contemplated by
each proposal in accordance with the prescribed schedule.
V, The term of this Agreement shall be for one year. This Agreement may be extended upon
the written mutual consent of the parties for such additional period as they deem
appropriate, and upon the terms and conditions as herein stated.
VI. This Agreement may be terminated by either party by seven day's written notice
delivered to the other party, Upon termination under this provision, CONSULTANT
shall be paid for services rendered and reimbursable expenses until effective date of
termination.
VII. CONSULTANT shall not enter into subcontracts for any of the services provided for in
this Agreement without the express written consent of CITY.
VIII. During the performance of this contract, CONSULT ANT shall not discriminate against
any employee or applicant for employment because of race, color, creed, religion,
¡;,r _ 1
national origin, sex, marital status, status with regard to public assistance, disability, or
age. CONSULTANT shall post in places available to employees and applicants for
employment, notices setting forth the provisions of this non-discrimination clause and
stating that all qualified applicants will receive consideration for employment.
IX, CONSULTANT shall indemnify and hold harmless CITY, its employees and agents, for
all claims, damages, losses, and expenses, including, but not limited to, attorney's fees,
which they may suffer or for which they may be held liable, as a result of and to the
extent of, the negligent or wrongful acts of the CONSULTANT, his employees, or
anyone else for whom he is legally responsible in the performance of the Agreement.
X.
During the term of this Agreement, CONSULT ANT shall maintain a general liability
insurance policy with limits in the following amounts for each occurrence and aggregate,
for both personal injury and property damage: $1,000,000.00.
CONSULT ANT must also maintain during the term of this Agreement a professional
liability insurance policy with the same limits as for general liability.
F
Xl. This Agreement shall be executed in 2 copies.
IN WITNESS WHEREOF, the parties to this Agreement have hereunto set their hands and seals
as of the date first above written.
CITY OF CHANHASSEN, MN.
In Presence Of:
By
And
CONSULTANT
1
~\P~S:Bðß \)
Hansen Thorp Pellinen Olson, lnc,
0, :;'
By, !fU¡¡u.:.. O. . d~
President::)
An~'t ,/ C ¡/ ~)
Vice Presiden
FC-2
AGREEMENT BETWEEN r¡ ffJ
THE CITY OF CHANHASSEN AND BRW, INC. L!!J
FOR PROFESSIONAL ENGINEERING SERVICES O~. ß ìl
THIS IS AN AGREEMENT made as of June 5, 2000, between the City ofChanhassen, a municipal corporation of
the State of Minnesota ("CITY") with an office at 690 City Center Drive, Chanhassen, MN 55317 and BRW, Inc.
also known as BRW Planning. Transportation and Engineering, Inc., a Wyoming corporation ("ENGINEER") with
an office at 700 Third Street South, Minneapolis, MN 55415.
CITY intends to secure professional consulting engineering and/or land survey services on an ongoing basis for
multiple projects (referred to herein as the "Project") subject to and according to the terms of this Agreement. BRW
shall issue a project specific Work Order in the form attached as Exhibit A ("Work Order Form") for each project for
the CITY's approval. Services shall commence upon BRW's receipt of an executed Work Order from the CITY.
Work Orders may, by mutual agreement between CITY and ENGINEER, alter the terms of this Agreement for a
specific project.
CITY and ENGINEER in consideration of their mutual covenants herein agree in respect of the performance or
furnishing of professional engineering services by ENGINEER with respect to the Project and the payment for those
services by CITY as set forth below. This Agreement will become effective on the date first above written.
SECTION 1.. SERVICES OF ENGINEER
1.1 GENERAL
ENGINEER shall provide for CITY professional services, either as Basic or Additional Services. in all phases of the
Project to which this Agreement applies as hereinafler provided. The services will include serving as CITY's
professional engineering representative for the Project, providing engineering consultation and advice and furnishing
customary general municipal engineering. land surveying. wetlands and drainage. geotechnical, and traffic and
transportation engineering and other engineering services thereto. ENGINEER is an independent provider of
professional engineering and/or land surveying services. responsible for the means and methods used in performing
ENGINEER's services pursuant to this Agreement.
SECTION 2.. BASIC SERVICES OF ENGINEER
2.1 STUDY AND REPORT PHASE
After receipt of an executed Work Order for such services, ENGINEER shall:
2.1.1 Consult with CITY to clarify and define CITY's requirements for the Project, review available
dota and attend necessary conferences and be available for general consultation.
2.1.2 Advise CITY as to the necessity of CITY's providing or obtaining from others data or services of
the types described in paragraph 4.9 which are not part of ENGINEER's Basic Services. and assist CITY in
obtaining such data or services.
2.1.3 Identify and analyze requirements of governmental authorities having jurisdiction to approve the
design of the Project and participate in consultations with such authorities.
2.1.4 Provide analyses ofCITY's needs, planning surveys, site evalualions and comparative studies of
prospective sites and solutions.
2.1.5 Provide a general economic analysis of CITY's requirements applicable to various alternatives.
CHANCONTRA CT. DOC
I
Jllfle 5, 2000
2.1.6 The ENGINEER shall conduct and prepare preliminary studies. layouts. sketches. preliminary field
work. preliminary cost estimates. estimates of assessment rates. and shall assist the CITY in obtaining required
subsurface investigations as required for the preparation of Feasibility Reports. Feasibility Reports shall conform to
the format presented in Exhibit B of this Agreement. "Feasibility Report Format'". The report shall contain
schematic layouts. sketches and conceptual design criteria with appropriate exhibits to indicate clearly the
considerations involved (including applicable requirements of governmental authorities having jurisdiction as
aforesaid) and the alternative solutions available to CITY and setting forth ENGINEER's findings and
recommendations. The Feasibility Report shall include a project schedule and shall identify the benefiting area(s)
and/or owners. The Feasibility Report will be accompanied by ENGINEER's opinion of probable costs for the
Project. including the following which will be separately itemized: construction cost and indirect cost consisting of
engineering costs and contingencies, and (on the basis of information furnished by CITY) allowances for such other
items as charges of all other professionals and consultants. for the costs of land and rights-of-way. for compensation
for or damages to properties. for interest and financing charges and for other services to be provided by others for
CITY pursuant to paragraphs 4.7 through 4.11. inclusive. The total of all construction and indirect costs are
hereinafter called "Total Project Costs".
2.1.7 Furnish a draft of the Study and Report documents and review them in person with the CITY.
2.1.8 Revise the Report in response to CITY's comments, as appropriate, and furnish final copies of the
Report in the number set forth in any Work Order and within the time frame set forth in the Work Order.
2.1.9 ENGINEER shall assist with presenting the Feasibility Report to the proper reviewing agencies
and to the City Council. The ENGINEER shall appear at the public hearing to present the information.
The duties and responsibilities of ENGINEER during the Study and Report Phase as set forth in this paragraph 2.1
are amended and supplemented as indicated in any Work Order.
2.2 . PRELIMINARY DESIGN PHASE
After receipt of an executed Work Order for such services, ENGINEER shall:
2.2.1 In consultation with CITY and on the basis of the accepted Study and Report documents.
determine the general scope. extent and character of the Project; attend necessary conferences and be available for
general consultation.
2.2.2 Prepare Preliminary Design documents consisting of final design criteria, preliminary drawings,
outline specifications and written descriptions of the Project.
2.2.3 Advise CITY if additional data or services of the types described in paragraph 4.9 are necessary
and assist CITY in obtaining such data and services.
2.2.4 Based on the information contained in the Preliminary Design documents, submit a revised opinion
of probable Total Project Cost.
2.2.5 Furnish copies of the Preliminary Design documents in the number established in the Work Order
and present and review them in person with CITY.
2.3 - FINAL DESIGN PHASE
After authorization to proceed with the Final Design Phase, ENGINEER shall, if set forth in a Work Order:
2.3.1 On the basis of the accepted Preliminary Design documents and the revised opinion of probable
Total Project Costs prepare for incorporation in the Bidding Documents final drawings (herein called "Drawings") to
CHANCONTRACT.DOC
2
June 5, 2000
show the general scope, extent and character of the work to be furnished and performed by the contractor (herein
called "Contractor(s)") and Specifications.
2.3.2 Provide technical criteria, written descriptions and design data for use in filing applications for
permits with or obtaining approvals of such governmental authorities as have jurisdiction to approve the design of
the Project, and assist CITY in consultations with appropriate authorities. ENGINEER shall submit all applications
and easement descriptions to the appropriate agencies and submit copies to CITY.
2.3.3 Advise CITY of any adjustments to the latest opinion of probable Total Project Cost caused by
change in general scope, extent or character or design requirements of the Project or Construction Costs. Furnish to
CITY a revised opinion of probable Total Project Cost based on the Drawings and Specifications.
2.3.4 Prepare for review and approval by CITY, its legal counsel and other advisors. contract agreement
forms, general conditions and supplementary conditions. and (where appropriate) bid forms, invitations to bid and
instructions to bidders. and assist in the preparation of other related documents.
