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HomeMy WebLinkAboutresolution.council.070-01 RESOLUTION NO. 2001-70 (SERIES OF 2001) A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, APPROVING A PROFESSIONAL SERVICE AGREEMENT BETWEEN THE CITY OF ASPEN AND CARTER-BURGESS, INC., AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN. WHEREAS, there has been submitted to the City Council a Professional Service Agreement between the City of Aspen, Colorado and Carter-Burgess, Inc., a copy of which is annexed hereto and part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO. Section One That the City Council of the City of Aspen hereby approves that a Professional Service Agreement between the City of Aspen, Colorado, and Carter-Burgess, Inc., regarding the Rotary/Tiehack Pedestrian Bridge, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said Agreement on behalf of the City of Aspen. H~ren l~a? Klan~rerul~ Mayor I, Kathryn Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held ~ ~.~ ~'- ., 2001. Kathryn S. K~, City Clerk AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Carter-Burgess, Inc., ("Professional"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than July 1, 2002. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $135,000.00. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assignability. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. Page 5. Termination. The Professional or the City may terminate this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 6. Covenant Against Contingent Fees. The Professional warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for the Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in Whole or in part by; the act, omission, Page 2 error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to'Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), Page 3 personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. Page 4 (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10~101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the ClRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in ClRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested, to: City: Professional: Steve Barwick, City Manager George Tsiouvaras, Project Manager City of Aspen Carter-Burgesss, Inc. 130 South Galena Street 216 Sixteenth Street Mall Aspen, Colorado 81611 Suite 1700 Denver,CO,80202-1530 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Page 5 Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Aqreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. General Terms~. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The Parties acknowledge and understand that there are no Conditions Or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a Writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. (e) The City of Aspen Standard terms and Conditions for Professional Engineering Services Contracts, are attached hereto as Exhibit "C" and incorporated by this reference into this agreement. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. [SIGNATURES ON FOLLOWING PAGE] Page 6 ATTESTED BY: CITY OF ASPEN, COLORADO: Title: C;-7~ Date: PROFESSIONAL: WITNESSED BY: Carte~ L/~'/ ' Title Date: G-GO- Page 7 EXHIBIT "A" to Professional Services Agreement Scope of Work 1.0 Design Process 1 .'1 Meetings Carter & Burgess ~vill attend meetings with the follo~ving groups: · Coordination Meetings w/the City (4) · Design Development Review Meeting · 90% Review Meeting · Pre-bid Meeting All meetings will be documented and meeting minutes distributed to the attendees, and the City of Aspen. 1.2 Conceptual Design Seek input from the City and select three alternatives for final consideration. Coordinate w/utility companies. 1.3 Schematic Design Refine conceptual design and prepare three illustrations for presentation to the public. 1.4 Design Development Incorporate refinements from public process into preferred alternative and submit design development drawings. Attend design development plan review and obtain notice to proceed for £mal design. 2.0 Bridge Architecture / Landscape Architecture 2.1 Bridge Architecture · Computer generated bridge visuahzadon superimposed on site photo of 3 altemati~'es. · Final design support for structural details. 2.2 Landscape Architecture · Coordinate with Cit7 of Aspen Landscape Architect and include plantings in conU'act documents. · Tabulation of landscape quantities. Page 8 · Include city prox;~ded specifications in special provisions. 3.0 Engineering As part of the enginee£mg work product 30% and 90% submittal Will be made for city reviexv. All construction documents will be prepared in CDOT format and Wffi follow City of Aspen's criteria and details. The activities necessary to complete this work and to prepare construction documents are outlined in the folloxx/mg sections. 3.1 Review Meetings Carter & Burgess will attend 30% and 90% Review Meeting with the City, and other Stakeholders. The meetings vail be documented and meeting minutes distributed to the City. Comments v&ll be incorporated into the project design. 3.2 Survey Stttvey and R.O.W will be provided by the City of Aspen. 3.3 Geotechnical The geotechnical program for the project is outlined in the supplemental proposal by HP Geotech. HP Geotech x~ll enter into a separate agreement with the City of Aspen to provide these services. 3.4 Hydraulic Analysis Bridge foundations vAll be located outside of the floodplain. No hydraulic analysis xx/~ll be performed. 