Jones & Henry/Engr
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ENGINEERING SERVICE AGREEMENT
THIS AGREEMENT, made and entered into this S'it day oa~i
1992, by a.nd between the City of Carmel, Indiana, through the Boar'r,: f
Public Works & Safety, hereinafter called "OWNER," and Jones & H Y
Engineers, Inc., with offices at 2420 North Coliseum Boulevard, Suite 2i4,
Fort Wayne, Indiana 46805, hereinafter called "ENGINEER,"
WITNESSETH:
WHEREAS, OWNER intends to utilize the services of the
ENGINEER as defined in Letters. of Agreement that will be issued from time to
time as Amendments to this' Agreement, (her~inafter called the "Project"); and
WHEREAS, the OWNER and ENGINEER wish to establish a basis of
performance and compensation for such services performed by ENGINEER as
authorized by OWNER.
NOW, THEREFORE, OWNER and ENGINEER, in consideration of their mutual
covenants, herein agree as follows:
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, environmental, structural, mechanical,
and electrical engineering services and customary architectural
services incidental thereto.
1.1.2. ENGINEER shall provide engineering services as defined in
Letters of Agreement. Each Letter of Agreement will, when signed by
both the OWNER and the ENGINEER, become part of this Engineering
Service Agreement and shall be subject to the provisions and
conditions contained in this Agreement for each Phase of a Prpject
as specifically detailed in the Scope of Services contained in each
Letter of Agreement.
1.2. Study and Report Phase.
ENGINEER shall:
1.2.1. Consult with OWNER to clarify and define OWNER's requirements
for the Project and review available data.
1.2.2. Identify and analyze requirements of governmental authorities
having jurisdiction to approve the design of the Project and
participate in consultations with such authorities.
1.2.3. Provide analyses of OWNER's needs,
evaluations and comparative studies of
solutions.
planning surveys,
prospective sites
site
and
1.2.4. Provide a general economic analysis of OWNER' ,5 requirements
applicable to various alternatives.
16910CJR,
Page 1 of 17
012992
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1.2.5. Advise OWNER as to the necessity of OWNER's providing or
obtaining from others data or services of the types described in
Paragraph 3.4., and assist OWNER in obtaining such data and> services.
1.2.6. Prepare a Report containing conceptual design criteria with
appropriate exhibits to indicate clearly the considerations involved
(including applicable requirements of governmental authorities having
jurisdiction as aforesaid) and the alternative solut'ions available
to OWNER and se~ting forth ENGINEER's findings and recommendations.
This Report will be accompanied by ENGINEER's opinion of probable
costs for the Project including the following: Construction Cost,
allowance for engineering costs and contingencies and if (furniShed
by OWNER) allowances for. such other items as charges of all other
professionals and consultants, for the cost of land and rights-of-
way, for compensation for or damages to properties, for 'interest and
financing charges, and for other services to be provided by others
fo'r OWNER pursuant to Paragraphs 3.7 through 3.11, inclusive. The
total' of' all such costs, allowances, etc., is hereinafter called
"Total Project Costs".
1.2.7. Furnish five copies of the Report and present and review it
with OWNER.
1.3. prelimi.nary.Design Phase.
After written authorization to proceed with the Design Phase,
ENGINEER shall:
1.3.1. In consultation with OWNER and on the basis of the accepted
Study aHd Report documents, determine the general scope, extent and
character of the Project.
1. 3. 2.
design
written
Prepare Preliminary Design documents consisting of final
criteria, preliminary drawings, outline specifications and
descriptions of the Project.
1.3.3. Advise OWNER if additional data or
described in paragraph 3.4 are necessary
obtaining such data and services.
1.3.4. Based on the information contained in the preliminary design
documents, submit a revised opinion of probable Total Project Costs.
services of the types
and assist OWNER in
1.3.5. Furnish five copies of the above Preliminary Design documents
and present and review them in person with OWNER.
1.4. Final Design Phase.
1.4.1. 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.
1.4.2. 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.
1.4.3.. Advise OWNER of any adjustments to the latest opinion of
probable Total Project Costs caused 'by changes in general scope,
16910CJF.
Page 2 of 17
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1,5,
extent Or h
C' " c araCter Or de " ,
OnstrUction Co~si:s', P'i' , Sign, req'-!irements f h
Total 'ProjeSt Costs ba~ 'dnish to D~ER i: revised 0 , ~ ePrOject Or
. ~e On ~he Dpawirigs an,d op~n~on of'pr06able
~ SPScCifiCations,
1. 4,4, Prepat'e fa , , '
and other adv'" r reV.lew ,al1d'}pproval by OWNER '
~tiPP~einenta'h lS6~~dfi7~X:ct agreel11ent forms,g'en~r:lsc';zi.dt~. counsel
lnVitaq~ms to bid ~and i';st a?~ ,(where ,aRPraPriate)1:lid iO~sand
P',,",","O" " o'h" "'.,,"':::~::,;~ b"dO,.. '"' """, ,_'(:;
~' 4. ~, FUrnish five COpLes Of
raWingS and SpeCificati L , ' ;the,!J.bove document's,
~ ~ Ons and, present and ~, " ~
", " -evie,,! them
Bidding Or' Negotiating PlIase;
:::ii:ir,;ritten, aUthori"ation t'opr6ce,ed With, the
. R Shall; ConstrUction Phase,
J, 5. L ,A~Si st OWNER in
fl~'gotiatiiig Pr6poSalsfor e':~~e:tising fa:; an,d ?btaini-ng b,ids Or
tJ ?n, ,mateJ:"i,als, equipment and eparat,e prime Contra,ct fOr const['UC_
{[,alntaill a 'record of'" , "'~ s~r"ices.; and, Where, aPPlicable
ha va been iSsue, d tt~ prd,ospec.t~ve, bidders to whom. Bidding DOcuments'
,a en pre-bid conf ' ~, .
