Jones & Henry Engrs/Engr
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ConTrt9,e;t-:il./ooe9
ENGINEERING SERVICE AGREEMENT
THIS AGREEMENT, made and entered into ~his 1st day of March, 1995,
by and between the City of Carmel, Indiana, through the Board of Public
Works & Safety, hereinafter called "OWNER," and Jones & Henry Engineers,
Inc., with offices at 2420 North Coliseum Boulevard, Suite 214, 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, (hereinafter 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 Proj ect,
providing professional engineering consultation and advice" and
furnishing customary civil, environmental, structural, mechanical,
and electrical engineering services and customary architectural
services incidental thereto.
1.2.
Study and Report Phase.
ENGINEER shall:
1.2.1. Consult with OWNER to clarify and define OWNER's requirements
for th~' 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's requirernent~
applicable. to various alternatives.
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 solutions available
,. ..
319060l':C
Page 1 of 17
030195
1.3.
1.4.
J1906DEC
~
to OWNER and setting forth ENGINEER's findings and recommendations.
This Report will be accompanied by ENGINEER's opinion of probable
costs for the Project including che following: Construction Cost,
allowance for engineering costs and contingencies and if (furnished
by OWNER) allowances for such ocher 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
for 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 presel}t and review it
with OWNER.
Preliminary Design Phase.
After wri'tten authorization to proceed with the Design Phase,
ENGINEER shall:
1.3,.1. In consultation with OWNER and on the basis of the accepted
Study and 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
descrip'tions of the proj ecL
1.3.3. Advise OWNER if additional data or
described in paragraph 3.4 are necessary
obtaining such data and services.
services of
and assist
the types
OWNER in
1.3.4. Based on the information contained in the preliminary design
documents, submit a revised opinion of probable Total Project Costs.
1.3.5. Furnish five copies of the above Preliminary Design documents
and present and review them in person with OWNER.
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,
extent, or charact.er or design requirements of the Project or
Construction Costs. Furnish to OWNER a revised opinion of probable
Total Project Costs based on the Drawings and Specifications.
1.4.4. Prepare for review and approval by OWNER, its legal counsel
and other advisors contract agreement forms, general conditions and
supplementary conditions, and (where appropriate) bid forms,
Page 2 of 17
1.5.
1.6.
319060EC
invitations to bid and instruct]:ons to bidders, and assist in the
preparation of other related documents.
1.4.5. Furnish five copies of the above documents and of the
Drawings and Specifications and present and review them with OWNER.
Bidding or Negotiating Phase.
After written authorization to proceed with the Construction Phase,
ENGINEER shall:
1.5.1. Assist OWNER in advertising for and obtaining bids or
negotiating proposals for each separate prime contract for construc-
tion, materials, equipment and services; and, where applicable,
maintain a record of prospective bidders to whom Bidding Documents
have been issued, attend pre-bid conferences and receive and process
deposits for Bidding Documents.
1.5.2. Issue addenda as appropriate to interpret, clarify or expand
the Bidding Documents.
1.5.3. Consult with and advise OWNER as to the acceptability of
subcontractors, suppliers and other persons and organizations
proposed by the prime contractor(s) (herein called "Contractor(s) ")
for those portions of the work as to which such acceptability is
required by the Bidding Documents.
1.5.4. . Consult with OWNER concern'ing anddeterrnine the acceptability
of substitute materials and equipment proposed by Contractor(s) when
substitution prior to the award of contracts is allowed by the
Bidding Documents.
1.5.5. Attend the, bid opening, prepare bid tabulation sheets and
assist OWNER in evaluating bids or proposals and in assembling and
awarding contracts for construction, materials, equipment and
,services.
construction Phase.
1.6.1. Consult with and advise OWNER and act as his representative
as provided in the General Conditions, of the Construction Contract.
