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Commonwealth Engineers/ENG/89600/116th Penn to College• AGREEMENT FOR ENGINEERING SERVICES for IMPROVEMENTS TO 116TH STREET BETWEEN PENN ROAD AND COLLEGE By and Between THE CITY OF CARMEL, INDIANA and COMMONWEALTH ENGINEERS, INC. INDIANAPOLIS, INDIANA AGREEMENT FOR ENGINEERING SERVICES for IMPROVEMENTS TO 116TH STREET BETWEEN PENN ROAD AND COLLEGE THIS AGREEMENT, made this 15th day of July, 1987 by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety, hereinafter referred to as the OWNER, and COMMONWEALTH ENGINEERS, INC., hereinafter referred to as the ENGINEER, WITNESSETH THAT: WHEREAS, the OWNER desires to widen to four lanes and reconstruct 116th Street between Penn Road and College, including necessary drainage improvements; and WHEREAS, the ENGINEER agrees to perform for the project, Professional Engineering Services as hereinafter set forth; and WHEREAS, the OWNER agrees to employ and does hereby employ the ENGINEER for the professional services hereinafter set forth, and agrees to pay the ENGINEER for such services the fee as hereinafter set forth in the Agreement. NOW, THEREFORE, the OWNER and the ENGINEER for the considerations set forth, agree as follows: SECTION I - BASIC SERVICES A. General 1. This Agreement represents the entire and integrated Agreement between the OWNER and the ENGINEER for the project and supersedes all prior negotiations, represen- tations or agreements, either written or oral. In the event any provisions of this Agreement or any subsequent addendum shall be held to be invalid and unenforceable, the remaining provisions shall be valid and binding upon the parties. 2. The ENGINEER agrees to perform professional engineering services in connection with the Project as hereinafter stated. 3. The ENGINEER shall give consultation and advice to the OWNER during the performance of his services for the Project. 4. The ENGINEER intends to render his services under this Agreement in accordance with generally accepted professional practices for the intended use of the project and makes no warranty either express or implied. - 1 - B. Plans and Specifications Phase During the Plans and Specifications Phase, the Engineer shall: 1. Prepare detailed construction drawings and specifications for the Project. 2. Furnish to the Owner engineering data for and assist in the preparation of the required documents so that the Owner may secure the approval of such governmental authorities as have jurisdiction over the Project. 3. Advise the Owner of any adjustment of the cost estimate for the Project caused by changes in Scope, design requirements or construction costs and furnish a revised cost estimate for the Project based on the completed plans and specifications. 4. Prepare proposal forms and notice to bidders and assist the Owner's Attorney in the preparation of the Contract Documents. The Owner and the Engineer agree that the Plans and Specifications will be completed and delivered to the Owner within 120 calendar days, after execution of this Agreement. C. Construction Engineering Phase 1. The ENGINEER shall provide for a period not to exceed 180 calendar days the Construction Engineering services described as follows: a. Assist the OWNER in obtaining construction proposals. b. Assist the OWNER in evaluating proposals, analyzing the responsiveness of the bidders, making recommend- ations for awarding contract (s) and preparing a final engineering report, including a bid tabulation. c. Provide visits to the project to observe the progress of the work at times appropriate to the phase of construction as determined by the ENGINEER, and to inform the OWNER whether or not the work is proceeding in reasonable compliance with the drawings and specifications and to advise the OWNER if it is necessary to disapprove the work as failing to conform with the contract documents. - 2 - d. Check shop drawings, samples, equipment and other information submitted by the construction contractor for compliance with the design concept of the drawings and specifications. Witness and fully report to the OWNER the results of all special performance tests required for the project. e. Act upon the construction contractor's requests for payments in accordance with the provisions of the general conditions of the construction contract (s). f. Evaluate project changes as necessary, prepare design and non -design change orders to the construc- tion contract (s). Decide questions which may arise as to the quality and acceptability of materials furnished, work performed, rate of progress of work, interpretation of drawings and specifications, and questions as to the acceptable fulfillment of the construction contract (s). Certify substantial completion and approval of the construction contractor's final payment when, to the best of the ENGINEER'S knowledge and behalf, the terms of the construction contract (s) have been fulfilled. h. Provide one set of reproducible record drawings and two sets of prints which reflect changes in the work subsequent to the award of the construction contract (s) following the completion of the work and based upon information supplied by the construction contract (s). g• i. The ENGINEER'S undertaking hereunder shall not relieve the contractor of its obligation to perform the work in conformity with the contract documents and in a workmanlike manner, nor shall it make the ENGINEER an insurer of the contractor's performance; and shall not impose upon the ENGINEER any obligations to see that the work is performed in a safe manner. J. The ENGINEER shall not be responsible for the construction method, means, techniques, sequences, or procedures, or of any safety precautions or programs employed by the construction cont- ractor(s), nor shall the ENGINEER be required to direct or take charge of any work done by "force account." - 3 - D. Resident Project Representative Phase 1. Once construction