')'~POSits. far 'Biddi~g DOcument's. 'erences and recei've ;and',Process
"4,d' of the
"'iJh 'O:meR.
1,5,2: ,,'Issue addenda' asapprOPiiate to .
the Biddlng Documents, ~ interpret" clar.ffy Or e''15and
1,6,.
} , 5, 3. ,ConSult with and adV1.se 'Ol'lNER ~ " " ,
'SubcontractOl:-S ~ sUPPl' ~ , '~ " ~ ~ as to ,the acoeptabihty Of
~'" ~ ~," ,', ~, "ier~ and,~ othe::- pe"Sons' and orgaih'zations
e. O,""'~ 'Y >h,. p"., 000"'",0, "., ,"",," "',,' .,.;;,"",,,,,,",
,00 >h,,, P",'",.. 0' >h,.", " " ."." ',on ""'''''''H,y"
'r€,c[Ulred by the ,Blddlng Documents. . . , .~
,.I .,. · . ,e00'.0" "!.' ."""". 000',"0' n, .0' dO', ",10 0>", ",,"'.., H,y
'I '~.,., ',0" ""n",..o, '''''em''' P'",,,,,," by. '0", ".""'" "".
subscl tution pr~orto the award Of Contracts is al'lo"'ed 'by the
Bildding Documents. ' ~
I ,~ ~
,1. ~,5. Attend the bid opening, prepare bid- tabulation Sheets' and
aS~ist OWNER in evaluating bids Or proposTIs and in asselltblillg and;
aW~rcting contracts fOr constructi'on,~ mated.a'Is,., equipment and
serv,Lces.
,
con~truction Phase.
,: ,k 'OO"h .i>h. '0' .,.,,, ,_ '"' '" .. h<, ""',,,,,,,,.,
' "', '~, , . ~ , ~ ,
as Provided in the General Conditions of the Construction Contract.
'The] extent and limitations of 'the' dUties" responsibUi'tles and
authority of ENGINEER as assigned in Said General Conditions sha'll
not' fbe mOdHied, except to the extent prOvided hereoin andex~cept as
ENGINE2H may of her wise agree in wrltilng. All of OWNER's iristructi'Yns
,to. COntractor is) will be issuedthrougl1 ENGINEER who, will hav,e
authbrirv to act On behalf Of,ci'WNER ,to 'the' ex't'ent prOVided in said;
Genetal Conditions: e~cept ~as other;;;i~se pr6v,iqed: in wdt.i:n'g,
1,6,:2, Make v'isi'ts. to the site at interva,].s aPPrOpriate to the
varidus Stages of ,=,onstruc:tiori aSENG,INEER deems' n~ecessarYinord>er
,tb oJ:i'ierve as an experienced arid qualified deslgriprofess~onal fhe
pro'gr\'32 that has heen mad" and the qual,ity of the various aspects
of C6hr ['dctOr's executed work. Based on informatbn obtained during
such ';'isits and observa'tiol'ls; 'ENciiNEER shall ;endeavor fOr the be'netiC
of o'w'NER to determine, in genera:i, H the wo.rk is procee?i'ng .i:n
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accordance with the Contract Documents. ENGINEER will not be
required to make exhaustive or continuous on-site inspections to
check the quality or quantity of Contractor's work. ENGINEER's
ef forts wil'l be directed toward .providing for OWNER a greater degree
of confidence that the completed work will conform' generally to the
Contract Documents. On the basis ot' such visits and on-site
observations, ENGINEER will keep the OWNER informed of' the progress
of the work and will endeavor to guard OWNER against defective work.
During or as a result of ENGINEER's on-site visits or observations
of Contractor's work ENGINEER will not supervise, direct, control or
have authority over or be responsible for Contractor's means,
meLhods, techniques, sequences or procedures of construction, or the
safety precautions and programs incident thereto, or for any failure
of CONTRACTOR to comply with Laws and Regulations applicable to the
fu rnishing or performance of the work. ENGINEER will not be
responsible for'Contractor(s) failure to perform or furnish the work
in accordance with the Contract Documents.
I .6.3. Review Shop Drawings and Samples, but only to determine if
t.he items covered by the submittals will, after installation or
incorporation in the work, conform to the information given in the
Contract Documents and be compatible with the design concept of the
completed Project as a functioning whole as indicated by the Contract
Documents. ENGINEER's review and approval will not extend to means,
methods, techniques, sequences or procedures of construction (except
where a particular means, method, technique, seque~ce', or procedure
of construction is specifically and expressly called for by the
Contract Documents) or to safety precautions or programs incident
thereto.
