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,ENGmF.ERING SERVICE AGREEMENT
'THIS AGREEMENT, made and entered intothis&,y. of ,
1994, :by and be:tw!"en the City of Camef, 'Indiana, through thEiBoard of
Public Works & -Safety" 'hereinafter called "OWNER," and Jones &: HeJ1ry
EngineerS, Inc., with offices at 2420 North Coliseum Boulevard, Suit.e 214,
Fort Wayne, Indiana 4680'5; hereinafte'r caitec( "ENGINEER,'" . ,
WITNESSETH:'
WHEREAS" OwNER intends' to uti1:i:ze the services of the
ENGINEER as de'fired' lriLetters af 'Agreement tha.t will ,be. ,issued from time to
tim-e a's',Ainendinehts'ta this Agreement, (hereihaffer called the "Pr9ject "); and
WHEREAS,the OWNER and ENGINEER wish 'to .,stablish,a ,basis of
performance 'and compensation for 'such, services' performed by ..ENGINEER as
'a'uthor ized' by OWNER.
NOW, THEREFORE, OwNER and ENGINEER, in consideration of their mutual
covenants ~ he r'aidi agree. 'as fo11ows'=-
SECTION: 1 - BASIC SERVICES OF ENGINEER
1..1. General.
i .1 .1.; ENGINEER shan provide for OWNER 'professional engineeFing
servfces 'in all phases of the, Project to which this,Agreement applies
as. ,hereinafter '-provided, TheseserviceswHl include serving' 'as
QWNER,; s professiona'l'engineering iepre'sentat'ive for the Project,
providing professional, engineering consultation and advice; and
furnis,hing" -,customary' c'ivIl; e~yir~:H}1T!:entai., st.ructura.lj Il1ecohan:i.:cal,.
and electrical engineering servic'es andcustO'mary "architectural
~.~rvices' :incide1it~al -theret'o:,; , . -, '-
,1, ,2 .3. Provide ana'lyses of OwNER"s needs,
e"/a.luations' and comparative ,studies of
'solutions.
planning surveys,
prospectiyesites
site
a.nd
1:,:2..4 , Provide a general economic analysis of OwNER's requirements
applicable 'to 'various alternatives.
'1.2.5. Adv:;,se c)WNER as . to ,the necessity of OwNER' s'pr-oviding 910
obta'ining ftom others data or services of the types 'descr'ibed in,
Paragraph '(3.4.. and assist OWl>1ER'in abtainin.g s)1ch data andser'vices.
L2.'6. Pr'epare a Report conta'ining conceptual design, criteria with
appropriate exhibits, to indicate, c1eariy the considera,tipns iJ'volved
(including applicable require",ents,of governm.ental authorities having
jurisdi,cti6n as 'aforesa'idl and the' 'alternative solutions, available
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to OWNER and setting forth ENGI~ER' s findings and recommendations.
This Report will be accompanied, by ENGlNEEl'l'S opinion of probable
costs for the Project inCluding the folJ:owing: Const,cuC:!;ion Cost,
allowance for ehgineedng cost's and contingencies and, if (furnished
by' OWNER) allowances ,for sU,ch other items ascgarges o,f'a],l other
professionals and, consultants, for the cost,of land, and rights~of-
way, fo; compens.atiQn for '?" dam,ages'to pfoperHes, for'interestand
financing charges, and for other services to be pI:ovide'd by others
'for OWNER pursuant ,to 'Pa:ragraphs 3.7 through, 3.11. inclusive. The
total of all such" costs'. allowances, etc.; is, hereinafter called
"Total Project' Costs n:
1.2.,7. 'Furnish five copies ,of the . Report and present and, review it
with OWNER.
1.3. pre:rim1:nary Design Phase.
After written authorization to ;prpceed with, the Design Phase,
ENGINEER shal11':
.1. '3. L ,In 'consu'L1;ation 'with, OWNER, and on the' basis of the accepted
Study "and Report c1ocume.pts;, qete,rrni~ne the, general scop", extent ,,:nd
character. of the project,-
"1.,3.2" Prepare ,preH'minary D"sign documents consisti:ng, of final
design cfiter~ia, prel.:i,I!\il}ary drawings; out:J.ine specifications' anq.
'writt,en descriptions of, the, pro'ject:.
services, of the ,types'
,and ass'Ls,t OWNERfn
'1.,3.3. Advise, OWNER if' additional data or
'described In 'paragraph '~,.4 'are necessary
obtaining suchdaj:.a andserv;ices.
11.3.4. Based on the information COntained in 'the preliminary design
documents', submit a revised opinion o'f: probable, Total ,Project Costs.
1.3.5, 'Furnish five ,copies ,of the above Preliminary'Design,dOC1,lments
and present ,and review"them in, pers,onwith OwNER-,-
I_ 4. tinal Design, Phase.
1.4,.1. On the bas is of, the .accepted Preliminary Design,Documents and
the revised opinion oJ probable TO,tal Project' Costs, prepare for
incorporation in the Contract Doc'uments fi'nal drawi'ngs to show the
general sc'ope,exierit,,' and, chara'ete'r ot the work to b,e' furnished, and
performed 'by Contractor (s) (herei:nafter called "Drawings") and
Specifications.
1.4:2. :Provide,technical criteria, writ'ten, 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 consultation's with appropriate authorities.
1.4.3. Advise OwNER of. .any adjustments to ,the latErst Opinion of
'probenle Total Project' Costs ,caused 'by' changes in general, scope,
extent,or, character ai' desigri 'requirement.s of the Project or
Construction Costs. Furnish to OWNER~ a revised opinion of probable
Total ~roject Costs based op t~eDrawings and Specific~tions.
1..4.4. Prepare for .revi'ew, and approval by OWNER" its iegal. counsel
and other, adviSors 'contract, agreement forms, general conditions al'ld
supplementary conditions, and (where .appropriat~) , bid';' forms"
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ihvitltions t'o bId and ing't'ructions 'to bid.ders, al).d ass'il:)t in the
pr'eparation of other related documents'.
L 40.5,. Furnish five, copies of the ,above docilments and of the
Drawings and Specifications and present ,and' review them with OwNER.
1.5, Bidding or Negotlatlng Phase:
After written authorization 'to proceed with the'CQnstruction Phase,
ENGlNEERshail:
1. 5..,1. AssiSt' OWNER in advertising far and obtaining bids or
'negotiating proposals "fot each separate p,rime 'contract forconstruc-
tion, mateHalS, equipment and 'servicEls; and, ",hllreappJ:iCable,
maintain a record o,f pro,spective bidders to whom' Bidding Documents
hil-ve'oeen issued, at'tend pre~b'id conferen'ces andrecei:ve and..process
deposits 'for Bidding Documents.
1.S .2,. Lssue adelendaas, appropriate ,to interpret, clari'fy or expand
the Bidding Documents.
