HomeMy WebLinkAboutResolution - 5263 - Agreement-Fanning Fanning & Associates Inc-Mae Simmons Swimming Pool Renovations - 09_10_1996RESOLUTION NO. 5263
September 10, 1996
Item #23
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to
execute for and on behalf of the City of Lubbock a Professional Engineering Services
Agreement, attached herewith, by and between the City of Lubbock and Fanning, Fanning and
Associates, Inc., for Mae Simmons. Swimming Pool Renovations, and any associated
documents, which Agreement shall be spread upon the minutes of the Council and as spread
upon the minutes of this Council shall constitute and be a part of this Resolution as if fully
copied herein in detail.
Passed by the City Council this loth day of September �, 1996.
Alex "Ty" Cooke, Mayor Pro Tem
ATTEST:
10
MI., Id-4-J
arold Willard, Interim City Secretary
APPROVED AS TO CONTENT:
Jdhn S. Webb, Park Development Supervisor
APPROVED AS TO FORM:
A Am msW, Z, L<�m&
Donald G. Vandiver, First Assistant
City Attorney
DGV:da/ccdocs/fanning.res
September 4, 1996
August 29, 1996
Mr. John Webb
Parks and Recreation
City of Lubbock
Lubbock, Texas 79401
Subject: Engineering Services
Mae Simmons Swimming Pool Renovations
Dear Sir:
Fanning
Fanning and — —
Associates, inc.
C o n s u l t i n g E n g i n e e r s
2555 74th Lubbock, TX 79423 806 745-2533
RESOLUTION NO.5263
September 10, 1996
Item #23
Fanning, Fanning and Associates, Inc. proposes to render professional engineering
services to the City of Lubbock, Texas for the subject project. Our Basic Services will
include preparing the Study and Report, Final Design Documents, Project bidding,
Assistance during bidding, evaluating those bids and assisting in Contractor selection, and
site visits to assist in your Construction Administration, all as set forth in the printed
General Provisions as amended and supplemented in Exhibits A and B. which are attached
to this letter.
Our understanding is that the project scope includes the following:
1) Identify and map the location of existing facilities and prioritize for renovation
according to availability of construction funds.
2) Prepare engineering reports and recommendations for the development of plans,
specifications and estimates.
3) Prepare contract documents for the work identified above.
4) Provide construction phase services.
Design elements shall generally consist of renovation or replacement of filtration system,
circulation systems, fencing, lighting electrical systems, concrete decking and gutters,
pool bowl, automatic chlorination system, dressing areas, concession area, diving boards
and any additional elements that will increase the over all operational effectiveness of the
swimming pool.
You are expected to furnish us with full information of your Project requirements,
including any special conditions or special services needed.
Fax 806 745-3596 0 e-mail: fanning @ onramp.net • htlp://rampages.onramp.nett—fanning
You will pay us for Basic Services in accordance with Exhibit A attached thereto. We will
submit statements periodically, which will be due and payable when you receive them.
We will furnish Additional Services you authorize. Additional Services will be charged on
the basis of our Hourly Rate attached thereto.
We expect to start our services promptly following receipt of your acceptance of this
proposal. Time periods for performance of our services are set froth in Exhibit A to the
General Provisions.
We understand the total construction budget for the project is approximately $235,000. It
is necessary that you advise us in writing at an early date if you have budgetary limitations
for Total Project Costs or Construction Costs. We must accept any such limitation as
being realistic and will then endeavor to work within those limitations.
The estimates we prepare will be used for the study of options and we do not guarantee
that our opinions will not differ materially from bids. If you wish greater assurance as to
probable Construction Cost or if you wish formal estimates, an independent cost estimator
should be employed.
Services are to be rendered in the customary phases which, together with the general
understandings applicable to our relationship with you, are set forth in the printed General
Provisions and Exhibit A and B thereto which are attached to and made a part of this
proposal. Your particular responsibilities are also set forth in the General Provisions.
This proposal, the General Provisions consisting of nine pages and Exhibits A and B
thereto which consists of two pages and the Schedule of Compensation (for additional
services) represent the entire understanding between you and us in respect of the Project
and may only be modified in writing signed by both of us. If it satisfactorily sets forth
your understanding of our agreement, we would appreciate your signing the enclosed
copy of this letter in the space provided below and return it to us.
Very truly yours,
FANNING, FANNING AND ASSOCIATES, INC.
y: Norris L. Fanning, 4TE.