1.6.4. Issue with reasonable promptness such written clarifications
or interpretations of the requirements of the Contract Documents (in
"he form of Drawings or otherwise) as ENGINEER may dete.rmine
necessary,. .}'lhich shall be consistent ~ith the intent of and reason-
ably inferable from Contract Documents. ENGINEER may authorize minor
va riations in the work from the requirements of 'the Contract
Documents which do not involve an adjustment in the Contract Price
or the Contract Times and are compatible with the design concept of
Lh.' completed Project as a functioning whole as indicated by the
Contract Documents. These may be accomplished by a Field Order,
1.6.5. Have authority to disapprove or reject work which ENGINEER
believes to be defective, or that ENGINEER believes will not produce
a completed Project that conforms to the Contract Documents or that
will prejudice the integrity of the design concept of the completed
Project as a functioning whole as indicated by the Contract Docu-
"".nts. ENGINEER will also have authority to require special
in,;pection' or testing of the work, whether or not the work is
fubricated, installed or completed.
1,6,6. Act as initial interpreter of the requirements of the
Contract Documents and judge of the acceptability of the work
th<:::.:reunder and make decisions on 'all claims of OWNER and Cant rac-
Cor Is) relating to the acceptability of the work or the interpreta-
Lion of the requirements of the Contract Documents pertaining to the
e>:ecution and progress of the work. ENGINEER shall not be liable for
Lile results of any such interpretations or decisions rendered in good
faith.
] .6.7. Based on ENGINEER's on-site observations as an experienced
anc! qualified design professional, on information provided by the
Resident Project Representative and on review of applications for
payment and the accompanying data and schedules, ENGINEER shall
Page 4 of 17
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determine the aJr\ounts owing to Contractor (s) and recommend in writing
p~yments 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
Lhe 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 o,ther qualifications stated in the recorrimendation). 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). 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
r:-eview of Contractor (8) f work for .the' purposes of' recommending
payments will not impose on ENGINEER responsibility to supervise,
cJi rect or control such work or. for the means, methods, techniques,
.<;cquences, or procedures of construct'ion or safety precautions or
programs incident thereto or Contractor (s) compliance with laws,
:cules, regulations, ordinances, codes or orders applicable to their
Ell r:nishing ,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
!:hut might affect the amount that should be paid.
1.6,8. Conduct an inspection to determine if the Project is
substantially complete and a final inspection to determine if the
work is acceptable so that ENGINEER may recommehd, in writing, final
payment to each Contractor and may give written notice to OWNER and
Llk Contractor (s) that the work is acceptable (subject to any
conditions therein expressed), but any such recommendation and notice
shall be subject to the limitations expressed in Paragraph 1.6.7.
1,6,9. ENGINEER shall not be responsible for the acts or omissions
of OWNER, any Contractor, or of any subcontractor, or supplier, or
an,;-! of the Contractor (s)' or, subcontractors', or 'supplier, 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 conta:i:ned in Paragraphs 1.6.1.
1:11 rough 1. 6.9., inclusive, shall be construed to release ENGINEER
[rom liability for failure to properly perform ,duties assumed by
ENGINEER in the Contract Documents.
2,1,
SECTION 2 - ADDITIONAL SERVICES OF ENGINEER
General.
16910CJR
If authorized in writing by OWNER, ENGINEER shall furnish or obtain
from others Additional Services of the types listed in Paragraphs
2.1.1. through 2.1.23., inclusive. These services' are not included
as part of Basic Services except to ,the extent provided otherwise in
Section 1; these will be paid for by OWNER as indicated in Section
5.
Page 5 of 17
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16910CJR
2.1.1. Preparation of applications and supporting documents (in
adclition to those furnished under Basic Services) for private or'
governmental grants, loans, or advances in connection with the
Pro ject; preparation or review of environmental assessments and
impact statements; review and evaluation of the effect on the design
requirements of the Project of any such statements and documents
prepared by others; and assistance in obtaining approvals of
authorities having jurisdiction over the anticipated environmental
impact of the Project.
2. J .2. Services to make measured drawings of or to investigate
e:..; isting conditions or facilities, or to verify the accuracy of
clrawings 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, des~gn documents or Contract
Document's when such revisions are- required by changes in laws, rules,
regulations, ordinances, codes or orders enacted subsequent to the
pr~eparation 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
e:penses; 'providing Value Engineering during the course of design;
the, preparation of feasibility studies, cash flow and economic
8vdluations, rate schedules aDd 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. J .7. Furnishing the services of independent professional
a:;:;ociates. and consultants for other than Basic Services (which
include, but are not limited to, customary civil, ,structural,
rnechanical, and electrical engineering, and customary architectural
dc:;ign incidental thereto); and. providing data or services of the
types described in Paragraph 3.4. when OWNER employs ENGINEER to
pt'ovide such, data or services in lieu of furnishing the same in
accordance with Paragraph 3.4.