1 . 5.3 . Consult with and aelvise OWNER as to the acceptability of:
subcontractors, suppliers and ,other persons, ~n~ o~ganizati9n~
'prqposed by the prime contractor (s) (herein called "Contractor(s)")
for tho,se portions ,,01' the wo.r~ as to which such'acceptab'ility is
requrred by the Bidaing 'Dqcumerits; ,
1..5.4. Consult,with OWNER concerning and determine the acceptability
of substitute materials and equipmen'ti proposed :by Contractor (s)' when
substitution p;'ior, to the' award; -of contracts is 'allowed. by' the
'BIdding Documents. ' '
1.5. 5,. Attend the bid opening, prepare bid tabulation sheets and
assist OWNER in evaltiating bids ,orproposa1s 'and' 'in asseliibHng and
aw"arding contr-act's for construction, 'materials, eqqipIfl.:E;::f,lf..' and
se-rvices ~
1.6. Construction Phase.
1.6.1., Consult with and advise OWNER and act a,s his representative
as provided in the Ge.neral Co!,ditions of the Construction',Contract.
The, extent, 'and limit-ations of the duties, res'ponsibiHties and
authority of ENGINEER as iissigned' in said General Condit'ions ,shall
n'ot be modified, except to 'the extent ,provided herein and except as
ENGINEER may otherwise agree in writing. Ail' of OWNER"sinstructions
to Contractor (s) wfll be issu'ed through 'ENGINEER who wil'l ' have
authoiit,,i to act on 'behalf of OWNER to the e"t,ent provide.d in said
General Conditions except, as otherwise ,pr:ovided 'in writing.
1.6.2. Make visits to the site at interyals appropriate to the
vanous 'stages of construct1onas ENGINE,ER deems neces~ary in or<:!~r
t'o observe as an experienced and qualified, design professlomd the
progr~"s that has been ma,de:and thequ'a.Hty'of. the various aspects
of' Contractor',s executed, work'. Based "ohinformation obtained' during
such visits and, observations"ENGINEER shall endeavor far the,b,,,mifit
of OWNER to determjene, in gener"l, if the work is' ;proceeding in
aC,corda.nce )"'iththe Contract Documents. ENGINEER will not be
requir'ed to make exha\ist'iv'e or continuous on-site inspections, to
che,ck, the quality or qu,antity of Contrastor"s work.,ENGINE,ER'(S
efforts will ,be directed toward providing for, OWNER a, greater degree
of c,onfidence.that the' completed wotk-' will conform generally to the
Contract, Documents. On the' basis of such vis'its and 'on-she
ooservations, ENGINEER ,will keep 'the OWNEIl., informed of the ,progr!"ss
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of the work and wil'l endeavor' to guard OWNER against defective work.
Duri;ng 0]:"' as'a result q,f ,ENGINEE]<' s on-site visits or obser'{ations
of Contractor's work ENGINEER will not supervise, direct, control Or
have 'authorit'y ove'r or be responsible for' Contractor' Ii means,'
methods, techniques, s'eguences or procedures of consfruction, -Or the.
sa.fe!,-yprecaut,ionsand, programsinc::iqent the>:;eto, or for. any:failure
of CONTRACTOR .to comply with Laws ana RegulatiOns. applicaole to the
furnlsh{ng 'or pe'rformance of the work. ENGINEER 'wfU . not he
responsible for Contractor (s) failure to perform or furnish the work
in accordance with ,the Contract Documents.
1.6.3. Review Shop Drawings' an'd Samples,.but oilly to determine if
the items covered' by, the' submittal'S' wi'll, after installation or
incorporation, in 'the' work, conform to the informat'ion given. in the
Contract' Documents and be' compatibiewith .the design concept, of ,the
complete'ctproject 'as a fun6tionirigwhoTe as .indicatedby'the, Contract
DO,cuments, ENGINEER: s review and approval wiit. not extend to means,
methqds, techn~'ques; sequence,s, or procedu.F~s ,of constructipn, (except
where' a particular mean's, method, t'echhique, sequence or, pro-cedure
of dinstruction is' s'ped-fically and' expressl'li called for by the
Contract DocumehtS) o'r to safety precautions or programs inc'ident
tQereto _ ' "
1.6.4. Issue w:lth reasonable promptness suchwtitten' clarificatiolls
or interpretations, of, the requirements of the,Contract,Documents (in
the farm of Drawings orotherwisel as ENGINEER. may determine
neces'sar'y,. which shall be consistent' with 'the int'<;n't of and reas'on-
ably 'infe'rable fioin Contract Document's. ENGI'NEER may .authorize minor
variations in the work from ,the requirements of the Gontract
D,ocuments which do' riot "inVOlve an adjustment ,in the Contract 'Price
or' the Contract Times and are comPatible with the des[gn ~oncept of
the completed ,ProjeCt as, ,a functioning whole as indicated by the
Contract' Documents~ These'may be 'acco~lished by a .Field Order.
1. 6.5. Haveauthori't;y to dis'approve, or .reject work which ,ENGINEER
believes'to.,be defective. o'i:: :that ENGINEER believes wi,ll not produce
a complet.Bd, Project that CPl1to~s.t,othe. Contract Do<;uments .orthat
win prejudice, the integrity .of the .design concept of the completed
pr'c:iject" 'as a functiC,niilg 'whole as indicated' by' 'theCori,t'ract 'Docu.,:
ments, ENGINEER }fiill als9 have authority' to requiie special
inspection or testing of the work" whether or not'- the :work is
fabricated, installedo~ c~mpleted1 0' "
1...6.6'. Act as initial interpre,ter of the requirelllerlts of' the
Contract Documents and judge of the acceptability of the work
t.hereunder and ,make. decisions on all claims of OWNER and C'ontrac-
t6r(8) relatingto'theacceptability of the ,!,otk or theinterpi-eta~
tiori of the requirements of the. Contract DocunieIits pertaining to the
execution and progrBss of the ,work. ENGINEER shan :noLbe liable for
the results of any ,suc'hinterpretations or decisIons rendered in good
faith,_
1,6.:7. Based on. ENGINEER's on-site observations as an experienced
and qualified design professional, on information provided by the
Resident' p'roject Representat"!v;, and on review of applications for
payment and. the, accompanying data and schedu,les, ENGI.NEER, .sha1)l
determine the "amounts owing.to Contractor (s) and recommend in,writing
pa'ymerits to Contractor'(s) iq such 1Unounts, Such recommendations' of
paymeht will, constitute 'a representation to OWNER,. b..,Se'd on S\.i'ch
obs.ervations and review,. that~ the work ,has progressed to theppint
indicated; and that, to the best of ENGINEER' s knowledge, information
and belief, :the quality o'f such work is 'gene'raiiy in. ac'cordance 'with
the Contract DocUments (sliliject to an evaluation of such work' as 'it
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funct;ion.tng whole prior to oruponS,ub,stantla:l Comp'letion, to the
,results of any s~sequent'tests called for in the Contract Documents
and to any other qualifications stated in the 'recommendation). Ih
the case of unit, prie,;' work, 'ENGINEER's recommendations; of payment
will 'iilclude final determinations ,'of quantities and' classi'fications
of such work, (subject to any subsequentad'justmentsaHowed by' ,the
Contract'Documents); By recommending any payment E~GINEER wii~ not
thereby be deemed ,to have represented that' exhaustive, continuous or
detailed reviews Or examinations have been made by ENGINEER t'o check
the qUal'it.y- or q"ant.ftyof Contractor(s) iwprk asft is furr>,isl1ed and
performed" beyond lOne responsibilities sped fica1'1j1assigned, t'o
ENGlNEERfn this Agreemeilt, and the Contract Documents. ENGINEER's
review' of Contractor-(s'l' work for, the purposes: of recommending
payments wj,l;L not 'i:mpose on 'ENGINEER responsibilJtyto,sup.ervise,
direCt or 'control such work' or'for the means,metl.\ods, tec:lmiques,
sequences" or procedures of construction or safetj(pr<waut'ions or
programs 'incident 'thereto or Contractor(sl compliance with laws,
rtl1esJ ,regulat.;ions.,. o!:,dinances, codes. or orders ,,~pplicable' to their
furnishing;;n'ci performing' .th'e' work. .'ri:. will also riot impose
respon'sibility on'ENGlNEER to ','make' any eXa.lninationtoascertai!:, how
or '(or 'what', 'purposes ,any Contractor has used ,themon'eys', paid on
acc'ountofthe, Contract Price; .or to determine ,that title to, any of
the worK, materials or equipmentHhas passedio OWNER free "1l1d, clear
of, any l'ien, 'claims, security ,interests or encuroDrances, 'Or that
there"maYIlot",be other matters, at issue between OWNER and CONTRACTOR
that rrii9J:1t a'ff,,,5t fli'e amount that shouldl;)e,'paid.
