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Contract 1809
This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Law. STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by ACEC National Society of ProfesSional Engineer_ . s Professional Engineers in Private Practice American Society ~SCE of Civil Engineers PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE a practice division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS AMERICAN COUNCIL OF ENGINEERING COMPANIES AMERICAN SOCIETY OF CIVIL ENGINEERS TI-tis Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (No. C-700, 2002 Edition) of the Engineers Joint Contract Documents Committee. Their provisions are interrelated, and a change in one may necessitate a change in the other. For guidance on the completion and use of this Agreement, see EJCDC User's Guide to the Owner-Engineer Agreement, No. E-001, 2002 Edition. Copyright © 2004 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684~2882 ~ www.nspe, org American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202) 347,7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asce or.~ TABLE OF CONTENTS Page ARTICLE 1.01 ARTICLE 2.01 1 - SERVICES OF ENGINEER ..................................................................................................... 4 Scope ............................................................................................................................................. 4 2 ~ OWNER'S RESPONSIBELiTi~ES ......................... i .................................................................. 4 General .......................................................................................................................................... 4 ARTICLE 3.01 3.02 3 - SCHEDULE FOR RENDERING SERVICES ........................................................................ 4 Commencement ............................................................................................................................ zl Time for Completion .................................................................................................................... 4 ARTICLE 4.01 4.02 4 - INVOICES AND PAYMENTS ................................................................................................ 5 Invoices ......................................................................................................................................... 5 Payments ....................................................................................................................................... 5 ARTICLE 5.01 5.02 5.03 5 - OPINIONS OF COST ............................................................................................................... 6 Opinions o£Probable Construction Cost ...................................................................................... 6 Designing to Construction Cost Limit ......................................................................................... 6 Op/nions of Total Project Costs ................................................................................................... 6 ARTICLE 6.01 6.O2 6.O3 6.04 6.05 6.O6 6.07 6.08 6.09 6.10 6.11 6 - GENERAL CONSIDERATIONS ..: ..... : ................................................................................... 6 Standards of Performance ............................................................................................................. 6 Design without Construction Phase Services .............................................................................. 7 Use of Documents ......................................................................................................................... 7 Insurance ....................................................................................................................................... 8 Suspension and Termination ........................................................................................................ 9 Controlling Law .......................................................................................................................... 10 Successors, Assigns, and Beneficiaries ...................................................................................... 11 Dispute Resolution ...................................................................................................................... 11 Envh'onmental Condition of Site ................................................................................................ 11 Indemnification and Mutual Waiver .......................................................................................... 12 Miscellaneous Provisions ........................................................................................................... 13 ARTICLE 7 - DEFINITIONS ......................................................................................................................... 14 7.01 Defined Terms ............................................................................................................................ 14 ARTICLE 8 - EXJqlt~ITS AND SPECIAL PROVISIONS ........................................................................... 15 8.01 Exhibits Included ........................................................................................................................ 15 8.02 Total Agreement ......................................................................................................................... 16 8.03 Designated Representatives ....................................................... : ................................................ 16 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of December 15, 2004 ("Effective Date") between City of Columbia Heights ("Ova~er") and Short Elliott Hendrickson (S E H) ("Eng/neer"). Owner intends to prepare Final Plans and Specifications for Public Improvements including Utilities, Roadway, Ponding, Streetscaping, and Restoration for "Huset Parkway" ("Project"). Owner and Engineer agree as follows: ARTICLE 1 - SERVICES OF ENGINEER 1.01 Scope A. Engineer shall provide, or cause to be provided, the Exhibit A. Exhibit A shall be SEH proposal dated November 30th 2004 (attached). ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. B. C. services set forth herein and in Owner shall have the responsibihties set forth herein and in Exhibit B. Owner shall pay Engineer as set forth in Extfibit C. Owner shall be responsible for, and Engineer may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by Owner to Engineer pursuant to this Agreement. Engineer may use such requirements, programs, instructions, reports, data, and information in performing or fumishing services under this Agreement. ARTICLE 3 - SCI-IEDULE FOR RENDERING SERVICES 3.01 Commencement A. Engineer shall begin rendering services as of the Effective Date of the Agreement. 3.02 Time for Completion A. Engineer shall complete its obligations within a reasonable time. Specific per/ods of time ~%r rendering services are set forth or specific dates by which services are to be completed are provided in Exhibit A, and are hereby agreed to be reasonable. B. If, through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer's services is impaired, or Engineer's services are delayed or suspended, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. If Owner authorizes changes in the scope, extent, or character of the Project, then the time for completion of Engineer's services, and the rates and amounts of Engineer's compensation, shall be adjusted equitably. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer's performance of its services. If Engineer fails, through its own fault, to complete the performance required in this Agreement within the time set forth, as duly adjusted, then Owner shall be entitled to the recovery of direct damages resulting fi:om such failure. ARTICLE 4 - INVOICES AND PAYMENTS 4.01 Invoices Preparation and Submittal of Invoices. Engineer shall prepare invoices in accordance with its standard invoicing practices and the terms of Exhibit C. Engineer shall submit its invoices to Owner on a monthly basis. Invoices are due and payable within 30 days of receipt. 4.02 Payments Application to Interest and Principal. Payment will be credited first to any interest owed to Engineer and then to principal. B. Failure to Pay. If Owner fails to make 'any payment due Engineer for services and expenses within 30 days after receipt of Engineer's invoice, then: mounts due Engineer will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day; and Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement until Owner-has paid in full all amounts due for services, expenses, and other related charges. Owner waives any and all claims against Engineer for any such suspension. Disputed Invoices. If Owner contests an invoice, Owner may withhold only that portion so contested, and must pay the undisputed portion. Legislative Actions. If after the Effective Date of the Agreement any governmental entity takes a legislative action that imposes taxes, fees, or charges on Engineer's services or compensation under this Agreement, then the Engineer may invoice such new taxes, fees, or charges as a Reimbursable Expense to which a factor of 1.0 shall be applied. Owner shall pay such invoiced new taxes, fees, and charges; such payment shall be in addition to the compensation to which Engineer is entitled under the terms of Exhibit C. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of_Probable Construction Cost Engineer's opinions of probable Construction Cost 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 generally familiar with the construction industry. However, since Engineer has no control over the cost of labor, materials, equipment, or services furnished by others, or over contractors' methods of determining prices, or over competitive bidding or market conditions, Engineer cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary fi:om opinions of probable Construction Cost prepared by Engineer. if Owner wishes greater assurance as to probable Construction Cost, Owner shall employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Constmtction Cost Limit If a Construction Cost limit is established between Owner mad Engineer, such Construction Cost lhnit and a statement of Engineer's fights and responsibilities with respect thereto will be specifically set forth in Exhibit F, '~Construction Cost Limit," to this Agreement. 5.03 Opinions of Total Project Costs The services, if any, of Engineer with respect to Total Project Costs shall be limited to assisting the Owner in collating the various cost categories which comprise Total Project Costs. Engineer assumes no responsibility for the accuracy of any opinions of Total Project Costs. ARTICLE 6- GENERAL CONSIDERATIONS 6.01 Standards of Performance The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with Engineer's services. Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer's services. Engineer sliall correct any sucli deficiencies in technical accuracy without additional compensation except to the extent such corrective action is directly attributable to deficiencies in Owner-fin-nished information. Engineer may employ such Consultants as Engineer deems necessary to assist in the performance or famishing of the services, subject to reasonable, timely, and substantive objections by Owner. Do Subject to the standard of care set forth in Paragraph 6.01.A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards. 6.02 6.03 Engineer and Owner shall comply with applicable Laws and Regulations and Owner- mandated standards that Owner has provided to Engineer in writing. Tkis Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of th_is Agreement may be the basis for modifications to Owner's responsibilities or to Engineer's scope of services, times of performance, and compensation. Engineer shall not be required to sign any documents, no matter by whom requested, that would result in the Engineer having to certify, guarantee, or warrant the existence of conditions whose existence the Engineer cannot ascertain. Owner agrees not to make resolution of any dispute with the Engineer or payment of any amotmt due to the Engineer in any way contingent upon the Engineer signing any such documents. The General Conditions for any construction contract docnments prepared hereunder are to be the "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Docurnents Conuuittee (No. C-700, 2002 Edition) mfless both parties mutually agree to use other General Conditions by specific reference in Exhibit J. Engineer shall not at any time supervise, dkect, or have control over Contractor's work, nor shall Engineer have authohty over or responsibility for the means, methods, teclmiques, sequences, or procedm-es of construction selected or used by Contractor, for security or safety