HomeMy WebLinkAboutResolution - 2325 - Agreement Roberts & Thoma-Remove Interior Concrete Column , Municipal Building - 05/22/1986DGV:da
RESOLUTION
Resolution #2325
May 22, 1986
Agenda 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 an Agreement
between the City of Lubbock and Roberts and Thoma, Consulting Engineers,
for a Standard Form of Agreement Between Owner and Engineer for Profes-
sional Services, attached herewith, which 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 fully copied herein in
detail.
Passed by the City Council this 22nd day of May 1986.
B. C. McMINN, MAYOR
ATTEST:
anett,e, Boyd, City Seefetary
APPROVED AS TO%' LATENT:
Bill Wayne, erector of
Administrative Services
APPROVED AS TO FORM:
^a1d G. Vandiver, Firs
Assistant City Attorney
This document has important legal consequences; consultation with an attorney is encouraged with
respect to its completion or modification.
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
Prepared by
ENGINEERS' JOINT CONTRACT DOCUMENTS COMMITTEE
and
Issued and Published Jointly By
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RICANTY OFVILEERSNDED52
PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE
A practice division of the
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS
AMERICAN CONSULTING ENGINEERS COUNCIL
EJCDC No. 1910-1 (1984 Edition)
Reprinted IU5
AMERICAN SOCIETY OF CIVIL ENGINEERS
SECTION 5—PAYMENTS TO ENGINEER
5.1. Methods of Payment for Services and Expenses of ENGINEER ............................ 11
5.2. Times of Payment............................................................................... 12
5.3. Other Provisions Concerning Payments....................................................... 12
5.4. Definitions .................................................................................... 12
SECTION 6—CONSTRUCTION COST AND OPINIONS OF COST ........................................... 15
6.1: Construction Cost............................................................................... 15
6.2. Opinions of Cost................................................................................ 15
SECTION 7—GENERAL CONSIDERATIONS.................................................................. 15
7.1. Termination..................................................................................... 15
7.2. Reuse of Documents............................................................................ 16
7.3. Insurance........................................................................................ 16
7.4. Controlling Law ........................ ................................................... 16
7.5. Successors and Assigns......................................................................... 16
7.6. Arbitration....................................................................................... 17
SECTION 8 -SPECIAL PROVISIONS, EXHIBITS AND SCHEDULES ...................................... 19
TABLE OF CONTENTS
Page No.
IDENTIFICATION OF THE PARTIES...........................................................
1
DESCRIPTION OF THE PROJECT...............................................................
1 ,.
SECTION 1—BASIC SERVICES OF ENGINEER
............
1
1.1. General .....................................
I
1.2. Study and Report Phase
.......
1
1.3. Preliminary Design Phase ..............................
1.4. Final Design Phase .......................................
1.5. Bidding or Negotiating Phase ................................
3
1.6. Construction Phase.............................................................................
3
1.7. Operational Phase..............................................................................
5
SECTION 2 -ADDITIONAL SERVICES OF ENGINEER ..............
5
2.1. Services Requiring Authorization in Advance
................................................
5
2.2. Required Additional Services..................................................................
7
`
SECTION 3—OWNER'S RESPONSIBILITIES
SECTION
4—PERIODS OF SERVICE............................................................................
8
SECTION 5—PAYMENTS TO ENGINEER
5.1. Methods of Payment for Services and Expenses of ENGINEER ............................ 11
5.2. Times of Payment............................................................................... 12
5.3. Other Provisions Concerning Payments....................................................... 12
5.4. Definitions .................................................................................... 12
SECTION 6—CONSTRUCTION COST AND OPINIONS OF COST ........................................... 15
6.1: Construction Cost............................................................................... 15
6.2. Opinions of Cost................................................................................ 15
SECTION 7—GENERAL CONSIDERATIONS.................................................................. 15
7.1. Termination..................................................................................... 15
7.2. Reuse of Documents............................................................................ 16
7.3. Insurance........................................................................................ 16
7.4. Controlling Law ........................ ................................................... 16
7.5. Successors and Assigns......................................................................... 16
7.6. Arbitration....................................................................................... 17
SECTION 8 -SPECIAL PROVISIONS, EXHIBITS AND SCHEDULES ...................................... 19
e
This document has important legal consequences; consultation with an attorney is encouraged with respect to its completion
or modification.
STANDARD FORM OF AGREEMENT
BETWEEN
OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT made as of May 22 , 1916
between THE CITY OF LUBBOCK TEXAS
(OWNER) and
ROBERTS AND THOMA, Consulting Enclineers, 2574 74th Street, Suite 202,
Lubbock, Texas 79423 (ENGINEER).