1.6.8. Conduct, ,an inspect ion to determine if the Project, > is
substantially complete and a final inspection to determine if the
worki's accep:tabl:e so ,chat ENGINEER may recommend, in wd'ting, final
payment to' each Coritractor and'may give, 'written notice, to' OWNER and
the Contractor (s l that ,the, work is aCceptable ('subj'ect to' any
condit,i9ns therein expressed) "b~t any such ,recommendation and n.otice
shall 'be subject ,t,o the limitations expressedil1 Paragraph 1.6.7.
1 . 6. 9 . ENGINEER shall not be, te'spons ibl e for ,the act s or omi ssions
of- Om.rgRj. ~ny: .Ccntz:actor" 0):' of any subcontractor, 0; supplie'l.:":', or-
any of' the Contractor (s)' or, subcontra.ctors', Or' supplier ,> agents or
e'mplcyees or any' other' persons, (except ENGINEER's own 'ernploye'es and
agents) at the site or otherwise :furnishing or performing 'any of the
Contractor (s) '; work; however, ,nothing contained in 'Paragraphs 1.6.1.,
througli.'i .0.,9., 'inc'lusiv'e; shall: he construed to release, ENGINEER
'f.rO]1t liabiBty fo,. 'failure 't6 pr6perly perform duties'assumed' by
ENGINEER in the Contract Documerits,.
SECTION 2 - ADDITIONAL SERVICES OF.ENGINEER
2 . 1 . General.
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..22.. , 'inclusive,. These services are not included
a.s'pa,rt of B~sic -Seryice~' e:-;cept ~o' ,tl:!e extent pr_q,y.j;ded ot-her"!ise in
Sectio'n 1, these wirltfe paid for ,by OWNER as indic'ated in Sectlo'n
5. '
2,,1.1. Prepa'ration of applicati:ons 'andsupport'ing documents (in
addition to' those 'furnished un'der, ,Basic Ser"v'ices') for pr'ivate or
governmental grants, ,roans, or advances, in connection with the
,Pr()<tec('j)repa,pition or ,re....iew o,f environmental, ,assessment,.. ;"nd
fmpact stat<~meriti'; review ana 'evaluation, of th!" effect o'n the' design
re,quirernents: of the Project of any' such statementS and- ,do cillnent s'
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prepared by others, and assista,nce in gbt,aining
authoriUeshavIng' jU.tisdict'ion aver 'the anticipated
impact, of the Pro j'ect .
2.1.2., Services to make measured drawings' of' or to in'Ces,tigate
e"istfng conditions' or fa:cii'ii:i:<is, or t'o 'verify 'theaccurady of
drawing's' or other 'information furriishedbY OWNER.
approvals of
en v:l.foriment a1
2..1.3. Services result:i'ng from significant changes ,in the general
scope, e*tent; orcnaracter of"',the ProJect or its des~9n including',
but not limited to, changes .in ,s'ize,comple,<'it.y, OWNER's sCheaule,
s:haracter of construction Or method of finari'cing; and rR'Cising
previou'sly, accepted studies', report,s, aesign documents Or Contract
Documents when 'such re'Cisioris are re'quiredby changes in laws, ,,'ules,
regulations, ordinances, codes or orders enacted 'subs",quent to the
preparation of such studies,:repcrts Qr docume~ts, or are due 'to any'
other, causes ,beyond ENGINEER',s control.
2. i. 4,.
Providing renderings Or models for OWNER's use"
2.1.5. Preparing documents for a1 terna.te bids requested by OwNER for
Contractor (sf i work whtch is not' executed or do;:'umerits 'for out-of-
sequence work.
2'.1,,6:; Inve.stigations andstuq,ies ipvo,1ving, but not limited tc,.
detailed consideration of operations, maintenance and overhead
expenses:. providing Value Ehgineering during the gaurse 'of'design;
the .preparation of feas~b.ilJ- ty studies, cash f1pw and ec.onomic
eval;"atian's,. 'rate schedules aod appraisa1in assistan'ee' i'n obtain'ing
financing for the' Project';evil1uating' prooesses availabl"e for
licensing and, assisting OWNER in obtaining, process'J!icensing;.
de'ta),le,d quantity surv,,\ys .of material, e'IlJipm,ent and ,labor; aod
audit's or inventories reqUired in connection with c~nstruction
perfortned by OWNER. '
2.1.7. Furnishing" the , services of ,independent professional
associates and' consultan,;i for other than Basic Ser'Cices (which
include, but are not 'limit'",j to, customary civil, structural,
mec!lanical, and electric."l engineering, and customary 'architectural'
design incidental 'thereto); and providing data or services' of the
~ypes desqribed in Paragraph 3.4. WCl1en owNER .employs ENGIN,EER to
p'iovide stich data or services in lieu of' furnishing the same' in
accordance, with Para,graph 3.4.
2'.1.8. Serv'ices ,'resu1tfrig -fromt-he award of more separate prlme
c'Orit.racts'for const"ruction... mat~r.i:al's.J' ,equi:p'Inent' or services for the
P,rojec,t 'than are: cont,empla1Oed' in .Section 1, and services resulting
from "t,he arranging for performance by persons, other, than the
prii'i'cipal prime Contractors of services for the:OWNER and'actminister-
ing OWNER's con'teracts for such services.