at the Site, for safety precautions and programs incident to the Contractor's work in progress, nor for any xCailm-e of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Engineer neither guarantees the performance of any contractor nor assumes responsibility for any contractor's failure to furnish and perform the Work in accordance with the Contract Documents. Design Engineer shall not be responsible for the acts or omissions of any contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineer's own employees and its Consultants) at the Site or otherwise farlfishing or performing any Work; or for any decision made on interpretations or clarifications of the Contract Documents given by Owner without consultation and advice of Engineer. Without Construction Phase Services If Engineer's Basic Services under this Agreement do not include Project observation, or review of the Contractor's performance, or any other Construction Phase services, then (1) Engineer's services under this Agreement shall be deemed complete no later than the end of the Bidding or Negotiating Phase; (2)Engineer shall have no design or shop drawing review obligations during construction; (3) Owner assumes all responsibility for the application and interpretation of the Contract Documents, contract administration, construction observation and review, and all other necessary Construction Phase engineering and professional services; and (4)Owner waives any claims against the Engineer that may be connected in any way thereto. Use of Documents All Docmnents are instnnnents of service in respect to this Project, and Engineer shall retain an ownership and property interest therein (including the copyright and the right of reuse at the discretion of the Engineer) whether or not the Project is completed. Owner 6.04 shall not rely in any way on any Document unless it is in printed form, signed or sealed by the Engineer or one of its Consultants. A party may rely that data or information set forth on paper (also known as hard copies) that the party receives from the other party by mail, hand delivery, or facsimile, are the items that the other party intended to send. Files in electronic media format of text, data, graphics, or other types that are furnished by one party to the other are furnished only for convenience, not reliance by the receiving party. Any conclusion or hkformation obtained or derived from such electronic files will be at the user's sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any transmittal errors detected within the 60-day acceptance period will be con'ected by the party delivering the electronic files. When transfen-ing docmnents in electronic media format, the transfexTing patty makes no representations as to long-term compatibility, usability, or readability of such docmnents resulting from the use of software appliCation packages, operating systems, or computer hardware diffe_dmg from_ those used by the docmnents' creator. Owner may make and retain copies of Documents for information and reference ha connection with use on the Project by Owner. Engineer grants Owner a license to use the Documents on the Project, extensions of the Project, and other projects of Owner, subject to the following limitations: (1) Owner. acknowledges that such Documents are not intended or represented to be suitable for use on the Project tmless completed by Engineer, or for use or reuse by Owner or others on extensions of the Project or on any other project without written verification or adaptation by Engineer; (2) any such use or reuse, or any modification of the Documents, without written verification, completion, or adaptation by Engineer, as appropriate for the specific purpose intended, will be at Owner's sole risk and without liability or legal exposure to Engineer or to Engineer's Consultants; (3) Owner shall indemnify and hold harmless Engineer and Engineer's Consultants from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from any use, reuse, or modification without written verification, completion, or adaptation by Engineer; (4) such limited license to Owner shall not create any rights in third parties. If Engineer at Owner's request verifies or adapts the Documents for extensions of the Project or for any other project, then Owner shah compensate Engineer at rates or in an amount to be agreed upon by Owner and Engineer. Insurance Engineer shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Engineer shall cause Owner to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer. Owner shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Owner shall cause Engineer and Engineer's Consultants to be listed as additional insureds on any general liability or property insurance policies carried by Owner which are applicable to the .project. Owner shall require Contractor to purchase and maintain general liability and other insurance in accordance with the requirements of Paragraph 5.04 of the "Standard General Conditions of the Construction Contract," (No. C-700, 2002 Edition) as prepared by the Engineers Joint Contract Documents Committee and to cause Engineer and Engineer's Consultants to be hsted as additional insureds with respect to such liabihty and other insurance purchased and maintained by Contractor for the Project. Owner and Engineer shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of Engineer's services and at renewals thereafter dm-ing the life of the Agreenaent. All policies of property insurance relating to the Project shall contain provisions to the effect that Engineer's and Engineer's Consultants' interests are covered and that in the event of payment of any loss or dmnage the insurers will have no rights of recovery agahust Engineer or its Consultants, or any insureds or additional h~sm-eds thereunder. At any time, Owner may request that Engineer or its Consultants, at Owner's sole expense, provide additional insurance coverage, increased 1/mits, or revised deductibles that are more protective than those specified in Exhibit G. if so requested by Owner, and if commercially available, Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by Owner, and Exhibit G will be supplemented to incorporate these requirements. 