commences, the ENGINEER shall provide one or more resident project representatives to assist in observing performance of the. work of the construction contractor (s) for a period of up to 400 man -days over a period not to exceed 365 calendar days. 2. The duties and responsibilities and the limitation on the authority of the resident project representative (s) are set forth in Exhibit A attached hereto. E. Soils Borings During the Soils 1. Sub -contract explorations 2. Supervise in explorations. Boring Phase, the Engineer shall: for soils borings and subsurface as required for the Project. the field said soils borings and subsurface F. Additional Services 1. Additional services in connection with the project not otherwise provided for in this Agreement may be arranged for between the OWNER and the ENGINEER and incorporated into this Agreement. SECTION II - RESPONSIBILITIES OF THE OWNER A. General The OWNER agrees to provide the ENGINEER with complete information concerning the requirements of the project and to perform as follows: 1. Make available all prior studies, reports, permits, applications, drawings and specifications pertaining to the construction of the wastewater facilities. 2. Provide access to and make all provisions for the ENGINEER to enter upon public and private property as required for the ENGINEER to perform such work as surveys and inspections in the development of the project. 3. Give thorough consideration to all reports, sketches, estimates, drawings, specifications, proposals, and other documents presented by the ENGINEER, and shall inform the ENGINEER of all decisions within a reasonable time so as not to delay the work of the ENGINEER. - 4 - • 4. Promptly hold all required special meetings, serve all required public and private notices, receive and act upon all protests and fulfill all requirements necessary in the development of the project including legal and fiscal services and pay all costs incidental thereto. 5. Advertise for invitation to bid from bidders, open the bids at the appointed time and place, and pay all costs incidental thereto, including filing fees and permit charges. 6. Furnish the ENGINEER with a copy of any construction standards he shall require the ENGINEER to follow in the preparation of contract documents for the project. 7. Appoint an OWNER'S representative with respect to the work to be performed under this Agreement; and such person shall have complete authority to transmit instructions, receive information, and interpret and define OWNER'S policies. The ENGINEER shall be entitled to rely on all representations made by the OWNER'S representative unless otherwise directed in writing by the OWNER. 8. Sign and file for all necessary approvals from regulatory agencies and to pay all cost incidental thereto. SECTION III - PAYMENTS TO THE ENGINEER A. Plans and Specifications Phase The Owner shall pay the Engineer for services performed in the Plans and Specifications Phase a fee based on the Cost Plus Fixed Fee Basis, as described below, with an estimated Not to Exceed Cost of Twenty Five Thousand Dollars ($25,000.00) and a Fixed Fee of Five Thousand Dollars ($5,000.00). B. Soils Borings The Owner shall pay the Engineer for services performed in the Soils Boring Phase a fee based on the Cost Plus Fixed Fee Basis as described below, with an estimated Not to Exceed Cost of Ten Thousand Five Hundred Dollars ($10,500.00) and a Fixed Fee of One Thousand Five Hundred Dollars ($1,500.00). - 5 - 0 .' C. Construction Engineering Phase The OWNER shall pay the ENGINEER for professional engineering services performed in the Construction Engineering Phase a fee based on the Cost Plus Fixed Fee Basis, as described in Paragraph E below, with an estimated Not to Exceed Cost of Twenty Thousand Eight Hundred Dollars ($20,800.00) and a Fixed Fee of Four Thousand Two Hundred Dollars ($4,200.00). D. Resident Proiect Representative Phase The OWNER shall pay the ENGINEER for professional engineering services performed in the Resident Project Rep- resentative Phase a fee based on the Cost Plus Fixed Fee Basis, as described in Paragraph E below, with an estimated Not to Exceed Cost of Thirty Three Thousand Three Hundred Dollars ($33,300.00) and a Fixed Fee of Six Thousand Seven Hundred Dollars ($6,700.00). E. Cost Plus Fixed Fee Method of Payment Under the Cost Plus Fixed Fee Basis of Payment, when the Fixed Fee represents profit only, the OWNER shall pay the ENGINEER for services performed the total actual cost of salaries and wages times an overhead factor in effect at the time the services are performed, which includes fringe benefits, salary related cost and general overhead, plus out-of-pocket expenses, equipment rental, plus the actual costs of non -direct salary charges as defined hereinafter. 1. The general overhead shall include those costs related to salaries such as unemployment compensation, workmen's compensation Social Security, vacations, paid holidays, sick leave, group medical premiums, group term life insurance premiums, retirement plan payments, and year- end compensation based upon an established program and those indirect costs including overall supervision, filings and mailing, accounting and bookkeeping, research and development, materials and supplies, depreciation of equipment, telephone service, rent, utilities, insurance and miscellaneous expenses to the extent that they are properly allocable to the project. Cost not allowable in determining direct labor, overhead on direct labor, or general and administrative overhead include: (a) Contingency reserves. (b) Contributions and donations. - 6 - (c) Dividend payments. (d) Entertainment. (e) Taxes, fees, or charges imposed upon, by reason of, or measured by the firm's fee. 2. The non -direct salary charges shall mean the actual expenses of subsistence and lodging of principals and employees when traveling in connection with the project, transportation expense to and from the office at the rate of $0.205 per mile, the actual cost of long distance telephone calls, telegrams, express charges and postage other than ordinary first class, the actual cost of field office expenses, and the actual cost of general out-of-pocket expenses required specifically for the project. 