2.1..9., $,er'Cices during out-of'-t,own tr"ve1, :r::equireq o,f'ENGI!.ffiER other
than visits 'to the site or O?/NER's office 'as requJ.red by Section 1,
2.:1..10. Assis,tance' in 'connection with ,bid protests,
r:enegot;i.ating~' contracts fo;- constI;~9t,ton.j' materi~.l,sl
services.
reJ5idding Or
equiplL!ent or
t.}" 1~,. 'Providing any type, 'of p.oper,ty: surv,eys Or re1at,ed engineer.:i:ng
s,ery~ce,~ ,needed for the "t-rajlsfe_r,. ,of: i_n,:terests tn, rea,l property and
field s4rVeys for desfgn:poIposes. and eng-ineer'ing" survey~ and st~,kin-g
t.o enable Contractortsl 'to 'proceed'with their work;, andprovicting
athe. special, field surve~.
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2'.1.]:'2. Preparation, of. operating, and maintenance. manuals; assistance
ih .the utilization of any equipment or system (such as ini'tial start',-
up, . testi'rig; adju'sting, 'and bala,1cing)!' and training personnel for
cperat'ion .and maintenance.. .
2.1.13. Preparing to serve or serving a,s a consulta.tlt or witness, for
OWNER,in a'ny nfigation, arnitration., or ,other, lega.1 or admini:stra-
tive ,prClceedirlg involving the 'proJeCt (except for assiStance in
consultations which is included. as part of Ba.sic Services under
paI:agraph.s 1.2.3. and 1,.4.2.).
..2: 1.:1.4. Add:td.onal-servi,c:es ,in conl)ection with the .Project" including
ser.vic.es whichar~ to be. furni.shed .by .oWNER .in. accordance with
Sect ion 3, and servic~s not. .0therwJse provided for in this Agreement.
,2 A .15. Services in 'connection with work' directiv",' changes'and change
orders, to reflect, changes requested .byOWNER if the resulting change
in compensation for. Basic Services is not commensurate with the
additiona:l services render'e'd. ...
2.1.16. Services in maki'ng rev:i:sion.s to Drawings and Specifications
6cca~~on~d by the acceptance of substi.t;utions 'propoE;ed by Gontrac-
to'i(s); andseryices after .the award of each contract in evaluating.
'and determining the acceptabi.lity of' an unreasonable Dr excessive.
number. of substitutions proposed by Contractor.
2.1..17. Services resulting from s:i<jnificant delays, changes or price
increases occurring as. a direct' or.' indirect result', of material,
equipment o~ energy shortages.
2,1.18 . AdditiOnal or extended.: services dur'irig construction made
necessary by (1) '!'9rk damaged by fire or other" caus.e during construc-
UonJ (2) a signi.ficant .amount of defective or neglected work of any'
.Contractor, (3) acceleration of, the progress schedule involving
services' 'beyond 'normai worKing hOurs, . and H):default b"y 'any
Contractor.. .
2.1.19. Services 'in connection 'with any,partial utilhaHon of any
part of the p'tojectby OWNER prior .to Substantial' s:;ompleti!on..
2..1.20. Evaluati.ng'an unreasonable or extensive number of claims
.sublllitted by Contractor (s) Or ot)1ers in connection ~ith the work.
'2.1.21. Services after cOl1lp1et'ion >of the Construction ,Phase, stich as
.inspections .during any guarantee pe"iod atld reporting' observed
discrepa,ncies undergtlarantees callE;<1 for in any contrac,t for the
Project.
2.1.2? Copies of the Contract. Documents needed for the Bidding and
Negotiating Phase and Constru.ction Phase.
2.1.23. .Preparing for OWNER, on request, a .set"of. reprOducible .record
prints..of Drawings showing' those cha.nges made during the construction
process, based on the rna.r~ed-up prints, d.ra}<.ings and ot:her data
furnished by Contractor(s) to, ENGINEER and which ENGINEER considers
significant':
2.2, 'Resi:dent'Ser;vices During Constr'lict:.ion.
.2..2.1. I f requested. by OWNER or reCOmmended. by' ENGINEER and agreed
to in writing by the other, . a. Resident Projec,t Rf!P.resen.tativa, al)d
nec'essary ,"isis,tant residEmt project repiesentatfve(s) will' 1>e
.furnished and will act as directed by ENGINEER in order to. .assist
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ENGINEER, in observing 'per~ormance of ' the work of Contractor (5) " Such
services will be paid for by OWNER,as indicated in Baragraph, 5.1,2..3.
2.2,;,2. The duties and respofjsibilities .ahd'the limi,tat'iol'ls Ol'l the
authority ,o"fthe'Resident Project Representative and a,ssistants 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
progr",ss and field checks of materiaisano. equipment by tlieResident
Project'Representative (if furnished) and assistants, ENGINEER shall
endeavor to provide further protection for, OWNER against defects and
deficief,leies ,in ,the worK 9f Contractor (s:):;. bu): the furnishing of sue!}
;r;esiderit, p,ro'ject representation win riot, makeEN:GINE,ERre'sporisible
for _construction means, methods, techniqpes, sequences Or ~rocedure5
or' for safety precautions or programs" .orEor Contractor (.s)' failure
to "pe.forrn thei. worle, in ,accordance .with the .Contract Docum.ents.
SECTION 3 - OWNER'SRESPONSIBILnIES
,3,1.
3.2.
3.3.
3,4.
QWNER sh,aU:'
Designate 'ih writ-ing a persqn to a~t as. O~ERt s representative .With
respect. ,to the services 'to be rendered under this Agreement. Such
person' shall nave c'omplete authority' to t,ransmit ins"tliuctions,
receive', information, interpret and deti'ne OWNER's policies 'and
decision's wi1:h respect to ENGINEER' s.services for the 'Pro~ect.
Provide. a.n criteria and full information as' to OWNERfs requirement's
r"orthe,PrOject" including 'design objectives and constrai:nts,spac'e,
capacity and performance ':r:equire'ments',flex:l.bi1:{ty and expanqability,
and any budgeta,ry liInitat ions:' and furnish copies of all. de s.i gn a.nd
const.'ruc'tioil standar(!s whi'eh OWNER will require 'to'be,iricluded;in the
Drawings and Spec'ifications.
Assist ENGINEER by placing at ENGINEER's. disposala'll available
inforrnat,ion.pertinent .100 the Project, including previous' reports 'and
any 'other data relative to design o'r c'onstr'uct.i'on of the proje'ct.
Furnish to .ENGINEER, as required .for performance of ENGINEER's Basic
Services' (except.' to' the extent 'provided otherWise h'erei:n), the
following' " " ," ,
3.,4-.1." bata prepared by Or services of qth",rs'i i:ncludinq without
l.:tniitation'bor:i:hgs" probings and.s'ubsurfaee explorations, hydroqraph.,.
ic surveys, laboratory tests and inspections of samples, mate'riab
and equipment. .