President
Accepted this 1 o th day of
September, 1996
City of Lub oc u ock County, Texas
By:
D T8x SST6Nx, x rtATO R
ATTEST. Ale "Ty" Cooke, Mayor Pro Tem
arold Willard, Interim-,ity Secretary
E AS TO CO T NT:
Jdhn S. Webb, Park Development Supv.
APPROVED AS TO FORM:
DbFrAld . a diver, Ffrst Assistant
City Attorney
EXHIBIT A to GENERAL PROVISIONS attached to LETTER AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES.
August 29, 1996
FURTHER DESCRIPTION OF BASIC ENGINEERING SERVICES AND
RELATED MATTERS.
1. This is an exhibit attached to and made a part of the General Provisions attached to
Letter Agreement dated August 29, 1996 between the City of Lubbock, Texas and
Fanning, Fanning and Associates, Inc. providing for professional engineering services.
The Basic Services of ENGINEER as described in Section 1 of the said General
Provisions are amended or supplemented as indicated below and the. time periods for
the performance of certain services as indicated in said General Provisions are
stipulated as indicated below.
2. Amend Paragraph 1.2 as follows:
The Study and Report Phase I shall be submitted within 45 calendar days following
written authorization from OWNER and ENGINEER to proceed with that phase of
services. Total fee for this phase shall be $5000.00.
3. Amend Paragraph 1.3 and 1.4 as follows:
The Preliminary Design Phase and the Final Design Phase shall be combined and
submitted within 60 calendar days following written authorization from OWNER and
ENGINEER to proceed with that phase of services. Total fee for this phase shall be
$12,000.00.
4. Amend Paragraph 1.6 as follows:
A. The Construction Phase services shall coincide with the construction contract.
Total fee for this phase shall be $3000.00.
B. Delete any and all references to Resident Project Engineer.
C. Site visits and Reports by ENGINEER will be made weekly during the
CONSTRUCTION PHASE.
Delete Paragraph 5.7. Arbitration in its entirety.
EXHIBIT B to GENERAL PROVISIONS attached to LETTER AGREEMENT
BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES.
August 29, 1996
A LISTING OF THE DUTIES, RESPONSIBILITIES AND LIMITATIONS OF
AUTHORITY OF THE RESIDENT PROJECT REPRESENTATIVE.
This is an Exhibit attached to, made a part of incorporated by reference with the General
Provisions attached to Letter Agreement dated August 29,1996 between the City of
Lubbock, Lubbock County, Texas (OWNER) and Fanning, Fanning and Associates, Inc.
(ENGINEER) providing for professional engineering services.
THIS EXHIBIT B IS DELETED IN ITS ENTIRETY, A RESIDENT PROJECT
REPRESENTATIVE WILL NOT BE REQUIRED ON THIS PROJECT.
END OF LETTER AGREEMENT
GENERAL PROVISIONS
Attached to and made a part of LETTER AGREE-
MENT, dated egast 9 , 199.6_ between
_ ri v f I tihh�k (OWNER)
and FanninngiF6nningXAccnr._ _Tnr4ENGINEER)
in respect of the Project described therein.
SECTION 1—BASIC SERVICES OF ENGINEER
1.1. General.
1.1.1. ENGINEER shall perform for OWNER profes-
sional engineering services in all phases of the Project
to which this Agreement applies as hereinafter pro-
vided. These services will include servingas OWNER's
professional engineering representative for the Project,
providing professional engineering consultation and
advice and furnishing customary civil, structural,
mechanical and electrical engineering services and cus-
tomary architectural services incidental thereto.
1.2. Study and Report Phase.
After written authorization to proceed, ENGINEER
shall:
1.2.1. Consult with OWNER to clarify and define
OWNER's requirements for the Project and review
available data.
1.2.2. Advise OWNER as to the necessity of OWN-
ER's providing or obtaining from others data or ser-
vices of the types described in paragraph 3.2, and assist
OWNER in obtaining such data and services.
1.2.3. Identify and analyze requirements of govern-
mental authorities having jurisdiction to approve the
design of the Project and participate in consultations
with such authorities.
1.2.4. Provide analyses of OWNER's needs, planning
surveys, site evaluations and comparative studies of
prospective sites and solutions.
1.2.5. Provide a general economic analysis of OWN-
ER's requirements applicable to various alternatives.
1.2.6. Prepare a Report containing schematic layouts,
sketches and conceptual design criteria with appropri-
ate exhibits to indicate clearly the considerations Involved
(including applicable requirements of governmental
authorities having jurisdiction as aforesaid) and the
alternative solutions available 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 the following
which will be separately itemized: Construction Cost,
allowance for engineering costs and contingencies, and
(on the basis of information furnished by OWNER)
allowances for such other items as charges of all other
professionals and consultants, for the cost of land and
rights -of -way, for compensation for or damages to prop-
erties, for interest and financing charges and for other
services to be provided by others for OWNER pursuant
to paragraph 3.2. The total of all such costs, allowances,
etc. are hereinafter called "Total Project Costs."