' OWNER intends to Remove the Interior Concrete Column in Committee Room
1-03, Municipal Building, 162513th Street, Lubbock, Texas
(hereinafter called the Project).
OWNER and ENGINEER in consideration of their mutual covenants herein agree in respect of the performance
of professional engineering services by ENGINEER and the payment for those services by OWNER as set forth
below.
SECTION 1—BASIC SERVICES OF ENGINEER
1.1. General.
1.1.1. ENGINEER shall provide 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 serving as OWNER's
professional engineering representative for the Project,
providing professional engineering consultation and
advice and furnishing customary-e4i4, structural,
engineering services ftad etas -
incidental thereto.
1.2. Study and Report Phase. NOT APPLICABLE:
previously furnished.
lAf,kr written authorization to proceed, ENGIN
1.2.1. Consult OWNER to arify and
DWNER's require m for Project and
available data.
1.2.2. Advise NER as to the nec ity of OWN
ER's pro mg or obtaining from others a or ser
vic5W the types described in paragraph 3.3, an ssis
Page 1 of 18 pages
2.3. Identify and analyz requirements of gov(
ntal authorities havin ,jurisdiction to approve
• ' n of the Project and participate in consultat*
ith uch authorities.
1.2.4. rovide analyses of OWNER'S needs,
surveys, site evaluations and comparative s
prospects a sites and solutions. /
1.2.5. Prov* a general economic analy/is of OWN -
ER's requirerXents applicable to variou alternatives.
1.2.6. Prepare aeport containing s ematic layouts,
sketches and con eptual design crit ria with appropri-
ate exhibits to in e clearly the co siderations involved
(including app"cab requireme is of governmental
authorities having ju isdiction s aforesaid) and the
alternative solutions A#ilable o OWNER and setting
forth ENGINEER'S findi gs a d recommendations. This
Report will be accompani d y ENGINEER'S opinion
of probable costs for the Pr ect'including the following
which will be separately ' e ized: Construction Cost,
allowance for engineeri cos and contingencies, and
(on the basis of infor ation rnished by OWNER)
allowances for such her items s charges of all other
professionals and c sultants, fo the cost of land and
rights-of-way, for compensation or or damages to
properties, for i erest and financi charges and for
other services be provided by o ers for Owner
pursuant to pa graphs 3.7 through 3.1 inclusive. The
total of all su costs, allowances, etc. a hereinafter
called "Tot Project Costs".
1.2.7. Fyfnish five copies of the Study and RVort doc-
uments nd review them in person with OWNER.
The ties and responsibilities of ENGINEER
the tudy and Report Phase are amended and sub
m ted as indicated in paragraph 2 of Exhibit A "
t er Descriptions of Basic Engineering Services
elated 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 paragraph 3.4 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.
es and responsibilities of ENGINEE&AmiVi
LthePrelimina sign Phase are ed and sup-
ented as indicate a raph 3 of Exhibit A
rther D ion of Basic n ' Services
ated a
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
Page 2 of 18 pages
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. )
OuUgs and responsibilities of ENGINEE
Final Desi se are ameinjde supple
indicated in para r Exhibit A "
1.5. Bidding or Negotiating Phase.
After written authorization to proceed with the Bidding
or Negotiating Phase, ENGINEER shall:
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.
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-
:�ided in Articles 1 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,
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 Construction.
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 tMelition. ENS!
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.
.z,. 1 fie Resident Project Representative
any assn ts) will be ENGINEE gent o
employee and un NGINEE upervision. The
duties and responsibili the Resident Project
Representative ssistants) ar forth in Exhibit
B "Du ' esponsibilities and Li tion o
s and responsibilities of ENGINEERdwiffR
the Bidding o otiating Phase .ar mended and 1.6.2.3. The purpose of ENGINEER's visits to
supplemented as indica agraph 5 of Exhibit A
"Further D ion of Basic Eng Services , if the site will be t J
ated Matters". enable ENGINEER to better carry out the duties and
Page 3 of 12 pages
W
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(s) 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 paragraph 2.2.2.
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
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,
1--y 'he Resident Projeef Representntive 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
Page 4 of 18 pages
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 clear of any 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.
erly perform duties and responsibilities assumed by
ENGINEER in the Contract Documents,
1.7. Operational Phase.
During the Operational Phase, ENGINEER shall, when
requested by OWNER:
1.7.1. Provide assistance in the closing of any financial
or related transaction for the Project.
assistance in connection wi
ing andttd listing of any equipment or syste
1.7.3. Assist OW in
operate and maintain the.