2.3.5 Attend necessary conferences and be available for general consultation.
2.3.6 Furnish the number of copies set forth in the Work Order of the above documents and of the
Drawings and Specifications set and present and review them in person with the CITY.
2.3.7 Furnish one copy of all design calculations if requested by CITY.
2.4· BIDDING OR NEGOTIATING PHASE
2.4. ¡ ENGINEER shall prepare and forward the Advertisement for Bids to the designated publications,
official newspaper and the CITY. The ENGINEER shall supply the number of sets of full size final Plans and
Specifications set forth in the Work Order for use in obtaining proposals and submitting for general review.
ENGINEER shall maintain a record of prospective bidders to whom Bidding Documents have been issued. attend
pre·bid conferences and receive and process deposits for Bidding Documents.
2.4.2 ENGINEER shall issue addenda as appropriate to interpret, clarify or expand the Bidding
Documents.
2.4.3 ENGINEER shall consult with and advise CITY as to the acceptability of subcontractors,
suppliers. and other persons and organizations proposed by the prime Contractor(s) for the portions of the work
where acceptability is required by the Bidding Documents.
2.4.4 ENGINEER shall consult with and advise CITY concerning and determining the acceptability of
substitute materials and equipment proposed by Contractor(s) when substitution prior to the award of contracts is
allowed by the Bidding Documents.
2.4.5 ENGINEER shall attend the bid opening. prepare bid tabulation sheets and assist CITY in
evaluating bids or proposals and in assembling and awarding contracts for construction, materials. equipment and
services.
SECTION 3· ADDITIONAL SERVICES OF ENGINEER
3.1 ADDITIONAL SERVICES REQUIRING AUTHORIZATION IN ADVANCE
CHANCONTRA CT. DOC
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JUlie 5, 2000
If authorized by Work Order, ENGINEER shall furnish or obtain from others Additional Services of the types listed
in paragraphs 3.2 through 3.6, inclusive. These services are not included as part of Basic Services except to the
extent otherwise provided in any Work Order. These services will be paid for by CITY as indicated in Section 6 or
in the Work Order.
3.2 PROFESSIONAL SURVEY SERVICES
3.2.1 Provide legal descriptions and exhibits for all easements, property surveys or related engineering
services needed for the transfer of interests in real property and field surveys for design purposes and engineering
surveys and staking to enable Contractor(s) to proceed with their work.
3.2.2 All survey services shall be performed by qualified personnel under the supervision of a Licensed
or Registered Land Surveyor, and the documents submitted as instruments of service shall bear the Surveyor's seal
and certification to that effect.
3.2.3 CITY shall inform ENGINEER of existing or suspected hazards on the property prior to
commencement of services.
3.2.4 ENGINEER shall be entitled to rely upon information provided by CITY or CITY's agent.
including property descriptions, recorded easements, other evidence of land title. and drawings prepared by others
indicating locations of concealed conditions (underground utilities, etc.)
3.2.5 ENGINEER shall survey project area and identify all found property monuments. Upon locating
monuments. the ENGINEER shall contact the property owner to confirm existing monumentation prior to
commencement of construction.
3.2.6 When providing construction staking services, ENGINEER shall set one set of stakes only for each
task. Any re-staking or staking for tasks. areas. not identified in the Work Order shall be performed as an Additional
Service. Re-staking or additional staking will only commence when requested by CITY.
3.2.7 ENGINEER assumes no liability or responsibility for the disturbance of any stakes subsequent to
the survey crew leaving the work site or \~here insufficient original stakes remain to be used in verifying the staking.
3.3 GEOTECHNICAL ENGINEERING SERVICES
ENGINEER shall provide subsurface services through an ENGlNEER's Consultant. as authorized by the CITY
under the following terms and conditions:
3.3.1 It is necessary that borings. excavations and other penetrations be located such that they maintain a
minimum safe distance from underground utilities or other man-made improvements. CITY shall advise
ENGINEER of all utilities that service or are located on the site. as well as any underground improvements located
on the site. ENGINEER will contact state notification centers. where available, or individual utility owners where a
state notification center is not available, prior to drilling.
3.3.2 Public utility owners may not provide the locating service on private property. In such situations.
CITY is responsible for location of such utilities prior to drilling.
3.3.3 The property owner may have private underground improvements which cannot be cleared through
the state notification center or public utility owners. The CITY is responsible for location of these improvements.
3.3.4 ENGINEER will not be responsible for any damages to "non-located" or incorrectly located
underground utilities or other man-made improvements.
CHANCONTRACT.DOC
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Jlllle 5, 2000
3.3.5 CITY acknowledges and accepts that unavoidable contamination risks may be associated with
ENGINEER's subsurface drilling, sampling and installation of monitoring devices. Risks include, but are not
limited to, cross contamination created by linking contaminated zones to uncontaminated zones during the drilling
process; containment and proper disposal of known or suspected hazardous materials, drill cuttings and drill fluids;
and decontamination of equipment and disposal and replacement of contaminated consumables. CITY and
ENGINEER agree that the discovery of unanticipated actual or suspected hazardous materials may make it necessary
for ENGINEER to take immediate meaSures to protect human health and safety. and/or the environment. CITY and
ENGINEER also agree that the discovery of such materials constitutes a changed condition which may result in
added costs to CITY, and' may require a renegotiation of work scope or termination of services.
3.3.6 Equipment lost in bore holes may be required to be retrieved or properly abandoned by
government agencies. CITY agrees to pay ENGINEER all costs related to retrieving and/or abandoning such
equipment at ENGINEER's prices, unless agreed otherwise.
3.3.7 CITY recognizes that unavoidable risks occur whenever engineering or related disciplines are
applied to identify subsurface conditions. Even a comprehensive sampling and testing program performed in
accordance with a professional standard of care may fail to detect certain conditions. because they are hidden. For
similar reasons, actual environmental. geologic and geotechnical conditions that ENGINEER characterizes to exist
between sampling points may differ significantly from those that actually exist. The passage of time must also be
considered, and CITY recognizes that, due to natural occurrences or direct or indirect human activities at the site or
distant from it, actual conditions discovered may change. CITY recognizes that nothing can be done to eliminate the
risks associated with these limitations.
3.4 CONSTRUCTION PHASE
During the Conslruction Phase. CITY may authorize ENGINEER to perform one or more of Ihe following services:
3.4.1 Gelleral Admillistratioll of COllstructioll Colltract. ENGINEER shall consult with and advise
CITY and act as CITY's representative. All of CITY's instructions to Contractor(s) will be issued through
ENGINEER who will have authority to act on behalf of CITY to the extent provided in BRW's General Conditions
to the Construction Contract except as otherwise provided in writing. BRW's General Conditions to the
Construction Contract shall not be modified except to the extent provided in any Work Order without the written
agreement of the ENGINEER.
3.4.2 Visits to Site alld Observatioll of COllstructiOIl. In connection with observations of the work of
Contractor(s) while it is in progress:
3.4.2.1 ENGINEER shall make visits to the site at intervals appropriate to the various stages of
construction as ENGINEER deems necessary in order to observe as an experienced and qualified design
professional the progress and quality of the various aspects ofContractor(s)' work. In addition, if requested
by CITY, ENGINEER shall provide the services of a Resident Project Representative (and assistants as
agreed) at the site to assist ENGINEER and to provide more continuous observation of such work. Based
on information obtained during such visits and on such observations, ENGINEER shall endeavor to
determine in general if such work is proceeding in accordance with the Contract Documents and
ENGINEER shall keep CITY informed of the progress of the work.
3.4.2.2 The Resident Project Representative (and any assistants) will be ENGINEER's agent or employee
and under ENGINEER's supervision. The duties and responsibilities of the Resident Project
Representative (and assistants) are set forth in Exhibit C, "Duties. Responsibilities and Limitations of
Authority of the Resident Project Representative".
3.4.2.3 The purpose of ENGINEER's visits to the site and representation by the Resident Project
Representative (and assistants. if any) at the site will be to enable ENGINEER to better carry out the duties
CHANCONTRA CT. DOC
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JUlie 5, 2000
and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and. in
addition. by the exercise of ENGINEER's efforts as an experienced and qualified design professional. to
provide for CITY a greater degree of confidence that the completed work of Contractor(s) will conform in
general to the Contract Documents and that the integrity of the design concept of the completed Project as
reflected in the Contract Documents has been implemented and preserved by Contractor(s). On the other
hand. ENGINEER shall not. during such visits or as a result of such observations of Contractor(s)' work in
progress. supervise. direct or have control over Contractor(s)' work nor shall ENGINEER have authority
over or responsibility for the means. methods. techniques. sequences or procedures of construction selected
by Contractor(s), for safety precautions and programs incident to the work ofContractor(s) or for any
failure of Contractor(s) to comply with laws. rules. regulations, ordinances. codes or orders applicable to
Contractor(s)' furnishing and performing the work. Accordingly, ENGINEER neither guarantees the
performance of any Contractor(s) nor assumes responsibility for any Contractor(s)' failure to furnish and
perform its work in accordance with the Contract Documents.