The extent and limitations of the duties, responsibilities and
authority of ENGINEER as assigned in said General Conditions shall
not be modified, except to the extent provided herein and except as
ENGINEER may otherwise agree in writing. All of OWNER's instructions
to Contractor(s) will be issued through ENGINEER who wiil have
authority to act on behalf of OWNER to the extent provided in said
General conditions except as otherwise provided in writing.
1.6.2. Make visits to the si te at intervals appropriate to the
various stages of construction as ENGINEER deems necessary in order
to observe as an experienced and qualified design professional the
progress that has been made and the quality of the various aspects
of Contractor's executed work. Based on information obtained during
such visits and observations, ENGINEER shall endeavor for the benefit
of OWNER to determine, in general, if the work is proceeding in
accordance with the Contract Documents. ENGINEER will not be
required to make e-xhaustive or continuous on-site inspections to
check the quality or quanti ty of Contractor's work. ENGINEER's
efforts will 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 of such visits and on~site
observations, ENGINEER will keep the OWNER informed of the progress
Page 3 of 17
31906DEC
of the work and wil'l .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,
methods, 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
furni'shing or performance of the work. ENGINEER will not be
responsible for Contractor(s) failure to perform or furnish the work
in accordance with the Contra~t Documents.
1.6.3. Review' Shop Drawings and Samples, but only to determine if
the items covered by the submittals will, after installation or
incorporation in the work, calf form to the ,~nformation given in the
Contract Documents and be comp'atible 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, sequence 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
the form of Drawings or otherwise) as ENGINEER may determine
necessary, which shall be consistent with the intent of and reason-
ably inferable from Contract Documents. ENGINEER may authorize minor
variations 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
the completed Project as a functioning whole as indicated by the
Contract Documents. These may be accomplished by a F~eld 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-
ments. ENGINEER will also have authority to require special
inspection or testing of the work, whether or not the work is
fabricated, 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
thereunder and make decisions on all claims of OWNER and Contrac-
torts) relating to the acceptability of the work or the interpreta-
tion of the requirements of the Contract .Documents pertaining to the
execution and progress of the work. ENGINEER shall not be liable for
the results of any such interpretations or decisions rendered in good
fai th ..
1.6.7. Based on ENGINEER's on-site observations as an experienced
and qualified design professional, on information provided by the
Resident. Project Representative and on review of applications for
payment and the accompanying data and 'schedules; ENGINEER shall
determine the amounts owing to Contractor(s) and recommend in writing
payments to Contractor(s) in such amounts. Such recommendations of
payment will constituce a representation to OWNER, based on such
observations and review, that the work has progressed to the point
indicated, and that, to the best of ENGINEER's knowledge, information
and belief, the quality of such work is generally in accordance with
the Contract Documents (subject to an evaluation of such work as a
Page 4 of 17
functioning whole prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the Contract Documents
and to any other qualifications stated in the recommendation). In
the case of unit price work, ENGINEER's recommendations of payment
will include final determinations of quantities and classifications
of such work (subject to any subsequent adjustments allowed by the
Contract Documents). 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 responslbilities specifically assigned to
ENGINEER in this Agreement and the Contract Documents. ENGINEER's
review of Contractor(s)' work for the purposes of recommending
payments will not impose on ~GINEER responsibility to supervise,
direct or control such 'work or for the means, methods, techniques.
sequences, or procedures of construction or safety precautions or
programs incident thereto or Contractor(s) compliance with laws;
rules, regulations, ordinances, codes or orders applicable to their
furnishing and performing the work. It will also not impose
responsibility on ENGINEER to make any examination to ascertain how
or for what purposes any Contractor has used the moneys paid on
account of the Contract -Price, or to determine that title to any of
the work, materials or equipment has passed to OWNER free and clear
of any lien, claims, security interest-s or encumbrances, or that
there may not be other matters at issue between OWNER and CONTRACTOR
that might affect the amount that should be paid.