1.7.4. Assist ER in developing s�
:edure r control of the operation and
nd record keenine for the Proiect_
's staff to
and
1.7.5. Prepare a set of reproducible record prints of
1.6.10. Contractor(s)' Completion Documents. ENGII,-�j j Drawings showing those changes made during the con -
NEER shall receive and review nd� J9 struction process, based on the marked -up prints, draw-
Otifig guarantees, bonds and ings and other data furnished by Contractor(s) to ENGI-
certificates of inspection, tests and approvals which are NEER and which ENGINEER considers significant.
to be assembled by Contractor(s) in accordance with
the Contract Documents (but such review will only be 1.7.6. In company with OWNER, visit the Project to
to determine that their content complies with the observe any apparent defects in the completed con -
requirements of, and in the case of certificates of inspec- struction, assist OWNER in consultations and discus -
tion, tests and approvals the results certified indicate sions with Contractor(s) concerning correction of such
compliance with, the Contract Documents); and shall deficiencies, and make recommendations as to replace -
transmit them to OWNER with written comments. ment or correction of defective work.
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 for failure to prop-
s and responsibilities of ENGINE in
:Description
perationa a are amende supplemented
icated in para r Exhibit A "Furthe
is Engineering Ser d Relate
s
SECTION 2—ADDITIONAL SERVICES OF
ENGINEER
2.1. Services Requiring Authorization in Advance.
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 2.1.14,
inclusive. These se -4r
�wwrr.n n,a:__te _ o_ c
vy v�
Page 5 of 18 pages
EM
2.1.1. Preparation of applications and supporting doc-
uments (in addition to those furnished under Basic Ser-
vices) for private or governmental 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 state-
ments and documents prepared by others; and assis-
tance in obtaining approvals of authorities having juris-
diction 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 con-
struction or method of financing; and revising previ-
ously accepted studies, reports, design documents or
Contract Documents when such 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 ENGINEERS's control. , ,
renderings or models
use
2.1.5. Preparing de nts fora ate bids requ,
by OWNS oFc o -r Contractor(s)' work w not
2.1.6. Investigations and studies involving, but not lim-
ited to, detailed consideration of operations, mainte-
nance and overhead expenses; providing value engi-
neering 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, equip-
ment and labor; and audits or inventories required in
connection with construction performed by OWNER.
2.1.7. Furnishing services of independent professional
paragraph 3.4 when OWNER employs ENGINEER to
provide such data or services in lieu of furnishing the
same in accordance with paragraph 3.4.
2.1.8. If ENGINEER's compensation is on the basis
of a lump sum or percentage of Construction Cost or
cost-plus a fixed fee method of payment, services
resulting from the award of more separate prime con-
tracts for construction, materials or equipment for the
Project than are contemplated by paragraph 5.1.1.2. if
ntaatv,,of Construction Cost and ENGINEER eei
quirerepare Contract Docum s on the
sumption tha ore than one prim ontract will bi
larded for constru n, mate ' and equipment, bu
ly one prime contract arded for construction
iterials and equipm ort o.ect, services attrib
able to the p aration of contr documentatioi
it was re red unuseable and any rev . ns or addi
ins contract documentation used that w eces
ed by the award of onlv one nrime contract.
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,
I ebidding or renegotiating contracts for construction,
materials, equipment or services, except when such
assistance is required to complete services called for
in paragraph 6.2.2.5.
2.1.11. Providing any type of property surveys or related
engineering services needed for the transfer of interests
in real property and field surveys for design purposes
and engineering surveys and staking to enable Con-
tractors) to proceed with their work; and providing
other special field surveys.
. . tionofoperating,
manuals to sup vices under
2.1.13. Preparing to serve or serving as a consultant or
witness for OWNER in any litigation, arbitration or
other legal or administrative 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).
associates and consultants for other than Basic Services
(which include, but are not limited to, customary 2.1.14. Additional services in connection with the Proj-
structural,-der-A-Anie-A and ,.ieet_ieai engineering ect, including services which are to be furnished by
incidental thereto); and OWNER in accordance with Article 3, and services
providing data or services of the types described in not otherwise provided for in this Agreement.