3.4.2 . Appropriate professional interpretations df the Eoregoi:ng.
3.4. ~, Environmental assessment and" impact .statements..
3.,4.4" ,Property,boundary, easement, riqht...,of-way, topographic, and
utility surveys,
3-.,4.5", Proper,ty <:lescripti~ms.
3.,4.6., Zoning, deed, and other land, use restrictions,.
3.4'.7",' Other spec.ial data .or consultations not covered in S:ection
2.
2J3..'3C.JR Page 8 of i'7
A:ll Of which ENGIm;;ER may use, and rely upon in' performing hi's
s.ervices, ,un~~r. 1;.his Agrel:?ment..
3.5,. Provide 'en'gineering surveys to establish reference point's (e,il:c'ept to
the extent, provided otherwise herein) to enable Contractor(sf to
proceed with the 'layout of the work,
3.6. Arrange for access to and make a11,provisio'n's for ENGINEER to eriter
upon public ,and private property as required for ENGINEER to perform
hi~ s~rvic~~ unger th~s,Agreement.
3.7. Examine, all studies', reports, sketche's, 'Drawing!!" Specifications,
proposals, and other' documents presented by' ENGINEER; obtain advice
of . a~_ attorney, ins\1rance' coupselor, and. other, consul tantsas _ O~R
deems BEpropriate" for-such 'exdir!ina'ti:on; and. render, 'in wrfting
decisions pertaining theretq, within a 'reasonable time so as not to
delay the services of ENGINEER.
3.8. Furnish approvals and permits fr9m "aB gover'nmenta1auth"rities
ha~ing juri'sdiction overi the Project' and such approvals and oonsents
from othe,rs 'as may b.e necessary for cOmpletion oft?e Project.
3.,9. Provide, such accounting, independent cost estimating and insurance
counseling s,ervices' as' may be, requ}red, for, the Pro:fect, such legal
services as OWNER,may require or ENGINEER may reasonably reguest with
regard :to legal is'sues' pertaining to the ,Project inCluding-any, that
may' be r'aised by Contractor (03), such audittrig service as OWNER 'may
require to ascertain how or for ~hat'purpose any'Contractor ihas used
t,he, moneys paid, tohi!lt unde" ,the con"!truct.~on c,ontract", and such
inspection services as OWNER,may require to ascertain that, 90n,trac-
tor (s) are complying with,any',1:aw, rule, regulation, ordinance, code,
or order app1:icable to their furnishing, and performing the work.
3.10. If OWNER designates, a 'pers'on to, ,represent: OWNER, at 'the' ,si te wno is
not Et>lGINEER or 'j;NGINEER',s 'agent or employee, the duties, respons~,..
biHties , and limitations of authority of such other person and, t~e
effect therecf ont.he duties and resporisibilities o'f ENGINEER and"the
'Resident: ,Proje'ct Representative (aDd any a.ssistants), will be set
forth in an exhibit that is to be identified, attached to, and made
a part .<>J this Agreern,ent before s\lch, se,rvices begin.
3.11. If 'more than one prime contract is :to be awa'-rde'dfor' const:wctio'n,
materials, e'quipment, and services for the, entire Project, designate
a person. or organiz,ation ,-to have ~aut:.hori,ty _ and responsiptlity for
coordlnat-ingth..e', activities. amq"'ng the .var_io~s -pr.im~: co~tractor5,~
3,12, Furnish. to ENGINEER data or, estimat,ed figure,S as to OwNE,il.' s ,antici-
pated costs for; services to be provided bY' o,thers for Owm:~ (such as
serVices pursuant' to Parag'raphs 3.7. through 3,.11., inclusive and
other cost's of the types referred to in Paragraph 1.2.6.) so' that'
,ENGINEER may make the' necessary findings to support opinions of
pr~9a!:>ie Total Project Cost~.
3,13. Attend the pte~bi'dcanference, b:ld opening,preconstruction confer-
ences, canstruct~on progress and o,ther jOJ:> relat",d I!)eetings, ,and
substantia'l compl'etion iri?pectians ari,d final' payment insI',ectians.
3,14 . Give prompt ,written notice to ENGINEER whenever OWNER observes or
(Jtherwise b,ecomes aware of any d",velopment that af,fects 1:.he sc,?pe or,
,timing of, E~GINEER' s services,or ,!ny' d,efect in tlie work ,o,f Con1;rac-
tor l,s) ,
~-33}?C~ P~g$_ g of 1'7
3'.15.
Furnish,or direct ENGINEER to provide, necessary, Additional Services
as stipuiatect in S-ection 2 of this Ag~eemeD't or" ather services as
requheCl. ' ,'. , , "
B'ear all costs i,ncident'to compliance with the requirements ,ot, this
Section 3. '
3'.16,
SECTION 4 - PERIO,D OF SERVI,CE:
4.. 1. The provisions of ' this Section 4 and the various rates, of compe'nsa-
tion, for ENGINEER's services provided for elsewhere ,in this Agr'e..rrie.nt
hayebeenagreed to in anticipation of the orderly and contJnuous
progress of the Projecttl1t:"ou9h comr:Letio" ot the Constructi$)fi Phas,e"
ENGINEER's obligation to render services hereunder wHl extend, for
a pe,ri'od whi'ch may' reasonably b<=,requiredfor', the, design, 'aw'ard of
contracts, and c,onstruction of the 'Project including ext';ra work' and
requhed ~"tension1i theFeto. If l!pecific per-iods ,of t).mefor
rendering services are set forth or specific dates by' which, s'en-ices
are to be completed areprovkded e-ls'ewhere, in this Agreement, and,if
such oates are exceeded through no fault of ENGINEER, all rates,
'measures', 'and amounts of, compens,ationprovidedher.efn 'sh,,!ll be
subject to e'quitable adjustment"
4.2. The services called for in the Study and Report Phase will be
campreted and, the Report submitt<:,d:within a'sd,i;mlated period' agreed
to.
4.3. ~ft,e!, Elccepta'lce py O~l'. of the. Study and Report Phase documents
indicating any specific 11!0dificat,ions or changes in .the gener,al
scope, extent or character of"the Project desired 'by OWNER, an,i"upon
written ,authorization from Owm,R, ENGINEER shall proceed with the
performance 0 l' the services called for in the P.reliminary Design
Ph<\se:an'd shall del'ive:.;- pr~h'iIi,inai-y desiqri dOcuments and:, a' reVised
opinion of probable, 'Total Pro'ject Costs. '." '
4.4, After acceptance by OWNER of the Preliminary Design Phase documents
and' revised opinion of probable TotaiProject Costs., 'indicatirig'a.ny
specific modifIcations Or cnanges in the genera:lscope, e-xterit or
character o,f the Project: desi'red, l.JyOWNER, ENGINEER s.hall, proceed
withthep-",r:Eor!tlanc~o,f theserviqes called ,for in the,Fin,al Desig"
Phase: andsh,Hldeliver Contract Documents and a revised opinion of
prol5il.ble Total Project Cost's foiilll work of Contractor(s) on the
Project,
4,5__ ENGINEER's services under the st'u'dyand R~port Phase, PreHmina'.'Y
Design Phas'e, and 'Final Design 'Phase shaH each be, considered
complete at ,the eailie,r of, (1) the date ,when the, submissions for that.
phase have, been accepted by OWNER or (2) thirty days after ',the date
when such ,submissi'ons are' ,delivered to OwNER for final ,a,cceptance"
plus in each case ,stich additional 'Urne as maY'be corisidered reason-
able 'for obt'aining approval of governrn",ntal ,authorities having
jUFis4ictionto approve the design of the Project.