1.2.7. Furnish five copies of the Study and Report doc-
uments and review them in person with OWNER.
The duties and responsibilities of ENGINEER during
the Study and Report Phase are amended and supple-
mented as indicated in paragraph 2 of Exhibit A "Fur-
ther Descriptions of Basic Engineering Services and
Related Matters".
1.3. Preliminary Design Phase.
After written authorization to proceed with the Prelim-
inary Design Phase, ENGINEER shall:
1.3.1. In consultation with OWNER and on the basis
of the accepted Study and Report documents, deter-
mine the general scope, extent and character of the
Project.
1.3.2. Prepare Preliminary Design documents consist-
ing of final design criteria, preliminary drawings, outline
specifications and written descriptions of the Project.
1.3.3. Advise OWNER if additional data or services
of the types described in the first subparagraph of para-
graph 3.2 are necessary and assist OWNER in obtaining
such data and services.
1.3.4. Based on the information contained in the pre-
liminary 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 per-
son with OWNER.
The duties and responsibilities of ENGINEER during
the Preliminary Design Phase are amended and sup-
plemented as Indicated In paragraph 3 of Exhibit A
"Further Description of Basic Engineering Services
and Related Matters".
1.4. Final Design Phase.
After written authorization to proceed with the Final
Design Phase, ENGINEER shall:
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 "Draw-
ings") and Specifications (which will be prepared in
conformance with the sixteen division format of the
Construction Specifications Institute).
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 gov-
ernmental authorities as have jurisdiction to approve
the design of the Project, and assist OWNER in con-
sultations 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 character or design
requirements of the Project or Construction Costs. Fur-
nish to OWNER a revised opinion of probable Total
Project Costs based on the Drawings and Specifica-
tions.
1.4.4. Prepare for review and approval by OWNER,
its legal counsel and other advisors contract agreement
forms, general conditions and supplementary condi-
tions, and (where appropriate) bid forms, invitations to
bid and instructions to bidders (all of which shall be
consistent with the forms and pertinent guide sheets
prepared by the Engineers' Joint Contract Documents
Committee), 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 in person with OWNER.
The duties and responsibilities of ENGINEER during
the Final Design Phase are amended and supplemented
as indicated in paragraph 4 of Exhibit A "Further
Description of Basic Engineering Services and Related
Matters".
1.5. Bidding or Negotiating Phase.
After written authorization to proceed with the Bidding
or Negotiating Phase, ENGINEER shall:
9
1.5.1. Assist OWNER in advertising for and obtaining
bids or negotiating proposals for each separate prime
contract for construction, materials, equipment and
services; and, where 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 con-
tractor(s) (herein called "Contractor(s)") for those por-
tions of the work as to which such acceptability is
required by the Bidding Documents.
1.5.4. Consult with OWNER concerning and deter-
mine the acceptability of substitute materials and equip-
ment 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 pro-
posals and in assembling and awarding contracts for
construction, materials, equipment and services.
The duties and responsibilities of ENGINEER during
the Bidding or Negotiating Phase are amended and
supplemented as indicated in paragraph 5 of Exhibit A
"Further Description of Basic Engineering Services
and Related Matters".
1.6. Construction Phase.
During the Construction Phase:
1.6.1. General Administration of Construction Con-
tract. ENGINEER shall consult with and advise
OWNER and act as OWNER's representative as pro-
vided in Articles I through 17, inclusive, of the Standard
General Conditions of the Construction Contract, No.
1910-8 (1983 edition) of the Engineers' Joint Contract
Documents Committee. The extent and limitations of
the duties, responsibilities and authority of ENGI-
NEER as assigned in said Standard General Conditions
shall not be modified, except to the extent provided in
paragraph 6 of Exhibit A "Further Description of Basic
Engineering Services and Related Matters" and except
as ENGINEER may otherwise agree in writing. All of
OWNER's instructions to Contractor(s) will be issued
through ENGINEER who will have authority to act on
behalf of OWNER to the extent provided in said Stan-
dard General Conditions except as otherwise provided
in writing.