1.6.8. Conduct an inspection to determine if the Project is
substantially complete and? final'inspection to determine if the
work is acceptable so that ENGINEER may recommend, in writing, final
payment to each Contractor and may give written notice to OWNER and
the Contractor (s) that the work is acceptable (subj ect 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 ~f- any subcontractor, or supplier, or
any 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 contained in Paragraphs 1.6.1.
through 1.6.9., inclusive, shall be construed to release ENGINEER
from liability' for failure to properly perform duties assumed by
ENGINEER in the Contract Documents.
2.1.
SECTION 2 - ADDITIONAL SERVICES OF ENGINEER
General.
31906DBC
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
as part of Basic Services exc~pt to ~he extent provided otherwise in
Section 1; these will be paid for by OWNER as indicated in Section
5.
2.1.1. Preparation of applications and supporting documents (in
addition to those furnished under Basic Services) for private or
g9vernmental grants, loans. or advances in connection with the
Project; 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
Page 5 'of 17
31906DEC
prepared by others; and assistance in obtaining approvals of
authorities having jurisdiction over the anticipated environmental
impact of the Project.
2.1.2. Services to make measured drawings of or to investigate
existing conditions or facilities, or to verify the accuracy of
drawings or other information furnished by OWNER.
2.1.3. Services resulting from significant changes in the general
scope, extent, or character of the Project or its design including,
but not limited to, changes in size, complexity, OWNER's schedule,
character of construction or method of financing; and revising
previously accepted studies, reports, design documents or Contract
Documents when su~h revisions are required by changes in laws, rules,
regulations, ordinances, codes or orders enacted subsequent to the
preparation of such studies, reports or documents, or are due to any
other causes beyond ENGINEER's control.
2.1. 4.
Providing renderings or models for OWNER's use.
2.1.5. Preparing docume.nts for alternate bids requested by OWNER for
Contractor(s)' work which is not executed or documents for out-of-
sequence work. '
2.1. 6. Investigations and studies involving, but not limited to,
detailed consideration of operations, maintenance and overhead
expenses; providing Value Engineering during the course of design;
the preparation of feasibility studies, cash flow and economic
evaluations, rate schedules and appraisals; assistance in' obtaining
financing for the Project; evaluating processes available for
licensing and assisting OWNER in obtaining process licensing;
detailed quantity surveys of material, equipment and labor; and
audits or inventories required in connection with construction
performed by OWNER.
2.1.7. Furnishing the services of independent professional
associates and consultants f9r other than Basic Se"rvices (which
include, but are not limited to, customary civil, structural}
mechanical, and electrical engineering, and customary architectural
design incidental thereto); and providing data or services of the
types described in Paragraph 3.4. when OWNER employs ENGINEER ,to
provide such data or ser~ices 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 contemplated in Section 1, and services resulting
from the arranging for performance by persons other than the
principal prime contractors of services for the o.mER and administer-
ing OWNER's contracts for such services.
2.1.9. Services during out-of-town travel required of ENGINEER other
than visits to the site or OWNER '.s office as required by Section 1.
2.1.10. Assistance in connection with bid protests,
renegotiating contracts for cons truction, materials;
services.
rebidding or
equipment qr
2.1.11. Providing any type of property surveys or related engineering
services needed for the transfer of interests in real prope"ty and
field surveys for design purposes and engineering surveys ~nd staking
to enable Contractor(s) to proceed with their work; and providing
other special field survey.
Page 6 of 17
2.2.
31906DEC
2.1.12. preparation of 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 a~d maintenance.
2.1.13. Preparing to serve or serving as a consultant or witness for
OWNER in any' litigation, arbitration, or other legal oradministra-
tive proceeding involving the Project (except for assistance in.
consultations which is included as part of Basic services under
Paragraphs 1.2.3. and 1.4.2.).
2.1.14. Additional services in connection with the Project, including
services which are to be furnished by OWNER in accordance. with
Section 3, and services not otherwise,provided for in this Agreement.