6.05 Suspension and Termination A. Suspension. By Owner: Owner may suspend the Project upon seven days written notice to Engineer. By Engineer: If Engineer's services are substantially delayed through no. fault of Engineer, Engineer may, after giving seven days written notice to Owner, suspend services under this Agreement. Bo Termination. The obligation to provide further services under this Agreement may be terminated: 1. For cause, By either party upon 30 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. b. By Engineer: l) upon seven days written notice if Owner demands that Engineer furnish or perform services contrary to Engineer's responsibilities as a licensed professional; or 2) upon seven days written notice if the Engineer's services for the Project are delayed or suspended for more than 90 days for reasons beyond F~ngineer's control. 3) Engineer shall have no liability to Owner on account of such termination. Notwithstanding the foregoing, this Agreement will not terminate under Paragraph 6.05.B. 1.a if the party receiving such notice begins, within seven days of receipt of such notice, to correct its substantial fa/lure to perform and proceeds diligently to cure such fa/lure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial fa/lure cannot be reasonably cured within such 30 day per/od, and if such party has diligently attempted to cure the san~e and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, a. By Owner effective upon Engineer's receipt of notice from Owner. 6.06 Effective Date of Termination. The terminating party under Paragraph 6.05.B lIlay set the effective date of termination at a time up to 30 days later than otherwise provided to allow Engineer to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. D. Payments Upon Termination. In the event of any termination under Paragraph 6.05, Engineer will be entitled to invoice Owner and to receive full payment for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. Upon making such paYment, Owner shall have the limited right to the use of Documents, at Owner's sole risk, subject to the provisions of Paragraph 6.03.E. In the event of termination by Owner for convenience or by Engineer for cause, Engineer shall be entitled, in addition to invoicing for those items identified in Paragraph 6.05.D.1, to invoice Owner and to payment of a reasonable amount for services and expenses directly attr/butable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with Engineer's Consultants, and other related close-out costs, using methods mhd rates for Additional Services as set forth in Exhibit C. Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.07 &tccessors, Assigns, and Beneficiaries Owner and Engineer are hereby bound and the pm-tners, successors, executors, administrators and legal representatives of Owner and Engineer (and to the extent permitted by Paragraph 6.07.B the assigns of Owner and Engineer) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements, and obligations of this Agreement. Bo Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assig~unent, no assignment will release or discharge the assignor fi:om any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: Nothing in this Agreement shall be construed to create, hnpose, or give rise to any duty owed by Owner or Engineer to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. ~x ~,!1 duties and responsibilities tmdertaken pursuant to tlds Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. Owner agrees that the substance of the provisions of this Paragraph 6.07.C shall appear in the Contract Documents. 6.08 Dispute Resolution Ao Owner and Engineer agree to negotiate all disputes between them in goOd faith for a period of 30 days fi:om the date of notice prior to invoking the procedures of Exhibit H or other provisions of this Agreement, or exercising their rights under law. If the parties fail to resOlve a dispute through negotiation under Paragraph 6.08.A, then either or both may invoke the procedures of Exhibit H. If Exhibit H is not included, or if no dispute resolution method is specified in. Exhibit H, then the parties may exercise their rights under law. 6.09 Environmental Condition of Site Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other Constituents of Concern located at or near the Site, including type, quantity, and location. B° Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. If Engineer encounters an tmdisclosed Constituent of Concern, then Engineer shall notify (1) Owner and (2) appropriate govermnental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. It is acknowledged by both parties that Engineer's scope of services does not include any services related to Constituents of Concern. If Engineer or any other party encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until Owner: (1) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Constituents of Concern; and (2) warrants that the Site is in full comphance with applicable Laws and Regulations. If the presence at the Site of andisclosed Constituents of Concern adversely affects the performance of Engineer's services under this Agreement, then the Engineer shall have the option of (1) accepting an equitable adjustment in its compensation or in the tinge of completion, or both; or (2) terminating this Agreement for cause on 30 days notice. Owa:ter acknowledges that Engineer is performing professional services for Ova:ret and that Engineer is not and shall not be required to become an "arranger, .... operator, .... generator," or "trm~sporter" of hazardous substances, as defined in the Comprehensive Enviromnental Response, Compensation, and Liability Act (CERCLA), as m2ended, which m'e or may be encountered at or near the Site h~ connection with Engineer's activities under this Agreement. 