3.4.2.4 If ENGINEER observes or otherwise becomes aware of defects or deficiencies in the work, or
nonconformance to the Contract Documents, ENGINEER shall promptly give written notice thereof to
CITY.
3.4.3 Defective Work. During such visits and on the basis of such observations, ENGINEER may
disapprove of or reject Contractor(s)' work while it is in progress if ENGINEER believes that such work will not
produce a completed Project that conforms generally to the Contract Documents or that it will prejudice the integrity
of the design concept of the completed Project as indicated in the Contract Documents.
3.4.4 Clarificatiolls alld illlerpretatiolls ENGINEER shall issue necessary clarifications and
interpretations of the Contract Documents and in connection therewith prepare work directive changes and change
orders as required for CITY's approval.
3.4.5 Shop Drawillgs. ENGINEER shall review and approve (or take other appropriate action in respect
of) Shop Drawings. samples and other data which Contractor(s) is required to submit, but only for conformance with
the design concept of the Project and compliance with the information given in the Contract Documents. Such
reviews and approvals or other action will not extend to means, methods. techniques. sequences or procedures of
construction or to safety precautions and programs incident thereto.
3.4.6 Substitlltes. ENGINEER shall evaluate and determine the acceptability of substitute or "or-equal"
materials and equipment proposed by Contractor(s), but subject to the provisions of paragraph
3.4.7 IlIspectiolls alld Tests. ENGINEER shall have the authority. as CITY's representative. to require
special inspection or testing of the work. and shall receive and review all certificates of inspections. testings and
approvals required by laws. rules. regulations. ordinances, codes. orders or the Contract Document (but only to
determine generally that their content complies with the requirements of. and the results certified indicate compliance
with, the Contract Documents). ENGINEER shall be entitled to rely on the results of such tests.
3.4.8 Displltes betweell CiTY alld COII/ractorls). ENGINEER shall act as initial interpreter of the
requirements of the Contract Documents and judge of the acceptability of the work thereunder and make decisions
on all claims of CITY and Contractor(s) relating to the acceptability of the work or the interpretation of the
requirements of the Contract Documents pertaining to the execution and progress of the work. ENGINEER shall
respond to all written claims submitted by Contractor(s) in a timely fashion. ENGINEER shall not be liable for the
results of any such interpretations or decisions rendered in good faith.
3.4.9 Applica/iolls for Paymellt. Based on ENGINEER's on-site observations as an experienced and
qualified design professional. on information provided by the Resident Project Representative and on review of
applications for payment and the accompanying data and schedules:
CHANCONTRA CT. DOC
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Jlllle 5, 2000
3.4.9.1 ENGINEER shall determine the amounts owing to Contractor(s) and recommend in writing
payments to Contractor(s) in such amounts. Such recommendations of payment will constitute a
representation to CITY, based on such observations and review, that the work has progressed to the point
indicated, and that, to the best of ENGlNEER's knowledge, information and belief, the quality of such work
is generally in accordance with the Contract Documents (subject to an evaluation of such work as a
functioning whole prior to or upon Substantial Completion, to the results of any subsequent test called for in
the Contract Documents and to any other qualifications stated in the recommendation). In the case of unit
price work, ENGINEER's recommendations of payment will include final determinations of quantities and
classifications of such work (subject to any subsequent adjustments allowed by the Contract Documents).
3.4.9.2 By recommending any paymenI. ENGINEER will not thereby be deemed to have represented that
exhaustive. continuous or detailed reviews or examinations have been made by ENGINEER to check the
quality or quantity ofContractor(s)' work as it is furnished and performed beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the Contract Documents. ENGlNEER's review
of Contractor(s)' work for the purposes of recommending payment will nOl impose on ENGINEER any
responsibility to supervise, direct or control such work or for the means. methods, techniques. sequences or
procedures of construction or safety precautions or programs incident thereto or Contractor(s)' compliance
with laws, rules. regulations, ordinances. codes or orders applicable to their furnishing and performing the
work. It will also not impose any responsibility on the ENGINEER to make any examination to ascertain
how or for what purposes any Contractor(s) has used the money paid on account of the Contract Price, or to
determine that title to any of the work, materials or equipment has passed to CITY free and clear of any
lien, claims, security interests or encumbrances, or that there may nOl be other matters at issue between
CITY and Contractor(s) that might affect the amOUnI that should be paid.
3.4.10 Colltractor(s)' Completioll Docllmellts. ENGINEER shall receive and review maintenance and
operating instructions. schedules. guarantees. bonds and certificates of inspection. test and approvals which are to be
assembled by Contractor(s) in accordance with the Contract Documents (but such review will only be to determine
that their contenI complies with the requiremenIs of. and in the case of certificates of inspection. tests and approvals
the results certified indicate compliance with, the Contract Documents); and shall transmit them to CITY with
written comments.
3.4.11 illspectiolls. ENGINEER shall conduct an inspection to determine if the work is substantially
complete and a final inspection to determine if the completed work is acceptable so that ENGINEER may
recommend. in writing, final paymenI to Contractor(s) and give written notice to CITY and the Contractor(s) that the
work is acceptable (subject to any conditions therein expressed). but any such recommendation and notice will be
subject to the limitations expressed in paragraph 3.4.10.
3.4.12 As-Bllilt Drawillgs. Upon completion of the Construction Phase. ENGINEER shall prepare a set
of reproducible record prints of Drawings showing those changes made during the construction process, based on the
marked-up prints. drawings and other data furnished by Contractor(s) and such records maintained by ENGINEER
during the Construction Phase. ENGINEER will not be responsible for any errors or omissions in the information
provided by Contractor(s) that is incorporated in the record drawings and record documents. Final payment to
ENGINEER will be made only after record drawings are received by CITY.
3.4.13 Limitatioll of Respollsibilities. ENGINEER shall not be responsible for the acts or omissions of
any Contractor(s). or of any subcontractor or supplier, or an of the Contractor(s)' or subcontractors' or suppliers'
agents or employees of any other persons (except ENGlNEER's own employees and agents) at the site or otherwise
furnishing or performing any of the Contractor(s)' work; however, nothing contained in paragraphs 3.4.1 through
3.4.11 inclusive, shall be constru~d to release ENGINEER from liability for failure to properly perform duties and
responsibilities assumed by ENGINEER in the Contract Documents.
CHANCONTRACT.DOC
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Jlllle 5. 2000
3.5
OPERATIONAL PHASE
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During the Operational Phase, CITY may authorize ENGINEER to perfonn one or more of the following services:
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Provide assistance in the closing of any financial or related transaction for the Project.
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3.5.2
Provide assistance in connection with the refining and adjusting of any equipment or system.
3.5.3 Assist CITY in training CITY's staff to operate and maintain the Project.
3.5.4 Assist CITY in developing systems and procedures for control of the operation and maintenance of
and record keeping for the Project.
3.5.5 In company with CITY. visit the Project to observe any apparent defects in the completed work.
assist CITY in consultations and discussions with Contractor(s) concerning correction of such defects or
deficiencies, and make recommendations as to replacement or correction of defective work.
3.5.6 Assist CITY in preparation of assessment roll for CITY improvement projects, and attend
assessment hearings.
3,6 OTHER ADDITIONAL SERVICES
In addition to Surveying. Geotechnical Engineering, and Construction Observation services, CITY may authorize
ENGINEER to perform any of the following Additional Services:
3.6.1 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 effect on the design requirements
of 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.
3.6.2 Review of developer's plats. concept plans and assistance to developer in preparing a plat; contract
administration and construction observation of developer installed improvements; review and finalization of
developer's construction record drawings. and work performed in acquisition of easements.
3.6.3 Field services to make measured drawings of or to investigate existing conditions or facilities, or to
verify the accuracy of drawings or other information furnished to CITY by others.
3.6.4 Services resulting from significant changes in the scope. extent or character of the Project or its
design including, but not limited to, changes in size. complexity. CITY's schedule. character of construction or
method of financing; and revising previously accepted studies. reports. design documents or Contract Documents
when such revisions are required by changes in laws. rules. regulations. ordinances. codes or orders enacted
subsequent to the preparation of such studies, reports, or documents, or are due to any other causes beyond
ENGINEER's control.
3.6.5 Providing renderings or models for CITY's use.
3.6.6 Preparing documents for alternate bids requested by CITY for Contractor(s)' work which is not
executed or documents for out-of-sequence work.
3.6.7 Undertaking investigations and studies including, but not limited to. detailed consideration of
operations, maintenance and overhead expenses; providing value engineering during the course of design: the
preparation of feasibility studies. cash flow and economic evaluations. rate schedules and appraisals; assistance in
CHANCONTRACT.DOC
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Jllne 5, 2000
obtaining financing for the Project; evaluating processes available for licensing; assisting CITY in obtaining process
licensing; detailed quantity surveys of materials, equipment and labor; and audits or inventories required in
connection with construction performed by CITY,
3.6.8 Furnishing services of independent professional associates and consultant's for other than Basic
Services (which include, but are not limited to, customary civil, structural, mechanical and electrical engineering and
customary architectural design incidental thereto); and providing data or services of the types described in paragraph
4.9 when CITY employs ENGINEER to provide such data or services in lieu of furnishing the same under paragraph
4.9.
office.
