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HomeMy WebLinkAboutRES.940.06-20-1994 ,�` . BILL NO. 94-149 RESOLUTION NO. `����-, A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH SMITH AND COMPANY FOR SOUTH SPRIGG STREET GRADE CHANGE IMPROVEMENTS 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 an Agreement with Smith and Company for South Sprigg Street Grade Change Improvements. A copy of said Agreement is attached to this Resolution and made a part hereof. PASSED AND ADOPTED THIS '�'_. (`#.1� DAY OF �\ � A r , 19�. ,�.. A. . Sp adling, II , ayor ATTEST: �, ,� '.� - i �;1�, Y- �' Gayl L. Conrad Deputy City Clerk STANDARD FORM OF AGREEMENT BETAEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES _-., .. THIS IS AN AGREEMENT made as of �'`� > ;_.__,,. :. ; � , 1994 between the City of Cape Girardeau, Missouri (OWNER) and Smith and Company (ENGINEER) . OWNER intends to construct South Spriqq Street Grade Chanqe Improvements (hereinafter called the Project) , to be partially funded by the U.S. Department of Commerce, Economic Development Administration (EDA) , and the ENGINEER agrees to perform the various professional engineering services required for the design and construction inspection of the Project. OWNER and ENGINEER in consideration of their mutual covenants herein agree in respect of the performance of professional engineering services by ENGINEER and the payment for those services by OWNER as set forth below. SECTION 1 - BASIC SERVICES OF ENGINEER 1. 1. General. 1. 1. 1. ENGINEER shall provide for OWNER professional engineering services in all phases of the Project to which this Agreement applies as hereinafter provided. These services will include serving as OWNER' s professional engineering representative for the Project, providing professional engineering consultation and advice and furnishing customary civil, structural, mechanical and electrical engineering services and customary architectural services and customary architectural services incidental thereto. 1. 1. 2 . Incorporated by reference in this list of services shall be the services listed in paragraph 4 .j . (pages 5-11) of the "Requirements for Approved Projects, Eighth Edition, " June 1984. 1.2 . Preliminary Design Phase. After written authorization to proceed with the Preliminary Design Phase, ENGINEER shall: 1.2 . 1. In consultation with OWNER and on the basis of accepted Preliminary Report and Grant documents, determine the general scope, extent and character of the Project. 1. 2 .2 . Prepare Preliminary Design documents consisting of final design criteria, preliminary drawings, outline specifications and written descriptions of the Project. AGREEMENT -- PAGE 1 1.2. 3 . Advise OWNER if additional data or services of the types described in paragraph 3 .4 are necessary and assist OWNER in obtaining such data and services. 1. 2 .4 . Based on the information contained in the preliminary design documents, submit a revised opinion of probable Total Project Costs. 1. 2 . 5. Furnish five copies of the above Preliminary Design documents and present and review them in person with OWNER. 1.3. Final Desiqn Phase. After written authorization to proceed with the Final Design Phase, ENGINEER shall: 1. 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 Contract Documents final drawings to show the general scope, extent and character of the work to be furnished and performed by Contractor(s) (hereinafter called "Drawings") and Specifications. 1. 3 .2 . Provide technical criteria, written descriptions and design data for OWNER' s 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 OWNER in consultations with appropriate authorities. 1. 3 . 3 . Advise OWNER of any adjustments to the latest opinion of probable Total Project Costs caused by changes in general scope, extent or character or design requirements of the Project or Construction Costs. Furnish to OWNER a revised opinion of probable Total Project Costs based on the Drawings and Specifications. 1. 3 . 4. Prepare for review and approval by OWNER, its legal counsel and other advisors, contract agreement forms, general conditions and supplementary conditions, and bid forms, invitations to bid and instructions to bidders, and assist in the preparation of other related documents. 1. 3 . 5. Furnish five copies of the above documents and of the Drawings and Specifications and present and review them in person with OWNER. 1.4. Biddinq or Neqotiatinq Phase. After written authorization to proceed with the Bidding or Negotiating Phase, ENGINEER shall: 1. 4. 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for each separate prime contract for construction, materials, equipment and services; and, where AGREEMENT -- PAGE 2 applicable, 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. 1. 4 . 2 . Issue addenda as appropriate to interpret, clarify or expand the Bidding Documents. 1. 4 . 3 . Consult with and advise OWNER as to the acceptability of subcontractors, suppliers and other persons and organizations proposed by the prime contractor(s) (herein called "Contractor(s) ") for those portions of the work as to which such acceptability is required by the Bidding Documents. 1. 