1.6.2. Visits to Site and Observation of Constriction.
In connection with observations of the work of Con-
tractor(s) while it is in progress:
1.6.2.1. ENGINEER shall make visits to the site
at intervals appropriate to the various stages of con-
struction as ENGINEER deems necessary in order
to observe as an experienced and qualified design
professional the progress and quality of the various
aspects of Contractor(s)' work. In addition, ENGI-
NEER shall provide the services of a Resident Proj-
ect Representative (and assistants as agreed) at the
site to assist ENGINEER and to provide more con-
tinuous observation of such work. Based on infor-
mation obtained during such visits and on such obser-
vations, ENGINEER shall endeavor to determine in
general if such work is proceeding in accordance with
the Contract Documents and ENGINEER shall keep
OWNER informed of the progress of the work.
1.6.2.2. The Resident Project Representative (and
any assistants) will be ENGINEER's agent or
employee and under ENGINEER's supervision. The
duties and responsibilities of the Resident Project
Representative (and assistants) are set forth in Exhibit
B "Duties, Responsibilities and Limitation of
Authority of Resident Project Representative".
1.6.2.3. The purpose of ENGINEER's visits to
and representation by the Resident Project Repre-
sentative (and assistants, if any) at the site will be to
enable ENGINEER to bettercarry out the duties and
responsibilities assigned to and undertaken. by
ENGINEER during the Construction Phase, and, in
addition, by exercise of ENGINEER's efforts as an
experienced and qualified design professional, to pro-
vide for OWNER a greater degree of confidence that
the completed work of Contractor(s) will conform
generally to the Contract Documents and that the
integrity of the design concept as reflected in the
Contract Documents has been implemented and pre-
served by Contractor(s). On the other hand, ENGI-
NEER shall not, during such visits or as a result of
such observations of Contractor(s)' work in progress,
supervise, direct or have control over Contractor(s)'
work nor shall ENGINEER have authority over or
responsibility for the means, methods, techniques,
sequences or procedures of construction selected by
Contractor(s), for safety precautions and programs
Incident to the work of Contractor(R) or for any failure
of Contractor(s) to comply with laws, rules, regula-
tions, ordinances, codes or orders applicable to Con-
tractor(s) furnishing and performing their work.
Accordingly, ENGINEER can neither guarantee the
performance of the construction contracts by Con-
tractor(s) nor assume responsibility for Contrac-
tor(s)' failure to furnish and perform their work in
accordance with the Contract Documents.
1.6.3. Defective Work. During such visits and on the
basis of such observations, ENGINEER may disap-
prove of or reject Contractor(s)' work while it is in
progress if ENGINEER believes that such work will
not produce a completed Project that conforms gen-
erally to the Contract Documents or that it will preju-
dice the integrity of the design concept of the Project
as reflected in the Contract Documents.
1.6.4. Interpretations and Clarifications. ENGINEER
shall issue necessary interpretations and clarifications
of the Contract Documents and in connection therewith
prepare work directive changes and change orders as
required.
1.6.5. Shop Drawings. ENGINEER shall review and
approve (or take other appropriate action in respect of)
Shop Drawings (as that term is defined in the aforesaid
Standard General Conditions), samples and other data
which Contractor(s) are required to submit, but only
for conformance with the design concept of the Project
and compliance with the information given in the Con-
tract Documents. Such reviews and approvals or other
action shall not extend to means, methods, techniques,
sequences or procedures of construction or to safety
precautions and programs incident thereto.
1.6.6. Substitutes. ENGINEER shall evaluate and
determine the acceptability of substitute materials and
equipment proposed by Contractor(s), but subject to
the provision of the second subparagraph of paragraph
2.1.2.
1.6.7. Inspections and Tests. ENGINEER shall have
authority, as OWNER's representative, to require spe-
cial inspection or testing of the work, and shall receive
and review all certificates of inspections, testings and
approvals required by laws, rules, regulations, ordi-
nances, codes, orders or the Contract Documents (but
only to determine generally that their content complies
with the requirements of, and the results certified indi-
cate compliance with, the Contract Documents).
1.6.8. Disputes between OWNER and Contractor.
ENGINEER shall act as initial interpreter of the
requirements of the Contract Documents and judge of
the acceptability of the work thereunder and make deci-
sions on all claims of OWNER and Contractor(s) relat-
ing to the acceptability of the work or the interpretation
10
of the requirements of the Contract Documents per-
taining to the execution and progress of the work.
ENGINEER shall not be liable for the results of any
such interpretations or decisions rendered in good faith.