3.6.9 Services during out-of-town travel required of ENGINEER other than visits to the site or CITY's
3.6.10 Assistance in connection with bid protests, rebidding or renegotiating contracts for construction,
materials, equipment or services, except when such assistance is required to complete services called for in
paragraph 2.4.
3.6.11 Preparation of operating, maintenance and staffing manuals.
3.6.12 Preparing to serve or serving as a consultant or witness for CITY in any litigation. arbitration or
other legal or administrative proceeding involving the Project.
3.6.13 Additional services in connection with the Project. including services which are to be furnished by
CITY under Section 4, and services not otherwise provided for in this Agreement.
3.7 REQUIRED ADDITIONAL SERVICES
As circumstances may require during the Construction Phase, and when required by the Contract Documents in
circumstances beyond ENGINEER's control. ENGINEER shall furnish or obtain from others without waiting for
specific authorization for CITY. Additional Services of the types listed in paragraphs 3.7.1 through 3.7.6. inclusive.
These services are not included as part of Basic Services except to the extent provided otherwise by Work Order.
ENGINEER shall advise CITY promptly after starting any such Additional Services which will be paid for by CITY
as indicated in Section 6.
3.7.1 Services in connection with work directive changes and change orders to reflect changes requested
by CITY if the resulting change in compensation for Basic Services is not commensurate with the Additional
Services rendered.
3.7.2 Services in making revisions to Drawings and Specifications occasioned by the acceptance of
substitutions proposed by Contractor(s); and services after the award to each contract in evaluating and determining
the acceptability of an unreasonable or excessive number of substitutions proposed by Contractor(s).
3.7.3 Services resulting from significant delays. changes or price increases occurring as a direct or
indirect result of material. equipment or energy shortages.
3.7.4 Additional or extended services during construction made necessary by (I) work damaged by fire
or other cause during construction, (2) a significant amount of defective or neglected work of any Contractor(s), (3)
acceleration of the progress schedule involving services beyond normal working hours, and (4) default by any
Contractor(s).
3.7.5 Services (other than Basic Services during the Operational Phase) in connection with any partial
use of any part of the Project by CITY prior to Substantial Completion.
CHANCONTRACTDOC
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Jllne 5, 2000
3.7.6 Evaluating an unreasonable or extensive number of claims submitted by Contractor(s) or others in
connection with the work.
SECTION 4 . CITY'S RESPONSIBILITIES
CITY shall do the following in a timely manner so as not to delay the services of ENGINEER:
4.1 Designate in writing a person to act as CITY's representative with respect to the services to be
rendered under this Agreement. Such person will have complete authority to transmit instructions, receive
information, interpret and define CITY's policies and decisions with respect to ENGINEER's services for the
Project.
4.2 Provide criteria and information as to CITY's requirements for the Project. including design
objectives and constraints, space. capacity and performance requirements, flexibility and expendability. and any
budgetary limitations; and furnish copies of all design and construction standards which CITY will require to be
included in the Drawings and Specifications.
4.3 Assist ENGINEER by placing at ENGINEER's disposal all available information pertinent to the
Project including previous reports and any other data relative to design or construction of the Project.
4.4 Furnish to ENGINEER. as required for performance of ENGINEER's Basic Services except to the
extent provided otherwise as indicated in a Work Order, the following:
4.4.1 Data prepared by or services of others, including without limitation, borings. probings and
subsurface explorations. hydrographic surveys. laboratory tests and inspection of samples, materials and equipment;
4.4.2 Appropriate professional interpretations of all of the foregoing;
4.4.3
Environmental assessments and impact statements;
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4.4.4 Property, boundary, easement, right-of-way. topographic and utility surveys'
4.4.5 Property descriptions;
4.4.6 Zoning, deed and other land use restrictions; and
4.4.7 Other special data or consultations not covered in Section 2.
CITY shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all reports. data
and other information furnished pursuant to this paragraph. ENGINEER may use such reports. data and information
in performing or furnishing services under this Agreement.
4.5 Provide engineering surveys. or authorize ENGINEER to establish reference points for
construction to enable Contractor(s) to proceed with the layout of the work.
4.6 Arrange for access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform services under this Agreement.
4.7 Examine all studies. reports, sketches, Drawings. Specifications, proposals and other documents
presented by ENGINEER. Obtain advice of an attorney. insurance counselor and other consultants as CITY deems
appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as
not to delay the services of ENGINEER.
CHANCONTRA CT. DOC
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Jlllle 5, 2000
4.8 Furnish approvals and permits from all governmental authorities having jurisdiction over the
Project and such approvals and consents from others as may be necessary for completion of the Project.
4.9 Provide such accounting, independent cost estimating and insurance counseling services as may be
required for the Project, such legal services as CITY may require or ENGINEER may reasonably request with regard
to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as
CITY may require to ascertain how and for what purpose any Contractor(s) has used the monies paid under the .
construction contract, and such inspection services as CITY may require to ascertain that Contractor(s) are
complying with any law, rule, regulations, ordinance, code or order applicable to their furnishing and performing the
work.
4.10 If CITY designates a person to represent CITY at the site who is not ENG!JI.'EER or ENGINEER's
agent or employee, the duties, responsibilities and limitations of authority of such other person and the affect thereof
on the duties and responsibilities of ENGINEER and the Resident Project Representative (and any assistants) will be
set forth in an exhibit that is to be identified, attached to and made a part of this Agreement before such services
begin.
4.11 If more than one prime contract is to be awarded for construction, materials, equipment and
services for the entire Project. designate a person or organization to have authority and responsibility for
coordinating the activities among the various prime contractors.
4.12 Furnish to ENGINEER data or estimated figures as to CITY's anticipated costs for services to be
provided by others for CITY (such as services pursuant to paragraphs 4.7 through 4.11, inclusive, and other costs of
the types referred to in paragraph 2.1.6) so that ENGINEER may make the necessary findings to suPPOft opinions of
probable Total Project Costs.
4.13 Attend the pre-bid conference, bid opening, pre-construction conferences. construction progress
and other job-related meetings and Substantial Completion and final payment inspections.
4.14 Give prompt written notice to ENGINEER whenever CITY observes or otherwise becomes aware
of any development that affects the scope or timing of ENGINEER's services. or any defect or nonconformance in
the work of any Contractor(s).
4.15 Furnish, or direct ENGINEER to provide. Additional Services as stipulated in paragraph 2.1 of
this Agreement or other services as required.
4.16 Bear all costs incident to compliance with the requirements of this Section 4.
SECTION 5 - PERIODS OF SERVICES
The provisions of this Section 5 and the various rates of compensation for ENGINEER's services provided for
elsewhere in this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project
through completion of the Construction Phase. ENGINEER's obligation to render services hereunder will extend for
a period which may reasonably be required for the design. award of contracts, construction and initial operation of
the Project including extra work and required extensions thereto.
5.1 The services called for in the Study and Report Phase will be completed and the Report submitted
with the agreed period after written authorization to proceed with that phase of services is given by CITY.
5.2 After acceptance by CITY of the Study and Report Phase documents indicating any specific
modifications or changes in the general scope, extent or character of the Project desired by CITY, and upon written
authorization from CITY, ENGINEER shall proceed with the performance of the services called for in the
CHANCONTRA CT. DOC
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JlIne 5, 2000
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Preliminary Design Phase, and shall submit preliminary design documents and a revised opinion of probable Total
Project Costs within the agreed period.
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5.3 After acceptance by CITY of the Preliminary Design Phase documents and revised opinion of
probable Total Project Cost. indicating any specific modifications or changes in the general scope, extent or
character of the Project desired by CITY. and upon written authorization by CITY. ENGINEER shall proceed with
the performance of the services called for in the Final Design Phase; and shall deliver Contract Documents and a
revised opinion of Total Project Cost for all work of Contractor(s) on the Project within the agreed period.
5.4 ENGlNEER's Basic Services for each phase. shall each be considered complete at the earlier of
(I) the date when the submissions for that phase have been accepted by CITY. or (2) thirty (30) days after the date
when such submissions are delivered to CITY for final acceptance. plus in each case such additional time as may be
considered reasonable for obtaining approval of governmental authorities having jurisdiction to approve the design
of the Project.
5.5 After acceptance by CITY ofENGlNEER's Drawings, Specifications and other Final Design
phase documentation including the most recent opinion of probable Total Project COS\ and upon written
authorization to proceed. ENGINEER shall proceed with performance of the services called for in the Bidding or
Negotiating Phase. This Phase shall terminate and service to be rendered thereunder shall be considered complete
upon commencement of the Construction Phase or upon cessation of negotiations with prospective Contractor(s).
5.6 If authorized by Work Order. the Construction Phase will commence with the execution of the first
prime contract to be executed for the work of the Project or any part thereof, and will terminate upon written
recommendation by ENGINEER of final payment on the last prime contract to be completed. Construction Phase
services may be rendered at different times in respect of separate prime contracts if the Project involves more than
one prime contract.