3.5 Permits and Approvals Carter & Burgess ~x/fl/coordinate with the city in their efforts to gain the various approvals for the project including: Army Corp of Engineers, Colorado Division of W~ldlife, Aspen Planning and Zoning Commission and the Aspen Commurdty Development Department. 3.6 Civil Design Carter & Burgess v~xll complete the design for up to 200 feet of path from each bridge abutment. The design shall include development of plan and profile, typical section, quantity tabulations, and incorporate planting designs and required special provisions. Carter & Burgess x~All complete design for the path to meet ADA criteria. Vertical circulation alternatives w/il be developed in a coordinated approach with the bridge design. Page 9 3.8 Bridge Engineering ; Carter & Burgess W/Il provide engineering Sert'iEes for p4destrian bridge structure over Maroon Creek· Tasks include: · Establish design criteria. · Select three bridge alternatives for final consideration. · Consensus building for preferred alternative · Development of Constrnctibility Report · Bridge cost est/mates. · Fabricator and General Contractor involvement through design development· · Development of General Layout for preferred Alternative. · Final design shall include: 1. General Notes, summary o f quantities 2. General Layouts 3. Construction/Foundation Layout. 4. Construction Staging. 5. Substructure 6. Bea£mg Design 7. Steel Framing Details 8. Deck and handrail design · Carter & Burgess v~21 design the structure to support utilities on the bridge and provide the city v~ith additional cost support for City negotiation with the Utilities. 4.0 Supporting Activities 4.1 Cost Estimates Two cost estimates will be prepared during preliminary enginee£mg. A concept level estimate will be prepared early in the project to validate project budget. A second more detailed cost estimate Will be prepared near the end of preliminary engineering. 4.2 Preliminary Construction Schedule A detailed preliminary construction scheduled ~x/ill be developed that addresses construction timing, staging and activities. The schedule development will be incorporated into the development of the staging plans, detour plans, construction traffic control and with the constructibility report. 5.0 Construction Activities 5.1 Pre-Bid Conference and Bid evaluation Carter & Burgess v/21 provide assistance and attend the prebid conference. In addition, we will assist in evaluation of the contractor proposals. Page 10 5.2 Construction observation and documentation Carter & Burgess w'fll perform periodic obsercation and inspection at project milestones visits total) including: · Foundation construction · Prior to concrete placement · Superstmctu.~e erection · Final punchlist In addition, the following tasks shall be performed during construction: · Payment review assistance. · response to field questions. · shop drawing review. Shop fabrication inspection and quality assurance are not included m this scope. It is anticipated that this will be included in the contractor's scope. Page 11 EXHIBIT "B" to Professional Services Agreement Rate Schedule Rate/Hr. Cassell Visualization $60.22 Dianni LA $47.65 Faber Admin $48.24 Gattshall, B Tech $48.21 Gattshall, D Sr. Tech $65,24 Hanson Tech $60.68 Jasper Sr. Bridge $156.29 Odell Sr. Inspector $102.33 Pavlick Sr. Tech $74.27 Peebles Civil Engineer $68.29 Rens Project Engineer $96.14 Rhea Graphics $45.60 Simmons Project Engineer $108.15 Stapleton Sr. Bridge Eng $142.96 Thompson Bridge Engineer $89.87 Tsiouvaras project Manager $135.97 Wilensky Sr. Urban Design/LA $139.34 Wilson Senior Civil Eng $134.14 Subconsultants: Carpenter, David DHM Design $100.00 HP Geotech Per Proposal Page 12 EXHIBIT "C" to Professional Services Agreement THE CITY OF ASPEN STANDARD TERMS AND CONDITIONS FOR PROFESSIONAL ENGINEERING SERVICES CONTRACTS These standard terms and conditions have been prepared by the City of Aspen to be incorporated by reference into Agreements entered into between the City of Aspen and engineers or professional engineering firms for professional engineering services. The provisions herein are interrelated with other standard contract documents customarily used by the City of Aspen and a change in one may necessitate a change in others. Whenever a conflict exists in the terms and conditions of this document and the Agreement, the terms and Conditions set forth in the Agreement shall take precedence. ARTICLE 1 ENGINEERS'S SERVICES AND RESPONSIBILITIES 1.1. GENERAL 1.1.1. The Engineer shall perform the services undertaken according to the Agreement with the City. The part of the project for which Engineer is to provide services pursuant to the Agreement with the City is hereinafter called This Part of the Project. 1.1.2. The Engineer shall designate, when necessary, a representative authorized to act in the Engineer's behalf ~vith respect to This Part of the Project. 1.1.3. The Engineer's services shall be performed in character, sequence and timing so that they will be coordinated with those of the City and all Other consultants for the Project. 1.1.4 The Engineer shall recommend to the City the obtaining of such investigations, surveys, tests, analyses and reports as may be necessary for the proper execution of the Engineer's services. 1.1.5 The Engineer shall provide progress copies of drawings, reports, specifications and other necessary information to the City and other consultants. All aspects of the Work designed by the Engineer shall be coordinated by the Engineer, and the Engineer shall als0 become familiar with the Work designed by the City and other consultants as necessary for the proper coordination of the Project. 