HomeMy WebLinkAboutRes.2161.03-22-2006BILL NO. 06-57 RESOLUTION NO. I�(�
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A GENERAL AGREEMENT FOR ENGINEERING
SERVICES WITH S. H. SMITH & COMPANY, INC.
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS:
ARTICLE 1. The City Manager, for and on behalf of the City
of Cape Girardeau, Missouri, is hereby authorized to execute a
General Agreement for Engineering Services with S. H. Smith &
Company, Inc. A copy of said Agreement is attached to this
Resolution and made a part hereof.
PASSED AND ADOPTED THIS DAY OF 20
Gayle L./ Conrad, City
L
ay B nudtson, Mayor
GENERAL AGREEMENT FOR ENGINEERING SERVICES
THIS AGREEMENT is entered into this �2an�day of MCtrC�l 2006 by and between The City of
Cape Girardeau. Missouri hereinafter called the OWNER, and S. H. Smith & Company, Inc.
(Smith&Co.), hereinafter called the ENGINEER.
WHEREAS the OW,NER has occasion from time to time to require Professional Engineering Services.
and WHEREAS the OWNER has evaluated ENGINEER and determined them to be qualified to perform
said services;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that for and in consideration of the mutual
covenants and promises between the parties hereto, it is hereby agreed:
SECTION A - SCOPE OF ENGINEERING SERVICES:
1. The services covered by this Agreement shall include furnishing the professional, technical, and
other personnel and the equipment, material and all other things necessary for the design andior
construction inspection of one or more PROJECTS.
2. The specific services to be provided by the ENGINEER shall be set forth in one or more
AMENDMENTS to this Agreement, to be made a part of this Agreement. Each Amendment
shall establish the specific work scope, schedule, and compensation arrangements for a discreet
work package.
3. The work scope described in each separate Amendment shall be considered as "the PROJECT"
for the purposes of this Agreement.
SECTION B - ADDITIONAL SERVICES:
The OWNER reserves the right to request work in addition to any particular Amendment, and changed or
unforeseen conditions may require changes and work beyond the scope described in each Amendment. In
such events, subsequent Amendment(s) shall be executed prior to performing the additional or changed
work or incurring any additional cost thereof. Any change in compensation will be covered in subsequent
Amendment(s).
SECTION C - RESPONSIBILITIES OF OWNER:
OWNER shall:
1. Provide full information as to his requirements for the PROJECT.
2. Assist ENGINEER by placing at his disposal all available information pertinent to the PROJECT
including previous reports and any other data relative to design or construction of the PROJECT.
Furnish to ENGINEER, as required by him for performance of his Basic Services, data prepared
by or services of others, such as core borings, probings and subsurface explorations, hydrographic
surveys, laboratory tests and inspections of samples, materials and equipment; appropriate
professional interpretations of all of the foregoing; property, boundary, easement, right-of-way,
topographic and utility surveys and property descriptions; zoning and deed restriction; and other
special data or consultations not covered in Sections A and B; all of which ENGINEER may rely
upon in performing his services.
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4. Guarantee access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform his services.
5. Examine all studies, reports, sketches, Drawing, Specifications, proposals and other documents
presented by ENGINEER, obtain advice of an attorney, insurance counselor and other consultants
as he 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
6. Pay all costs incident to obtaining bids or proposals from contractors.
7. Provide such legal, accounting, independent cost estimating and insurance counseling services as
may be required for the PROJECT, and such auditing service as OWNER may require to
ascertain how or for what purpose any contractor has used the moneys paid to him under the
construction contract.
8. Designate in writing a person to act as OWNER's representative with respect to the work to be
performed under this Agreement. Such person shall have complete authority to transmit
instructions, receive information, interpret and define OWNER's policies and decisions with
respect to materials, equipment, elements and systems pertinent to ENGNEER's services.
9. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes
aware of any defect in the PROJECT.
10. 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, except as otherwise provided for in Section A.
11. Bear all costs incident to compliance with the requirements of this Section C.
SECTION D - PERIOD OF SERVICE
This Agreement shall remain in effect until terminated by the OWNER, in accordance with Section H of
this Agreement.