2.1.15. Services in connection wi tl< work directive changes and change
orders to reflect changes requested by OWNER if the resultlng change
in compensation for Basic Services is not conunensurate with the
additional services rendered.
2.1.16. Services in making revisions to Drawings and Specifications
occasioned by the acceptance of substitutions proposed by Contrac-
tor(.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.
2.1.17. Services resulting from significant delays, changes or price
increases occurring as a direct or indirect result of material,
equipment or energy shortage?'.
2.1.18. Additional or extended services during construction made
necessary by (1) work damaged by fire or other cause during construc-
tion, (2) a significant amount of defective or neglected work of any
Contractor, (3) acceleration of the progress schedule involving
services 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.
2.1.22. Copies of the Contract Documents needed for the Bidding and
Negotiating Phase and Construction Phase.
2.1.23. Preparing for OWNER, on request, a set of reproducible record
prints of Drawings showing those changes made during the construction
process, based on the marked-up prints, drawings and qther data
furnished by Contractor(s) to ENGINEER and which ENGINEER considers
significant.
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 representatiye(s) will be
furnished and will act as directed by ENGINEER in order to assist
Page 7 of 17
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 Repre~entative", 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
forconstruc~ion means, methods, techniques, sequences or procedures
or for safety precautions or programs, or for Contractor(s)' failure
to perform their wor-k if 1 accordanc_€ with the Contract Documents.
SECTION 3 - OWNER'S RESPONSIBILITIES
3.1.
3.2.
3.3.
3.4.
Jl!106DEC
OWNER shall:
Designate in writing a personte act as OWNER'? representative with
respect to the services to be rendered under this Agreement. Such
pers?n shall have complete authority to transmit instructions,
recelve information, interpret and define OWNER's policies and
decisions with respect to ENGINEER's services for the Project.
Provide all criteria and full information as to OWNER's requirements
for the Project, including design objectives and constraints, space,
capacity and performance requirements, flexibility and expandability,
and any budgetary limitations; and furnish copies of all design and
construction standards which OWNER will require to be included in the
Drawings and Specifications.
Assist ENGINEER by placing at ENGINEER's disposal all available
information pertinent to the Project including previous reports and
any other. data relative to design or construction of the project.
Furnish to ENGINEER, as required for performance of ENGINEER's Basic
Services. (except to the extent provided otherwise herein), the
following:
3.4.1. Data prepared by or services of others, including without
limitation borings, probings and subsurface explorations, hydrograph-
ic surveys, labora~ory tests and inspections of samples, materials
and equipment.
3.4.2.
Appropriate professional interpretations of the foregoing.
3.4.3.
Environmental assessment and impact statements.
3.4.4. Property, boundary, easement, right-of-way, topographic, and
utility surveys.
3.4.5.
Property descriptions.
3.4.6.
Zoning, deed, and other land use restrictions.
3.4.7.
2.
Other special data or consultations not covered in Section
Page 8 of 17
3.5.
3.6.
3.7.
3.8.
3.9.
3.10.
3.11.
3.12.
3.13.
3.14.
3190600C
All of which ENGINEER may use and rely upon in performing his
services under this Agreement..
Provide engineering surveys to establish reference points (except to
the extent provided otherwise herein) to enable Contractor (s) to
proceed with the layout of the work.
Arrange for access to and make all provisions for ENGINEER to enter
upon public and private property as required for ENGINEER to perform
his services under this Agreement.
Examine all studies_, reports, sketches, Drawings, Specifications,
proposals, and other documents presented by ENGINEER; obtain advice
of an attorney, insurance counselor, and other consultants as OWNER
deems appropriate for such examination; and render in writing
decisions pertaining thereto within a reasonable time so as not to
delay the services of ENGINEER.
Furnish approvals and permits from all governmental authori ties
having jurisdiction. over the Project and such approvals and consents
from others as may be necessary for completion of the Project.