Page 6 of 18 pages
2.2. Required Additional Services.
When required by the Contract Documents in circum-
stances beyond ENGINEER'S control, ENGINEER
shall furnish or obtain from others, as circumstances
require during construction and without waiting for
specific authorization from OWNER, Additional Ser-
vices of the types listed in paragraphs 2.2.1 through
2.2.6, inclusive (exeept to the extent pff
neeringgervieesandRelated " These services
are not included as part of Basic Services. ENGINEER
shall advise OWNER promptly after starting any such
Additional Services which will be paid for by OWNER
as indicated in Section 5.
2.2.1. Services in connection with work directive
changes and change orders to reflect changes requested
by OWNER if the resulting change in compensation
for Basic Services is not commensurate with the addi-
tional services rendered.
2.2.2. Services in making revisions to Drawings and
Specifications occasioned by the acceptance of substi-
tutions proposed by Contractor(s); and services after
the award of each contract in evaluating and determin-
ing the acceptability of an unreasonable or excessive
number of substitutions proposed by Contractor.
2.2.3. Services resulting from significant delays, changes
or price increases occurring as a direct or indirect result
of material, equipment or energy shortages.
2.2.4. Additional or extended services during con-
struction made necessary by (1) work damaged by fire
or other cause during construction, (2) a significant
amount of defective or neglected work of any Contrac-
tor, (3) acceleration of the progress schedule involving
services beyond normal working hours, and (4) default
by any Contractor.
2.2.5. Services (other than Basic Services during the
Operational Phase) in connection with any partial uti-
lization of any part of the Project by OWNER prior to
Substantial Completion.
2.2.6. Evaluating an unreasonable or extensive num-
ber of claims submitted by Contractor(s) or others in
connection with the work.
SECTION 3 -OWNER'S RESPONSIBILITIES
3.1. Designate in writing a person to act as OWNER's
representative with respect to the services to be ren-
dered under this Agreement. Such person shall have
complete authority to transmit instructions, receive
information, interpret and define OWNER's policies
and decisions with respect to ENGINEER's services
for the Project.
2. Provide all criteria and full information as to
OWNER's requirements for the Project, including design
objectives and constraints, space, capacity and perfor-
mance 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 Specifica-
tions.
3.3. Assist ENGINEER by placing at ENGINEER's
disposal all available information pertinent to the Proj-
ect including previous reports and any other data rel-
ative to design or construction of the Project.
3.4. Furnish to ENGINEER, as required for perfor-
mance of ENGINEER's Basic Services' b,
.1
. c
p �a ia
"- s"), the following:
3.4.1. data prepared by or services of others,
including without limitation , pr-sbings and-,
,lab-
oratory tests and inspections of samples, materials
and equipment;
3.4.2. appropriate professional interpretations of
all 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 restriction;
and
3.4.7. other special data or consultations not cov-
ered in Section 2;
all of which ENGINEER may use and rely upon in
performing services under this Agreement.
OWNER shall do the following in a timely manner so 3.5. Provide engineering surveys to establish reference
as not to delay the services of ENGINEER: points for construction
Page 7 of 18 pages
m
" to enable
Contractor(s) to proceed with the layout of the work.
3.6. Arrange for access to and make all provisions for
ENGINEER to enter upon public and private property
as required for ENGINEER to perform services under
this Agreement.
3.7. Examine all studies, reports, sketches, Drawings,
Specifications, proposals and other documents pre-
sented 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.
3.8. Furnish approvals and permits from all govern-
mental authorities having jurisdiction over the Project
and such approvals and consents from others as may
be necessary for completion of the Project.
3.9. Provide such accounting, independent cost esti-
mating 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(s), such
auditing service as OWNER may require to ascertain
how or for what purpose any Contractor has used the
moneys paid under the construction contract, and such
inspection services as OWNER may require to ascer-
tain that Contractor(s) are complying with any law,
rule, regulation, ordinance, code or order applicable to
their furnishing and performing the work.
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.
3.13. Attend the pre-bid conference, bid opening, pre -
construction conferences, construction progress and
other job related meetings and substantial completion
inspections and final payment inspections.
3.14. 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 or non-
conformance in the work of any Contractor.
3.15. Furnish, or direct ENGINEER to provide, Addi-
tional Services as stipulated in paragraph 2.1 of this
Agreement or other services as required.
3.16. Bear all costs incident to compliance with the
requirements of this Section 3.