5.7 If authorized by Work Order, the Operational Phase will commence during the Construction Phase
and will terminate one year after the date of Substantial Completion. as defined in the Contract Documents. if the last
prime contract for construction. materials and equipment on which substantial completion is achieved.
5.8 If CITY has request for significant modifications or changes in the general scope. extent or
character of the Project, the time of performance ofENGlNEER's services shall be adjusted accordingly.
5.9 CITY shall give prompt authorization to proceed or not proceed with any phase of services after
completion of the immediately preceding phase.
5.10 If ENGlNEER's services for design or during construction of the Project are delayed or suspended
in whole or in part by CITY for more than three (3) months for reasons beyond ENGINEER's control. ENGINEER
shall on written demand to CITY (but without termination of this Agreement) be paid as provided in paragraph 6.2.
If such delay or suspension extends for more than one year for reasons beyond ENGINEER's control. or if
ENGINEER for any reason is required to render Construction Phase services in respect of any prime contract for
construction. materials or equipment more than one year after Substantial Completion is achieved under that Project,
the various rates of compensation provided for elsewhere in this Agreement shall be subject to equitable adjustment.
5.11 In the event the work designed or specified by ENGINEER is to be furnished or performed under
more than one prime contract. or if ENGINEER's services are to be separately sequenced with the work of one or
more prime contractors (such as in the case of fast-tracking), CITY and ENGINEER shall, prior to commencement
of the Final Design Phase. develop a schedule for performance ofENGlNEER's services during the Final Design,
Bidding or Negotiating and Construction Phases in order to sequence and coordinate properly such services as are
applicable to the work under such projects.
CHANCONTRACT.DOC
12
JUlie 5, 2000
SECTION 6 - PAYMENTS TO ENGINEER
6.1 GENERAL
6.1.1 For Basic and Additional Services provided by independent professional associates and
consultants retained by ENGINEER, CITY shall pay ENGINEER the amount billed to ENGINEER therefor times a
factor of 1.0, unless otherwise agreed in a Work Order.
6.1.2 When Construction Cost is used as a basis for payment it will be based on one of the following
sources with precedence in the order listed for work designed or specified by ENGINEER:
6. ¡ .2. I For completed construction work. the total construction cost of all work performed as designed or
specified by ENGINEER, unless otherwise agreed in a Work Order, to include the lowest responsible bid
received.
6. I .2.2 For work designed or specified but not constructed, the lowest bona fide bid received from a
qualified bidder for such work; or, if the work is not bid. the lowest bona fide negotiated proposal for such
work.
6.1.2.3 For work designed or specified but not constructed upon which no such bid or proposal is
received. the most recent estimate of Construction Cost, or if none is available, ENGINEER's most recent
opinion of probable Construction Cost.
6.1.3 No deduction is to be made from Construction Costs on account of any penalty, liquidated
damages. or other amounts withheld from payments to Contractor(s).
6.2 METHODS OF PAYMENT FOR BASIC SERVICES OF ENGINEER
6.2. ¡ For Basic Services CITY shall pay ENGINEER on the basis of percentage of Construction Cost in
accordance with the attached Exhibit D, "Calculation of Percentage of Construction Cost" or other mutually agreed
upon method as stated in the Work Order.
6.2.2 For Basic services in the Study and Report Phase. ENGINEER shall submit a written cost estimate,
based on either a Lump Sum or an Hourly Cost payment method. with or without a cost not to exceed limit. If the
Project proceeds to construction. the maximum amount to be paid for this Phase will not exceed thirty-five percent
(35%) of the total fee to be paid ENGINEER for Basic Services for the Project in accordance with the percentage of
Construction Cost method set forth in 6.1.1. The actual amount paid for this Phase will then be adjusted not to
exceed the thirty-five percent limit.
6.3 METHODS OF PAYMENT FOR ADDITIONAL SERVICES OF ENGINEER
For Additional Services City shall pay ENGINEER on the basis of ENGINEER's Hourly Costs. attached hereto as
Exhibit E, "BRW's Hourly Costs", plus reimbursable expenses. or as otherwise agreed in the Work Order.
6.4 TIMES OF PAYMENTS
6.4.1 ENGINEER shall submit monthly statements for Basic and Additional Services rendered and for
Reimbursable Expenses incurred. The statements will be based upon methods of payment outlined in Sections 6.2
and 6.3. CITY shall make prompt monthly payments in response to ENGINEER's monthly statements.
6.4.2 Upon conclusion of each phase of Basic Services. CITY shall pay such additional amount. if any,
as may be necessary to bring total compensation paid on account of such phase to the following percentages of total
compensation payable for all phases of Basic Services:
CHANCONTRACT.DOC
13
Jllne 5, 2000
Phase
Percenta2e
Study and Report
Preliminary Design
Final Design
Bidding or Negotiating
35
30
30
5
100%
6.5 OTHER PROVISIONS CONCERNING PAYMENTS
6.5.1 If CITY fails to make any payment due ENGINEER for services and expenses within thirty (30)
days after receipt of ENGINEER's statement therefor, the amounts due ENGINEER will be increased at the rate of
one percent (1%) per month from said thirtieth day, and in addition, ENGINEER may. after giving seven (7) days'
written notice to CITY, suspend services under this Agreement until ENGINEER has been paid in full all amounts
due for services. expenses and charges.
6.5.2 In the event of termination by CITY under paragraph 7.1 upon the completion of any phase of
Basic Services, progress payments due ENGINEER for services rendered through such phase shall constitute total
payment for such services. In the event of such termination by CITY during any phase of the Basic Services,
ENGINEER will be paid for services actually and necessarily rendered during that phase by ENGlNEER's
employees and principals directly engaged on the Project. on the basis of ENGINEER's Hourly Costs stated in
Exhibit E to the date of termination.
6.5.3 In the event of any such termination. ENGINEER will also be reimbursed for the reasonable
charges of independent professional associates and consultants retained by ENGINEER to render such services. and
paid for all unpaid Basic and Additional Services. Reimbursable Expenses. plus reasonable termination expenses.
Termination expenses are additional Reimbursable Expenses directly attributable to termination, which if termination
is at CITY's convenience. shall include an amount computed as a percentage of total compensation for Basic
Services earned by ENGINEER to the date of termination. as follows:
6.5.3.1 Twenty-five percent if termination occurs after the commencement of the preliminary Design
Phase but prior to commencement of the Final Design Phase; or
6.5.3.2 Ten percent if termination occurs after commencement of the Final Design Phase.
6.5.4 Records of ENGINEER's Hourly Costs pertinent to ENGlNEER's compensation under this
Agreement will be kept in accordance with generally accepted accounting principles. Copies will be made available
to CITY at cost on request prior to final payment for ENGlNEER's services.
6.5.5 Whenever a factor is applied to Hourly Costs in determining compensation payable to ENGINEER
that factor will be adjusted annually and equitably to reflect changes in the various elements that comprise such
factor. All such adjustments will be in accordance with generally accepted accounting practices as applied on a
consistent basis by ENGINEER and consistent with ENGINEER's overall compensation practices and procedures.
6.6 DEFINITIONS
6.6.1 The Hourly Costs used as a basis for payment means salaries and wages (basic and incentive) paid
to all ENGINEER's personnel engaged directly on the Project. including, but not limited to, engineers. surveyors,
designers, draftsmen. specification writers. estimators, other technical and business personnel; plus the cost of
customary and statutory benefits including, but not limited to. social security contributions, unemployment. excise
and payroll taxes, workers' compensation, health and retirement benefits. sick leave. vacation ad holiday and other
group benefits. For the purposes of this Agreement. ENGlNEER's Hourly Costs are as shown on Exhibit E. The
CHANCONTRACT.DOC
14
J/llle 5, 2000
Hourly Costs of principals of ENGINEER will be adjusted equitably to reflect changes in personnel and in
ENGINEER's overall compensation procedures and practices.
6.6.2 Reimbursable Expenses means the actual reasonable expenses incurred by ENGINEER or
ENGINEER's independent professional associates or consultants, directly or indirectly in connection with the
Project, such as expenses for: transportation and subsistence incidental thereto; obtaining bids or proposals from
Contractor(s); providing and maintaining field office facilities including furnishings and utilities; subsistence and
transportation of Resident Project Representatives and their assistants; toll telephone calls and telegrams;
reproduction of reports, Drawings. Specifications, Bidding Documents, and similar Project-related items in addition
to those required under Section I; and. if authorized in advance by CITY, overtime work requiring higher than
regular rates.
SECTION 7 - CONSTRUCTION COST AND OPINIONS OF COST
7.1 CONSTRUCTION COST
The construction cost of the entire Project (herein referred to as ''Construction Cost") means the total cost to CITY
of those portions of the entire Project designed and specified by ENGINEER, but it will not include indirect costs
such as ENGINEER's compensation and expenses. the cost of land, rights-of-way. or compensation for or damages
to properties unless so specified in a Work Order, nor will it include CITY's legal, accounting. insurance counseling
or auditing services. or interest and financing charges incurred in connection with the Project or the cost of other
services to be provided by others to CITY pursuant to paragraphs 4.7 through 4.11, inclusive. (Construction Cost is
one of the items comprising Total Project Cost which is defined in paragraph 2.1.6).