1.6.9. Applications for Payment. Based on ENGI-
NEER's on -site observations as an experienced and
qualified design professional, on information provided
by the Resident Project Representative and on review
of applications for payment and the accompanying data
and schedules:
1.6.9.1. ENGINEER shall determine the amounts
owing to Contractor(s) and recommend in writing
payments to Contractor(s) in such amounts. Such
recommendations of payment will constitute a rep-
resentation 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 Con-
tract Documents (subject to an evaluation of such
work as a functioning whole prior to or upon Sub-
stantial 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 rec-
ommendations of payment will include final deter-
minations of quantities and classifications of such
work (subject to any subsequent adjustments allowed
by the Contract Documents).
1.6.9.2. By recommending any payment ENGI-
NEER will not thereby be deemed to have repre-
sented 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 respon-
sibilities specifically assigned to ENGINEER in this
Agreement and the Contract Documents. ENGI-
NEER's review of Contractor(s)' work for the pur-
poses of recommending payments will not impose on
ENGINEER responsibility to supervise, direct or
control such work or for the means, methods, tech-
niques, sequences, or procedures of construction or
safety precautions or programs incident thereto or
Contractor(s) compliance with laws, rules, regula-
tions, 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 clearofany lien, claims, security
interests or encumbrances, or that there may not be
other matters at issue between OWNER and Con-
tractor that might affect the amount that should be
paid.
1.6.10. Contractor(s)' Completion Documents. ENGI-
NEER shall receive and review maintenance and oper-
ating instructions, schedules, guarantees, bonds and
certificates of inspection, tests and approvals which are
to be assembled by Contractor(s) in accordance with
the Contract Documents (but such review will only be
to determine that their content complies with the
requirements of, and in the case of certificates of inspec-
tion, tests and approvals the results certified indicate
compliance with, the Contract Documents); and shall
transmit them to OWNER with written comments.
1.6.11. Inspections. ENGINEER shall conduct an
inspection to determine if the work is substantially
complete and a final inspection to determine if the com-
pleted work is acceptable so that ENGINEER may
recommend, in writing, final payment to Contractor(s)
and may give written notice to OWNER and the Con-
tractor(s) that the work is acceptable (subject to any
conditions therein expressed), but any such recom-
mendation and notice will be subject to the limitations
expressed in paragraph 1.6.9.2.
1.6.12. Limitation of Responsibilities. ENGINEER shall
not be responsible for the acts or omissions of any
Contractor, or of any subcontractor or supplier, or any
of the Contractor(s)' or subcontractor's or supplier's
agents or employees or any other persons (except
ENGINEER's own employees and agents) at the site
or otherwise furnishing or performing any of the Con-
tractor(s)' work; however, nothing contained in para-
graphs 1.6.1 thru 1.6.11, inclusive, shall be construed
to release ENGINEER from liability forfailure to prop-
erly perform duties and responsibilities assumed by
ENGINEER in the Contract Documents.
1.7. Operational Phase.
During Operational Phase, ENGINEER shall, when
requested by OWNER:
1.7. I. Provide assistance in the closing of any financial
or related transaction for the Project.
1.7.2. Provide assistance in connection with the refin-
ing and adjusting of any equipment or system.
1.7.3. Assist OWNER in training OWNER's staff to
operate and maintain the Project.
1.7.4. Assist OWNER in developing systems and pro-
cedures for control of the operation and maintenance
of and record keeping for the Project.
1.7.5. Prepare a set of reproducible record prints of
Drawings showing those changes made during the con-
struction process, based on the marked -up prints, draw-
ings and other data furnished by Contractors) to ENGI-
NEER and which ENGINEER considers significant.
1.7.6. In company with OWNER, visit the Project to
observe any apparent defects in the completed con-
struction, assist OWNER in consultations and discus-
sions with Contractor(s) concerning correction of such
deficiencies, and make recommendations as to replace-
ment or correction of defective work.
The duties and responsibilities of ENGINEER during
the Operational Phase are amended and supplemented
as indicated in paragraph 7 of Exhibit A "Further
Description of Basic Engineering Services and Related
Matters".
SECTION 2—ADDITIONAL SERVICES OF
ENGINEER
2.1. Normal and customary engineering services do not
include service in respect of the following categories
of work which are usually referred to as Additional
Services.
2.1.1. If OWNER wishes ENGINEER to perform
any of the following Additional Services, OWNER
shall so instruct ENGINEER in writing, and ENGI-
NEER shall perform or obtain from others such ser-
vices and will be paid therefor as provided in the
Letter Agreement:
--Preparation of applications and supporting docu-
ments for governmental financial support of the
Project in addition to those required under Basic
Services; preparation or review of environmental
studies and related services; and assistance in
obtaining environmental approvals.
—Services to make measured drawings of or to inves-
tigate existing conditions or facilities.