4,,6. Af,teracceptance by OWNER of' the ENGrNEER"s, Drawings, Specifications
and other Final Design Phase documenta,tion including tile most. recent
opinion of probable Total Project Costs and upon written, authoriza-
tion' 'to' procee'd, ENGINEER sh'all' proceed with pe'fforrnance' of' the
servicescalied for ,in the Bidding Or 'Negotiatihg' Phase. This ,Phase
shall terminate and the 'services to be rendered 'thereunder :shall be
cOnsidered' cOmplete upon commencement of the Consf::}:,uct.fcm. Phase or
upon cessat'ion 'ofnegotiatio'n's with prospective' Contractor (5) .
23143CJ'R Page 10 "o.f -1.7
4.7. The construction Phase" will, COmmence with the execution of the first
priwecontrac~ to be executed for the work of the Pr~ject Or. any part
th~reof a!1d willterrn.:fnate upo!1 writtellreconunendatlol! by ENGI}lEER
or final, payment on . the last. prime contract ,to pe completed.
Constr.uct'ion Phase servic"es may .be rendered at. different ,t"irnes .in
re.spe~t o~,' :separate prime cont'ra~t5' if1,tl1e'Proje_ct involves'm6re than
one p'rime contract..
4,8, N/A.
4.9, If OWNER has requested significant modifications' or changes in the
general scope" ext,e,nt" or character of tlie, Project', t'i,e'timeof
performance of ENGINEER's services sh'all be, adjusted equitabl.y"
4,10, If OWNER fail's to give :f'r6mpt written authorization to proceed with
any phase of servicesaft"er coi!ipleti6i1 o'f the iinmectiately' preced'i'r1g
pha'se, 'or :L'f the Construction Phase has ,not', 'commented'within 180
calendar days "iter completion of the Design Phase, ENGINEER may"
aftetgbiing s'even days' wrhten notice t'oOWNER, susp!'nct services
under this Agreement.
4.11. If' El-!GINEEJ>:'s ,:;ervices for' d~sign or'during constructloI1 of the
Proje,ct' are, delayed Or suspended in whole; or in 'part by OWNER, for
'more tha.n three months for rea'sons beyona ENGINEEI<:"s control,
ENGINEER shall o.n written demand to. OWNER (but withaut termination
o.f this, Agreement) be paid as provided in paragraph 5' ,j. 2; If such
delay' o'r suspension extehds fat more him on'eyear for reasons beyond
ENGINEER's, contral, or 'i'f ENGINEER, far any reason :is required to'
renderConstructian Phase ser,vices in respect, of any prime contract
for cQnst.f'uctian,mater,ials 'or equipment more l'han one year ,,,,fter
Substant'ial Co'mpletian' 'is aCh:ievedunderthis Contract, the varIous
rates -of co.mpe.hsationprOvided'f6r -elsewhere in this Agreement shall
be subject to equitable adjustment.
4,12, In the eV,ent that th'e work d~s';gned or specified, byENGI~ER is to
be furnishedo.r performed under more thanane prime contract, or ~f
'ENGINEER's services are to be sep~rately sequenced w;Lth t'he work of
c,ne fOr maFe pri,!"e contractors (such 'as ,ln, the ca~e o.ffast,-trac)<ing),
OWNER and ENGINEER shaH, priar to cornmencem!,nt. of the ,Fina'l Design
Phase, deveiop a'. scliedule' for performance of .ENGINEER'sservic'es
during ,the, Final Design, Bidding or Negotiating, and Construction
,Phases il1 ord_ertc ,sequepce and coprdinate pr9perly such, S,e]:y~ces ,as
applicable to 'the work ufider' stich separate canf,racts.. This schedule
is 'to. be prepared whether or hot the, work under such contracts is to
pro<;eed concurrently,and, the .provisions of Paragraphs 4.4, thraugh
4,10." ;Lnclusive', w;Lll be;,modified accordingly,.
SECTION 5' - PAYMENTS TO ENGINEER
5,1, MethodS of Payment ,for seriices and, Exp~nses o'f ENG~,
5.1: .1 . For Basic, Services. OWNER ..shall pay' 'ENGINEER fdiBas it
Services rendered u~der 'Sectio.n 1 as follows:
5.1.1:.1. ,An amount ec;tualt6 'ENGINEER's payrall Cost,times
a,factor of 2. 2 far all Basic, Services ren'dered by prinoi-
pals a,nd e!l)play,ees ,engaged directly on the 'Pr.oj'ect"
5'.1..1.2. N/A.
5..,1,1.3." Professional 'Associates, and Consultants. ,For
services and Reim:l:nlrsable E"Eens'es af ihdE,pendent profes-
7.3j4~'C...m;
Page 11 .o'f 17
sional associates and consultants employed by ENGINEER to
render Basic Services, the amount billed to ENGINEER
therefor times a factor of 1.3.
5.1.1.4. 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.
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., on the basis of
ENGINEER's Payroll Costs times a factor of 2.2.
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 1.9 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
actual costs of all Reimbursable Expenses incurred in connection with
all Basic and Additional Services times a factor of 1.1.
5.1.4. The terms "Payroll 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 Reimbursable Expenses incurred.
payments in response to ENGINEER's
5.3. 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
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 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
cons'titute 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 Payroll Costs times a factor of 2.1 for services rendered
during that phase to date of termination by ENGINEER's principals and
23343CJR
Page 12 of 17
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 additional Reimbursable Expenses
directly attributable to termination.
5.4. Definitions.
5.4.1. The Payroll Costs used as a basis for payment mean salaries
and wages (basic and incentive), including overtime if required for
the performance, paid to all personnel engaged directly on the
Project, including, but not limited to, ~ngineers, architects,
surveyors, designers, drafters, specification writers, estimators,
and 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
of customary and statutory benefits of all personnel of ENGINEER will
be considered equal to 30% of salaries and wages. It is understood
that 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
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, and
similar Project-related items. In addition, Reimbursable Expenses
include expenses incurred for computer times and other highly
specialized equipment, including an appropriate charge for previously
established programs, and expenses of photographic production
techniques.
SECTION 6 - CONSTRUCTION COST AND OPINIONS OF COST
6. 1. 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' 5 legal, accounting, insurance counseling or auditing services,
or interest and financing 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
defined in Paragraph 1.2.6..)
