HomeMy WebLinkAboutMain Street Reconstruction
.~
.
STANDARD FORM OF AGREEMENT
BETWEEN
OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
Project No.
THIS IS AN AGREEMENT made as of July 21, 2006, between the CITY OF OSHKOSH
(OWNER) and MSA PROFESSIONAL SERVICES, INC. (ENGINEER). OWNER
intends to reconstruct Main Street (Algoma Blvd to INing Ave) in the City of Oshkosh,
Winnebago County, Wisconsin (the "Project").
OWNER and ENGINEER in consideration of their mutual covenants herein agree in
respect of the performance or furnishing of professional engineering seNices by
ENGINEER with respect to the Project and the payment for those seNices by OWNER
as set forth below. Execution of this Agreement by ENGINEER and OWNER
constitutes OWNER's written authorization to ENGINEER to proceed on the date first
above written with the first phase of the Basic SeNices described in Section 2 below
and as further set forth in Exhibit A, "Further Description of Basic Engineering SeNices
and Related Matters" ("Exhibit A") and in the other exhibits listed in Section 9 below.
This Agreement will become effective on the date first above written.
Page 1 of 13
G:\wordproc\EMPLOYEE DI RECTORI ES\Briana\Contracts\Oshkosh _Main St.doc
SECTION 1 - GENERAL
1.1. Standard of Care.
ENGINEER shall perform for or furnish to OWNER
professional engineering and related services in all phases of
the Project to which this Agreement applies as hereinafter
provided. ENGINEER shall serve as OWNER's prime design
professional and engineering representative for the Project
providing professional engineering consultation and advice
with respect thereto. ENGINEER may employ such
ENGINEER's Consultants as ENGINEER deems necessary to
assist in the performance or furnishing of professional
engineering and related services hereunder. ENGINEER shall
not be required to employ any ENGINEER's Consultant
unacceptable to ENGINEER.
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 ENGINEER's profession practicing under similar
conditions 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.
1.2. Coordination with Other Documents.
It is the intention of the parties that the Standard General
Conditions will be used as the General Conditions for the
Project and that all amendments thereof and supplements
thereto will be generally consistent therewith. Except as
otherwise defined herein, the terms which have an initial
capital letter in this Agreement and are defined in the Standard
General Conditions will be used in this Agreement as defined
in the Standard General Conditions. The term "defective" will
be used in this Agreement as defined in the Standard General
Conditions.
1.3. Definitions.
Wherever used in this Agreement the following terms have the
meanings indicated which are applicable to both the singular
and plural thereof:
1.3.1. Additional Services. Additional Services means the
services to be performed for or furnished to OWNER by
ENGINEER described in Section 3 of this Agreement.
1.3.2. Agreement. Agreement means this Standard Form
of Agreement between OWNER and ENGINEER for
Professional Services including those exhibits listed in Section
9 of this Agreement.
1.3.3. Basic Services. Basic Services means the services
to be performed for or furnished to OWNER by ENGINEER
described in Section 2 of this Agreement.
1.3.4. Construction Cost. Construction Cost means the
total cost to OWNER of those portions of the entire Project
designed or specified by ENGINEER. Construction Cost does
not include ENGINEER's compensation and expenses, the
cost of land, rights-of-way, or compensation for or damages to
properties, or OWNER's 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 pursuant to
Section 4 of this Agreement. Construction Cost is one of the
items comprising Total Project Costs.
1.3.5. Contractor. Contractor means the person or entity
with whom OWNER enters into a written agreement covering
construction work to be performed or furnished with respect to
the Project.
1.3.6. ENGINEER's Consultant. ENGINEER's Consultant
means a person or entity having a contract with ENGINEER to
perform or furnish Basic or Additional Services as
ENGINEER's independent professional associate or consultant
engaged directly on the Project.
1.3.7. Reimbursable Expenses. Reimbursable Expenses
means the expenses incurred directly in connection with the
performance or furnishing of Basic and Additional Services for
the Project for which OWNER shall pay ENGINEER as
indicated in Exhibit B, "Payments to Engineer for Services and
Reimbursable Expenses" ("Exhibit B").
1.3.8. Resident Project Representative. Resident Project
Representative means the authorized representative of
ENGINEER who will be 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 Representatives agreed to by OWNER. The
duties and responsibilities of the Resident Project
Representative are set forth in Exhibit C, "Duties,
Responsibilities and Limitations of Authority of Resident
Project Representative" ("Exhibit C").