—Services resulting from significant changes in the
general scope, extent or character of the Project
or major changes in documentation previously
accepted by OWNER where changes are due to
causes beyond ENGINEER's control.
-Providing renderings or models,
—Preparing documents for alternate bids requested
by OWNER for work which is not executed or for
out -of -sequence work.
—Detailed consideration of operations, maintenance
and overhead expenses; value engineering and the
preparation of rate schedules, earnings and expense
statements, cash flow and economic evaluations,
feasibility studies, appraisals and valuations.
—Furnishing the services of independent profes-
sional associates or consultants for other than Basic
Services.
—If ENGINEER's compensation for Basic Services
is not on the basis of Direct Labor or Salary Costs,
services resulting from the award of more than one
prime contract for construction, materials, equip-
ment or services for the Project, or from the con-
struction contract containing cost plus or incen-
tive -savings provisions for Contractor's basic
compensation, or from arranging for performance
by persons other than the principal prime contrac-
tors or from administering OWNER's contracts
for such services.
-Services in connection with field surveys for design
purposes and engineering surveys and staking out
the work of Contractor(s).
--Services during out-of-town travel other than visits
to the site.
—Preparation of operating and maintenance manuals
to supplement Basic Services under paragraph 1.7.3.
—Preparing to serve or serving as a consultant or
witness in any litigation, arbitration or other legal
or administrative proceeding except where required
as part of Basic Services.
2.1.2. When required by the Contract Documents in
circumstances beyond ENGINEER's control,
ENGINEER shall perform or obtain from others any
of the following Additional Services as circumstances
require during construction and without waiting for
specific instructions from OWNER, and ENGI-
NEER will be paid therefor as provided in the Letter
Agreement:
-Services in connection with work directive changes
and change orders to reflect the changes requested
by OWNER if the resulting change in compensa-
tion for Basic Services is not commensurate with
the additional services rendered.
—Services in making revisions to Drawings and
Specifications occasioned by the acceptance of
substitutions proposed by Contractor(s); services
after the award of each contract in evaluating and
determining the acceptability of an unreasonable
or excessive number of substitutions proposed by
Contractor; and evaluating an unreasonable or
extensive number of claims submitted by Con-
tmctor(s) or others In connection with the work.
—Services resulting from significant delays, changes
or price increases occurring as a direct or indirect
12
result of material, equipment or energy shortages.
—Additional or extended services during construc-
tion made necessary by (1) work damage by fire
or other causes during construction, (2) a signifi-
cant amount of defective or neglected work of any
Contractor, (3) acceleration of the progress sched-
ule involving services beyond normal working
hours, (4) default by any Contractor.
SECTION 3—OWNER'S RESPONSIBILITIES
3.1. OWNER shall provide all criteria and full infor-
mation as to OWNER's requirements for the Project;
designate a person to act with authority on OWNER's
behalf in respect of all aspects of the Project; examine
and respond promptly to ENGINEER's submissions;
and give prompt written notice to ENGINEER when-
ever OWNER observes or otherwise becomes aware
of any defect in the work.
3.2. OWNER shall also do the following and pay all
costs incident thereto:
—Furnish to ENGINEER borings, probings and sub-
surface explorations, hydrographic surveys, labo-
ratory tests and inspections of samples, materials
And equipment; appropriate professional interpre-
tations of all of the foregoing; environmental assess-
ment and impact statements; property, boundary,
easement, right-of-way, topographic and utility sur-
veys; property descriptions; zoning and deed restric-
tions; all of which ENGINEER may rely upon in
performing services hereunder.
—Guarantee access to and make all provisions for
ENGINEER to enter upon public and private prop-
erty.
—Provide such legal, accounting, independent cost
estimating and insurance counseling services as may
be required for the Project, any auditing service
required in respect of Contractor(s)' applications for
payment, and any inspection services to determine
if Contractor(s) are performing the work legally.
—Provide engineering surveys to establish reference
points for construction.
—Furnish approvals and permits fromall governmental
authorities having jurisdiction over the Project.
—If more than one prime contractor is to be awarded
for construction, designate a party to have respon-
sibility and authority for coordinating the activities
of the various prime contractors.
3.3. OWNER shall pay all costs incident to obtaining
bids or proposals from Contractor(s).
SECTION 4—MEANING OF TERMS
4.1. As used herein the term "this Agreement" refers
to the Letter Agreement to which these General Pro-
visions are attached and to these General Provisions,
Exhibit A "Further Description of Basic Engineering
Services and Related Matters" and Exhibit B "Duties,
Responsibilities and Limitations of Authority of Resi-
dent Project Representative", as if they were part of
one and the same document.