4 .4 . Consult with OWNER concerning and determine 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. 1. 4 .5. Attend the bid opening, prepare bid tabulation sheets and assist OWNER in evaluating bids or proposals and in assembling and awarding contracts for construction, materials, equipment and services. 1.5. Construction Phase. The OWNER reserves the right to use its own personnel to provide the following services during the Construction Phase of this Project or to employ ENGINEER to provide the said Construction Phase services. If OWNER chooses to employ ENGINEER during the Construction Phase, an acceptable fee will be negotiated and the Agreement shall be amended in writing. If ENGINEER is selected by OWNER to provide Construction Phase services, ENGINEER shall: 1. 5. 1. Consult with and advise OWNER and act as OWNER' s representative as provided in Articles 1 through 17, inclusive, of the Standard General Conditions of the Construction Contract, No. 1910-8, (1983 edition) of the Engineers Joint Contract Documents Committee. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said Standard General Conditions shall not be modified, except to the extent provided in paragraph 6 of Exhibit A "Further Description of Basic Engineering Services and Related Matters" and except as ENGINEER may otherwise agree in writing. All of OWNER' s instructions to Contractor(s) will be issued through ENGINEER who will have authority to act on behalf of OWNER to the extent provided in said Standard General Conditions except as otherwise provided in writing. 1. 5. 2 . 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 of Contractor(s) ' work. Based on information obtained during such visits and on such AGREEMENT -- PAGE 3 observations, ENGINEER shall endeavor to determine in general if such work is proceeding in accordance with the Contract Documents and ENGINEER shall keep OWNER informed of the progress of the work. 1. 5. 2 . 1. The purpose of ENGINEER's visits to the site will be to enable ENGINEER to better carry out the duties and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed work of Contractor(s) will conform generally to the Contract Documents and that the integrity of the design concept 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 of Contractor(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 their work. Accordingly, ENGINEER can neither guarantee the performance of the construction contracts by Contractor(s) nor assume responsibility for Contractor(s) ' failure to furnish and perform their work in accordance with the Contract Documents. 1. 5. 3 . 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 Project as reflected in the Contract Documents. 1. 5.4 . Issue necessary interpretations and clarifications of the Contract Documents and in connection therewith prepare work directive changes and change orders as required. 1. 5. 5. Review and approve (or take other appropriate action in respect of) Shop Drawings (as that term is defined in the aforesaid Standard General Conditions) , samples and other data which Contractor(s) are 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 shall not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. AGREEMENT -- PAGE 4 1. 5. 6. Evaluate and determine the acceptability of substitute materials and equipment proposed by Contractor(s) . 1. 5. 7 . Have authority, as OWNER'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 Documents (but only to determine generally that their content complies with the requirements of, and the results certified indicate compliance with, the Contract Documents) . 1. 5.8 . 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 OWNER 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 not be liable for the results of any such interpretations or decisions rendered in good faith. 1. 5.9 . 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: 1. 5. 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 OWNER, based on such observations and review, that the work has progressed to the point indicated, and that, to the best of ENGINEER'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 tests 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) . 1. 5. 9 .2 . By recommending any payment 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 of Contractor(s) ' work as it is furnished and performed beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents. ENGINEER' s review of Contractor(s) ' work for the purposes of recommending payments will not impose on ENGINEER 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, AGREEMENT -- PAGE 5 ordinances, codes or orders applicable to their furnishing and performing the work. It will also not impose responsibility on ENGINEER to make any examination to ascertain how or for what purposes any Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any of the work, materials or equipment has passed to OWNER free and clear of any lien, claims, security interests or encumbrances, or that there may not be other matters at issue between OWNER and CONTRACTOR that might affect the amount that should be paid. 1. 5. 