Provide such accountingj independent cost estimating and insurance
counseling services as may be required for the Project, such legal
services as OWNER may require or ENGINEER may reasonably request with
regard to legal issues pertaining to the Project including any that
may be raised by Contractor(sl, such auditing service as OWNER may
require to ascertain how or for what purpose any Contractor has used
the moneys paid to him under the construction contract, and such
inspection services as OWNER may require to ascertain that Contrac-
tor(s) are complying with any law, rule, regulation, ordinance, code,
or order applicable to their furnishing and performing .the work.
If OWNER designates a person to represent OWNER at the site who is
not ENGINEER or ENGINEER:s agent or employee, the duties, responsi-
bilities and limitations of authority of such other person and the
effect thereof on the duties and responsibilities of ENGINEER and the
Resident Project Representative (and any assistants) will be set
forth in an exhibit that is to be identified, attached to, and made
a part of this Agreement before such services begin.
If more than one prime contract is to be awarded for construction,
materials, equipment, and services for the entire Project, designate
a person or organization to have authority and responsibility for
coordinating the activities among the various prime contractors.
Furnish to ENGINEER data or estimated figures as to OWNER's antici-
pated costs for services to be provided by others for OWNER (such as
services pursuant to Paragraphs 3.7. through 3.11., inclusive and
other costs of the types referred to in Paragraph 1.2.6.) so that
ENGINEER may make the necessary findings to support opinions of
probable Total Project' Costs.
Attend the pre-bid conference, bid opening, preconstruction confer-
ences, construction progress and other job related meeti.ngs, and
substantial completion inspections and final payment inspections.
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) .
Page 9 of 17
3.15.
3.16.
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.
The provisions of this Section 4 and the various rates of compensa-
tion for ENGINEER's services provided for elsewhere in this Agreement
have been agreed to in anticipation of the orderly and continuous
progress of the Project through completion of the Construction Phase.
ENGINEER's obligation to render services hereunder will extend for
a period which may reasonably be required for the 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 are provided elsewhere 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 services
completed and
to.
called for in the Study and Report Phase will be
the Report submitted within a stipulated period agreed
4.3. After acceptance by OWNER of the study and Report Phase documents
indicating any specific modifications or changes in the gener&.l
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.
4.4. After acceptance by OWNER of the preliminary Design Phase documents
and revised opinion of probable Total Project Costs, indicating any
specific modifications or changes in the general scope, extent or
character of the Project desired by OWNER, 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.
4.5. ENGINEER'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-
able 'for obtaining approval of governmental authorities having
jurisdiction to approve the design of the Project.
4.6. After acceptance by OWNER of the ENGINEER's Drawings, Specifications.
and other Final Design Phase documentation including the most recent
opinion of probable Total Project. Costs and upon written authoriza-
tion to proceed; ENGINEER shall proc.eed with performance of the
services called for in the Bidding or Negotiating Phase. This Phase
shall terminate and the services to be rendered thereunder shall be
considered complete upon commencement of the Construction Phase or
upon cessation of negotiations with prospective Contractor(s) .
319060EC Page 10 of 17
4.7.
4.8.
4.9.
4.10.
4.11.
4.12.
The Construction Phase will commence with the execution of the first
prime contract to be executed for the work of the Project or any part
thereof and will terminate upon written recommendation by ENGINEER
of final payment on the last prime contract to be completed.
Construction Phase services may be rendered at different times in
respect of separate prime contracts if the Project involves more than
ope prime contract.
N/A.
If OWNER has requested significant modifications or changes in the
general scope, extent, or character of the Project, the time of
performance of ENGINEER's services shall be adjusted equitably.
If OWNER fails to give prompt written authorization to proceed with
any phase of services after completion of the immediately preceding
phase, or if the Cons truction Phase has not commenced wi thin 180
calendar days after completion of the Design Phase, ENGINEER may,
after giving seven days' written notice to OWNER, suspend services
under this Agreement.