4.2. 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 dam-
ages to, properties unless this Agreement so specifies,
nor will it include OWNER's legal, accounting, insur-
ance counseling or auditing; services, or interest and
financing charges incurred in connection with the Proj-
ect or the cost of other services to be provided by others
to OWNER pursuant to paragraph 3.2. [Construction
Cost is one of the items comprising Total Project Costs
which is defined in paragraph 1.2.6.1
4.3. Direct Labor Costs used as a basis for payment
mean salaries and wages (basic and incentive) paid to
all ENGINEER's personnel engaged directly on the
Project, including, but not limited to, engineers, archi-
tects, surveyors, designers, draftsmen, specification
writers, estimators, other technical and business per-
sonnel; but does not include indirect payroll related
costs or fringe benefits. For the purposes of this Agree-
ment the principals of ENGINEER and their current
hourly Direct Labor Costs are:
The hourly Direct Labor Costs of principals of ENGI-
NEER will be adjusted equitably to reflect changes in
personnel and in ENGINEER's overall compensation
procedures and practices.
4.4. The Salary Costs used as a basis for payment mean
salaries and wages (basic and incentive) paid to all
ENGINEER's personnel engaged directly on the Proj-
ect, including, but not limited to, engineers, architects,
surveyors, designers, draftsmen, specification writers,
estimators, other technical and business personnel; plus
the cost of customary and statutory benefits including,
but not limited to, social security contributions, unem-
13
ployment, excise and payroll taxes, workers' compen-
sation, health and retirement benefits, sick leave, vaca-
tion and holiday pay and other group benefits. For the
purposes of this Agreement, the principals of ENGI-
NEER and their current hourly Salary Costs are:
The hourly Salary Costs of principals of ENGINEER
will be adjusted equitably to reflect changes in person-
nel and in ENGINEER's overall compensation pro-
cedures and practices.
4.5. Reimbursable Expenses mean the actual expenses
incurred by ENGINEER or ENGINEER's. indepen-
dent 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 assis-
tants; toll telephone calls and telegrams; reproduction
of reports, Drawings, Specifications, Bidding Docu-
ments and similar Project -related items in addition to
those required under Section 1; and if authorized in
advance by OWNER, overtime work requiring higher
than regular rates. In addition, when compensation for
Basic Services is on the basis of cost plus a fixed fee,
Direct Labor Costs or Payroll Costs method of pay-
ment, if authorized in advance by OWNER, Reim-
bursable Expenses will also include expenses incurred
for computer time and other highly specialized equip-
ment, including an appropriate charge for previously
established programs and expenses of photographic
production techniques times a factor of
SECTION 5—MISCELLANEOUS
S.1. Reuse of Documents.
All documents including Drawings and Specifications
prepared or furnished by ENGINEER (and ENGI-
NEER's independent professional associates and con-
sultants) pursuant to this Agreement are instruments
of service in respect of the Project and ENGINEER
shalt retain an ownership and property interest therein
whether or not the Project is completed. OWNER may
make and retain copies for information and reference
in connection with the use and occupancy of the Project
by OWNER and others; however, such documents are
not intended or represented to be suitable for reuse by
OWNER or others on extensions of the Project or on
any other project. Any reuse without written verifica-
tion or adaptation by ENGINEER for the specific pur-
pose intended will be at OWNER's sole risk and without
liability or legal exposure to ENGINEER, or to ENGI-
NEER's independent professional associates or con-
sultants, and OWNER shall indemnify and hold harm-
less ENGINEER and ENGINEER's independent
professional associates and consultants from all claims,
damages, losses and expenses including attorneys' fees
arising out of or resulting therefrom. Any such verifi-
cation or adaptation will entitle ENGINEER to further
compensation at rates to be agreed upon by OWNER
and ENGINEER.
5.2. Opinions of Cost.
Since ENGINEER has no control over the cost of labor,
materials, equipment or services furnished by others,
or over the Contractor(s)' methods of determining prices,
or over competitive bidding or market conditions,
ENGINEER's 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 judg-
ment as an experienced and qualified professional engi-
neer, familiar with the construction industry; but
ENGINEER cannot and does not guarantee that pro-
posals, bids or actual Total Project or Construction
Costs will not vary from opinions of probable cost
prepared by ENGINEER. if prior to the Bidding or
Negotiating Phase OWNER wishes greater assurance
as to Total Project or Construction Costs, OWNER
shall employ an independent cost estimator as provided
in paragraph 3.2. ENGINEER's services to modify the
Contract Documents to bring the Construction Cost
within any limitation established by OWNER will be
considered Additional Services and paid for as such by
OWNER.