10. Receive and review maintenance and operating instructions, schedules, guarantees, bonds and certificates of inspection, tests 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 content complies with the requirements 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 OWNER with written comments. 1. 5. 11. 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 payment to Contractor(s) and may give written notice to OWNER 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 1. 5. 9 . 2 . 1. 5. 12 . ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any subcontractor or supplier, or any of the Contractor(s) ' or subcontractor' s or supplier's agents or employees or any other persons (except ENGINEER's own employees and agents) at the site or otherwise furnishing or performing any of the Contractor(s) ' work; however, nothing contained in paragraphs 1.5. 1 through 1. 5. 11 inclusive, shall be construed to release ENGINEER from liability for failure to properly perform duties and responsibilities assumed by ENGINEER in the Contract Documents. SECTION 2 - ADDITIONAL SERVICES OF ENGINEER 2. 1. General If requested and authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed in paragraphs 2 . 1. 1 through 2. 1. 18, inclusive. These services are not included as part of Basic Services and will be paid for by OWNER as indicated in Section 5. 2 . 1. 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 AGREEMENT -- PAGE 6 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. 2 . 1. 2 . Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 2 . 1. 3 . Services resulting from significant changes in the general scope, extent or character of the Project or its design including, but not limited to, changes in size, complexity, OWNER' s schedule, character of construction or method of financing; and revising previously accepted studies, reports, 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. 2 . 1. 4 . Providing renderings or models for OWNER' s use. 2 . 1.5. Preparing documents for alternate bids requested by OWNER for CONTRACTOR(s) ' work which is not executed or documents for out-of- sequence work. 2 . 1. 6. Investigations and studies involving, 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 obtaining financing for the Project; evaluating processes available for licensing and assisting OWNER in obtaining process licensing; detailed quantity surveys of material, equipment and labor; and audits or inventories required in connection with construction performed by OWNER. 2 . 1.7 . Furnishing services of independent professional associates and consultants for other than the 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 3 . 4 when OWNER employs ENGINEER to provide such data or services in lieu of furnishing the same in accordance with paragraph 3 . 4 . 2 . 1. 8 . If ENGINEER's compensation is on the basis of a lump sum method of payment, services resulting from the award of more separate prime contracts for construction, materials or equipment for the Project than are contemplated by paragraph 5. 1. 1. 1. AGREEMENT -- PAGE 7 2 . 1.9. Services during out-of-town travel required of ENGINEER other than visits to the site or OWNER's office as required by Section 1. 2. 1. 10. Assistance in connection with bid protests, rebidding or renegotiating contracts for construction, materials, equipment or services. 2 . 1. 11. Services in connection with change orders to reflect changes requested by OWNER if the resulting change in compensation for Basic Services is not commensurate with the additional services rendered, and services resulting from significant delays, changes or price increases occurring as a direct or indirect result of material, equipment or energy shortages. 2 . 1. 12 . Preparing for OWNER, on request, 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) to ENGINEER and which ENGINEER considers significant. 2 . 1. 13 . Additional or extended services during construction made necessary by (1) work damaged by fire or other cause during construction, (2) a significant amount of defective or neglected work of any Contractor, (3) prolongation of the contract time of any prime contract by more than sixty days, (4) acceleration of the work schedule involving services beyond normal working hours, and (5) default by Contractor(s) . 2 . 1. 14. Providing any type of 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; and providing other special field surveys. 2 . 1. 15. Preparation of operating and maintenance manuals; extensive assistance in the utilization of any equipment or system (such as initial startup, testing, adjusting and balancing) ; and training personnel for operation and maintenance. 2 . 1. 16. Services after completion of the Construction Phase, such as inspections during any guarantee period and reporting observed discrepancies under guarantees called for in any contract for the Project. 2 . 1. 17 . Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other legal or administrative proceeding involving the Project (except for assistance in consultations which is included as part of Basic Services under paragraphs 1. 2 . 3 and 1. 4 . 2) . AGREEMENT -- PAGE 8 2 . 1. 18. Resident Services During Construction. 2 . 1. 18 . 