If ENGINEER's services for design or during construction of the
Project are delayed or suspended in whole or in part. by OWNER for
more than three months for reasons beyond ENGINEER's control,
ENGINEER shall on written demand to OWNER (but without termination
of this Agreement) be paid as provided in Paragraph 5.3.2. If such
delay or suspension extends for more than one year for reasons beyond
ENGINEER's cont"ol, or if ENGINEER for any reason is required to
render Construction Phase services in respect of any prime contract
for construction, materials or equipment more than one year after
Substantial Completion is achieved under this Contract, the various
rates of compensation provided foielsewhere 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-t"acking),
o.mER and ENGINEER shall, prior to commencement of the Final Design
Phase, develop a schedule for performance of ENGINEER's services
during the Final Design, Bidding or Negotiating, and Construction
Phases in order to sequence and coordinate properly such services as
applicable to the work under such separate contracts. This schedule
is to be prepared whether or not the work under such contracts is to
proceed concurrently, and the provisions of Paragraphs 4.4. through
4.10., inclusive, will be modified accordingly.
5.1.
SECTION 5 - PAYMENTS TO ENGINEER
Methods of Payment for Services and Expenses of ENGINEER.
31906DEC
5.1..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 2.25 for all Basic Services rendered by princi-
employees engaged directly on the Project.
5.1.1.2.
N/A.
5.1.1.3.
services
Professional Associates and Consultants. For
and Reimbursable Expenses of .independent profes-
Page 11 of 17
5.2.
5.3.
31906DEC
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 Addi tional Services. OWNER shall pay ENGINEER for
Additional Services rendered under Section 2 as follows;
5.1.2.1. General - For Addi tional 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 2.25.
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
ENGINEER's Resident Project
furnished under Paragraph
Costs times a factor of
principals and employees
represeIitation..
services For services of
Representative (and assistants)
2.2., on the basis of Payroll
1.95 for services rendered by
assigned to resident Project
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.
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
Other provisions Concerning Paym~nts.
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 O\~ER 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, 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
Page 12 of 17
5.4.
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.
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, engineers, 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 w~ges. 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 furpishings 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.
6.1.
SECTION 6 - CONSTRUCTION COST AND OPINIONS OF COST
Construction Cost.
6.2.
. 31906DEC
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 audi tingseivices,
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 . )
Opinions of Cost.
6.2.1. Since ENGINEER has no control over the cost of labor,
materials, equipment or services furnished by others, or over the
Page 13 0 f 17
,
Contractor(s) I methods of determining prices, or o~er 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
engineer, familiar with the construction indu'stry; but ENGINEER
cannot and does not guarantee that proposals, bids or actual,Total
project or Construction Costs will not vary from opinions of probable
cost prepared by ENGINEER. If prior to the Construction Phase, OWNER
wishes greater assurance, as to Total Project or Construction Costs,
OWNER shall employ an independent cost estimator as provided in
Paragraph 3.9.
7.1.
SECTION 7 - GENERAL CONSIDERATIONS
Termination.
7.2.
7.3.
7.4.
3l906DEC
7.1.1. The obligation to provide
Agreement may be terminated by either
notice in the event of substantial
perform in accordance with the terms
terminating party.
further services under this
party upon thirty days' written
failure by the other party to
hereof through no fault of the
Reuse of Documents.
7.2.1. All documents including Drawings and specifications prepared
or furnished by ENGINEER (and ENGINEER's independent professional
associates 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 nqt the Project
is completed. OWNER may make and retairi 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
verification or adaptation by ENGINEER for the specific purpose
intended will be at. OWNER's sole risk and without liability or legal
exposure to ENGINEER, or to ENGINEER's independent professional
associates or consultants, and OWNER shall indemnify and hold
harmless ENGINEER AND ENGINEER's independent professional associates
and consultants from all claims, damages, losses and expenses
including attorneys' fees arising out of or result~ng th~refrom. Any
such verification or adaptation will entitle ENGINEER to further
compensation at rates to be agreed upon by OWNER and ENGINEER.