2.1.8. Services resulting from the award of more separate prime
contracts for construction, materials" equipment or services for the
Project than are contemplat'ed in Section 1, and services resulting
f rom the arranging for performance by persons other than the
principal prime contractors of, services for the OWNER and administer-
ing OWNER's contrac"ts for such services.
:!.l . 'J. Services during out-of-town travel required of ENGINEER other
th<m visits to the site or OWNER's office as required by Section 1.
2.1.10. Assistance' in connection with bid protests,
renegotiating contracts for construction, materials,
services.
rebidding or
equipment or
Page 6 of 17
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2, 1 .11. 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 survey.
2.1.12. Preparation o'f operating and maintenance manuals ; assistance
in the utilization of any equipment or system (such as initial start-
up, testing, adjusting, and balancing); and training personnel for
operation and maintenance..
2.1.13. Preparing to serve or serving as a consultant or witness' for
OWNER in any litigation, arbitration, or other legal or administra-
c! ve proceeding il)volving the Project (except for assistance in
consultations which is included as part of Basic Services under
Paragraphs 1.2.3. and 1.4.2.).
2,1.14. Additional services in connection with the Project, including
services which are to be furnished by OWNER in accordance with
~;.:;;ctlon 3, and services not otherwise provided for in this Agreement.
2.1.15. Services in connection with work directive changes and 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.
2.1.16. Services in ~aking ,revisions to Drawings and Specification~
occasioned by the acceptance of substitutions proposed by Contrac-
cor(s); and services after the award of each contract in evaluating
and determining the acceptability of an unreasonable or excessive
number of substitutions proposed by Contractor.
I
12,1.17. Services resulting from significant delays, changes or price
increases occurring as a direct or indirect result of mat'erial,
equipment or energy shortages.
2,1.18. Additional or extended services during construction made
necessary by (1) work damaged by fire or other cause during construc-
t.ion, (2) a significant amount of defective or neglected work of any
Contractor, (3) acceleration of the progress schedule involving
"ervices beyond normal working hours, and (4) default by any
Contractor.
2.1.19. Services in connection with any partial utilization of any
part of the Project by OWNER prior to Substantial Completion.
2.1.20. Evaluating an unreasonable or extensive number of claims
submitted by Contractor(s) or others in connection with the work.
2.1 .21. 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.
~. 1 .22. Copies of the Contract Documents needed for the Bidding'and
INegotiating Phase and Construction Phase.
2.1.23. Preparing for OWNER, on request, a set of reproducible record
pt:ints 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.
Page 7 of 17
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2.2. Resident Services During ConstrUction.
2.2.1. If requested by OWNER or recommended by ENGINEER and agreed
to in writing by the other, a Resident Project Representative and
necessary assistant resident project representative(s) will be
Eurnished 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 OWNER as indicated in Paragraph 5.1.2.3.
2.2.2. The duties and responsibilities and the limitations on the
authority of the Resident Project Representative and 'assistants are
set forth in. Exhibit A "Duties, Responsibilities and Limitation of
Authority of Resident Project ,Representative", attached to and made
a part of this ,Agreement.
2.2.3. 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, the work of Contractor (s); but the furnishing of such
resident Project representation will not make ENGINEER responsible
i:or construction means, methods, techniques, sequences or procedures
oc for safety precautions or programs, or for Contractor(s), failure
to perform their work in accordance with the Contract Documents.
SECTION 3 - OWNER'S RESPONSIBILITIES
\
OWNER shall:
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
pc'rson shall have complete authority to transmit instructions,
receive information, interpret and define OWNER's policies and
decisions with respect to ENGlNEER'-s services for the Project.
3.'2. pr:ovide all, criteria and full information as to OWNER's requirements
Eor the Project, including design objectives and constraints, space,
c~pacity and performance requirements, flexibility and expandability,
iJnd 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. A:;sist ENGINEER by placing at ENGINEER's disposal all available
i nformation. pertinent to the Project including previous reports and
any other data relative to design or construction of the Project.
3.4. Furnish to ENGINEER, as required for performance of ENGINEER's Basic
Services (except to the extent provided otherwise herein), the
following:
3. '1.1. Data prepared by or services of others, including without
1 i.ITIitation.borings,. probings and subsurface explorations, hydrograph-
i.c surveys, laboratory tests and inspections of samples, matepials
<1nd equipment.
3. ~ .2.
Appropriate professional interpretations of the foregoing.
3.4.3.
Environmental assessment and impact statements.
3. ~. 4. Property, 'boundary, easement, right-of-way, topographic, and
ul:ility surveys.
16910CJR,
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3.5.
3::6 :
3..7,.
3.8.
3.9.
.3..10.
,3.11.
3.p.
3.13.
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3,4.5.
ProI?erty descriptions"
Zarjing, deed"and ather land uSe I:estrictions.
3.4 . 6.
3. ,1. 7.
2.
Other specia-l data or cohsu'l'tations not cove.re'd i'n Se-ct::ion
AU of which ENGINEER may use and rely upon in ,peI:foming, his
services under. thiis Agreement.
Provide engineering sur,veys'too establ:i:s11 re,ferenpe points (except to
the exte"ilt pI:avYded' otheI:wise herein) to enable, ContractoI: (s) to
proceed with the layout 6f the work.