5.3. Other Provisions Concerning Payments.
If OWNER fails to make any payment due ENGINEER
for services and expenses within thirty days after receipt
of ENGINEER's statement therefor, the amounts due
ENGINEER will be increased at the rate of 1% per
month from said thirtieth day, and in addition, ENGI-
NEER may, after giving seven days' written notice to
OWNER, suspend services under this Agreement until
ENGINEER has been paid in full all amounts due for
services, expenses and charges.
5.4. Termination.
The, obligation to provide further services under this
Agreement may be terminated by either party upon
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seven days' written notice in the event of substantial
failure by the other party to perform in accordance with
the terms hereof through no fault of the terminating
party. In the event of any termination, ENGINEER
will be paid for all services rendered to the date of
termination, all Reimbursable Expenses and termina-
tion expenses.
5.5. Controlling Law.
This Agreement. is to be governed by the law of the
principal place of business of ENGINEER.
5.6. Successors and Assigns.
5.6.1. 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 5.6.2 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 repre-
sentatives (and said assigns) of such other party, in
respect of all covenants, agreements and obligations of
this Agreement.
5.6.2. Neither OWNER nor ENGINEER shall assign,
sublet or transfer any rights under or interest in (includ-
ing, but without limitation, moneys that may become
due or moneys that are due) this Agreement without
the written consent of the other, except to the extent
that any assignment, subletting or transfer is mandated
by law or the effect of this limitation may be restricted
by law. Unless specifically stated to the contrary in any
written consent to an assignment, no assignment will
release or discharge the assignor from any duty or
responsibility under this Agreement. Nothing con-
tained in this paragraph shall prevent ENGINEER from
employing such independent professional associates
and consultants as ENGINEER may deem appropriate
to assist in the performance of services hereunder.
5.6.3. Nothing under this Agreement shall be con-
strued 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.
5.7. Arbitration.
5.7.1. All claims, counterclaims, disputes and other
matters in question between the parties hereto arising
out of or relating to this Agreement or the breach thereof
wili be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the Amer-
ican Arbitration Association then obtaining, subject to
the limitations and restrictions stated in paragraphs
5.7.3 and 5.7.4 below. This agreement so to arbitrate
and any other agreement or consent to arbitrate entered
into in accordance herewith as provided in this para-
graph 5.7 will be specifically enforceable under the
prevailing law of any court having jurisdiction.
5.7.2. Notice of demand for arbitration must be filed
in writing with the other parties to this Agreement and
with the American Arbitration Association. The demand
must be made within a reasonable time after the claim,
dispute or other matter in question has arisen. In no
event may the demand for arbitration be made after the
date when institution of legal or equitable proceedings
based on such claim, dispute or other matter in question
would be barred by the applicable statute of limitations.
5.7.3. All demands for arbitration and all answering
statements thereto which include any monetary claim
must contain a statement that the total sum or value in
controversy as alleged by the party making such demand
or answering statement is not more than $200,000
(exclusive of interest and costs); and the arbitrators will
not have jurisdiction, power or authority to render a
monetary award in response thereto against any party
which totals more than $200,000 (exclusive of interest
and costs). The arbitrators will not have jurisdiction,
power or authority to consider, or make findings (except
in denial of their own jurisdiction) concerning any claim,
counterclaim, dispute or other matter in question where
the amount in controversy of any such claim, counter-
claim, dispute or matter is more than $200,000 (exclu-
sive of interest and costs).
5.7.4. No arbitration arising out of, or relating to, this
Agreement may include, by consolidation, ,joinder or
in any other manner, any person or entity who is not a
party to this Agreement.
5.7.5. By written consent signed by all the parties to
this Agreement and containing a specific reference hereto,
the limitations and restrictions contained in paragraphs
5.7.3 and 5.7.4 may be waived in whole or in part as to
any claim, counterclaim, dispute or other matter spe-
cifically described in such consent. No consent to arbi-
tration in respect of a specifically described claim,
counterclaim, dispute or other matter in question will
constitute consent to arbitrate any other claim, coun-
terclaim, dispute or other matter in question which is
not specifically described in such consent or in which
the sum or value in controversy exceeds $200,000
(exclusive of interest and costs) or which is with any
party not specifically described therein.
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5.7.6. The award rendered by the arbitrators will be
final, judgment may be entered upon it in any court
having jursidiction thereof, and will not be subject to
modification or appeal except to the extent permitted
by Sections 10 and 11 of the Federal Arbitration Act (9
U.S.C. H101 11).
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