1.1.6 The Engineer shall cooperate with the City in determining the proper share of the construction budget to be allocated to This Part of the Project. Page 13 1.2 BASIC SERVICES The Scope of Work document shall set forth the Basic Services which the Engineer has agreed to perform. The Scope of Work may consist of one or more of the following phases. The terms and conditions set forth below apply to those phases which have been made a part of the Scope of Services. SCHEMATIC DESIGN PHASE 1.2.1 The Engineer shall ascertain the requirements for This Part of the Project and shall confirm such requirements with the City. 1.2.2 The Engineer shall review alternative systems with the City, attend necessary conferences, prepare necessary analyses, drawings and other documents, be available for general consultation, and make recommendations regarding basic systems for This Part of the Project. When necessary, the Engineer shall consult with public agencies and other organizations concerning utility services and requirements. 1.2.3 The Engineer shall prepare and submit to the City a Statement of Probable Construction Cost of This Part of the Project based on current area, volume or other unit costs, as directed by the City. DESIGN DEVELOPMENT PHASE 1.2.4 When authorized by the City, the Engineer shall prepare from the Schematic Design Studies approved by the City the Design Development Documents. These shall consist of drawings and other documents to fix and describe This Part of the Project, including materials, equipment, component systems and types of construction as may be appropriate, all of which are to be approved by the City. 1.2.5 The Engineer shall submit to the City a further Statement of Probable Construction Cost of This Part of the Project CONSTRUCTION DOCUMENTS PHASE 1.2.6 When authorized by the City, the Engineer shall prepare from the Design Development Documents drawings and specifications setting forth in detail the requirements for the construction of This Part of the Project, all of which are to be approved by the City. The Engineer shall prepare the Drawings and Specifications in such format as the City may reasonably require. 1.2.7 The Engineer shall advise the City of any adjustments to previous Statements of Probable Construction Cost of This Part of the Project indicated by changes in requirements or general market conditions. Page 14 1.2.8 The Engineer shall assist the City as necessary in connection with the responsibility for filing the documents concerning This Part of the Project required for the approval of governmental authorities having jurisdiction over the Project. BIDDING OR NEGOTIATION PHASE 1.2.9 If required by the City, the Engineer shall assist the City's project engineer in obtaining and evaluating bids or negotiated proposals, and in awarding and preparing contracts for construction. CONSTRUCTION PHASE ~ ADMINISTRATION OF THE CONSTRUCTION CONTRACT 1.2.10 The Construction Phase will commence with the award of the Contract for Construction and together with the Engineer's obligation to provide Basic Services under this Agreement, will terminate when final payment to the Contractor is due or, in the absence of a f'mal Certificate for Payment or of such due date, sixty days after the date of Substantial Completion of the Work, whichever occurs first. 1.2.11 Unless otherwise provided in this Agreement and incorporated in the Contract Documents, the Engineer shall assist the City in the Administration of the Contract for Construction with respect to This Part of the Project, as set forth below and in General Conditions of the Contract for Construction. 1.2.12 The Engineer shall visit the site at intervals appropriate to the stage of construction for This Part of the Project or as otherwise agreed with the City in writing, to become generally familiar with the progress and quality of the Work for This Part of the Project and to determine in general if such Work is proceeding accordance with the Contract Documents. The Engineer shall keep the City informed of the progress and quality of the Work for This Part of the Project and shall endeavor to guard the City against defects and deficiencies in such Work of the Contractor. 1.2.13 The Engineer shall at all times have access to the Work for This Part of the Project wherever it is in preparation or progress. 1.2.14 The Engineer, based on observations at the site and on evaluations of the Contractor's Applications for Payment, shall assist the City in determining the amounts owing to the Contractor for This Part of the Project and shall certify such amounts to the City. Such certification shall be in writing if requested. 1.2.15 Certification by the Engineer to the City of an amount owing to the Contractor shall constitute a representation by the Engineer to the City that, based on the Engineer's observations at the site as provided in Subparagraph 1.2.12 and the data comprising the Contractor's Application for Payment, the Work for This Part of the Project has progressed to the point indicated; that to the best of the Engineer's knowledge, information and belief, the quality of such Work is in accordance Page 15 with the Contract Documents (subject to an evaluation of such Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the ContraCt Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifications stated by the Engineer); and that the Contractor is entitled to payment in the amount certified. 