Arrange "'or access to and make all provisions for ENGINEER, to ent'er
upon publ'ic and private property" as ,~equi':'",d ,for ENGINEER to perfopn
his services under this Agreernen't,.
Examin~ 8'11 s"tudies, repor1;S, sketClte;S'i Dr.a,w;ing~:,- Speci~fi.cati9ns...
proposals, 'and, other dClcuments presented by ENGINEER; obtain advice
of an attorney, 'insu.ra.n'ce couns'elor" and ot:her c,6Iisultarits as OWNER
deems appropriate .t::or< s~.ch e.xa,mir1a~,~on~' and render in wri't,ir:fg
decisions pe'rtainir}g ~}~~reto wfth.in a -re:asonable. timesoa-s -no:tto,
delay the serv'ices of ENGINEER.
FULnish approvals and permits from ,all governmental authorities
liaving' :'-Jur~sdi'ct'ion 9v,er. .t-rie_ -ProJec't~nd_ S1.H?ti:,apP:S-Q:Y~JS' qf1d..co!1:sent;,.s
l'l:om others as ,maybe necessary, forcompleti'on of 'the PI:oject.
Provide Sllc-h acc,QuI'l,ting, independent .cost, esti:mat,i,ng arid insurance
counseling s",rvicesas may!;>e r-eguired' for t~e PFoject;.,. such l,egal
servic'es 'as OWNER"may require or ENGINEER' may reasonably 're<ru~st with
re,lard to 'legal issues' pertaining to the Project includingariy' 'that
may be raised9Y Contractor'(sl, 'such, 'auditi,n'g-s.ervice, as OWNER may
rt~quire to ascertain how or for what pu'rpo$e any ContJ;'~c_tor"h,as used
the moneys paid t6 hiinunder "the conscruction ca'ntract, and such'
inspection' servIces as' OWNER may require to 'ascerta;in' that Cont.rac-
Lor Is) ar.e 'C,o",plying,wi~hany ~aw, nlle, regulation, ordin','nee, code.,.
or order applicable to thei~ furnishing a~d perfoI:ming the 'w~rk.
If OWNER designates '" person to 'represent OWNER at the, 'sit'e who, is
not ENGINEER or ENGINEER's ,agent orempJ.oyee; the duties', responsi-
biliti'es and limit'ations of authority of such other peI:son. and the
effect thereof on the duties' and re'sporis'ibilities ofENGINEE'R.,ai1d the
Re"ident Pr6je2t' Representative ('!-nd 'any, assista"ti)' ,,'iix be set
forth, in an "xhi-bi t that is to be identif.ied, attached to,. and made
a part ofthics Agreement ,before such services. begin,.
T f more, 'than one priine cont'ract, i:s to 'be awa:rdedfor cohstru ct'ian,
ma 1:.eri.a'ls, equip'~ent, ~nd se;r:-v-ice~ {o,:c,tl\e entire Pr})j~ct" C;;t~$lgnate
a person: or &igan1izatio'nto _hr:ive ,authority ?-nd' T~,sI?o~sit'i~it.y f?~r
coordina'to.fng th'e, act-ivi,tTes among the vari'ous prime contr-actors.
E'u mist, to ENGINEER data or estimated figures as to OWNER's antici-
pated Eosts 'for services to be provided 'by o,theI:'s for. OWNER (such a.s
"crvices pu~rsuantto Parag.r'!phs ,3.7. through' 3.11..; incolusive and
otl'er costs of the types ;referredto in paragraph 1,2.6,,) so that
ENCINEER 'may maJ<e' t'he necessary findings, to. support opinions of
probable Total 'Pr,oJect Costs.
'z\c.tend "the pre~bi.d con-ference, bid opening, p:teconstruction, confer-
ences, 9onst):uct~<?D. pr09z:'~sS and othi?r jop_ .:z;-el'ated 'meetin-gs'r and
~oubs'tantia.l c9mpleti"on inspection~ and fina:t ;p~y~e,n:t inspectiqn:5"
paje' g of 17
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3.14.
3.15.
3.16.
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 in the work of Contrac-
tor (s) .
Furnish, or direct ENGINEER to provide, necessary Additional Services
as stipulated in Section 2 of this Agreement or other services as
required.
Bear all costs incident to compliance with the requirements of this
Section' 3.
4.1.
SECTION 4 - PERIOD OF SERVICE
4.2.
4.3..
4.4.
4.5.
4.6.
li)910CJR
Tl1e provisions of this Section 4 and the various rates of compensa-
L ion for ENGINEER's services provided for elsewhere in this Agreement
I.ave been agreed to in anticipation of the orderly and continuous
progress of the Project through completion of the Construction Phase.
ENGINEER's obligation to render services .hereunder will extend for
A period which may reasonably be required for the design, award of
contracts, and construction of the Project including extra work and
required extensions thereto. If specific periods of time for
rendering services are set forth or specific dates by which services
are to 'be completed areprpvided elsewhe~e in this Agreement, and if
such dates are exceeded through no fault of ENGINEER, all rates,
measures, and. amounts of compensation provided herein shall be
subject to equitable adjustment.