3. The Fixed Fee, which is an allowance for profit only, is considered to be that pertaining to the business operations, which must absorb the non -allowable costs enumerated above, which are in the interest of promoting further business or continuing as a business. All allowances for professional services are considered to have been included in the direct costs or in the general overhead costs. If, at any time as the actual work progresses, the ENGINEER has reason to believe that the costs will be greater than the Not to Exceed Cost hereof, the ENGINEER shall notify the OWNER in writing to that effect, giving the revised estimate of such cost for said work. The OWNER shall not be obligated to reimburse the ENGINEER for costs incurred in excess of the Not to Exceed Cost set forth above, and the ENGINEER shall not be obligated to continue performance of said work or otherwise to incur costs in excess of the Not to Exceed Cost set forth above, unless and until the OWNER shall have notified the ENGINEER in writing that such Not to Exceed Cost has been increased and shall have specified in such notice a revised Not to Exceed Cost of said work. When and to the extent that the Not to Exceed Cost set forth above has been increased, any costs incurred by the ENGINEER in excess of the Not to Exceed Cost prior to such increase shall be allowable to the same extent as if such costs had been incurred after the increase. - 7 - SECTION IV - DESIGN CREDIT Whenever renderings, photographs of renderings, photographs of models, or photographs of the project are released by the OWNER for publicity, proper credit for engineering shall be given to the ENGINEER, provided the giving of such credit is without cost to the OWNER. SECTION V - SUCCESSORS AND ASSIGNMENTS The OWNER and the ENGINEER each binds himself, his partners, successors, executors, administrators, and assigns to the other party of this Agreement, and to the partners, successors, executors, administrators, and assigns of such party in respect to all covenants of this Agreement. SECTION VI - OWNERSHIP OF DOCUMENTS All reports and other work product of the ENGINEER for this project are instruments of service for this project only and shall remain the property of the ENGINEER whether the project is completed or not, except as provided for in the General Conditions to this Agreement. Use of any of -the instruments of service of the ENGINEER by the OWNER on this or extensions of this project or on any other project without the written permission of the ENGINEER shall be at the OWNER'S risk an the OWNER agrees to defend, indemnify, and hold harmless the ENGINEER from all claims, damages, and expenses including attorneys' fees arising out of such unauthorized reuse of the ENGINEER'S instruments of service by the OWNER or by others acting through the OWNER. Any reuse or adaptation of the ENGINEER'S instruments of service occurring after the written agreement of the ENGINEER may entitle the ENGINEER to further compensation in amounts to be agreed upon by the OWNER and the ENGINEER. SECTION VII - GOVERNING LAWS This Agreement shall be governed by the laws of the State of Indiana. SECTION VIII - SUBCONTRACTING The ENGINEER retains the right to subcontract to another party for the services to be performed under this Agreement, provided said subcontracting is necessary to preveht delays in the project. In the event such subcontracting shall exceed thirty percent (30%) of the work to be performed (as determined by the amount of the fee), such subcontracting must have prior approval of the OWNER. - 8 - SECTION IX - GENERAL CONDITIONS Attached hereto and made a part of the Agreement is Exhibit "B", General Conditions to Engineering Contracts. SECTION X - CONSTRUCTION COST ESTIMATES It is recognized that neither the OWNER control over the cost of labor, materials, ruction bidding methods. Accordingly, the does not warrant that bids will not vary estimate of construction cost. nor the ENGINEER has equipment, or const - ENGINEER cannot and from the ENGINEER'S SECTION XI - FINAL PAYMENT Upon satisfactory completion of the work performed under this Agreement or as a termination settlement under this Agreement, the ENGINEER shall execute and deliver to the OWNER a release of all claims which are specifically exempted by the ENGINEER to be set forth therein. Unless otherwise provided in this Agreement or by State law or otherwise expressly agreed to by the parties to this Agreement, final payment under this Agreement or settlement upon termination of this Agreement shall not constitute a waiver of the OWNER'S claims against the ENGINEER or his sureties under this Agreement. SECTION XII - INTEREST ON UNPAID SUMS If the OWNER fails to make any payments due to the ENGINEER within 60 days from the date of the ENGINEER'S invoice, then the ENGINEER shall be entitled to interest at the rate of 1% per month (but not exceeding the maximum rate allowable by Indiana law) from said 60th day. This provision is not applicable to any payment or invoice that is determined by the OWNER to be unapprovable or not allowable. - 9 - SECTION XIII - EXECUTION The OWNER and the ENGINEER hereby agree to the full performance of the covenants contained herein. IN WITNESS WHEREOF, the parties have executed this Agreement in three (3) copies the day and year first written above. OWNER: ENGINEER: BOARD OF PUBLIC WORKS AND SAFETY COMMONWEALTH ENGINEERS, INC. CITY OF CARMEL, INDIANA B • Its Public Works ATTEST: / o--t©cl! ✓eY Dorothy JHancock Clerk -Treasurer By: /7 Donald R. Silvey Vice President ATTEST: Wj� Mark(D. Downey Vice President - 10 -