6.2. Opinions of Cost.
6.2.1. Since ENGINEER has no control over the cost of labor,
material~, equipment or services furnished by others, or over the
2JJ43CJR
Page 13 of 17
Cont,ractor (sl' methods of, determining prices,or Over cO!":Retitive
b,ipding ,or mar;kT:t ,C?nditio~s, h"~:, opinil;>ns of, pr'?lJab1:e;r'otB#Project
Cos:ts and Construct~on Cost prov~ded for here~n are to 'b,e made 'on the
basis of ENGINEER!s experience and qualifications and represent
ENGtNEER's))est judgment as an experienced and qualHiedprofessionai
engineer, fainiLiar with' 'the, cons.fruction industry; but ENGINEER
caiu'lot and 'does hotg.,arantee' ,that proposals, bids or actual Total
Project or Construction, Costs will not vary fromopi!lions of,probable
CO,St prepared by ENGINEER. If prior. to the Constr,uctionPhase, OWNER
wishes greater assurance as to Total Project or Construction Costs,
~."-' - "" - .", ~-.'- . ,_ ...... -'-a'--,.. -,' .. 1_-' _,' ... ,-- .~~ n.".. -,
OWNER shall employ an ,~ndependent cost, est~matorasprov:~ded' ~n
Pa'ragraph 3.9." '
SECTION 7- GENERAL CONSIDERATIONS
7,1. Termination.
7. r .,1. The obligati'orf to provide further, services under thHi
Agreement maybe terminated by either party upon thhty days" written
notice in the event of'substantial ,failure by the, othe'r party' 'to
perfgrm i'nac'cordance wi t'hthe t'eo,ns hereof throu'9h !lO fault iif' the
terminating party.
7. 2. ,Reuse, of Documents,.
7..2,;1,: Al'l documents including D'rawings and Speci ficatiOTIS pr'epared
or furnished 'by;ENGINEER (and' ENGmEER' s'independent professional
assoc'iates. -and consultants) pursuant -to this'Agreement~ iart;! lnst_ru-
ments of services in respect .of the ProJect and, ENGINEER ihall retain
an owner'ship and property',friterest thereiil whetner or not the Project
is completed. OWNER may" make and retaincopie's ,for' information arid
re.:E~_renc_~ J.n ca!lneqt'i~!l with :t:.he,u.s:e and" occuP~!lcy oJ. tl-Hi!,P.:P?jec't 'by
OWNER ~f1d others; how'eve.:J:'.;- such doc'uments are ~riot tntended or
represented to be suitable for 'reuse hy OWNER or othersonextens'ions
of thePrO'ject or on 'any other project. Any reuse without written
verification or adaptation by ENGINEER ,for the 'specific purpose
iiltended wiU"be at OWNER's soledsk and without li:a'biiity or le'gal
expo'sure to 'ENGINEER', or.' to :ENGINEER's iridepende'nt professional
~ssociates qr c'?!1au1:t:-,ant's, ~nd, O}ffiER, shall ,indemn.fOfy :aJ1d hc?ld
harmless ENGINEER AND ENGINEER"s ,independent, pro.fessional associates
a,nd Cop:s~Jt:.arit:s from :aJi. ,c}ai_x:us, ,dam,ages, Ipsses~nq.expenses
inc'1uding attorneys' fees arising out of"or result1ng'the'refrom.Any
such verifi<::ation or adaptation will ent itTe. ENGINEER to f.urther
cOmpensation at ,rates to be agreed upon by OWNER ard,ENGINEEg.
7.3. Insurance.
7..3. J., ENGI~~R sha~l procure and maintain ~nsuraJ1.ce far protection
from cla.iIl!s' under workers~' . compeps.ation acts;. c.l:':lims for dama'ges
because of' ,bodily injury 'including :personal,injury:, sickness or
disease., or death of al\yand all emploY,ees or of',any person, other than
such employe,es,. and from clai!11sordamages because of injury to or
dest'ruction o'f prope"ty ,inc'luding, loss of u,se resulting therefrom,
1,4 . Controlii.ng La...
7 .4. L Th is,1~greement is. to be governe.d I:lY the 1 aw of the principal
place 'of business of ENGINEER.
23:'43CJR
Page l4 .o'i 17
",!.
7'.5. Successors and ,.Assigns.
7.5.1. OWNER and ENGINEER each is hereby bound'ana t.he partners,
s.uccessors'j exec'utorS'r > administrators,,- and le,gal repreB.e'nt:a-ti~esr of
O\'INER, and ENGINEER (and to th,e ~xtent permitted by paragraph 7.5;2.
the assigns of' OWNER and ENGINEER) are hereby .boundto the other
party, to this' Ag!",iement and to the partners, , succes6ors,e"ecut6i::s,
adfuiilistrators,. and. legal representatives (a'nd' said assign's.) of .such
o~he:c.par.ty, in respect to all covenants, agreements', and.,obligations
of thi's' Agreem,ent. ""
7.5.2. Neither OWNER nor ENGINEEJ<.. shall assign, sublet, 0,: tian'sfe,:
any right:s' under 0': interest in (inCluding, but. ,witholit l'imitatioh"
mo,neys that may become dUe:' or. m.oneys tha.t' are due) this Agreement
without the wHtten consent: 'of the other; except to. the extent ,that
any 'assig'nmeht,,' sUbletting, or "transfer is mandat'ed 'by' law or the
effect of .this limitation may 'berestdcted by law', 'and except
ENGINEER may transfer itsdghts and 'interests to a succeSsor company
that, has substa'nt'ialiy the, same: ownership. Unless s'pecificaliy
stated t'o the contrary in ani' '~r.itten 'consent to- an' assi:g,nme,nt,. :no.
assignm"ntwill releas,e, or discha,:ge the, as,signo,: from 'any duty or
respops~bility unde,r thisAgreemept.,Not;hi!,g co!)tai,ned"in this
p'aragraph :shall prevent ENGINEER from eni'ployirig such independent
'profes'sional associ:ates and. con'su:1tahts as ENGINEER' may deem
appropriate to assist him in,the 'pe~formance of services hereunder.
7..6.
7.7.
7.8,
2~~oi;~c~.;
7.;5,.3; Nothing heretn shall be construed to give aoy rights or
,benefit:s in this Agreement t..o anyone other" than OWNER and ENGINEER
and all dut'ies and xesponsibilit'ies undertaken Pllrsuant to" this
Agreement will be 'for the sole and exclusive 'benefit of OWNER and
ENGlNijER and not 'for the liene fit of any othe'r' party. '
:N/A.