The s~rvices
completed and
to.
called for in the Study and Report Phase will be
the Report submitted within a stipulated period agreed
Al'tcer acceptance by OWNER of the Study and Report Phase documents
j nclicating 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 ,Preliminary Design
Phase; and shall deliver preliminary design documents and a revised
opinion of probable Total Project Costs.
After acceptance by OWNER of the Preliminary Design Phase documents
anel 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, 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.
Ei.1GlNEER's services under the Study and Report Phase, 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 reason-
ab I e for obtaining approval of governmental authorities having
jur.isdiction to approve the design of the Project.
Al'l.er acceptance by OWNER of the ENGINEER's Drawings, Specifications
Zinc! other Final Design Phase documentation including the most recent
opinion of probable Total Project Costs and upon written authoriza-
L i.on to proceed, ENGINEER 'shall proceed with performance of the
Page 10 of 17
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4.7.
4.8.
4.9.
4.10.
4.11.
4.12.
IGIlIOCJR
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).
The Construction Phase will commence with the execution of the first
p.-ime contract to be executed for the 'work of the Project or any part
[hereof 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.
N/A.
I f OWNER has requested significant modifications or changes in the
qeneral scope, extent, or character of the Project, the time of
performance of ENGINEER's services shall be adjusted equitably.
jf 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 180
ca lendar days after completion of the Design Phase, ENGINEER may,
after giving seven days' written not'ice to OWNER, suspend services
under this Agreement.
I l' 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
r.ender Construction Phase services in respect of any ,prime contract
for construction, materials or equipment more 'than one year after
Substantial Comple_tion is achieved under this Contract., the various
races of compensation provided for elsewhere in this Agreement shall
be subject to equitable adjustment.
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).,
miNER and ENGINEER shall, prior to commencement of the Final Design
Pllase, develop a schedule for performance of ENGINEER's services
du dng the Final Design, Bidding or Negotiating, and Construction
Phases in order to sequence and coordinate properly such services as
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
'1.10., inclusive, will be modified accordingly.
Page 11 of 17
SECTION 5 - PAYMENTS TO ENGINEER
5.1 . Methods of Payment for Serv;..ces and Expenses of ENGINEER.
".1 . 1 . For Basic Services. OWNER shall pay ENGINEER for Basic
Services rendered under Section 1 as follows:
5.1.1.1.
a factor
pals and
An amount equal to ENGINEER's Payroll Cost times
of 2.1 for all Basic Services rendered by princi-
employees engaged directly on the Project.
5.1.1.2.
N/A.
5.1.1.3. Professional Associates and Consultants. For
services and Reimbursable Expenses of independent profes-
sional associates and consultants employed by ENGINEER to
render Basic Services, the amount billed to ENGINEER
therefor times a factor of 1.3.
? ..1.1. 4. N/A.
5.'1.1.5. The total amount of compensation to be paid to
ENGINEER for Basic Services pursuant to Paragraphs 5.1.1.
and 5.1..3. shall not exceed the amount included in an
Amendment to this Agreement.
".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., on the basis of
ENGINEER's Payroll Costs times a factor of 2.1.
5.1.2.2. Professional Associates and Consultants For
services and reimbursable Expenses of independent profes-
sional 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 1.3.
5.1.2.3. Resident Project Services For services of
ENGINEER's Resident Project Representative (and assistants)
furnished under' Paragraph 2.2., on the basis of Payroll
Costs times a factor of 1.8 for services rendered by
principals and employees assigned to resident Project
representation.
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
acr.ual costs of all Reimbursable Expenses incurred in connection with
at I Basic and Additional Services times a factor of 1.1.
5.1.4. The terms IIpayroll Costs" and "Reimbursable Expenses" will
have the meanings assigned to them in Paragraph 5.4.
5.2. Times of Payments.
5.2.1. ENGINEER shall submit
Additional Services rendered and
OWNER shall make prompt monthly
monthly invoices.
monthly invoices for Basic and
for Reimbursaole Expenses incurred.
payments in response to ENGINEER's
1 69 1 ocJIi'
Page 12 of 17
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5,3.
5..4.
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Other provisions Concerning 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 invoice
t:l1erefore, the amounts due ENGINEER will be increased at the rate o'f
l~ per month from said thirtieth day, and in addition, ENGINEER may,
a[ter giving seven days' written notice to OWNER, suspend services
under this Agreement. until ENGINEER has been paid in full all amounts
due him for -services, expenses, and charges.
5.3.2. In the event of termination by OWNER under Paragraph 7..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, EN'GINEER
wi 11 be paid for services rendered during that phase on the basis of
ENGINEER's Payroll Costs times a factor of 2.1 for services rendered
c1uring t.hat phase to date of termination by ENGINEER's principals and
employees engaged directl,y 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 additional Reimbursable Expenses
dl rectly attributable to termination, which, if termination is at
Owner's convenience, shall include an amount equal to 20% of total
compensation for Basic Services earned by ENGINEER to the date of
Lermination.
Definitions.