6.10 Indemnification and Mutual Waiver Indemnification by Engineer. To the fullest extent permitted by law, Engineer shall indemnify and hold harmless Owner, and Owner's officers, directors, partners, agents, consultants, and employees from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court, arbitration, or other dispute resolution costs) arising out of or relating to the Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Engineer or Engineer's officers, directors, partners, employees, or Consultants. The indemnification provision of the preceding sentence is subject to and limited by the provisions agreed to by Owner and Engineer in Exhibit I, "Allocation of Risks," if any. Indemnificat~'on by Owner. To the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer, Engineer's officers, d/rectors, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court, arbitration_, or other dispute resolution costs) mdsing out of or relating to the Project, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any negligent act or omission of Owner or Owner's officers, directors, partners, agents, consultants, or employees, or others retained by or under contract to the Owner with respect to th/s Agreement or to the Project. Environmental Indemnification. In addition to the indemnity provided under Paragraph 6.10.B of this Agreement, and to the fullest extent permitted by law, Owner shall indemnify and hold harmless Engineer and its officers, directors, partners, agents, employees, and Consultants from and against any and all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, and all court, arbitration, or other dispute resolution costs) caused by, arising out of, relating to, or resulting from a Constituent of Concern at, on, or under the Site, provided that (i) any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (ii) nothing in tlzis paragraph shall obligate Owa~er to indemnify any individual or entity from and against t/he consequences of that individual's or entity's own negligence or willful misconduct. Percentage Share of Negligence. To the fullest extent permitted by law, a party's total liability to the other party and anyone claiming by, through, or under the other patty for any cost, loss, or dmr~ages caused in pat-t by the negligence of the party and in part by the negligence of 'the other patty or any other negligent entity or individual, shall not exceed the percentage share that the party's negligence bears to the total negligence of Owner, Engineer, and all other negligent entities and individuals. 6.11 Mutual Waiver. To the fullest extent permitted by law, Owner and Engineer waive against each other, and the other's employees, officers, directors, agents, insttrers, partners, and consultants, any and all claims for or entitlement to special, incidental, indirect, or consequential damages arising out of, resulting from, or in any way related to,the Project. Miscellaneous Provisions Notices. Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, by facsimile, by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. Survival. All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or term/nation for any reason. Severability. Any provisign or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Engineer, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. V~aiver. A party's non-enforcement of any provision shall not constitute a waiver of that A~eement. Accrual of Claims. To the fullest extent permitted by law, all causes of action arising under this Agreement shall be deemed to have accrued, and all statutory periods of limitation shall commence, no later than the date of Substantial Completion. ARTICLE 7- DEFINITIONS 7.01 Defined Terms Wherever used in this Agreement (including the Exhibits hereto) terms (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above or in the exhibits; in the following provisions; or in the "Standard General Conditions of the Construction Contract," prepared by the Engineers Joint Contract Documents Committee (No. C-700, 2002 Edition): Additional Services - The services to be performed for or furnished to Owner by Engineer in accordance with Exhibit A, Part 2, of this Agreement. Basic Services - The services to be performed for or ftmxished to Owner by Engineer in accordance with Exhibit A, Part 1, of this Agreement. Construction Cost - The cost to Owner of those portions of the entire Project designed or specified by Engineer. Construction Cost does not include costs of services of Engineer or other design professionals and consultants, cost of land or rights-of-way, or compensation for damages to properties, or Owner's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to Owner pttrsuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. Constituent of Concern - Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes hsted, regulated, or addressed pursuant to Ia] the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § §9601 et seq. ("CERCLA"); lb] the Hazardous Materials Transportation Act, 49 U.S.C. §§1801 et seq.; [c] the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. ("RCRA"); [dj the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.; [e] the Clean Water Act, 33 U.S.C. §§1251 et seq.; [f] the Clean Air Act, 42 U.S.C. §§7401 et seq.; and [g] any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. Consultants - Individuals or entities having a contract with Engineer to fttmish services with respect to this Project as Engineer's independent professional associates, consultants, subcontractors, or vendors. o Documents - Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media fonnat, provided or furnished in appropriate phases by Engineer to Owner pursuant to this Agreement. Drawings -That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. Laws and Regulations; Laws or Re~dations - Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and alt goven2nental bodies, agencies, authorities, and courts having jurisdiction. Reimbursable Expenses - The expenses incurred directly by Engineer in cormection with the performing or furnishing of Basic and Additional Services for the Project. 10. Resident Project Representative - The authorized representative of Engineer, if any, assigned to assist Engineer at the Site during the Construction Phase. The Resident Project Representative will be Engineer's agent or employee and under Engineer's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative, if any, are as set fm~h in Exhibit D. 11. Specifications - That part of the Contract Documents consisting of written tecl-mical descriptions of materials, equipment, systems, standards, and worl~2anship as applied to the Work and certain administrative details applicable thereto. 12. Total Project Costs - The stun of the Construction Cost, allowances for contingencies, and the total costs of selMces of Engineer or other design professionals and consultants, together with such other Project-related costs that Owner 5maSshes for inclusion, including but not lhn~ited to cost of land, rights-of- way, compensation for dmnages to properties, Owner's costs for legal, accounting, insurance connseling and auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to Owner pursuant to Exkibit B of this Agreement. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "Engineer's Services," consisting of 5 pages. B. Exhibit B, "Owner's Responsibilities," consisting of N/A pages. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of 3 pages. Do Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project R presentat~ve, conmstmg of pages. E. Exhibit E, "Notice of Acceptability of Work," consisting of~ pages. F. Exhibit F, "Construction Cost Limit," consisting of__ pages. G. Exhibit G, "Insurance," consisting of pages. H. Exhibit H, "Dispute Resolution," consisting of pages. I. Exhibit I, "Allocation of Risks," consisting of__ pages. J. Exhibit J, "Special Provisions," consisting of~ pages. K. Exhibit K, "Amendment to Owner-Engineer Agreement," consisting of __ pages. 8.02 Total Agreement Ao This Agreement (consisting of pages 1 to 15 inclusive, together with the exhibits identified above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument based on the format of Exhibit K to this Agreement. 8.03 Desigmated Representatives With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer's and Owner's representatives with respect to the services to be performed or furnished by Engineer and responsibilities of Owner under this Agreement. Such individuals shall have anthority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. Owner: City of Columbia Heights Engineer: SEH By: Walt Fehst By: Sue Mason Title: City Manager Title: Phncipal D ate Signed: Address for giving notices: State of.' Address for giving notices: Designated Representative (see Paragraph 8.03.A): Kevin Hansen Title: Director of Public Works/City Engr. Phone Number: Facsimile Number: E-Mail Address: 763/706-3705 763/706-3701 Kevin. Hansen@ci.colum bia-heights.mn.us Designated Representative (see Paragraph 8.03.A): Sue Mason Title: Senior Project Manager Phone Number: 651/490-2018 Facsimile Number: 651/490-2150 E-Mail Address: Smason~sehinc.com EXHIBIT A November 30, 2004 Columbia Heights Industrial Area Redevelopment Huset Parkway SEH No. ACOLHT0403.00 Mr. Kevin Hansen, PE Director of Public Works City of Columbia Heights 637 - 38th Avenue N.E. Columbia Heights, MN 55421 Dear Mr. Hansen: Short Elliott Hendrickson Inc.® (SEH) appreciates the opportunity to provide professional engineering services to the City of Columbia Heights for the final design phase of the Industrial Area Redevelopment near Huset Park. This letter describes our understanding of the project and proposed scope of services. Background SEH understands that the City of Columbia Heights desires to construct a parkway along Jefferson Street from 40"' Avenue to 39th Avenue, and 39"' Avenue from Jefferson Street to 5th Street, and along new roadway aligmnent proposed to follow the abandoned railroad track between 5"' Street and 37"' Avenue. The parkway will serve as the primary access for the proposed Industrial Area Redevelopment. The proposed land use changes prompted a comprehensive review of the roadway improvements, traffic impacts and public utility needs for the area. SEH prepared a feasibility report dated December 2004 that addresses the area infrastructure. In addition, an Environmental Assessment Worksheet (EAW) was prepared, as well as other financing and land use documents. The final design is expected to be based on the recommendations and preliminary design developed in these documents. SEH has been requested to prepare this scope of work for final plans and specifications for the public improvements that will support the proposed redevelopment. The work includes street and utility design, landscaping and lighting design, continuing geotechnical support, drainage design, sanitary sewer repair and water main replacement, and preliminary survey services for the entire project. The project design development and implementation will also require SEH to coordinate with the developer and Mn/DOT (State Aid approval). Even though the redevelopment and environmental cleanup is expected to be phased over a number of years, it is anticipated that the total roadway and utility improvement project will be bid as a single construction project in the year 2005. Scope of Services Data Collection and Surveying Field surveys for the project area are included in this agreement. The area to be surveyed will generally fall within the 150-foot right-of-way of the existing corridor and then extend into the area of the new alignment, under the footprint of the roundabout and in the area of the pond sites. A topographic survey will be done in the Anoka County Coordinate System and will include establishing horizontal and vertical control, and monument location within the roadway corridor. The survey is expected to be coordinated Short Ell[orr Hendridrson Inc., 3535 Vadnais Center Drive, St. Paul, MN 55 II 0-5196 SEH is an equal opportunity employer ] www. sehinc.com [ 651.490.2000 [ 800.325.2055 I 651.490.2150fax Mr. Kevin Hansen December 7, 2004 Page 2 and shared with the adjacent mapping provided by the developer's engineers. Because of the current environmental excavation and cleanup work in the project area, our field survey will likely need to be phased to acquire additional elevation and topography information now and then after the environmental work is complete because of the anticipated change in elevations, especially in the area of pond 2. Other data collected includes investigation of record plan information for the existing sanitary sewer, water main pipe and services, and the existing storm sewer. Gopher One State excavation locates will also be called in, so that the actual private utility information can be field located and shown on the plans. Pictures of the existing street features and existing tie- in conditions will also be gathered. Structure surveys of the existing sanitary and storm manholes will be performed by City staff. Parkway Design The preliminary design of the vertical and horizontal elements of the parkway design will be further refined and detailed in the final plans, meeting the requirements of current City and Municipal State Aid (MSA) standards. The plan review and approval will follow Mn/DOT established processes and schedules. The "interim" alignment connection of the roadway to existing Jefferson Street will be detailed for construction. However, the final alignment of the proposed curve in the park to 40th Avenue will be further refined, with the intent to limit the amount of reconstruction work in the future. The parkway will be designed with median, roundabout, and parking bay features as described in the feasibility