7.2 OPINIONS OF COST
7.1.1 Since ENGINEER has no control over the cost of labor, materials. equipment or services furnished
by others. or over the Contractor(s) methods of determining prices, or over competitive bidding or market
conditions. ENGlNEER's opinions of probable Total Project Costs and Construction Cost provided for herein are to
be made on the basis ofENGlNEER's experience and qualifications and represent ENGINEER's best judgement as
an experienced and qualified professional engineer, familiar with the construction industry; but ENGINEER cannot
and does not guarantee that proposals. bids or actual Total Project or Construction Costs will not vary from opinions
of probable cost prepared by ENGINEER. If prior to the Bidding or Negotiating Phase. CITY wishes greater
assurance as to Total Project or Construction Costs. CITY shall employ an independent cost estimator.
7.1.2 If a Construction Cost limit is established in a Work Order between CITY and ENGINEER, the
following will apply:
7.1.2.1 The acceptance by CITY at any time during the Basic Services or Additional Services of a revised
opinion of probable Total Project or Construction Costs in excess of the then established cost limit will
constitute a corresponding revision in the Construction Cost limit to the extent indicated in such revised
opinion.
7.1.2.2 Any Construction Cost so established will include a contingency of ten percent (10%) unless
another amount is agreed upon in writing.
7.1.2.3 ENGINEER will be permitted to determine what types of materials, equipment and component
systems are to be included in the Drawings and Specifications and to make reasonable adjustments in the
general scope, extent and character of the Project to bring it within the cost limit.
7.1.2.4 If the Bidding or Negotiating Phase has not commenced within six (6) months after completion of
the Final Design Phase, the established Construction Cost limit will not be binding on ENGINEER. and
CITY shall consent to an adjustment in such cost limit commensurate with an applicable change in the
CHANCONTRA CT. DOC
15
Jlllle 5, 2000
general level of prices in the construction industry between the date of completion of the Final Design Phase
and the date on which proposals or bids are sought.
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7.1.2.5 If the lowest bona fide proposal or bid exceeds the established Construction Cost limit, CITY shall
(1) give written approval to increase the cost limit, (2) authorize negotiating or rebidding the Project within
a reasonable time, or (3) cooperate in revising the Project's general scope, extent or character to the extent
consistent with the Project's requirements and with sound engineering practices. In the case of (3),
ENGINEER shall modify the Contract Documents as necessary to bring the Construction Cost within the
cost limits. In lieu of other compensation for services in making such modifications, CITY shall pay
ENGINEER. ENGlNEER's cost of such services, all overhead expenses reasonably related thereto and
Reimbursable Expenses, but without profit to ENGINEER on account of such services. The providing of
such services will be the limit of ENGINEER's responsibility in this regard and, having done so,
ENGINEER shall be entitled to payment for services in accordance with this Agreement and will not
otherwise be liable to damages attributable to the lowest bona fide proposal or bid exceeding the established
Construction Cost.
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SECTION 8 - 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 ENGINEER's profession practicing
under similar conditions 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.
SECTION 9 - GENERAL CONDITIONS
9.1 TERMINATION
The obligation to provide further services under this Agreement may be terminated by either party upon seven days
written notice.
9.2 REUSE OF DOCUMENTS
9.2.1 All documents including Drawings and Specifications prepared or furnished by ENGINEER (and
ENGINEER's independent professional associates and consultants) pursuant to this Agreement are instruments of
service in respect of the Project. and the CITY will be provided with original record drawing copies for information
and reference in connection with the use and occupancy of the by CITY and others; however, such documents are
not intended or represented to be suitable for reuse by CITY or others on extensions of the Project or on any other
project. Any reuse without written verification or adaptation by ENGINEER for the specific purpose intended will
be at CITY's sole risk and without liability or legal exposure to ENGINEER, or to ENGINEER's independent
professional associates or consultants. and CITY shall indemnify and hold harmless ENGINEER and ENGINEER's
independent professional associates or consultants from all claims, damages, losses and expenses including attorney's
fees arising out of or resulting therefrom. Any such verification or adaptation will entitle ENGINEER to further
compensation at rates to be agreed upon by CITY and ENGINEER. CITY understands that any Work Products
prepared or provided on electronic media have a limited duration and require use of compatible software and
hardware. which may become unavailable over time.
9.2.2 When requested by CITY. ENGINEER shall provide relevant analyses. findings, reports and
construction documents (plans, specifications and estimates) in "hard" copy, and in electronic form. where the
Project necessitates the use of CADD materials. The parties agree that the "hard" copy shall govern in the case of a
discrepancy between the two versions. and shall be held as the official set of drawings. as signed and sealed.
9.2.2.1 The CITY shall be afforded a period of thirty (30) days in which to check the hard copy against the
electronic media. In the event that an error or inconsistency is found as a result of this process, the
CHANCONTRACT.DOC
16
J/llle 5, 2000
ENGINEER shall be advised and the inconsistency shall be corrected at no additional cost to the CITY.
Following the expiration of this thirty-day period, the CITY shall bear all responsibility for the care,
custody and control of the electronic media. In addition, the CITY represents that it shall retain the
necessary mechanisms to read the electronic media, which the CITY acknowledges to be of only limited
duration. All title blocks and the engineer's seal, if applicable, shall be removed if and when the CITY
provides the subject CADD drawings/electronic media to any other entity. The CITY agrees not to alter
any such information provided by ENGINEER, nor shall it use such information for any purpose or project
other than that intended by this Agreement.
9.3 INSURANCE
9.3.1 ENGINEER shall procure and maintain such insurance as will protect ENGINEER from claims
under the Workers' Compensation Act.
9.3.2 ENGINEER shall secure and maintain a Professional Liability insurance policy. Said policy shall
insure payment of damages for legal liability arising out of the performance of professional services for the CITY, in
the insured's capacity as ENGINEER. if such legal liability is caused by an error, omission or negligent act of the
insured or any person or organization for whom the insured is legally liable. Said policy shall provide minimum
limits of $ I ,000.000 with a deductible maximum of $250.000; and shall state that such insurance cannot be canceled
unlil thirty (30) days after the CITY has received written notice (upon request) of the insurer's intention to cancel
this insurance.
9.3.3 ENGINEER shall procure and maintain General Liability insurance as will protect ENGINEER
from claims for bodily injury, death and property damage in an annual aggregate of 51 ,000,000 with coverage for -
each occurrence of 51,000,000. CITY shall be named as an additional insured on such policy.
9.3.4 Before commencing its services, ENGINEER shall provide CITY certificates of insurance
evidencing the required insurance coverage in a form acceptable to CITY.
9.3.5 At any lime CITY may request that ENGINEER, at CITY's sole expense, provide additional
insurance coverage, different limits or revised deductibles in excess of those specified above. If so requested by
CITY, and if commercially available. ENGINEER shall obtain and shall require ENGINEER's independent
professional associates and consultants to obtain such additional insurance coverage. different limits or revised
deductibles. for such periods of time as requested by CITY. and this Agreement will be supplemented to incorporate
these requirements.
9.4 INDEMNIFICATION
9.4.1 ENGINEER agrees. to the fullest extent permitted by law, to indemnify and hold harmless CITY,
its officers. employees and agents from any claims, costs, losses and damages (including but not limited to all fees
and charges of engineers, architects, attorneys and other professionals and all court or arbitration or other dispute
resolution costs) to the extent caused by the negligent acts, errors or omissions of ENGINEER or ENGINEER's
officers. directors, partners, employees. agents and ENGINEER's independent professional associates and
consultants in the performance and furnishing of ENGINEER's services under this Agreement.
9.4.2 To the fullest extent permitted by law, CITY shall indemnify and hold harmless ENGINEER,
ENGINEER's officers, directors, partners. employees and agents and ENGINEER's independent professional
associates 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 or arbitration or other
dispute resolution costs) to the extent caused by the negligent acts or omissions of CITY or CITY's officers,
employees, agents and CITY's consultants with respect to this Agreement.
CHANCONTRA CT. DOC
17
Jlllle 5, 2000
9.5
CONTROLLING LAW
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This Agreement is to be governed by the laws of the State of Minnesota.
9,6 SUCCESSORS AND ASSIGNS
9.6.1 CITY and ENGINEER each is hereby bound and the partners, successors, executors,
administrators and legal representatives of CITY and ENGINEER (and to the extent permitted by paragraph 9.6.2
the assigns of CITY and ENGINEER) are hereby bound to the other party to this Agreement and to the partners,
successors, executors. administrators and legal representatives (and said assigns) of such other party, in respect of all
covenants, agreements and obligations of this Agreement.