SECTION 4—PERIODS OF SERVICE
4.1. The provisions of this Section 4 and the various
rates of compensation for ENGINEER's services pro-
vided 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 reason-
ably be required for the design, award of contracts,
construction and initial operation of the Project includ-
ing extra work and required extensions thereto. If i
3.10. If OWNER designates a person to represent
OWNER at the site who is not ENGINEER or ENGI- Services -- d Reit fed Mmter-s specific periods of time
NEER's agent or employee, the duties, responsibilities for rendering services are set forth or specific dates by
and limitations of authority of such other person andwhich services are to be completed are provided and
the affect thereof on the duties and responsibilities of if such dates are exceeded through no fault of ENGI-
ENGINEER NEER, all rates, measures and amounts of compen-
(and any assistants) will be set forth in an exhibit that sation provided herein shall be subject to equitable
is to be identified, attached to and made a part of this adjustment.
Agreement before such services begin.
3.11. If more than one prime contract is to be awarded Pl
for construction, materials, equipment and services for th
the entire Project, designate a person or organization A
to have authority and responsibility for coordinating ar
the activities among the various prime contractors. nr
3.12. Furnish to ENGINEER data or estimated figures
as to OWNER's anticipated costs for services to be
provided by others for OWNER (such as services pur-
suant to paragraphs 3.7 through 3.11, inclusive and
.. he services called for in the Study and
ase wi completed and the Report sub ed withi
stipulatedpe ' indicated in p aph 2 of Exhibi
"Further DescriptioAt c Engineering Service
d Related Matter " ter . en authorization t
aceed with phase of services w ' will be give.
O within thirty days after ENG ha
Page 8 of 18 pages
U oXl
be completed. Construction Phase services may be ren-
dered at different times in respect of separate prime
written authorization from OWNER, ENGINEER shall contracts if the Project involves more than one prime
proceed with the performance of the services called for contract.
in the Preliminary Design Phase, and shall submit pre-
liminary design documents and a revised opinion of 4.8. The Operational Phase will commence during the
probable Total Project Costs within the stipulated period Construction Phase and will terminate one year after
indicated,' the date of Substantial Completion of the last prime
44AR Af Basie Engineering -Sef-Vieft HHEI, R =Zipr ters contract for construction, materials and equipment on
which substantial completion is achieved.
4.4. After acceptance by OWNER of the Preliminary
Design Phase documents and revised opinion of prob-
able Total Project Costs, indicating any specific mod-
ifications or changes in the general scope, extent or
character of the Project desired by OWNER, and upon
written authorization from OWNER, ENGINEER shall
proceed with the performance of the services called for
in the 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 Proj-
ect within the stipulated period indicatedJff-ga ag
4.5. ENGINEER's services under the Study tt1-R
Pkese, Preliminary Design Phase and Final Design Phase
shad 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 reasonable for obtaining approval
of governmental authorities having jurisdiction to
approve the design of the Project.
4.6. After acceptance by OWNER of the ENGI-
NEER'S Drawings, Specifications and other Final Design
Phase documentation including the most recent opinion
of probable Total Project Costs and upon written autho-
rization to proceed, ENGINEER shall proceed 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 consid-
ered complete upon commencement of the Construc-
tion Phase or upon cessation of negotiations with pro-
spective Contractor(s) (except as may otherwise be
required to complete the services called for in para-
graph 6.2.2.5).
4.7. 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 ENGI-
NEER of final payment on the last prime contract to
4.9. 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.
4.10. If OWNER fails to give prompt written authori-
zation to proceed with any phase of services after com-
pletion of the immediately preceding phase, or if the
Construction Phase has not commenced within 2 a n
calendar days (plus such additional time as may be
required to complete the services called for under para-
graph 6.2.2.5) after completion of the Final Design Phase,
ENGINEER may, after giving seven days' written notice
to OWNER, suspend services under this Agreement.
4.11. 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 pro-
vided in paragraph 5.3.2. If such delay or suspension
extends for more than one year for reasons beyond
ENGINEER's control, or if ENGINEER for any rea-
son is required to render Construction Phase services
in respect of any prime contract for construction, mate-
rials or equipment more than one year after Substantial
Completion is achieved under that contract, the various
rates of compensation provided for elsewhere in this
Agreement shall be subject to equitable adjustment.
4.12. 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 ser-
vices are to be separately sequenced with the work of
one or more prime contractors (such as in the case of
fast -tracking), OWNER 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 coordi-
nate properly such services as are applicable to the
work under such separate contracts. This schedule is
Page 9 of 18 pages
to be prepared whether or not the work under such md Related ", and the provisions of
contracts is to proceed concurrently paragraphs 4.4 through 4.10 inclusive, will be modified
!E3 ��EhFl�l� "fur-tl+vi �covr ipe=virc`i aa�:es::�' :� accordingly. e
:::oer1
LUMP SUM METHOD OF PAYMENT
SECTION 5 -PAYMENTS TO ENGINEER
5.1. Methods of Payment for Services and Expenses of
ENGINEER.