report. New side street connections and removal of existing connections and streets as shown on the preliminary design will be considered part of the project. The trails and sidewalks will also be designed adjacent to the roadway. The other sidewalk connections in the area, along Madison and 37th Avenue, but not adjacent to the roadway, are also expected to be part of the area improvements and are considered part of the final design scope of work. The roundabout will require a Roundabout Justification Report to submit for Mn/DOT approval. We also anticipate having two meetings with Mn/DOT to discuss the configuration of the intersections at TH 47 and 40th Avenue and 374 Avenue. Mn/DOT expressed concern about the operation of the intersections during the EAW comment period, so we have included time to review the intersections and provide design details into the projects as warranted. Urban Streetscape Elements The preliminary design for the parkway included gateway features and the roundabout option with only conceptual ideas and costs. Since the space is limited, we discussed vertical elements such as banners and trees. An entrance monument will be considered for the south end median. We also considered paving the entrance areas and crosswalks with colored concrete pavement. Moving into the final design phase of the project, the gateway and roundabout inner circle will need to undergo preliminary design development. We will provide two sketches with options and costs for review, prior to f'mal design. The parkway landscaping is expected to consist of linear tree plantings, and decorative pedestrian scale lighting and street lighting. Soils A subsurface investigation was completed during the feasibility report phase of the project. However, pipe bedding details and final sub grade treatment recommendations will be refined. Due to concern for the removal of the foundry sands in the adjacent parcels and the potential for construction debris and geotec~cal engineer to review field notes ~om the envkomental cleanup to ~her defoe the excavation needs for the roadway con,actor, h addition, we reco~end the addition of two additionfl Mr. Kevin Hansen December 7, 2004 Page 3 borings for Jefferson Street, north of 39t~ Avenue, due to suspicion of organic soils in the area as indicated by environmental borings taken in the area. Drainage Design Two ponds are proposed to be designed in conjunction with the redevelopment of the industrial area. The ponds will be designed to provide water quality and sized to treat a 2.5-inch rainfall event. The pond design for the large pond in the park is expected to require further design development to achieve the balance of aesthetics and treatment capacity acceptable to all stakeholders. We have included some time to create two sketches illustrating grading and capacity alternatives of each pond prior to final design. Comments received during the EAW comment period indicated the potential requirement for the ponds to be lined to alleviate concerns that pollutants from the surrounding contaminants might infiltrate into the groundwater via the pond. We have included provisions for the design of an engineered clay liner which includes a plan detail and material and construction specifications. New storm sewer pipe will be designed for the new parkway. Connections to the existing storm sewer in the area and the existing flow and pipe conflicts will need to be analyzed in this phase of the work. Because of the topography of the project area and proposed pond locations, the storm sewer system will be evaluated using the XP-SWMM modeling software. The new pipe will be sized and detailed on the plans. The cost estimate and funding participation splits will need to be developed for not only MSA participation, review and approval, but also for the developer. The City is the LGU for the wetlands. SEH expects to prepare the WCA permit. A construction NPDES permit application and corresponding SWPPP will also be prepared and submitted as required. No other permits are expected. Sewer and Water Main Improvements Utility improvements such as sanitary sewer repairs and the replacement of the water main along 5th Street and 39th Avenue are included in the proposed project. It is our understanding that the City will provide the location of spot sewer repairs for inclusion on our plan if required. Details and quantities for manhole repairs, service removals, and new service installations will be part of the SEH scope of work. Right of Way The purchasing of the right-of-way is expected to be a combined effort by the developer and the City. SEH expects to prepare the right-of-way documents for the parcels that the City is acquiring. We have estimated that we will need to provide easement information for 4 parcels, either in the form of a right-of- way plat or easement descriptions and exhibits. The City is expected to provide the ownership and encumbrance information along with any document filing. Meetings and Coordination The attached spreadsheet details a number of anticipated meetings throughout the design phase. To keep decisions on key issues on schedule, we have scheduled a design meeting every month for the next 5 months with our project manager and your staff. Key SEH individuals working on the project elements such as drainage or landscaping features have been included in some of the meetings. We have also planned for two meetings with Mn/DOT, one with private utilities, and two with the developer. One Council Meeting has been included, anticipating the attendance at the meeting where final plans are considered for approval. Bidding Services Bidding services include the distribution of plans and specifications, answering plan holders' questions, tabulation of bids, preparation of a letter of recommendation, and preparation of the contract documents. Mr. Kevin Hansen December 7, 2004 Page 4 This project scope does not include construction services. SEH and the City will negotiate the project scope for construction services at the completion of final design, if desired. The typical construction services include contract administration, project coordination, review of payment applications, construction staking, resident project representative, final project review and closeout, and as-built drawings. The scope of our services and proposed man hours is outlined on the attached Exhibit A. The scope identifies all major project tasks, project deliverables, and