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9.6.2 Neither CITY nor ENGINEER may assign. sublet or transfer any rights under or interest
(including, but without limitation. moneys that may become due or moneys that are due) in this Agreement without
the written consent of the other. except to the extent that any assignment, subletting or transfer is mandated by law or
the effect of this limitation may be 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. Nothing contained in this paragraph shall prevent ENGINEER from employing such independent
professional associates and consultants as ENGINEER may deem appropriate to assist in the performance of services
hereunder.
9.6.3 Nothing in this Agreement shall be construed to give any rights or benefits in this Agreement to
anyone other than CITY and ENGINEER. and all duties and responsibilities undertaken pursuant to this Agreement
will be for the sole and exclusive benefit of CITY and ENGINEER and not for the benefit of any other party.
9.7 COPYRIGHT
ENGINEER shall defend aclions or claims charging infringement of any copyright or patent by reason of the use or
adoption of any designs. Drawings or Specificalions supplied by it, and it shall hold harmless the CITY from losses
or damages resulting therefrom.
9.8 DISPUTE RESOLUTION
9.8.1 CITY and ENGINEER agree to negotiate in good faith for a period of thirty days from the date of
notice of all disputes between them prior to exercising their fights under other provisions of this Agreement, or under
law. The parties agree that all disputes remaining unresolved after thirty days will be submitted to a mutually
agreeable neutral mediator, as a condition precedent to litigalion or other remedies provided by law. The fee and
costs of the mediator shall be apportioned equally between the parties. CITY and ENGINEER further agree to
consider including a similar mediation provision in all agreements with independent contractors and consultants
regained for the Project and to require all independent contractors and consultants also to include a similar provision
in all agreements with subcontractors, subconsultants, suppliers. or fabricators so retained.
9.8.2 Claims not resolved by nonbinding mediation or another form of alternative dispute resolution,
counterclaims. disputes and other matters in question between the parties hereto arising out of or relating to this
Agreement or the breach thereof will be decided by arbitration in accordance with Construction Industry Arbitration
Rules of the American Arbitration Associalion then obtaining, subject to the limitations and restrictions stated in
paragraphs 9.8.3 and 9.8.4 below. This agreement to arbitrate and any other agreement or consent to arbitrate
entered into in accordance herewith as provided in this paragraph 9.8 will be specifically enforceable under the laws
of the State of Minnesota.
9.8.3 Notice of demand for arbitration must be filed in writing with the other party to this Agreement
and with the American Arbitration Association. The demand must be made within a reasonable time after the claim,
dispute or other matter in question has arisen and mediation as set forth in 9.8.1 has failed. In no event may the
CHANCONTRA CT. DOC
18
June 5, 2000
demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim.
dispute or other matter in question would be barred by the applicable statute of limitations.
9.8.4 All demands for arbitration and all answering statements thereto which include any monetlry claim
must contain a statement that the total sum or value in controversy alleged by the party making such demand or
answering statement is not more than $50.000 (exclusive of interest and costs) and the arbitrators will not have
jurisdiction. power or authority to render a monetary award in response thereto against any party which totals more
than $50,000 (exclusive of interest and costs). The arbitrators will not have jurisdiction, power or authority to
consider, or make findings (except in denial or their own jurisdiction) concerning any claim. counterclaim, dispute or
other matter in question where the amount in controversy of any such claim. counterclaim, dispute or other matter is
more than $50,000 (exclusive of interest and costs).
9.8.5 No arbitration arising out of, or relating to, this Agreement may include. by consolidation. joinder
or in any other manner, any person or entity who is not a party to this Agreement.
9.8.6 By written consent signed by all the parties to this Agreement and containing a specific reference
thereto. the limitations and restrictions contained in paragraphs 9.8.4 and 9.8.5 may be waived in whole or in part as
to any claim. counterclaim, dispute or other matter specifically described in such consent. No consent to arbitration
in respect to a specifically described claim. counterclaim. dispute or other matter in question will constitute consent
to arbitrate any other claim. counterclaim. dispute or other matter in question which is not specifically described in
such consent or in which the sum or value in controversy exceeds $50,000 (exclusive of interest and costs) or which
is with any party not specifically described therein.
9.8.7 The award rendered by the arbitrators will be final, judgment may be entered upon it in any court
having jurisdiction thereof. and will not be subject to modification or appeal except to the extent pennitted by
Sections 10 and 11 of the Federal Arbitration Act (9 V.S.C. **10,11).
9.9 NOTICES
Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which
appears on the first page of this Agreement (as modified in writing from time to time by such party) and given
personally, by registered or certified mail. return receipt requested. by facsimile. or by a nationally recognized
overnight courier service. All notices shall be effective upon the date of receipt.
9.10 SVRVIV AL
All express representations, indemnifications or limitations of liability made in or given in this Agreement will
survive the completion of all services of ENGINEER under this Agreement or the termination of this Agreement for
any reason.
9.11 ENFORCEABILITY
Any provision or part of the Agreement held to be void or unenforceable under any law or regulation shall be
deemed stricken. and all remaining provisions shall continue to be valid and binding upon CITY and ENGINEER.
who 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.
9.12 EXHIBITS
9.12.1 The following exhibits are attached to and made a part of this Agreement:
9.12.1.1 Exhibit A. "Work Order Form".
CHANCONTRA CT. DOC
19
Juue 5, 2000
9.12.1.2 Exhibit B, "Feasibility Report Fonnat"
9.12.1.3 Exhibit C, "Duties, Responsibilities and Limitations of Authority of Resident Project
Representative"
9.12.1.4 Exhibit D, "Calculation of Percentage of Construction Cost"
9.12.1.5 ExhibitE, "BRW's Hourly Costs"
9.12.2 This Agreement (consisting of pages 1 to 21 inclusive and the Exhibits identified above) constitutes the
entire agreement between CITY 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first above
written.
CITY OF CHANHASSEN
BRW. INC.
By: By:
Title: Title:
Date: Date:
By:
Title:
Date:
CHANCONTRACT.DOC
20
June 5, 2000
EXHIBIT A
WORK ORDER FORM
WORK ORDER NO.
This is an authorization to proceed and site-specific scope of services under the Agreement between the
City of Chanhassen and BRW dated June 5, 2000.
Project:
City Project No:
We hereby authorize you to proceed with the following phases of services.
Payment shall be on the basis of (select from the following):
· Hourly Rates plus Reimbursable Expenses: Direct Salary Cost (direct salary cost shall mean the
cost of salaries and wages paid to principals and employees engaged directly on the Project,
including, but not limited to, engineers, surveyors, technicians, drafters, specification writers,
estimators, and secretarial staff, plus cost of fringe benefits, including, but not limited to, Social
Security contributions, unemployment, excise and payroll taxes, Workers' Compensation, Health
and Retirement Benefits, incentive compensation, sick leave, and vacation and holiday pay
applicable thereto) times a factor of 2.2
· Lump Sum: One sum payable by percent of completion of the Services. The sum includes costs,
expenses and fee.
· Percent of Construction Cost: In accordance with Exhibit D of the Agreement.
The estimated Total Fee for BRW under this Work Order is:
BRW, INC.
CITY OF CHANHASSEN
Signed:
Signed:
Title:
Title:
Dated:
Dated:
CHANCONTRA Cf. DOC
Exhibit A-I
EXHffiIT B
FEASIBILITY REPORT FORMAT
1. COVER
A. City Project Number
B. Brief Project Description and Location
C. Date
D. Engineering Firm Preparing Report
E. Professional Engineer's Certification
II. REPORT
A. Introduction
1. Project History
2. Issues Presented
B. Proposed Public Improvements
1. Storm Sewer
2. Sanitary Sewer
3. Water Main
4. Streets
5. Street Lighting
6. Other
C. Project Issues
1. Drainage and Surface Water Management
2. T rafficIssues
3. Environmerltal and Other Issues
a. Permits
D. Project Schedule
1. Public Hearing
2. Plans and Specifications
3. Advertising Requirements
4. Bid Receipt Date
5. Anticipated Constmction Schedule
6. Anticipated Assessment Date
E. Estimated Costs
1, Breakdown of Each Element (project to time of constmction)
a. Sanitary
b. Water Main
c. Storm Sewer
d. Streets
e. Other
CHANCONTRACT.DOC
Exhibit B-1
June 5, 2000
F. MefuodofF~cmg
1. Special Assessments
2. State Aid
3. County Aid
G. Right-of-Way and Easements
1. General Description of Possible Easements
2, Cost Estimates for Easements
H. Summary and Recommendations
CHANCONTRACT.DOC
Exhibit B-1
June 5, 2000
EXHIBIT C
DUTIES, RESPONSIBILmES AND
LIMITATIONS OF AUTHORITY OF
RESIDENT PROJECT REPRESENTATIVE
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1£ so directed by an executed Work Order, ENGINEER shall furnish a Resident Project
Representative (RPR), assistants and other field staff to assist ENGINEER in observing progress
and quality of the work of Contractor(s).
Through more extensive on-site observations of the work in progress and field checks of
materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide
further protection for CITY against defects and deficiencies in the work of Contractor(s).