5_~.1. The. Payroll Costs used as a basis for payment mean salaries
elnd wages (basic and incentive), including overtime if required for
Ll1e performance, paid ,to all personnel engaged directly on the
Project, incluping, but not limited to, engineers, architects,
su rveyors, designers, drafters, specification writers, estimators,
"nd 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. The amount
or customary and statutory ben'efits of all personnel of ENGINEER will
Ibe considered equal to 30% of salaries and wages. It is understood
Ulat overtime requiring premium pay will be used only when necessary
to meet schedules and program objectives established and approved by
OWNER.
5,4.2. Reimbursable Expenses mean the actual expenses incurred by
leNGINEER or ENGINEER's independent professional associates or
consultants directly or indirectly in connection with the Project,
sllch as expenses for: transportation and subsistence incidental
thereto; obtaining bids or proposals from Contractor(s); providing
And maintaining. field office -facilities including furnishings and
llti l.i.ties; subsistence and transportation of Resident Project
Representatives and their assistants; toll telephone calls and
r.(~1egrams; reproduction of reports, Drawings, .Specifications, and
".i rnilar Project-related items. In addition, Reimbursable Expenses
include expenses incurred for computer times and other highly
specialized equipment, including an appropriate charge for previously
escablished programs, and expenses of <photographic production
LE:chniques.
Page 13 of 17
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SECTION
6.1.
6.2.
,.'
6 - CONSTRUCTION COST AND OPINIONS OF COST
Construction Cost.
6.1.1. The construction cost of the .entire Project (herein referred
to as "Construction Cost") means the total cost to OWNER of those
portions of the entire Project designed and specified by ENGINEER,
but it will, not include ENGINEER's compensation and expenses, the
cost of land, rights-of-way, or compensation for or damages to,
properties unless this Agreement so specifies, nor will it include
OWNER's legal, accounting, insurance counseling or auditing services,
or. interest and financi~g charges incurred in connection with the
Project or the cost of services to be provided by others to OWNER
pursuant to Paragraphs 3.7. through 3.11., inclusive. (Construction.
Cost is one of the items comprising Total Project Costs which is
de fined in Paragraph 1.2.6.J
Opinions of Cost.
6,?' .1. Since ENGINEER has no control over the cost of labor,
TIlC1t.:er.ials, equipment or services furnished by others, or over the
Contractor(s)' methods of determining prices, or over competitive
bidding or market conditions, his opinions of probable Total Project
Costs and Construction Cost provided for herein are to be made on the
basis of ENGINEER's experience and qualifications and represent
[eNGINEER's best judgment as an experienced and qualified professional
en(jineer, familiar with the construction industry; but ENGINEER
cannot and does not guarantee that proposals, bids or actual Total
Project or'Construction Costs will not vary from opinions of probable
co,;t prepared by ENGINEER. If prior to the Construction Phase, OWNER
wishes greater assurance as to Total Project pr Construction Costs,
O,INER shall employ an independent cost estimator as provided in
PClragraph 3.9.
7.1.
SECTION 7 - GENERAL CONSIDERATIONS
Termination.
7.2.
16910CJR
7.1.1. The obligation to provide further services under this
Agreement may be terminated by either party upon thirty days' written
notice in the event of substantial failure by the other party to
p"rform in accordance with the terms hereof through no fault of the
ce rminating party.
Reuse of Documents.
7.2.1. All documents including Drawings and Specifications prepared
or furnished by ENGINEER (and ENGINEER's independent professional
3ssociates and consultants) pursuant to this Agreement are instru-
mentS of services 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 and 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
v8rification 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
Clssociates or consultants, and OWNER shall indemnify and hold
ha nnless ENGINEER AND ENGINEER's independent professiona'l associates
and consultants from all claims, damages, losses and expenses
Page 14 of 17
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7.3.
7.4.
7.5.
7.6.
7.7.
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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.
Insurance.
'1.3.1. ENGINEER shall procure and maintain insurance for 'protection
from claim-s under workers' compensation acts, claims for damages
because of bodily injury including personal injury, sickness or
disease or death of any and all employees or of any person other than
such employees, and from claims or damages because of injury to or
destruction of property including loss of use resulting therefrom.
Controlling Law.
7.~.1. This Agreement is to be governed by the law of the principal
place of business of ENGINEER.
Successors and Assigns.
7.5.1. OWNER and ENGINEER each is hereby bound and the partners,
.successors, executors, administrators, and legal representatives of
OImER and ENGINEER (and to the 'extent permitted by Paragraph 7.5.2.
c!1e assigns of OWNER and ENGINEER) are hereby bound to the other
par.ty to this Agreement and to the partners, successors, executors,
odministrators, and legal representatives (and said assigns) of such
otller party, in respect to a'll covenants, agreements, and obligations
of this Agreement.
-;.5.2. 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 traf1sfer is man<;iated by .law. or the
"ffect of this limitation may be restricted by law, and except
ENGINEER may transfer its rights and interests to a successor company
chc.t has substantially the same ownership. 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 him in the performance of services hereunder.
'1.5.3. Nothing herein 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.
N/A.