It is, ,underst'ood and agreed tnat, rn seeking services of ENGINEER
under' tniSAgreement the, OWNER is requesting ENGINEER to undertak'e
some, uninsurable, obligations for ,the OWNER's benefit in advising"
requiringJ or, ob:tainiqg- ,o:f ai1Y form. of insurance., suret.ys:h~p, Or
t;on~f. 'Therefore,. the OWNE'R agrees to 'hold harmless, inctemni:fy, and
defend ENGINEEH ffom and against' any and all, Claims', losse's, damages,.,
liability, and, cost, including but not limit,edto oosts of defense,
arLsil1g Ol,lt .of Or .i-nany, way gonl):ected with actvisin9' -r~quiring'r_ or
obtaIi>'ing of any' forms of; insurance, suretyship; or :bond; ,or failure
to do so. ' '
,In consideration af tlleunavai).abil:ity ot,' proEessig.nal :li'agil'ity
insuraI1ce, it is agreed 'that the OWNER shall indemnify and hold
'harmless, ENGINEER" and their oonsultant's" ,agents, directors,
of~icers and employees from and against all ciaims, damages, losses
and expenses, 'direct and indirect, and consequential damages,
in'eluding' but not limited to fees: arid charges of .attorneys and court
and arbitration 'costs..arising olit of o,r resulthig fromt.he perfor-
mance of the work by ENGINEER, Or claims against ENGINEER arising
from the work of others, ,involving ,.pollution-related activities, to
thefuHest extent permissibl:eby law, regardless of any' action or
omission (a"t:ive, passive or comparat:ivenegligence, included) on; the
patt 'of ENGINEER. The <\b.ov!= in4ernnificatianproy:,1sion extends to
claims against ENGINEER which arise out of, Or related to, or are
based. upon, 'the actual, alleged. o'r' th'':eatened discharg'e, dispersal"
release', 'or escape of pollutants, and any directive, 'to test 'for,
morti:tor, qle?ln ~P, r~move, c9ntain, ,tre~t, detoxi.fy< or neutral.ize
po'lluta,nts, !'POLLUTANTS" meap apy solid, liquid, gaseous Or, thermal
PagelS of 17
,~
ir,ritant or contaminant,. including smoke, vapor,. soot... fUmes':, acids
or alka'lis', chemicals and waste..
7.9. In consideration of the' tinavai-lability ofprofessiona'l' liabinty
insurance, it is agreed that the OJ"INER sha.ll indemnify and, hold
harmles?J E.NGINEER ,and;tJl~ir r;:an:?~ltal:)ts:,. "ageJ1,ts. di'recto.rs, o;f-ficers
and emplcyees from and against, an: cl:aims, damages, losses, and
expenses,. direct and indirect, and consequential damages, including
,but n?t limited t,o fees and' charges of attorneys and court and
arb1trat:ion costs, ar'i.si:ng '!=lut of, or, resulting f~om tile perl'o",nance
of tlie work oy ENGINEER, or c'laims agalns't 'ENGINEER 'arising from the
work of others, related 'to asbestos activities, to the fullest extent
',permissible by law, regardless of any ,action or omission JE'cti,ve,
passive or comparative negligence included) on the part of' ENGINEER.
"ASBESTOS ACTIVITIES" means any specificatiori of: a product, ,material
of process containirig' asbestos, 'faiTure to detect the existence or
'proportioriof asbestos in a' product, material. or process and 'the
'perf.Q::smance or fail_ure .to ,:per:f9~ aba;tement... :rep1.acem~nt .or rem.oval
o~. a p~o~tict., maJ:erial or. pro~ess: cant~ining asbesto?~.
7.10,. OWNER shall require the COhtractor to the fullest extent permitted
by Laws and ;Reglilations, to indemnify and hold harmless ENGINEER,
ENGr'NEER's Consultants andtheoffid\';ts, directors, employees, agenb
and other consultants' of each, and ahy of them from and against. all
Claims', costs, iosses aI)d damages (iilcluding but not Li'!'itect to all
fees and charges of engineers, architects, at'torneys and '?ther
pioiess'io'nals 'and all caurt< or arbitration or other di'splite resolu-
tioncosts,) caused by, arising out of or :resulting from'the perfor-
,mance of the, work, provided tl)at any such claim, cost, 1'oss or
damage: (i) is attributable to bodily' injury, sickness, disease, or
death,' or t'o' injury to or destrucdon af ,tangible property (other
'than the work itself)" including the loss of use resulting therefrom,
and (HI is caused in whole or in part by any ne,gl.i:gent act. Or
omission of Contra.::!;or, anySUb.contractor',: any Suppli",r, any person
c)t organizat'ion, di'rectlyor inairectly employed by any ofthern to
perfoim 'or, 'furnish anYdf the, work or anyone for whose a'cts any of
them may pe liable, regardless of whetheri or ,not caused in part .by
any negligence' or omission of a person or entity indemnified
hereun'1:ler or whether liability is irtipose'd upon' such indemnified pariiy
by Laws arid Regulations .regardless of' the negligence of any such
persqn or ent ity ~ The 'indeIl'lI1J-f~cati<O'n op!iga:t~",ons .of gp_ntrac~<?r
shan nat' extend to the liability of ENGINEER and ENGINEER~s
Consultants,: officers, directors, employees or ,agebts 'caused by the
prafessional negligence~ errors ar' omissions of :any of them.
SECTION 8 ..., ,SI?ECIJl.LFROVISIONS, EXHIBITS ,AND SCHEDULES
8.1. This AqreemEOnt is subjEOct to thEOfollowing spEOc:i.al provisions:
B. L 1 > OWNER hereby ,agrees that to the, fu'l1est ext;en;;perinitted by
law design' prDfesslonal-'S total liability to 'oWNER' for any' and a,l1
injuries,. claims,., losses" expenses'; or dama-qes ~hatsoever arising O\lt
of or in any w.ay,,:eiateii to the P,,:oject ortilisAgre~,men~ froJll any
cause or' causes including but' not limited' to design professional'S
;:neg.ligenc;:e.. err6't's', om~ssions,. strict li.8bility'~ bfea'tp. 9,( contr~ct
,orbr"ach qf warrantysh;>ll not ex_ceed the amou~t, of, ENGINEER's fee,
B. 2 . The following Exhibit, is attached to and made a ,part, of this
Agreement:
8.2.1.
Exhibit A, - Duties" Responsibilities and 'Limitatrons of
Authority of Resident Project ,Representative
'.23-3013.CJR'
Page :H of n
, -
, ~
8.3. This Agreel1\ent (consisting of Pages I to, 17, fnclus:Lve), together
wHh the Exhibit identified abpve' constitute the entire agreement
between OWNER .and 'ENGIl>1EER and supe.I:seae an prior writt,en or o.ra,I
understan"di:ngs . Thl's Agreement. .and sid.d,Exhibitmay only be amended"
supplemented. modified or. cancelled by a duly executed written
inst.rument .-
IN WITNESS WHEREOF, 'the parties' 'hereto 'have .made and executed thi.s
Agreement as' of the, day ,.and year' first above written.
,BOARD OF ,PUBLIC WORKS &. SAFETY
CITY OF CARMEL, INDIANA
witness:
'B
By
":hd' Q ~
~Q~
.
By
--
y
.APPROVED
By
Attorney
23.~_OC.JR
Page 17 .of 17