I~surance.
7.3.1. ENGINEER shall procure and maintain insurance for protection
from claims under workers I compensation acts, claims for damages
because of. bodily injury including personal injury, sickne'ss 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.
7.4.1. This Agreement is to be governed by the law of the principal
place of business of ENGINEER.
Page 14 of 17
"
7.5.
Successors and Assigns.
7.5.1. OWNER and ENGINEER each is hereby bound and the partners,
successors, executors, administrators, and legal representatives of
OWNER and ENGINEER (and to the extent permitted by Paragraph 7,5,2,
the assigns of OWNER and ENGINEER) are hereby bound to the other
party to this Agreement and to the partners, successors, executors,
administrators, and legal representatives (and said assigns) of such.
other party, in respect to all covenants, agreements, and obligations
of this Agreement.
7.5.2. 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 transfer is mandated by law or the
effect of this limitation may be restricted .by law, and except
ENGINEER may transfer its rights and interests to a successor company
that 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
responsibili ty 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.
7.5.3. 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.
7.6. N/A.
7.7. It is understood and agreed that, in seeking services of ENGINEER
under this Agreement the OWNER is requesting ENGINEER to undertake
some uninsurable obligations for the OWNER's benefit in advising,
requiring I orobtainirig 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,
arising out of or in any way connected with .advising, requiring, Or
obtaining of any forms of insurance, suretyship, or bond, or failure
to do so.
7.8. In consideration of the unavailability of professional liability
insurance, it is agreed that the OWNER shall indemni fy 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
and 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 i~cluded) 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
""'DEe ,Page 15 of 17
7.9.
7.10.
"
irritant or contaminant, including smoke, vapor, soot, fumes, acids
or alkalis, chemicals and waste.
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 limi ted to fees and charges of attorneys and court and
arbitration costs, arising out of or resulting from the performance
of the work by ENGINEER, or claims against ENGINEER arising from the
work of others, related to a'sbestos activities; to the fulle'st extent
permissible by law, regardless of any action or omission (active,
passive or comparative negligence included) on the part of ENGINEER,
"ASBESTOS ACTIVITIES" means any specification of a product, material
or process containing asbestos, failure to detect the existence or
proportion of asbestos in a ,product, material or process and the
performance or failure to perform apatement, replacement or removal
of a product, material or process containing asbestos.
OWNER shall require the Contractor to the fullest extent permitted
by Laws and Regulations. to indemnify and hold harmless ENGINEER,
ENGINEER's Consul tants and the officers, directors, employees, agents
and other consultants of each and any of them from and against all
claims, costs, losse~ and damages (including but not iimited to all
fees and charges of engineers, architects, attorneys and other
professionals and all court or arbitration or other dispute resolu-
tion costs) caused by, arising out of or resulting from the perfor-
mance of the work, provided that any such cIaim, cost I loss or
damage: (i) is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible 'property (other
than the work itself), including the loss of use resulting therefrom,
and (ii) 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
perform or furnish any of 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 omission 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
shall not extend to the liability of ENGINEER and ENGINEER's
Consultants, officers, directors, employeep or agents caused by the
professional negligence, errors or omissions of any of them.
'8.1.
SECTION 8 - SPECIAL PROVISIONS, EXHIBITS AND SCHEDULES
This Agreement is subject to the following special provisions:
8.2.
319060EC
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, expense~ 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 warrarity shall not exceed the amount of ENGINEER's fee,
The. following Exhibit is attached to and made a part of this
Agreement:
8.2.1.
Exhibit A Duties, Responsibilities and Limitations of
Authority of Resident Project Representative
Page 16 of, 17
.,
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 and year first above written.
APPROVED AS TO FORM AND
WORKS & SAFETY
,INDIANA
Witness:
By
Wic7J'Jf-- t4 ~
By
By
Attorney
11906DEC
Page 17 of 17