1.3.9. Standard General Conditions. Standard General
Conditions means the Standard General Conditions of the
Construction Contract (No.1910-8) (1996 Edition) of the
Engineers Joint Contract Documents Committee.
1.3.10. Total Project Costs. Total Project Costs means the
sum of the Construction Cost, allowances for contingenGies,
the total costs of design professional and related services
provided by ENGINEER and (on the basis of information
furnished by OWNER) allowances for such other items as
charges of all other professionals and consultants, for the Gost
of land and rights-of-way, for compensation for or damages to
properties, for interest and financing charges and for other
services to be provided by others to OWNER under
paragraphs 4.4, 4.5 and 4.7 through 4.14, inclusive.
SECTION 2 - BASIC SERVICES OF ENGINEER
2.1. Study and Report Phase.
Upon this Agreement becoming effective, ENGINEER shall:
2.1.1. Consult with OWNER to understand OWNER's
requirements for the Project and review available data.
2.1.2. Advise OWNER as to the necessity of OWNER's
providing or obtaining from others data or services of the types
described in paragraph 4.4 which are not part of ENGINEER's
Basic Services, and assist OWNER in obtaining such data and
services.
2.1.3. Identify and analyze requirements of governmental
authorities having jurisdiction to approve the portions of the
Project designed or specified by ENGINEER with whom
consultation is to be undertaken in connection with the Projc~ct.
2.1.4. Evaluate various alternate solutions available to
OWNER as described in Exhibit A, and after consultation with
Owner, recommend to OWNER those solutions which in
Page 2 of 13
G:\wordproc\EMPLOYEE DIRECTORIES\Briana\Contracts\Oshkosh _Main St.doc
ENGINEER's judgment best meets OWNER's requirements for
the Project.
2.1.5. Prepare a report (the "Report") which will contain the
statement of OWNER's requirements for the Project and, as
appropriate, will contain schematic layouts, sketches and
conceptual design criteria with appropriate exhibits to indicate
the considerations involved and those alternate solutions
available to OWNER which ENGINEER recommends. This
Report will be accompanied by ENGINEER's opinion of Total
Project Costs for each solution which is so recommended for
the Project, including the following which will be separately
itemized: opinion of probable Construction Cost, allowances
for contingencies and for the estimated total costs of design
professional and related services provided by ENGINEER and,
on the basis of information fumished by OWNER, allowances
for other items and services included within the definition of
Total Project Costs.
2.1.6.
Furnish the Report to and review it with OWNER.
2.1.7. Revise the Report in response to OWNER's
comments, as appropriate, and furnish final copies of the
Report in the number set forth in Exhibit A.
2.1.8. Submit the Report within the stipulated period
indicated in Exhibit A.
2.1.9. ENGINEER's services under the Study :md Report
Phase will be considered complete at the earlier of (1) the date
'tmen the Report has been accepted by OINNER or (2) thirty
days after the date when such Report is delivered to OWNER
for final acceptance, plus in each case such additional time as
may be considered reasonable for obtaining approval of
governmental authorities having jurisdiction to reviO'N the
portions of the Project designed or specified by ENGINEER, if
such approval is to be obtained during the Study and Report
PRas&.-
The duties and responsibilities of ENGINEER during the StUdy
and Report Phase as set forth in this paragraph 2.1 are
amended and supplemented as indicated in Exhibit A.
2.2. Preliminary Design Phase.
After acceptance by OWNER of the Report, selection by
OWNER of a recommended solution and indication of any
specific modifications or changes in the scope, extent,
character or design requirements of the Project desired by
OWNER, and upon written authorization from OWNER,
ENGINEER shall:
2.2.1. On the basis of the Report, the recommended
solution selected by OWNER and the specific modifications or
changes in the scope, extent, character or design
requirements of the Project agreed upon by OWNER and
ENGINEER, prepare Preliminary Design documents consisting
of final design criteria, preliminary drawings, outline
specifications and written descriptions of the Project.
2.2.2. Advise OWNER if additional reports, data or other
information or services of the types described in paragraph 4.4
are necessary and assist OWNER in obtaining such reports,
data or other information and services.
2.2.3. Based on the information contained in the
Preliminary Design documents, submit a revised opinion of
probable Construction Cost and any adjustments to Total
Project Costs known to ENGINEER, which will be itemized as
provided in paragraph 2.1 .5.
2.2.4. Furnish the Preliminary Design documents to and
review them with OWNER.
2.2.5. Submit the Preliminary Design documents and
revised opinion of probable Construction Cost within the
stipulated period indicated in Exhibit A.