Ie is understood and agreed that, in seeking services of ENGINEER
under this Agreement the OWNER is requesting ENGINEER to u,ndertake
sonle uninsurable obligations for the OWNER's benefit in advising,
requiring, or ob.ta'ining of any form of insurance, suretyship,. or
bond. Therefore, the OWNER agrees to hold harmless, indemnify, and
defend ENGINEER from and against any and all 'claims, losses, damages,
liability, and cost, including but not limited to costs of defense,
~rislng out of or in any way connected with advising, requiring, or
obtaining of any forms of insurance, suretyship, or bond, or failure
co do so.
Page 15 of 17
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7.8. In consideration of the unavailability of professional liability
insurance, it is agreed that the OWNER shall indemnify and hold
harmless, ENGINEER, and their consultants, agents, directors,
officers and employees from and against all claims, damages, losses
and expenses, direct and indirect, and consequential damages,
including but not limited to fees and charges of attorneys and court
anrl arbitration costs, arising out of or resulting from the perfor-
mance of the work by ENGINEER, or claims against ENGINEER arising
from the work of others, involving pollution-related activities to
the fullest extent permissible by law, regardless of any action or
omission (active, passive or comparative negligence included) on the
part of ENGINEER. The above indemnification provision extends to
claims against ENGINEER which arise out of, or related to, or are
based upon, the actual, alleged or threatened discharge, dispersal,
release or escape of pollutants, and any directive to test for,
monitor, clean up, remove, contain, treat, detoxify or neutralize
pollutants. "POLLUTANTS" mean any solid, liquid, ,gaseous or thermal
irr.itant or contaminant, including smoke, vapor, soot, fumes, acids
or alkalis, che~icals and waste.
7.9. Tn consideration, of the unavaiiability of professional liability
insurance, it is agreed that the OWNER shall ,indemnify and hold
harmless ENGINEER and their consultants, agents, directors, officers
and employee~ from and against all claims, damages, losses, and
e;.:penses, direct and indirect, and consequential damages, including
but not limited to fees and charges of attorneys and court and
arbitration costs, arisin_g out of or resulting from the performance
of the work by ENGINEER, or claims against ENGINEER arising from the
work of others, related to asbestos activities, to the fullest extent
permissible by law, regardless of any action or omission (active,
pa~sive or comparative negligence included) on the part of ENGINEER.
"A:-;BESTOS ACTIVITIES" means any specification of a' product, material
Of' process containing asbestos, failure to detect the existence or
pr-oportion of asbestos 'in a product, material or process and the
performance or failure, to perform abatement, replacement or removal
or a product, material or process containing asbestos.
7.10. OI'iNER shall require the Contractor to the fullest extent permitted
by Laws and Regulations, to indemnify and hold harmless ENGINEER,
ISNGINEER'S Consultants and the officers, directors, employees, agents
and other consultants of each and any of them from and against all
claims, costs, losses and damages (including but not limited to all
fees and charges of engineers, architects, attorneys and other
professionals and all court or arbi~ration or other' dispute resolu-
tion costs) caused by, arising out of or resulting from the perfor-
mance of the work" provided that any s'uch claim, cost, loss or
damage: (i) is attributable to bodily injury, sickness, diseas~ or
c!c.ath, or to injury to or destruction of tangible property (other
than the work itself), including the loss of use resulting therefrom,
and Iii) is caused in whole or in part' by any negligent act or
omission of Contractor, any Subcontractor, any Supplier, any person
or organization directly or indirectly employed by any of them to
peT. form or furnish any o,f the work or anyone for whose acts any of
them may be liable, regardless of whether or not caused in part by
any negligence or omi.ssion of a person or entity indemnified
hereunder or whether liability is imposed upon such indemnified party
by Laws and Regulations regardless of the negligence of any such
person or entity. The indemnification obligations ,of Contractor
~hall not extend to the liability of ENGINEER and ENGINEER's
Consultants, officers, directors, employees or agents caused by the
professional negligence, errors or omissions of any of them.
I 6910CJR Page '16 of ,17
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SECTION 8 - SPECIAL PROVISIONS, EXHIBITS AND SCHEDULES
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8.1. This Agreement is subject to the following special provisions:
8.1.1. OWNER hereby agrees that to the fullest extent permitted by
law design .professional' s total liability to OWNER for any and all
injuries, claims, losses, expenses or damages whatsoever arising out
of or in any way related to the Project or this Agreement from any
cause or causes including but not limited to design prOfessional's
negligence, errors, omissions, strict liability, breach of contract
or breach of warranty shall not exceed the amount of ENGINEER's fee.
8.2.
The following Exhibit is attached to and made a part of this
Agreement:
B. 2.1.
Exhibit A - Duties, Responsibilities and Limitations of
Authority of Resident Project Representative
8.3.
This Agreement (consisting of Pages 1 to 17, inclusive), together
with the Exhibit identified above constitute the entire agreement
between OWNER and ENGINEER and supersede all prior written or oral
understandings. This Agreement and said Exhibit may only be amended,
supplemented, modified or cancelled by a duly executed written
instrument.
iN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement.. as of the day arid year first above written.
IC WORKS & SAFETY
EL, INDIANA
Witness:
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By
By
By
Witness:
Yh-vi .;.;~t
~ . c<.J bf. x~,,_o~
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By
APPROVED AS TO FORM AND CONTENT:
By
Attorney
16'HOCJR
Page 17 of 17