1. If requested by OWNER, a Resident Project representative and assistants will be furnished and will act as directed by ENGINEER in order to assist ENGINEER in observing performance of the work of Contractor(s) . Such services will be paid for by the OWNER as indicated in paragraph 5. 1. 2 . 1. 18 .2. The duties and responsibilities and the limitations on the authority of the Resident Project Representative and assistants will be set forth in Exhibit A which is to be identified, attached to and made a part of this Agreement before such services begin. 2 . 1. 18 . 3 . Through more extensive on-site observations of the work in progress and field checks of materials and equipment by the Resident Project Representative (if furnished) and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in work of Contractor(s) ; but the furnishing of such resident Project representation will not extend ENGINEER's responsibilities or authority beyond the limitations set forth in paragraph 1. 5. 2 or elsewhere in paragraph 1. 5, unless otherwise specifically noted. 2 . 1. 19. Additional services in connection with the Project, including services which are to be furnished by OWNER in accordance with Article 3 , and services not otherwise provided for in this Agreement. SECTION 3 - OWNER'S RESPONSIBILITIES OWNER shall do the following in a timely manner so as not to delay the services of ENGINEER: 3 . 1. Designate in writing a person to act as OWNER' s representative with respect to the services to be rendered 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 ENGINEER's services for the Project. 3 . 2 . Provide all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications. 3 . 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. AGREEMENT -- PAGE 9 3 .4. Furnish to ENGINEER, as required for performance of ENGINEER's Basic Services, the following: 3 . 4 . 1. data prepared by or services of others, including without limitation borings, probings and subsurface explorations, hydrographic surveys, laboratory tests and inspections of samples, materials and equipment; 3 .4 . 2 . appropriate professional interpretations of all of the foregoing; 3 . 4 . 3 . environmental assessment and impact statements; 3 .4 . 4 . property, boundary, easement, right-of-way, topographic and utility surveys; 3 .4 . 5. property descriptions; 3 .4 . 6. zoning, deed and other land use restriction; and 3 . 4 . 7 . other special data or consultations not covered in Section 2 ; all of which ENGINEER may use and rely upon in performing services under this Agreement. 3 . 5. Provide engineering surveys to establish reference points for construction to enable Contractor(s) to proceed with the layout of the work. 3 . 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. 3 .7 . Examine all studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by ENGINEER, obtain advise of an attorney, insurance counselor and other consultants as OWNER 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. 3 .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. 3 .9. Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER 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 OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such AGREEMENT -- PAGE 10 inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishing and performing the work. 3 . 10. If OWNER designates a person to represent OWNER at the site who is not ENGINEER 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. 3 . 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. 3 . 12 . Furnish to ENGINEER data or estimated figures as to OWNER' s anticipated costs for services to be provided by others for OWNER (such as services pursuant to paragraphs 3 .7 through 3 . 11, inclusive) so that ENGINEER may make the necessary findings to support opinions of probable Total Project Costs. 3 . 13 . Pay all costs incident to obtaining bids or proposals from Contractor(s) . 3 . 14 . Attend the pre-bid conference, bid opening, pre-construction conferences, construction progress and other job related meetings and substantial completion inspections and final payment inspections. 3 . 15. Give prompt written notice to ENGINEER whenever OWNER 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. 3 . 16. Furnish, or direct ENGINEER to provide, Additional Services as stipulated in paragraph 2. 1 of this Agreement or other services as required. 3 . 17 . Bear all costs incident to compliance with the requirements of this Section 3 . SECTION 4 - PERIODS OF SERVICE 4 . 1. The provisions of this Section 4 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 AGREEMENT -- PAGE 11 design, award of contracts, and construction of the Project including extra work and required extensions thereto. 4 . 2 . Upon written authorization from OWNER, ENGINEER shall proceed with the performance of the services called for in the Preliminary Design Phase, and shall submit preliminary design documents and a revised opinion of probable Total Project Costs within 40 calendar days following the authorization to proceed with that phase of services. 4 . 