5.1.1. For Basic Services. OWNER shall pay ENGI-
NEER for Basic Services rendered under Section 1 fas
ameaded and sopplemenfe4–L-+--_IxhilbifA��.
Matt�er�s==} as follows:
5.1.1.1. One Prime Contract. If only one prime
contract is awarded for construction, materials and
equipment for the Project, a lump sum fee of
$ 3,500.00 for all Basic Services,
\paraaph
s Resident Project
d assistants) furnished under Operational Phase services furn1.7); but, if the prime contraor incentive savings provisiona basic compensation, a lump s
for such services.
_
C
v
to lb
la
of
of
c
°t
_
la
b
Q r;
5.1.1.2. S eral Prime Contracts. If ore than ons
ut less than separate pre a contracts ar,
warded for co truction, materia and equipmen
or the Project, a ump sum fee o $
or all Basic Sery es (except ervices of ENGI
NEER's Resident PX
ants) furnished uutional Phase serviceut, if any prime conve savings provisiensation, a lump sach services.
esentative (and assis
ph 1.6.2.1 and Oper
under paragraph 1.7)
ns cost-plus or incen
tractor's basic com
5.1.1.3. Reside t Project Serve s. For services
VGINEER's esident Project Re resentative (a
sistants) fur shed under paragrap 1.6.2.1, on t
sis of Sala Costs times a factor c f
rvices r ndered by principals and mploye
signed resident Project representati
5.1. .4. Operational Phase Services. Fo Oper
io9d1 Phase services furnished under paragra 1.7
ount equal to ENGINEER's Salary Costs ti e
ctor of for services rendered by pr
5.1.2. For Additional Services. OWNER shall pay
ENGINEER for Additional Services rendered under
Section 2 as follows:
5.1.2.1. General. For Additional Services of
ENGINEER's principals and employees engaged
directly on the Project and rendered pursuant to para-
graph 2.1 or 2.2 (except services as a consultant
or witness under paragraph 2.1.13), on the basis
of ENGINEER's Salary Costs times a factor of
2-75
2. Professional Associates and Consul
'or serve nd Reimbursable Expe of inde
endent profess associa and consultant
mployed by ENGINE render Additional See
ices pursuant aragraph 2. .2, the amour
filled GINEER therefor tim facto
5.1.2.3. Serving as a Witness. For services ren-
dered by ENGINEER's principals and employees as
consultants or witnesses in any litigation, arbitration
or other legal or administrative proceeding in ac-
cordance with paragraph 2.1.13, at the rate of
$25-00-00 per day or any portion thereof (but com-
pensation for time spent in preparing to appear in
any such litigation, arbitration or proceeding will be
on the basis provided in paragraph 5.1.2.1). Com-
pensation for ENGINEER's independent profes-
sional associates and consultants will be on the basis
provided in paragraph 5.1.2.2.
5.1.3. For Reimbursable Expenses. In addition to pay-
ments 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.
5.1.4. The terms "Salary Costs" and "Reimbursable
Expenses" have the meanings assigned to them in para-
graph 5.4.
5.2. Times of Payments.
5.2.1. ENGINEER shall submit monthly statements
for Basic and Additional Services rendered and for
Reimbursable Expenses incurred. The statements will
be based upon ENGINEER's estimate of the propor-
tion of the total services actually completed at the time
of billing. OWNER shall make prompt monthly pay-
ments in response to ENGINEER's monthly state-
ments.
Page 11 of 18 pages
5.3. Other Provisions Concerning Payments.
5.3.1. If OWNER fails to make any payment due
ENGINEER for services and expenses within thirty
days after receipt of ENGINEER's statement therefor,
the amounts due ENGINEER will be increased at the
rate of 1% per month from said thirtieth day, and in
addition, 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 for services, expenses and charges.
5.3.2. In the event of termination by OWNER under
paragraph 7.1 upon the completion of any phase of the
Basic Services, progress payments due ENGINEER
for services rendered through such phase shall consti-
tute 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 ENGI-
NEER's Salary Costs times a factor of 2.75 for
services rendered during that phase to date of termi-
nation by ENGINEER's principals and 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 Ser-
vices and unpaid Reimbursable Expenses, plus all ter-
mination expenses. Termination expenses mean Reim-
bursable Expenses directly attributable to termination,
which, if termination is at OWNER's convenience,
shall include an amount computed as a percentage of
total compensation for Basic Services earned by ENGI-
NEER to the date of termination, as follows:
20% if termination occurs after commencement of
the Preliminary Design Phase but prior to commence-
ment of the Final Design Phase; or
10% if termination occurs after commencement of
the Final Design Phase.