The Period of Service of each work package authorized by Amendment will be provided in the
Amendment. OWNER will not be responsible for any work performed by ENGINEER prior to written
NOTICE TO PROCEED, unless specifically provided for in any Amendment(s) and notwithstanding the
provisions of Section E of this Agreement. Neither will ENGINEER be required to produce any of the
work products provided for in any Amendment prior to the date of NOTICE TO PROCEED, unless
specifically provided for in the Amendment(s).
The ENGINEER and OWNER agree that time is of the essence, and the ENGINEER and OWNER will
be required to meet the schedules in the Amendment(s). The OWNER will grant time extensions for
delays due to unforeseeable causes beyond the control of and without fault or negligence of the
ENGINEER. Requests for extensions of time shall be made in writing by the ENGINEER, before that
phase of work is scheduled to be completed, stating fully the events giving rise to the request and
justification for the time extension requested. In the event of delays due to unforeseeable causes beyond
the control of and without fault or negligence of the ENGINEER, no claim for damage shall be made by
either party.
As used in this provision, the term "delays due to unforeseeable causes" includes the following: 1) War
or acts of war, declared or undeclared; 2) Flooding, earthquake, or other major natural disaster preventing
the ENGINEER from performing necessary services at the PROJECT site, or in the ENGNEER's offices,
at the time such services must be performed; 3) The discovery on the PROJECT of differing site
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conditions, hazardous substances, or other conditions which, in the sole judgment of the Engineer,
J ustifies a suspension of the services or necessitates modifications of the PROJECT design or plans by the
ENGINEER; 4) Court proceedings; 5) Changes in services or extra services.
SECTION E — COMPENSATION
The OWNER shall pay the ENGINEER for the services rendered and expenses incurred under SECTION
A and as described in any and all Amendment(s), according to the terms described in each Amendment.
For hourly (Time and Materials) services, compensation shall be based on Exhibit I "Schedule of Fees
and Charges", attached to and made a part of this Agreement. The Schedule of Fees and Charges may be
updated no more than once per year at the beginning of each calendar year to reflect changes in
compensation or overhead rates by the ENGINEER. Failure to reach agreement upon revised Fees and
Charges by OWNER and ENGINEER will be considered grounds for Termination of this Agreement in
accordance with Section H of this Agreement.
1. Schedule of Payments
The ENGINEER shall submit monthly statements for engineering services rendered.
a. TIME AND MATERIALS BASIS: For compensation on a Time & Materials (hourly rates)
basis, the statements shall be based on the actual amount of hours times the contract rates and
all reimbursable expenses accrued at the time of billing.
b. LUMP SUM BASIS: For compensation on a Lump Sum basis, the statements for design
services Nvill be based upon the ENGINEER'S estimate of the proportion of the total services
actually completed at the time of billing. The OWNER shall make prompt monthly payments
in response to the ENGINEER'S monthly statements.
2. Interest on Unpaid Sums
If OWNER fails to make any payment due ENGINEER for undisputed services and expenses
within thirty (30) days after receipt of ENGINEER's bill thereof, the amounts due ENGINEER
shall include a charge at the rate of 1-1/2% per month from said thirtieth day, and in addition
ENGINEER may, after giving seven days' ,,&7itten notice to OWNER, suspend services under this
Agreement until he has been paid in full all amounts due him for services and expenses.
SECTION F — GENERAL CONSIDERATIONS
The standard of care for all professional engineering and related services performed or furnished
by ENGINEER under this Agreement will be the care and skill ordinarily used by members of the
subject profession practicing under similar circumstances at the same time and in the same
locality. ENGINEER makes no warranties, express or implied, under this Agreement or
otherwise, in connection with ENGINEER's services. ENGINEER and its consultants may use
or rely upon the design services of others, including, but not limited to, contractors,
manufacturers, and suppliers.
2. ENGINEER shall not at any time supervise, direct, or have control over any contractor's work,
nor shall ENGINEER have authority over or responsibility for the means, methods, techniques,
sequences, or procedures of construction selected or used by any contractor, for safety
precautions and programs incident to a contractor's work progress, nor for any failure of any
contractor to comply with laws and regulations applicable to contractor's work.
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3. ENGINEER neither guarantees the performance of any contractor nor assumes responsibility for
any contractor's failure to furnish and perform its work in accordance with the contract between
OWNER and such contractor.