3 . After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable Total Project Costs, indicating any specific modifications or changes in the general scope, extent or character of the Project desired by OWNER, and upon written authorization from OWNER, 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 probable Total Project Costs for all work of Contractor(s) on the Project within 30 calendar days after the authorization to proceed with that phase of the services. 4 . 4 . ENGINEER' s services under the Preliminary Design Phase and Final Design Phase shall each be considered complete at the earlier of (1) the date when the submissions for that phase have been accepted by OWNER or (2) thirty days after the date when such submissions are delivered to OWNER 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. 4 . 5. After acceptance by OWNER of the ENGINEER's Drawings, Specifications and other Final Design Phase documentation including the most recent opinion of probable Total Project Costs 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 the services to be rendered thereunder shall be considered complete upon commencement of the Construction Phase or upon cessation of negotiations with prospective Contractor(s) . 4 . 6. 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. 4 . 7 . If OWNER has requested significant modifications or changes in the general scope, extent or character of the Project, the time of performance of ENGINEER' s services shall be adjusted equitably. AGREEMENT -- PAGE 12 4.8 . If OWNER fails to give prompt written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if the Construction Phase has not commenced within 120 calendar days (plus such additional time as may be required to complete the services called for under paragraph 6. 2 .2 .5) after completion of the Final Design Phase, ENGINEER may, after giving seven days' written notice to OWNER, suspend services under this Agreement. 4 . 9. If ENGINEER's services for design or during construction of the Project are delayed or suspended in whole or in part by OWNER for more than three months for reasons beyond ENGINEER's control, ENGINEER shall on written demand to OWNER (but without termination of this Agreement) be paid as provided in paragraph 5. 3 .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 contract, the various rates of compensation provided for elsewhere in this Agreement shall be subject to equitable adjustment. 4 . 10. In the event that 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) , OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER'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 separate contracts. This schedule is to be prepared whether or not the work under such contracts is to proceed concurrently and the provisions of paragraphs 4 . 4 through 4 . 9 inclusive, will be modified accordingly. SECTION 5 - PAYMENTS TO ENGINEER 5. 1. Methods of Payment for 3ervices and Expenses of ENGINEER. 5. 1. 1. For Basic Services. OWNER shall pay ENGINEER for Basic Services rendered under Section 1 as follows: 5. 1. 1. 1. One Prime Contract. If only one prime contract is awarded for construction, materials and equipment for the Project, a lump sum fee of $ 29, 000. 00 for all Basic Services furnished under paragraph 1. 1 through 1.4 (except services of ENGINEER' s Resident Project Representative (and assistants) furnished under paragraph 2 . 1. 18. 5. 1. 1. 2 . Construction Phase Services. Compensation for Basic Services furnished under paragraph 1. 5 (if requested by OWNER) will be negotiated by the parties to this Agreement. AGREEMENT -- PAGE 13 5. 1.2 . For Additional Services. OWNER shall pay ENGINEER for Additional Services rendered under Section 2 as follows: 5. 1. 2 . 1. General. For Additional Services of ENGINEER's principals and employees engaged directly on the Project and rendered pursuant to paragraph 2. 1 (except services as a consultant or witness under paragraph 2 . 1. 17) , on the basis of ENGINEER' s Salary Costs times a factor of 3 . 01. 5. 1.2 .2 . Professional Associates and Consultants. For services and Reimbursable Expenses of independent professional associates and consultants employed by ENGINEER to render Additional Services pursuant to paragraph 2. 1, the amount billed to ENGINEER therefor times a factor of 1. 10. 5. 1.2 . 3 . Serving as a Witness. For the services rendered by ENGINEER' s principals and employees as consultants or witnesses in any litigation, arbitration or other legal or administrative proceeding in accordance with paragraph 2 . 1. 17, at the rate of $500. 00 per day or any portion thereof (but compensation for time spent in preparing to appear in any such litigation, arbitration or proceeding will be on the basis provided in paragraph 5. 1.2 . 1) . Compensation for ENGINEER's independent professional associates and consultants will be on the basis provided in paragraph 5. 1. 2 .2 . 5. 1. 2 .4 . Resident Project Services. For services of ENGINEER's Resident Project Representative (and assistants) furnished under paragraph 2 . 1. 18, on the basis of Salary Costs times a factor of 3 . 01 for services rendered by principals and employees assigned to resident Project representation. Maximum compensation for Resident Project Services shall not exceed $13 , 500. 00. 5. 1. 