5.3.3. Records of ENGINEER's Salary Costs perti-
nent to ENGINEER's compensation under this Agree-
ment will be kept in accordance with generally accepted
accounting practices. Copies will be made available to
OWNER at cost on request prior to final payment for
ENGINEER's services.
5.3.4. Whenever a factor is applied to Salary Costs in
determining compensation payable to ENGINEER that
factor will be adjusted periodically and equitably to
reflect changes in the various elements that comprise
such factor. All such adjustments will be in accordance
with generally accepted accounting practices as applied
on a consistent basis by ENGINEER and consistent
with ENGINEER's overall compensation practices and
procedures.
5.4. Definitions.
5.4.1. 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
Project, including, but not limited to, engineers, archi-
tects, surveyors, designers, draftsmen, specification
writers, estimators, other technical and business per-
sonnel; plus the cost of customary and statutory ben-
efits including, but not limited to, social security con-
tributions, unemployment, excise and payroll taxes,
workers' compensation, health and retirement benefits,
sick leave, vacation and holiday pay and other group
benefits. For the purposes of this Agreement, the prin-
cipals of ENGINEER and their current hourly Salary
Costs are:
E. ER Roberts R $55,00
R. J. Thoma - $50,00 ,.
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.
The amount of customary and statutory benefits of all
other personnel of ENGINEER will be considered equal
to 275 % of salaries and wages, subject to equi-
table adjustment to reflect changes in ENGINEER's
overall compensation procedures and practices.
5.4.2. 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.
Page 12 of 18 pages
I
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Page 13 of 18 pages
[This page was left blank intentionally.]
Page 14 of 18 pages
M
SECTION 6—CONSTRUCTION COST AND 6.2.2.2. Any Construction Cost limit so estab-
OPINIONS OF COST lished will include a contingency of ten percent unless
another amount is agreed upon in writing.
6.1. Construction Cost.
The construction cost of the entire Project (herein referred
to as "Construction Cost") means the total cost to
OWNER of those portions of the entire Project designed
and specified by ENGINEER, but it will not include
ENGINEER's compensation and expenses, the cost of
land, rights-of-way, or compensation for or damages
to, properties unless this Agreement so specifies, nor
will it include OWNER's legal, accounting, insurance
counseling or auditing services, or interest and financ-
ing charges incurred in connection with the Project or
the cost of other services to be provided by others to
OWNER pursuant to paragraphs 3.7 throughh 3.11,
inclusive. [Construction Cost is one of the items com-
prising Total Project Costs which is defined in para-
graph 1.2.5.1
6.2. 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 Contractor(s)' methods of deter-
mining 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
judgment as an experienced and qualified professional
engineer, 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
shalt employ an independent cost estimator as provided
in paragraph 3.9.
6.2.2. If a Construction Cost. limit is established by
written agreement between OWNER and ENGINEER
and specifically set forth in this Agreement as a con-
dition thereto, the following will apply:
6.2.2.1. The acceptance by OWNER at any time
during the Basic Services of a revised opinion of
probable Total Project or Construction Costs in excess
of the then established cost limit will constitute a
corresponding revision in the Construction Cost limit
to the extent indicated in such revised opinion.
6.2.2.3. ENGINEER will be permitted to deter-
mine what types of materials, equipment and com-
ponent systems are to be included in the Drawings
and Specifications and to make reasonable adjust-
ments in the general scope, extent and character of
the Project to bring it within the cost limit.
6.2.2.4. If the Bidding or Negotiating Phase has
not commenced within six months after completion
of the Final Design Phase, the established Construc-
tion Cost limit will not be binding on ENGINEER,
and OWNER shall consent to an adjustment in such
cost limit commensurate with any applicable change
in the general level of prices in the construction indus-
try between the date of completion of the Final Design
Phase and the date on which proposals or bids are
sought.
6.2.2.5. If the lowest bona fide proposal or bid
exceeds the established Construction Cost limit,
OWNER shall (1) give written approval to increase
such cost limit, (2) authorize negotiating or rebidding
the Project within a reasonable time, or (3) cooperate
in revising the Project's general scope, extent or
character to the extent consistent with the Project's
requirements and with sound engineering practices.