4. ENGINEER shall not be responsible for the acts or omissions of any contractor, subcontractor, or
supplier, or of any contractor's agents or employees or any other persons (except ENGINEER's
own employees) at the PROJECT site or otherwise furnishing or performing any of construction
work; or for any decision made on interpretations or clarifications of the construction contract
given by OWNER without consultation and advice of ENGINEER.
All design documents prepared or furnished by ENGINEER are instruments of service, and
ENGINEER retains an ownership and property interest (including the right of reuse) in such
documents, whether or not the PROJECT is completed. These documents are not intended or
represented to be suitable for reuse by OWNER or others on extensions of the Project or on any
other project. Any reuse without specific written verification or adaptation by ENGINEER will
be at OWNER'S sole risk and without liability or legal exposure to ENGINEER.
6. To the fullest extent permitted bylaw, OWNER and ENGINEER waive against each other, and
the other's employees, officers, directors, agents, insurers, partners, and consultants, any and all
claims for or entitlement to special, incidental, indirect, or consequential damages arising out of,
resulting from, or in any way related to the PROJECT.
The ENGINEER shall maintain accounts and records, including personnel, property and financial
records, adequate to identify and account for all costs pertaining to the Contract and such other
records as may be deemed necessary by the OWNER to assure proper accounting for all
PROJECT funds, both Federal and non -Federal shares. These records will be made available to
the OWNER for audit purposes, and will be retained for three years after the expiration of this
Contract unless permission to destroy them is granted by the OWNER.
8. All of the reports, information, date, etc., prepared or assembled by the ENGINEER under this
Contract are confidential and the ENGINEER agrees that they shall not be made available to any
individual or organization without the prior written approval of the OWNER.
9. ENGINEER has no control over the cost of labor, materials or equipment; or over the
Contractor(s)' methods of determining prices; or over competitive bidding or market conditions.
As a result, ENGINEER's opinions of probable Project Cost and Construction Cost are to be
made on the basis of his experience and qualifications and represent his best judgment as a design
professional familiar with the construction industry, but ENGINEER cannot and does not
guarantee that proposals, bids or Construction Cost will not vary from opinions of probable cost
prepared by him. If prior to the Bidding or Negotiating Phase OWNER wishes greater assurance
as to Construction Cost he shall employ an independent cost estimator as provided in Section B.
SECTION G - INSURANCE
The ENGINEER shall maintain commercial general liability, automobile liability, and worker's
compensation and employer's liability insurance in full force and effect to protect the ENGINEER
from claims under Worker's Compensation Acts, claims for damages for personal injury or death,
and for damages to property arising from the negligent acts, errors, or omissions of the
ENGINEER and its employees, agents, and Subconsultants in the performance of the services
covered by this Agreement, including, without limitation, risks insured against in commercial
general liability policies.
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2. The ENGINEER shall also maintain professional liability insurance to protect the ENGINEER
against the negligent acts, errors, or omissions of the ENGINEER and those for whom it is legally
responsible, arising out of the performance of professional services under this Agreement.
3. The ENGINEER's insurance coverages shall be for not less than the following limits of liability:
A. Commercial General Liability: $300,000.00 per claim up to $2,000,000.00 per
occurrence;
B. Automobile Liability: $300,000.00 per claim up to $1,000,000.00 per occurrence;
C. Worker's Compensation in accordance with the statutory limits; and Employer's Liability:
$1,000,000.00; and
D. Professional Liability: $2,000.000.00. each claim and in the annual aggregate.
4. The ENGINEER shall, upon request at any time, provide the OWNER with certificates of
insurance evidencing the ENGINEER's commercial general or professional liability policies and
evidencing that they and all other required insurance is in effect, as to the services under this
Agreement.
Any insurance policy required as specified in this Section G shall be written by a company that is
incorporated in the United States of America or is based in the United States of America. Each
insurance policy must be issued by a company authorized to issue such insurance in the State of
Missouri.
SECTION H - TERMINATION
1. The obligation to provide further services under this Agreement may be terminated a) for cause
by OWNER or by ENGINEER; or b) for Convenience by OWNER only.