3 . For Reimbursable Expenses. In addition to payments provided for in paragraphs 5. 1. 1 and 5. 1.2, OWNER shall pay ENGINEER the actual costs of all Reimbursable Expenses incurred in connection with all Basic and Additional Services. Maximum compensation for Reimbursable Expenses shall be limited to $2 ,500. 00. 5. 1. 4 .The terms "Salary Costs" and "Reimbursable Expenses" have the meanings assigned to them in paragraph 5.4. 5.2 . Times of Payments. 5. 2 . 1. ENGINEER shall submit monthly statements for Basic and Additional Services rendered and for Reimbursable Expenses incurred. The statements will be based upon ENGINEER's estimate of the proportion of the total services actually completed at the time of billing. OWNER shall make prompt monthly payments in response to ENGINEER' s monthly statements. AGREEMENT -- PAGE 14 5.3. Other Provisions Concerninq Payments. 5. 3 . 1. If OWNER fails to make any payment due ENGINEER for services and expenses within thirty days after receipt of ENGINEER's statement therefor, the amounts due ENGINEER will be increased at the rate of 1;o per month from said thirtieth day, and in addition, ENGINEER may, after giving seven days ' written notice to OWNER, suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses and charges. 5. 3 .2 . In the event of termination by OWNER under paragraph 6. 1 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. In the event of such termination by OWNER during any phase of the Basic Services, ENGINEER will be paid for services rendered during that phase on the basis of ENGINEER's Salary Costs times a factor of 3 . 01 for services rendered during that phase to date of termination by ENGINEER's principals and employees engaged directly on the Project. In the event of any such termination, ENGINEER also will be reimbursed for the charges of independent professional associates and consultants employed by ENGINEER to render Basic Services, and paid for all unpaid Additional Services and unpaid Reimbursable Expenses, plus all termination expenses. Termination expenses mean Reimbursable Expenses directly attributable to termination, which, if termination is at OWNER'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: 20% if termination occurs after commencement of the Preliminary Design Phase but prior to commencement of the Final Design Phase; or 10% if termination occurs after commencement of the Final Design Phase. 5. 3 . 3 . Records of ENGINEER's Salary Costs pertinent to ENGINEER's compensation under this Agreement will be kept in accordance with generally accepted accounting practices. Copies will be made available to OWNER at cost on request prior to final payment for ENGINEER's services. 5. 3 . 4 . Whenever a factor is applied to Salary Costs in determining compensation payable to ENGINEER that factor will be adjusted periodically 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. AGREEMENT -- PAGE 15 5.4. Definitions. 5.4 . 1. The Salary Costs used as a basis for payment mean salaries and wages (basic and incentive) paid to all ENGINEER's personnel engaged directly on the Project, including, but not limited to, principals, engineers, architects, 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 and holiday pay and other group benefits. 5.4 .2 . Reimbursable Expenses mean the actual 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 1; and, if authorized in advance by OWNER, overtime work requiring higher than regular rates. SECTION 6 - GENERAL CONSIDERATIONS 6.1. Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven days ' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. 6.2 . Reuse of Documents. Al1 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 ENGINEER shall retain an ownership and property interest therein whether or not the Project is completed. OWNER may make and retain copies for information and reference in connection with the use and occupancy of the Project by OWNER or others; however, such 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 written verification or adaptation by ENGINEER for the specific purpose intended will be at OWNER's sole risk and without liability or legal exposure to ENGINEER, or to ENGINEER' s independent professional associates or consultants, and OWNER shall indemnify and hold harmless AGREEMENT -- PAGE 16 ENGINEER and ENGINEER's independent professional associates and consultants from all claims, damages, losses and expenses including attorneys ' 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 OWNER and ENGINEER. 6.3. Estimates of Cost. Because 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, his opinions of probable Project Cost and Construction Cost provided for herein 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 before the Bidding or Negotiating Phase OWNER wishes greater assurance as to Construction Cost he shall employ an independent cost estimator as provided in paragraph 3 .9. 