However, ENGINEER shall not, during such visits or as a result of such observations of
Contractor(s)' work in progress, supervise, direct, or have control over Contractor(s)' work nor
shall ENGINEER have authority over or responsibility for the means, methods, techniques,
sequences or procedure selected by Contractor(s), for safety precautions and programs incident
to the work of Contractor(s), for any failure of Contractor(s) to comply with laws, rules,
regulations, ordinances, codes or orders applicable to Contractor(s)' perfonning and furnishing
the work, or responsibility of construction for Contractor(s)' failure to furnish and perform the
Work in accordance with the Contract Documents. In partiCltlar, the specific limitations set fortlz in
paragraph 2.5 of the Agreement are applicable.
The duties and responsibilities of the RPR are limited to those of ENGINEER in ENGIN'EER's
agreement with the CITY and in the construction Contract Documents, and are further limited
and described as follows:
A. General
RPR is ENGINEER's agent 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 on-site work shall in general be with ENGINEER and Contractor(s),
keeping CITY advised as necessary. RPR's dealings with subcontractors shall only be through
or with the full knowledge and approval of Contractor(s). RPR shall generally commwúcate
with CITY with the knowledge of and under the direction of ENGINEER.
B. Duties and Responsibilities of RPR
1. Schedules: Review the progress schedule, schedule of Shop Drawing submittals and
schedule of values prepared by Contractor(s) and consult with ENGINEER concerning
acceptability,
2. Conferences and Meetings: Attend meetings with Contractor(s), such as preconstruction
conferences, progress meetings, job conferences an other Project-related meetings, and
prepare and circulate copies of minutes thereof,
3. Liaison:
CHANCONTRA CT. DOC
Exhibit C - 1
JlIlle 5, 2000
A. Service as ENGINEER's liaison with Contractor(s), working principally through
Contractor(s)' superintendent and assist in understanding the intent of Contract
Documents; and assist ENGINEER in serving as CITY's liaison with Contractor(s) when
Contractor(s)' operations affect CITY's on-site operations,
B. Assist in obtaining from CITY additional details or information, when required for
proper execution of the Work.
4. Shop Drawings and Samples:
A. Record date of receipt of Shop Drawings and Samples.
B. Receive Samples which are furnished at the site by Contractor(s), and notify
ENGINEER of availability of Samples for examination,
C. Advise ENGINEER and Contractor(s) of the commencement of any Work requiring a
Shop Drawing or Sample if the submittal has not been approved by ENGINEER.
5. Review of Work, Rejection of Defective Work, Inspections and Tests:
A. Conduct on-site observations of the 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 Work will not produce a
completed Project that conforms generally to the Contract Documents or will prejudice
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 Work that RPR believes should be corrected or rejected or should be
uncovered for observation, or requires special testing, inspection or approval.
C. Verify that tests, equipment and systems start-ups and operating and maintenance
training are conducted in the presence of appropriate personnel, and that Contractor(s)
maintains adequate records thereof; and observe, record and report to ENGINEER
appropriate details relative to the test procedures and 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.
6. Interpretation of Contract DoCZtments: Report to ENGINEER when clarifications and
interpretations of the Contract Documents are needed and transmit to Contractor(s)
clarifications and int,erpretations as issued by ENGINEER.
CHANCONTRA CT. DOC
Exhibit C - 2
Jllne 5, 2000
7, Modifications: Consider and evaluate Contractor(s)' suggestions for modifications in
Drawings or Specifications and report with RPR's recommendations to ENGINEER.
Transmit to Contractor(s) in writing decisions as issued by ENGINEER.
CHANCONTRACT.DOC
Exhibit C - 3
Jllne 5, 2000
8. Records:
A. Maintain at the job site orderly files for correspondence, reports of job conferences,
Shop Drawings and Samples, reproductions of original Contract Documents including
all Work Change Directives, Addenda, Change Orders, Field Orders, additional
Drawings issued subsequent to the execution of the Contract, ENGINEER's clarifications
and interpretations of the Contract Documents, progress reports, Shop Drawing
submittals received from and delivered to Contractor(s) and other Project related
documents,
B. Prepare a daily report or keep a diary or log book, recording Contractor(s)' hours on
the job site, weather conditions, data relative to questions of Work Change Directives,
Change Orders or changed conditions, list of job site visitors, daily activities, decisions,
observa tions 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 and telephone numbers of all Contractor(s)s, subcontractors
and major suppliers of materials and equipment.
9. 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. Consult with ENGINEER in advance of scheduled major tests, inspections or start of
important phases of the Work.
C. Draft proposed Change Orders and Work Change Directives, obtaining backup
material from Contractor(s) and recommend to ENGINEER Change Orders, Work
Change Directives, and Field Orders.
D. Report immediately to ENGINEER and CITY the occurrence of any accident.
10. Payment Requests: Review Applications for Payment with Contractor(s) 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.
11. Certificates, Maintenance and Operation Manuals: During the course of the Work, verify that
certificates, maintenance and operation manuals and other data required to be
assembled and furnished by Contractor(s) are applicable to the items actually installed
and in accordance with the Contract Documents, and have this material delivered to
ENGINEER for review and forwarding to CITY prior to final payment for the Work.
CHANCONTRACT.DOC
Exhibit C - 4
Jllne 5, 2000
12. Completion:
A. Before ENGINEER issues a Certificate of Substantial Completion, submit to
Contractor(s) a list of observed items requiring completion or correction,
B. Observe whether Contractor(s) has had performed inspections required by laws,
rules, regulations, ordinances, codes, or orders applicable to the Work, including but not
limited to those to be performed by public agencies having jurisdiction over the Work.
C. Conduct a final inspection in the company of ENGINEER, CITY and Contractor(s)
and prepare a final list of items to be completed or corrected,
D. Observe whether all items on final list have been completed or corrected and make
recommendations to ENGINEER concerning acceptance an issuance of the Notice of
Acceptability of the Work.
C. Limitations of Authority by RPR
Resident Project Representative:
1. Shall not authorize any deviation from the Contract Documents or substitution of
materials or eqtùpment (including "or-equal" items), unless authorized by ENGINEER.
2. Shall not exceed limitations of ENGINEER's authority as set forth in the Agreement or
the Contract Documents.
3, Shall not undertake any of the responsibilities of Contractor(s), Subcontractors,
Suppliers, or Contractor(s)' superintendent.
4. Shall not advise on, issue. directions relative to or assume control over any aspect of
the means, methods, techniques, sequences or procedures of construction unless such
advise or directions are specifically required by the Contract Documents.
5. Shall not advise on, issue directions regarding or assume control over safety
precautions and programs in connection with the Work.
6. Shall not accept Shop Drawing or Sample submittals from anyone other than
Contractor(s).
7. Shall not authorize CITY to occupy the Project in whole or in part.
8. Shall not participate in specialized field or laboratory tests or inspections conducted
by others except as specifically authorized by ENGINEER.
CHANCONTRACT.DOC
Exhibit C - 5
Jllne 5, 2000
EXHIBIT D
CALCULA nON OF PERCENTAGE OF CONSTRUCTION COST
14
6
I I 11111 I I 1111111 I I , 1111
Net Construction % From
COst Curve A
.-.
, 50,000 . 13.22
100,000 11.63
250,000 9,75
.. 500,000 8.52
I 750,000 7.90
1 ,000,000 7,53
l 2,000,000 6.82
4,000,000 6.36
~I 6,000,000 6,20
0,000,000 6,10
I ~ ~ 10,000,000 6.03
20,000,000 5.80
I I II 1\ r- J
-
I I I ljl ! I I I
II 11 IJ
I III (' I' I I /,/1
I II
III II II ï
III I I I~ III I III
I
I II I , I I I I 1/1
"-
III I f' J 11/
!
I I > III
;
I I
II I I
IJ I I
II I I l1l1J
13
12
/I
10
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.S 9
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o
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~ 7
5
4
0,01
0.05 0.1
0.5
5 10
50 100
Net construction cost. in millions of dollars
Exhibit D - I
EXHIBIT E
BRW'S HOURLY COSTS
The following schedule of Hourly Costs illustrates the ranges of costs per typical employee
classification. The actual hourly rate that the City will pay is dependent upon the employee
perfonning services on the Work Order,
Actual hourly rates shall be determined based upon the Direct Salary Cost for each employee
times a factor of 2.2. Direct Salary Cost shall be defined as the cost of salaries and wages plus
the cost of fringe benefits as defined in the Agreement.
2000 Hourly Rate Range
Employee Classification Low High
Sr. Vice President $120.00 $195.00
Vice President $90.00 $160.00
Senior Associate $80.00 $140.00
Associa te $65.00 $110.00
Senior Consultant $55.00 $95.00
Consultant II $50.00 $85.00
Consultant I $40.00 $70.00
Staff LevelS $65.00 $90.00
Staff Level 4 $45.00 $80.00
Staff Level 3 $35.00 $65.00
Staff Level 2 $30.00 $50.00
Staff Levell $27.50 $45.00
CHANCONTRA CT. DOC
Exhibit E - I
¡II"e 5, 2000