1.2.16 Upon written request of the City, the Engineer shall furnish to the City, with reasonable promptness, written interpretations of the Contract Documents prepared by the Engineer, if, in the opinion of the City, such interpretations are necessary for the proper execution or progress of the Work. 1.2.17 The Engineer shall render written recommendations, within a reasonable time, on all claims, disputes and other matters in question bet~veen the City and the Contractor relating to the execution or progress of This Part of the Project or the interpretation of the Contract Documents. 1.2.18 The Engineer shall assist the City in determining whether the City shall reject Work for This Part of the Project which does not conform to the Contract Documents or whether special inspection or testing is required. 1.2.19 The Engineer shall review and approve, or take other appropriate action upon, and forward to the City for final disposition the Contractor's submittals such as Shop Drawings, Product Data and Samples with respect to This Part of the Project; but only for conformance with the design concept of the Work and with the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay. The Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 1.2.20 The Engineer shall assist the City in preparing Change Orders for This Part of the Project for the City's approval and execution in accordance with the Contract Documents. The Engineer shall recommend to the City minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 1.2.21 The Engineer shall assist the City in conducting inspections, with respect to This Part of the Project, to determine the dates of Substantial Completion and final completion, and shall review and approve, or take other appropriate action on, the Contractor's list of items to be completed or corrected and shall forward the list to the City for final disposition. The Engineer shall assist the City in receiving and for~varding for review written warranties and related documents required by the Contract Documents and assembled by the Contractor with respect to This Part of the Project. If requested, the Engineer shall issue to the City a final certificate in writing with respect to final payment for This Part o£the Project. 1.3 PROJECT REPRESENTATION BEYOND BASIC SERVICES Page 16 1.3.1 If more extensive representation at the site than is described under Subparagraphs 1.2.10 through 1.2,21, inclusive, is required for This Part of the Project, the Engineer shall, if requested by the City, provide one or more Project Representatives to assist the Engineer in carrying out such responsibilities at the site. 1.3.2 Such Project Representatives shall be selected, employed and directed by the Engineer, and the Engineer shall be compensated therefor as set forth in an exhibit appended hereto or an amendment to the Agreement. Such exhibit or amendment shall describe the duties, responsibilities and limitations of authority of such Project Representatives. 1.3.3 Through the observations of such Project Representatives, the Engineer shall endeavor to provide further protection for the City against defects and deficiencies in the Work for This Part of the Project, but the furnishing of such Project representation shall not modify the rights, responsibilities or obligations of the engineer as described in Subparagraphs 1.2.10 through 1.2.21 inclusive. 1.4 ADDITIONAL SERVICES The following Services are not included in Basic Services unless specifically included in the Scope of Work. They shall, however, be provided if requested in writing by the City, and they shall be paid for by the City as provided in the Agreement, in addition to the compensation for Basic Services. 1.4.2 Providing financial feaSibility °r other special Studies. 1.4.3 Providing planning surveys, site evaluations, environmental studies or comparative studies of prospective sites, and preparing special surveys, studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. 1.4.4 Providing services relative to future facilities, systems and equipment which are not intended to be constructed during the construction Phase. 1.4.5 Providing services to investigate existing conditions or facilities, or to make measured drawings thereof, or to verify the accuracy of drawings or other information related thereto. 1.4.6 Preparing documents for alternate, separate or sequential bids, or providing extra services in connection with bidding, negotiation or construction prior to the completion of the Construction Documents Phase, when requested by the City. 1.4.7 Providing coordination of work performed by separate contractors or by the City's own forces. Page 17 1,4.8 Providing services in connection with the work of a construction manager or separate consultants retained by the City. 1.4.9 Providing Detailed Estimates of Construction Cost, analyses of owning and operating costs, or detailed quantity surveys or inventories of material, equipment and labor. 1.4.10 Providing engineering services or special consultants related to interior design services and other similar services required for, or in connection with, the selection, procurement or installation of furniture, furnishings and related equipment. 1.4.11 Providing services for planning tenant or rental spaces. 1.4.12 Making revisions in Drawings, Specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given, are required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or are due to other causes not solely within the control of the Engineer. 