6.4. Professional Endorsement. All plans, specifications, and other documents shall be endorsed by the ENGINEER and shall reflect the name and seal of the professional engineer endorsing the work. 6.5. Retention of Records. ENGINEER shall maintain all records, survey notes, design documents, cost and accounting records, construction records and other records pertaining to this Agreement and to the project covered by this Agreement, for a period of not less than three years following final payment by U.S. Department of Commerce, Economic Development Administration (EDA) . Said records shall be made available for inspection by authorized representatives of the OWNER or EDA during regular working hours at the ENGINEER's place of business. 6. 6. Compliance with Laws. ENGINEER shall comply with all federal, state, and local laws, ordinances, and regulations applicable to the work. 6.7 . Responsibility for Claims and Liability. 6. 7 . 1. ENGINEER agrees to save harmless the OWNER from all claims and liability due to his negligent acts or the negligent acts of his employees, agents or subcontractors. 6. 7 . 2 . ENGINEER shall at all times during the execution of this Agreement maintain policies of comprehensive general liability insurance and automobile liability insurance with bodily injury limits of not less than $100, 000. 00 for each person in a single accident or AGREEMENT -- PAGE 17 occurrence, and property damage limits of not less than $100, 000. 00, and not less than $1, 000,000. 00 for all claims arising out of a single occurrence. Upon the execution of this Agreement, ENGINEER shall provide to the OWNER a Certificate of Insurance showing such policy in effect in required amounts and showing the City of Cape Girardeau, Missouri, as an additional named insured. 6.8. Decisions IInder This Aqreement. It is agreed by and between the parties that the parties reserve to themselves their right to legal or equitable remedies under the law and that nothing contained herein shall alter the rights or the parties to resort to legal action pursuant to Missouri law. 6.9. Successors and Assigns. 6. 9. 1. 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 by paragraph 6.9.2 the assigns of OWNER 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. 6. 9 .2 . Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) 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. 6. 9 .3 . Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than OWNER and ENGINEER, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ENGINEER and not for the benefit of any other party. AGREEMENT -- PAGE 18 SECTION 7 - EXHIBITS 7. 1. The following Exhibits are attached to and made a part of this Agreement: 7. 1. 1. Exhibit A "Duties, Responsibilities and Limitations of Authority of Resident Project Representative" consisting of 5 pages. 7. 3 . This Agreement (consisting of pages 1 to 19, inclusive) together with the Exhibits identified above constitute the entire agreement between OWNER and ENGINEER and supersede all prior written or oral understandings. This Agreement and said Exhibits may only be amended, supplemented, modified or canceled by a duly executed written instrument. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year first above written. OWNER: ENGINEER: City of Cape Girardeau, Missouri Smith and Company � :/... v' -L� . Ronald Fischer Sa u H. S i h City Manager President ATTEST: ATTEST: - ,� ��� � i� �' - � ��—% /�.o�.� ary Thom son Lawrence B. Fisher City Cler Secretary Address for giving notices: Address for giving notices: 401 Independence St. 901 Vine Street P.O. Box 617 P.O. Box 72 Cape Girardeau, MO 63702-0617 Poplar Bluff, MO 63902 AGREEMENT -- PAGE 19 EXHIBIT A TO AGREEMENT FOR PROFE83IONAL SERVICE3 ********************* A LISTING OF THE DIITIEB, RESPON3IBILITIEB, AND LIMITATIONS OF AIITHORITY OF THE RESIDENT PROJECT REPRESENTATIVE (If Provided by ENGINEER) A. 1. 0. ENGINEER shall furnish a Resident Project Representative (RPR) , assistants and other field staff to assist ENGINEER in observing performance of the Work of the Contractor(s) . A.2 . 0. 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 OWNER against defects and deficiencies in the Work; but, the furnishing of such services will not make ENGINEER responsible for or give ENGINEER control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or responsibility for Contractor's failure to perform the Work in accordance with the Contract Documents. A. 3 . 0 The duties and responsibilities of RPR are limited to those of ENGINEER in ENGINEER's agreement with the OWNER and in the construction Contract Documents, "Project Specifications" and are further limited and described in this Exhibit. A. 3 . 1. 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 keeping OWNER advised as necessary. RPR's dealings with subcontractors shall only be through or with the full knowledge and approval of CONTRACTOR. RPR shall generally communicate with OWNER with the knowledge of and under the direction of ENGINEER. A. 3 .2 . The duties and responsibilities of the RPR are listed below: A. 3 . 2 . 1. Schedules: Review the progress schedule, schedule for Shop Drawing submittals and schedule of values prepared by CONTRACTOR and consult with ENGINEER concerning acceptability. EXHIBIT A -- PAGE 1 A. 3 .2 .2 . Conferences and Meetings: Attend meetings with CONTRACTOR, such as preconstruction conferences, progress meetings, job conferences and other project-related meetings, and prepare and circulate copies of minutes thereof. A. 3 .2 . 