A. Termination for Cause
i) Either party may terminate upon thirty (30) days written notice in the event of substantial
failure by the other party to perform in accordance with the Agreement's terms through
no fault of the terminating party.
ii) ENGINEER may also terminate upon seven (7) days written notice IF:
a.) ENGINEER believes that ENGINEER is being requested by OWNER to furnish or
perform services contrary to ENGINEER's responsibilities as a licensed professional;
or
b.) ENGINEER's services for the PROJECT are delayed or suspended for more than 90
days for reasons beyond ENGINEER's control.
c.) If termination is brought about for either reasons a.) or b.) above, ENGINEER shall
have no liability to OWNER on account of such termination.
ill) Notwithstanding the foregoing, this Agreement will not terminate as a result of a
substantial failure under paragraph H. LA).i.) if the party receiving such notice begins,
within seven days of receipt of such notice, to correct its failure and proceeds diligently
to cure such failure within no more than 30 days of receipt of notice; provided, however,
that if and to the extent such substantial failure cannot be reasonably cured within such
30 day period, and if such party has diligently attempted to cure the same and thereafter
continues diligently to cure the same, then the cure period provided for herein shall
extend up to, but in no case more than, 60 days after the date of receipt of the notice.
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B. Termination for Convenience: The OWNER may terminate at any time for convenience,
effective upon the receipt of notice by ENGINEER.
2. The terminating party under paragraphs H. LA) or H. LB) may set the effective date of
termination at a time up to 30 days later than otherwise provided to allow ENGINEER to
demobilize personnel and equipment from the PROJECT site, to complete tasks whose value
would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks,
and to assemble PROJECT materials in orderiv files.
3. Compensation for Work Completed Prior to Termination
A. In the event of termination for Cause by OWNER, OWNER shall pay ENGINEER for
undisputed portions of the work. OWNER shall not be responsible for payment on disputed
charges until resolution of the dispute, and upon such resolution, only in accordance with the
terms of the settlement.
B. In the event of termination for Cause by ENGINEER:
i) If this Agreement is terminated upon the completion of any phase of the Basic Services,
progress payments due ENGINEER for services rendered through such phase shall
constitute total payment for such services.
ii) If this Agreement is terminated during any phase of the Basic Services, ENGINEER will
be paid for services rendered during that phase on the basis of payroll costs times an
overhead factor of 2.6517 times a profit factor of 1.15 for services rendered during the
phase to date of termination by principals and employees assigned to the Project.
C. In the event of termination for Convenience by OWNER,
i) If this Agreement is terminated during any phase of the Basic Services, ENGINEER will
be paid for services rendered until the date of termination on the basis of direct payroll
costs times an overhead factor of 2.6517 times a profit factor of 1.15 for services
rendered by principals and employees assigned to the Project.
D. In the event of any termination, ENGINEER will be paid for all unpaid Additional Services
and unpaid reimbursable expenses. ENGINEER shall provide documentation of costs and
expenses incurred in the form of daily time records, material receipts, equipment logs, works
in progress (such as draft plans and specifications, reports, mark-ups, etc.) and all other items
necessary to document the work completed until the date of termination.
E. No charge incurred after the date of termination will be reimbursed by OWNER.
SECTION I — GOVERNING LAW
This Agreement shall be construed according to the laws of the State of Missouri. The ENGINEER shall
comply with all local, state, and federal laws and regulations that govern the performance of this
Agreement.
SECTION J — SUCCESSORS, ASSIGNS, AND BENEFICIARIES
OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators,
and legal representatives of OWNER and ENGINEER (and to the extent permitted below the assigns of
OWNER and ENGINEER) are hereby bound to the other party to this Agreement and to the partners,
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successors, executors, administrators, and legal representatives (and said assigns) of such other party, in
respect of all covenants, agreements, and obligations of this Agreement.
Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest (including,
but without limitation, moneys that are due or may become due) in this Agreement without the written
consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or
restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or responsibility under this Agreement.
SECTION L — TOTAL AGREEMENT
1. This Agreement (consisting of pages 1 to 7 inclusive together with Exhibit I and any
subsequently executed Amendment), constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral understandings. This Agreement may only
be amended, supplemented, modified, or canceled by a duly executed written instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.
OWNER: The City of Cape Girardeau, MO ENGINEER: S.H. Smith&Company, Inc.
By: '6�- /-- / /�' A,
DouglaVK. Leslie
City Manager
Date: 2—
Date:
B
aul W. Ridlen, P.E.
President and CEO
Date:
ATTEST:
a+ 0.
r�
(SEAL) - a
By:
Bob MacDonald
Secretary
Date: 3 —/S —240 o
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