1.4.13 Preparing Drawings, Specifications and supporting data, and providing other services in connection with Change Orders to the extent that the adjustment in the Basic Compensation resulting from the adjusted Construction CoSt is not commensurate with the services required of the Engineer, provided such Change Orders are required by causes not solely within the control of the Engineer. 1.4.14 Making investigations, surveys, valuations, inventories or detailed appraisals of existing facilities, and providing services required in connection with construction performed by the City. 1.4.15 Providing consultation concerning replacement of any Work damaged by fire or other cause during construction, and furnishing services as may be required in connection with the replacement of such Work. 1.4.16 Providing services made necessary by the default of the Contractor, or by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the City or the Contractor under the Contract for Construction. 1.4.17 Preparing a set of reproducible record drawings showing significant changes in the Work made during construction, based on marked-up prints, drawings and other data furnished by the Contractor to the City. 1.4.18 Providing extensive assistance in the utilization of any equipment or system, such as initial start-up or testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. Page 18 1.4.19 Providing services al~er issuance to the City of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more than sixty days after the Date of Substantial Completion of the Work. 1.4.20 Preparing to serve or serving as an expert witness in connection with any public heating, arbitration proceeding or legal proceeding. 1.4.21 Providing services of consultants for other than the normal engineering services for This Part of the Project. 1.4.22 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted engineering practice. ARTICLE 2 THE CITY'S RESPONSIBILITIES 2.1 The City shall, with reasonable promptness, provide all available information regarding the requirements for This Part of the Project. 2.2 The City shall designate, when necessary, a representative authorized to act in the City's behalf with respect to This Part of the Project. The City, or such authorized representative, shall examine documents submitted by the Engineer and shall render decisions pertaining thereto promptly, to avOid unreasonable delay in the progress of the Engineer's services. 2.8 If the City observes or otherwise becomes aware of any fault or defect with respect to This Part of the Project, or nonconformance with the Contract Documents, prompt written notice thereof shall be given by the City to the Engineer. 2.9 The City shall consult with the Engineer before issuing interpretations or clarifications of the Engineer's Drawings and Specifications and shall request the recommendation of the Engineer before acting upon Shop Drawings, Product Data, Samples or other submissions of the Contractor, or upon Change Orders affecting This Part of the Project. 2.11 The City shall advise the Engineer of the identity of other consultants participating in the Project and the scope of their services. 2.12 The City shall review the Engineer's work for compliance with the City's program and for overall coordination with the City's and other engineering requirements. ARTICLE 3 CONSTRUCTION COST Page 19 3.1 The Consh'uction Cost of the Project shall be the total cost or estimated cost to the City of all elements of the Project designed or specified by the City or the City's consultants. The Construction Cost of This Part of the Project shall be the total cost or estimated cost to the City of all elements of the Project designed or specified by the Engineer. 3.2 The Construction Cost of the Project or of This Part of the Project shall include at current market rates, including a reasonable allowance for overhead and profit, the cost of labor and materials furnished by the City and any equipment which has been designed, specified, selected or specially provided for by the City and, the City's consultants. 3.3 Construction Cost does not include the compensation of the City's consultants, the cost of the land, rights-of-way, or other costs which are the responsibility of the City as provided in Article 2. 3.4 Evaluations of the City's Project budget, Statements of Probable Construction Cost and Detailed Estimates of Construction Cost, if any, prepared by the Engineer, represent the Engineer's best judgment as a design professional familiar with the construction industry. 3.5 If a fixed limit of Construction Cost has been established, the City and the Engineer shall establish, if practicable, a fixed limit of Construction Cost for This Part of the Project. If such a fixed limit is established, the Engineer, after consultation with the City, shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents with respect to This Part of the Project, and to make reasonable adjustments in the scope of This Part of the Project to bring it within the fixed limit. If required, the Engineer shall assist the City in including in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Any such fixed limit shall be increased in the amount of any increase in the Contract Sum related to This Part of the Project occurring after execution of the Contract for Construction. 