3 . Serve as ENGINEER's liaison with CONTRACTOR, working principally through CONTRACTOR's superintendent and assist in understanding in the intent of the Contract Documents; and assist ENGINEER in serving as OWNER's liaison with CONTRACTOR when CONTRACTOR's operations affect OWNER's on- site operations. A. 3 . 2 . 4 . Assist in obtaining from OWNER additional details or information, when required for proper execution of the Work. A. 3 . 2 . 5. Record date of receipt of Shop Drawings and samples. A. 3 .2 . 6. Receive samples which are furnished at the site by CONTRACTOR, and notify ENGINEER of availability of samples for examination. A. 3 . 2 . 7. Advise ENGINEER and CONTRACTOR of the commencement of any Work requiring a Shop Drawing or sample if the submittal has not been approved by ENGINEER. A. 3 . 2 . 8 . 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. A. 3 . 2 . 9 . Report to ENGINEER whenever RPR believes that any Work is unsatisfactory, faulty or defective or does not conform to 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. A. 3 . 2 . 10. Verify that tests, equipment and systems start ups and operating and maintenance training are conducted in the presence of appropriate personnel, and that CONTRACTOR maintains adequate records thereof; and observe, record and report to ENGINEER appropriate details relative to the test procedures and start ups. A. 3 . 2 . 11. Accompany visiting inspectors representing public or other agencies and record the results of these inspections and report to ENGINEER. EXHIBIT A -- PAGE 2 A. 3 . 2 . 12 . Report to ENGINEER when clarifications and interpretations of the Contract Documents are needed and transmit to CONTRACTOR clarifications and interpretations as issued by ENGINEER. A. 3 .2 . 13 . Consider and evaluate CONTRACTOR's suggestions for modifications in Drawings of Specifications and report with RPR's recommendations to ENGINEER. Transmit to CONTRACTOR decisions as issued by ENGINEER. A. 3 .2 . 14 . 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 Directive Changes, 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, and other Project related documents. A. 3 .2 . 15. Keep a diary or log book, recording CONTRACTOR hours on the job site, weather conditions, data relative to questions of Work Directive Changes, Change Orders or changed conditions, list of job site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to ENGINEER. A. 3 . 2 . 16. Record names, addresses and telephone numbers of all CONTRACTORS, subcontractors and major suppliers of materials and equipment. A. 3 . 2 . 17 . Furnish 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. A. 3 .2 . 18. Consult with ENGINEER in advance of scheduled major tests, inspections or start of important phases of the Work. A. 3 .2 . 19. Draft proposed Change Orders and Work Directive Changes, obtaining backup material from CONTRACTOR and recommend to ENGINEER Change Orders, Work Directive Changes, and Field Orders. A. 3 . 2 .20. Report immediately to ENGINEER and OWNER upon the occurrence of any accident. A. 3 .2 .21. Review applications for payment with CONTRACTOR for compliance with the established procedure for their submission and forward with recommendations to ENGINEER, noting particularly the relationship of the payment requested to the schedule of values, Work completed and EXHIBIT A -- PAGE 3 materials and equipment delivered at the site but not incorporated in the Work. A. 3 .2 .22 . 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 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 OWNER prior to final payment for the Work. A. 3 .2 .23 . Before ENGINEER issues a Certificate of Substantial Completion, submit to CONTRACTOR a list of observed items requiring completion or correction. A. 3 .2 .24 . Conduct final inspection in the company of ENGINEER, OWNER and CONTRACTOR and prepare a final list of items to be completed or corrected. A. 3 . 2 . 25. Observe that all items on final list have been completed or corrected and make recommendations to ENGINEER concerning acceptance. A. 3 . 3 Following is a listing of the limitations of authority of the RPR. The Resident Project Representative: A. 3 . 3 . 1. Shall not authorize any deviation from the Contract Documents or substitution of materials or equipment, unless authorized by ENGINEER. A. 3 . 3 . 2 . Shall not exceed limitations of ENGINEER's authority as set forth the Contract Documents. A. 3 . 3 . 3 . Shall not undertake any of the responsibilities of CONTRACTOR, subcontractors or CONTRACTOR' s superintendent. A. 3 . 3 . 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. A. 3 . 3 . 5. Shall not advise on, issue directions regarding or assume control over safety precautions and programs in connection with the Work. A. 3 . 3 . 6. Shall not accept Shop Drawing or sample submittals from anyone other than Contractor. A. 3 . 3 . 7 . Shall not authorize OWNER to occupy the Project in whole or in part. EXHIBIT A -- PAGE 4 A. 3 . 3 . 8. Shall not participate in specialized field or laboratory tests or inspections conducted by others except as specifically authorized by ENGINEER. EXHIBIT A -- PAGE 5