In the case of (3), ENGINEER shall modify the Con-
tract Documents as necessary to bring the Construc-
tion Cost within the cost limit. In lieu of other com-
pensation for services in making such modifications,
OWNER shall pay ENGINEER, ENGINEER's cost
of such services, all overhead expenses reasonably
related thereto and Reimbursable Expenses, but
without profit to ENGINEER on account of such
services. The providing of such service will be the
limit of ENGINEER's responsibility in this regard
and, having done so, ENGINEER shall be entitled
to payment for services in accordance with this
Agreement and will not otherwise be liable for dam-
ages attributable to the lowest bona fide proposal or
bid exceeding the established Construction Cost.
SECTION 7—GENERAL CONSIDERATION
7.1. Termination.
The obligation to provide further services under this
Agreement may be terminated by either party upon
thirty days' written notice in the event of substantial
Page 15 of 18 pages
failure by the other party to perform in accordance with
the terms hereof through no fault of the terminating
party.
7.2. 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
shall retain an ownership and property interest therein
whether or not the Project is completed. OWNER may
make and retain copies for information and reference
in connection with the use and occupancy of the Project
by OWNER and others; however, such documents are
not intended or represented to be suitable for reuse by
OWNER or others on extensions of the Project or on
any other project. Any reuse without written 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 verti-
fication or adaptation will entitle ENGINEER to further
compensation at rates to be agreed upon by OWNER
and ENGINEER.
7.3. Insurance.
7.3.1. ENGINEER shall procure and maintain insur-
ance for protection from claims under workers' com-
pensation acts, claims for damages because of bodily
injury including personal injury, sickness or disease or
death of any and all employees or of any person other
than such employees, and from claims or damages
because of injury to or destruction of property including
loss of use resulting therefrom.
7.4. Controlling Law.
This Agreement is to be governed by the law of the
principal place of business of ENGINEER.
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 repre-
sentatives (and said assigns) of such other party, in
respect of 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 (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.
7.5.3. 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.
[The remainder of this page was left blank intentionally.]
Page 16 of 18 pages
mom
7.6. Arbitration.
7.6.1. All claims, counterclaims, disputes and other
j matters in question between the parties hereto arising
out of or relating to this Agreement or the breach thereof
will be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the Amer-
ican Arbitration Association then obtaining, subject to
i the limitations and restrictions stated in paragraphs
7.6.3 and 7.6.4 below. This Agreement so to arbitrate
and any other agreement or consent to arbitrate entered
i into in accordance herewith as provided in this para-
graph 7.6 will be specifically enforceable under the
prevailing law of any court having jurisdiction.
7.6.2. 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.
7.6.3. 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).
7.6.4. 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.
7.6.5. By written consent signed by all the parties to
this Agreement and containing a specific reference hereto,
the limitations and restrictions contained in paragraphs
7.6.3 and 7.6.4 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 $200,000
(exclusive of interest and costs) or which is with any
party not specifically described therein.
7.6.6. The award rendered by the arbitrators will be
final, judgment may be entered upon it in any court
having jurisdiction thereof, and will not be subject to
modification or- appeal except to the extent permitted
by Sections 10 and 11 of the Federal Arbitration Act
(9 U.S.C. §§10, 11).
[The remainder of this page was left blank intentionally.]
Page 17 of 18 pages
SECTION 8 -SPECIAL PROVISIONS, EXHIBITS and SCHEDULES.
8.1. This Agreement is subject to the following special provisions.
8.1.1.The Study and Report Phase has already been accomplished by the
Engineer and he has been compensated for same.
The Preliminary Design Phase has been completed by the Engineer and
he has not been compensated for same; compensation for same is
included in the total fee contracted for herein.
The Final Design Phase Services will be completed within 30 calendar
days following written authorization from the Owner to the Engineer
to proceed with that phase of service.
IlowingExhi sare attached to and mad this Agreement:
a part o
3.2.1. Exhibit A "Further
pages.
.2. Exhibit B "Duties, Res
isisting of peas -
of Basic Engineering Services and Rel
of
consisting of
Resident Project Representative"
8.3. This Agreement (consisting of pages I to I R , inclusive) together with the Exhibits and schedules
identified above constitute the entire agreement between OWNER and ENGINEER and supersede all prior
written or oral understandings. This Agreement and said Exhibits and schedules may only be amended,
supplemented, modified or cancelled by a duly executed written instrument.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year first
above written.
OWNER: ENGINEER:
THE CITY OF ;LUBBOCK, TEXAS ROBERTS MDTHOMA
Partner
S ;ieesAP,,PROVED AS TO FORM:
Ranette Boyd, City Secretary
Page 1$ of 7�$_ pages