3.5.1 If the Bidding or Negotiation Phase for This Part of the Project has not commenced within three months after the City receives the Construction Documents any Project budget or fixed limit of Construction Cost for This Part of the Project established as a condition of this Agreement shall be adjusted to reflect any change in the general level of prices in the construction industry between the date of submission of the Construction Documents to the City and the date on which bids or proposals are sought. 3.5.2 If a Project budget or fixed limit of Construction Cost for This Part of the Project (adjusted as provided in Subparagraph 3.5.1)is exceeded by the lowest bona fide bid or negotiated proposal, the City may require the Engineer without additional charge, to modify the Engineer's DrawSngs and Specifications for This Part of the Project as necessary to bring the Construction Cost thereof within such fixed limit for This Part of the Project. If it was not practicable to establish a fixed limit of Construction Cost for This Part of the Project, and if the lowest bona fide bid or negotiated proposal, the Detailed Estimate of Construction Cost or the Statement of Probable Construction Page 20 Cost established for the entire Project (including the bidding contingency) exceeds the fixed limit of Construction Cost of the entire Project, the City may require that the Drawings and Specifications prepared by the Engineer be modified without additional compensation as necessary to make them bear a reasonable portion of the burden of reducing the Construction Cost of This Part of the Project so that the fixed limit of Construction Cost for the entire Project is not exceeded. The providing of such service shall be the limit of the Engineer's responsibility in this regard, and having done so the Engineer shall be entitled to compensation for all services performed in accordance with this Agreement. ARTICLE 4 DIRECT PERSONNEL EXPENSE 4.1 Direct Personnel Expense is defined as the direct salaries of all the Engineer's personnel engaged on the Project, and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions, and similar contributions and benefits. ARTICLE 5 REIMBURSABLE EXPENSES 5.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include actual expenditures made by the Engineer and the Engineer's employees and consultants in the interest of the Project (to the extent they are reimbursable by the City for the expenses listed in the following Subparagraphs; provided that engineer shall not be reimbursed for expenses unless prior written approval therefore has been obtained from City. 5.1.t Expense of transportation in connection with the Project; living expenses in connection with out-of-town travel; long distance communications; and fees paid for securing approvals of authorities having jurisdiction over the Project. 5.1.2 Expense of reproductions, postage and handling of Drawings, Specifications and other documents, excluding reproductions for the office use of the Engineer, the City and the City's consultants. 5.1.3 Expense of data processing and photographic production techniques when used in connection with Additional Services. 5.1.4 If authorized in advance by the City, expense of overtime work requiring higher than regular rates. 5.1.5 Expense of renderings, models and mock-ups requested by the City. Page 21 ARTICLE 6 PAYMENTS TO THE ENGINEER 6.1 PAYMENTS ON ACCOUNT OF SERVICES 6.1.1 Payments for Basic Services, Additional Services and Reimbursable Expenses shall be made on the basis set forth in the Agreement. 6.1.2 The City shall disclose to the Engineer, prior to the execution of this Agreement, any contingent or other special provisions relative to compensation. 6.1.3 The Engineer shall submit, in timely fashion, invoices for Basic Services, Additional Services and Reimbursable Expenses. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with the Engineer and confirm, in writing to the Engineer within ten days from receipt of the Engineer's billing, the City's understanding of the disposition of the issue. 6.1.4 If and to the extent that the Contract Time initially established in the Contract for Construction is exceeded or extended through no fault of the Engineer, compensation for any Basic Services required for such extended period of Administration of the Construction Contract shall be computed as set forth in the Agreement. ARTICLE 7 ENGINEER'S ACCOUNTING RECORDS 7.1 Records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a Multiple of Direct Personnel Expense shall be kept on the basis of generally accepted accounting principles and shall be available to the City or the City's authorized representative at mutually convenient times. ARTICLE 8 OWNERSHIP AND USE OF DOCUMENTS 8.1 Except for reference and coordination purposes in connection with future additions or alterations to the Work. Drawings and Specifications prepared by the Engineer in instruments of service are and shall be the property of the City whether the Project for which they are made is Page 22 executed or not. The Engineer shall be permitted to retain copies, including reproducible copies, of Draxvings and Specifications for such information and reference. The Draxvings and Specifications may be used by the City on other projects, or for completion of this Project by others. 8.2 The Engineer shall maintain on file, and make available to the City, design calculations for This Part of the Project, and shall famish copies thereof to the City on request. 8.3 Submission or distribution to meet official regulatory requirements, or for other purposes in connection with the Project, is not to be construed as publication in derogation of the City's or the Engineer's rights. Page 23