assumptions. Costs SEH proposes to be compensated for the scope of work proposed in this Agreement on an hourly basis. Compensation will be based on the hourly cost of personnel plus the reimbursable expenses, including reproductions, mileage, and equipment. Not included in these costs are construction services, special geotechnical design such as retaining walls and special embankments, environmental services, traffic signal design, structure surveys, sewer repair recommendations and Right-of-Way acquisitions. Our estimated cost for the work is as follows: SEH Project Area Preliminary Surveys and Data Collection Additional Soil Borings Final Design and Plan Preparation $ 26,600 $ 1,500 $194,700 Total $222,800 The costs are based on our understanding of the project to date. SEH would like to review the scope for final design at the end of preliminary design for the streetscape elements to be sure the project assumptions are still current. The cost for preliminary surveys for the project is shown separately for your consideration. Schedule The schedule is based on Council authorization at the December 13, 2004 Council meeting to begin work on the project. We hope to begin the preliminary surveys as soon as possible. It is proposed that final design, plans and specifications would be completed during the winter and spring of 2004/2005. A mid to late summer 2005 construction start is desired. It is expected that construction would be phased over two years. This schedule for the final design and bidding for the project is very aggressive and heavily dependent upon obtaining information needed for design from the developer, right-of-way and timely review by the office of State Aid. able to negotiate an equitable adjustment of our compensation that takes into consideration the impact of such delays and scope changes. Compensation adjustment could include, but not be limited to, changes in price indices and pay scales applicable to the period when the services are rendered. Mr. Kevin Hansen December 7, 2004 Page 5 If this document satisfactorily sets forth your understanding of our agreement, please sign in the space below and return one copy to our office. We look forward to working with you, your staff, and the community on this project. Thank you for the opportunity to continue to work with you and the City of Columbia Heights. Sincerely, SHORT ELLIOTT HENDRICKSON INC. Sflsa/nqVl. Mason, P.E. ~0nfor Project Manager, Principal Approved this [~'~dayof ~~:~~~,2004. it[ of Columbia Heights, Minnesota By City Managerf Walt Fehst c: Randy Schumacher, Project Director Columbia Heights Huset Parkway E×HIBIT C Preliminary Survey City Area - COLUMBIA HEIGHTS Deliverables: Electronic and hard copy of existing physical features Word Task Project Project Speciality Project Senior/Lead Staff Advisor Manager Engineer EngJLS Arch Technician Technician Processor/Tec Survey Crew Ii A. Data Collection - SEH Coordinate surVeys 8 Perform field survegs - topo,vert,hodz., x-section City Area 91 Transfer and reduce field data 8 8 Merge developer files 8 Total hours 123 0 01 0 16 16 0 0 91 Project labor cost this phase $21,185 Equipment charges Survey Vehicle 819 Mileage 246 Survey Equipment 4,350 Miscellaneous 0 Total Droiect cost this ehase $26.600 , Unique comoonents or assumptions: 150' Right of Way Corridor SurVey for Parkway and Pond Site 12/6/2004 Columbia Heights Huset Parkway EXHIBIT C Final Design and Plan Preparation Deliverables; 11x17 plans and specs for review and Permit applications. Plans and specifications produced for bidding purposes Engineers estimate Word Task Project Speciality Project Senior/Lead Staff Manager Engineer Eng./LS Arch Technician Technician Processor/Tec Survey Crew h A. Detail Design - ParkWay Develop final typical sections 2 8 8 8 Develop horizontal and geometric layout 3 8 8 Develop centerline profiles 8 8 8 Develop sidestreet profiles 8 8 8 Develop utility profiles 8i 8 Develop trail alignment/profiles 3 4 8 8 Pavement design 8 Prepare final cross sections and earthwork 8 8 B. Detail Design - Ponds Detail Design 4 16 39 Permit preparation/agency coordination 2 4 12 Final drainage design 2 17 72i Engineer's estimate/quantity takeoff I 1 Prepare specification 1 1 6 Plan review meeting with City Staff 3 3 C. Right of Way Identify easements 2 4 88 1 Field Survey 17 D. Plan Preparation Title sheet 1 2 4 Typical sections 2 8 8 SEQ 4 8 8 Standard plates and tabulations 2 8 16 Details 2 8 8 8 Plan and Profile Parkway 4 24 36 Plan and Profile Side Streets 2 8 24 Utilities (sewer and water) I 24 24 Utilities (storm sewer) 4 48 Signing and Striping 1 16 4 Turf Establishment and Erosion Control Sheets 1 4 8 Landscaping 3 8 Ponding 8 Trail plan 4 8 8 Lighting 3 8 Cross sections and Earthwork 2 40 36 E. Roundabout Design Prepare roundabout iustification report 4 20 1 Design plans and specs, for roundabout 8 48 1 Plans and specs for signing and striping 6 55 2 Plans and specs for traffic control/detour 1 i 10 1 Coordinate with MN/Dot and Anoka Co. for turn lanes 8 Coordinate with developer 4 F. Urban Street Scape Design Reports and scheduling 48 16 Design development 8 28 28 Final parkway plans 8 20 24 Construction documents 100 148 Bidding 8 4 G. Lighting Detail Design 26 21 Lighting Specifications 20 2 12/7/2004 Columbia Heights Huset Parkway EXHIBIT C Final Design and Plan Preparation. Deliverables: 11x17 plans and specs for review and Permit applications. Plans and specifications produced for bidding purposes Engineers estimate Word Task Project Speciality Project Senior/Lead Staff Manager Engineer Eng.fLS Arch Technician Technician Processor/Tec Survey Crew h H. Engineer's Esfimate/Quanity Takeoff Streets and utilities 4 16 36 36 Storm sewer cost participation 2 8 4 I, Prepare Specification Streets and utilities 32 4 16 8 J, Geotechnical Services Coordinate additional borings (includes review and testing) 2 6 Coordinate and review of plans/details 8 1 Clay liner and earthwork specifications 4 4 Pond liner details/notes on drawings 0,5 4 K. Agency Coordination City 18 24 3 Developer 9 12 1 Mn/Dot - State Aid Submittal 9 12 Private Utilities 12 16 2 Council Workshop 3 2 1 Total hours 1913.5 171 61.5 772 793 76 23 17 Project labor cost this phase $191,829 Equipment charges Mileage 250 Reproductions 2,500 Miscellaneous 121 Total =roiect cost this task $194,700 Unique components or assumptions; Assumed production of 30 sets of review and bidding documents 12~/2004