2.2.6. ENGINEER's services under the Preliminary Desi9fl
Phase will be considered complete at the earlier of (1) the liate
when the Preliminary Design document!: have been accel**'
by OWNER or (2) thirty days after the date when ~<Hffi
Preliminary Design document!: are delivered to OVVNER-fBF
final acceptance, plus in each case such additional timcf--aS
may be considered re3sonable for obtaining approva~
governmental authorities having jurisdiction to approve-tfle
Preliminary Design documentation, if such approval is to-be
obtained during the Preliminarj Design Phase.
The duties and responsibilities of ENGINEER during the
Preliminary Design Phase as set forth in this paragraph 2.2 are
amended and supplemented as indicated in Exhibit A.
2.3.
Final Design Phase.
After acceptance by OWNER of the Preliminary Design Phase
documents and revised opinion of probable Construction Cost
and indication of any specific modifications or changes in the
scope, extent, character or design requirements of the Project
desired by OWNER, and upon written authorization from
OWNER, ENGINEER shall:
2.3.1. On the basis of the accepted Preliminary Design
documents, the modifications or changes in the scope, extent,
character or design requirements of the Project agreed upon
by OWNER and ENGINEER and the revised opinion of
probable Construction Cost, prepare for incorporation in the
Contract Documents final Drawings showing the scope, extent
and character of the work to be performed and furnished by
Contractor and Specifications (which will be prepared, where
appropriate, in general conformance with the sixteen division
format of the Construction Specifications Institute).
2.3.2. Provide technical criteria, written descriptions and
design data for OWNER's use in filing applications for penn its
with or obtaining approvals of such governmental authorities
as having jurisdiction to review or approve the final design of
the Project, and assist OWNER in consultations with
appropriate authorities.
2.3.3. Advise OWNER of any adjustments to the opinion of
probable Construction Cost and any adjustments to Total
Project Costs known to ENGINEER, itemized as provided in
paragraph 2.1.5, as a result of changes in scope, extent or
character or design requirements of the Project.
2.3.4. Prepare for review and approval by OWNER, its
legal counsel and other advisors, contract agreement forms,
general conditions and supplementary conditions, and (where
appropriate) bid forms, invitations to bid and instructions to
bidders (all of which will be generally consistent in form and
substance with the forms and pertinent guide sheets prepared
by the Engineers Joint Contract Documents Committee), and
assist in the preparation of other related documents.
2.3.5. Furnish the above documents, Drawings ;and
Specifications to and review them with OWNER.
2.3.6. Submit the above documents, Drawings ;and
Specifications and a revised opinion of probable Construction
Cost within the stipulated period indicated in Exhibit A.
Page 3 of 13
G:\wordproc\EMPLOYEE DI RECTORIES\Briana\Contracts\Oshkosh _Main St.doc
2.3.7. ENGINEER's services under the Final Design Phase
will be considered complete at the earlier of (1) the date when
the submittals havo been accepte~ by OW~IER or (2) thirty
days after the date when such submittals are delivored to
OWNER for final accepklnce, plus in each case such
additional time as may be considered reasonable for obtaining
approval of govemmental authorities having jurisdiction to
approve the portions of tho Project designed or specified by
ENGINEER, if such approval is to be obtained during the Final
Design Phase.
The duties and responsibilities of ENGINEER during the Final
Design Phase as set forth in this paragraph 2.3 are amended
and supplemented as indicated in Exhibit A.
2.4. Bidding or Negotiating Phase.
After acceptance by OWNER of the ENGINEER's Drawings,
Specifications and other Final Design Phase documentation
(including the most recent opinion of probable Construction
Cost), and upon written authorization to proceed, ENGINEER
shall:
2.4.1. Assist OWNER in advertising for and obtaining bids
or negotiating proposals for the contract for construction,
materials, equipment and services; and, where applicable,
maintain a record of prospective bidders to whom Bidding
Documents have been issued, attend pre-bid conferences,. if
any, and receive and process deposits for Bidding Documents.
2.4.2. Issue Addenda as appropriate to clarify, correct or
change the Bidding Documents.
2.4.3. Consult with OWNER as to the acceptability of
subcontractors, suppliers and other persons and entities
proposed by Contractor for those portions of the work as to
which such acceptability is required by the Bidding
Documents.
2.4.4. Attend the bid opening, prepare bid tabulation
sheets and assist OWNER in evaluating bids or proposals and
in assembling and awarding contracts for construction,
materials, equipment and services.
2.4.5. The Bidding or Negotiating Phase will terminate and
the services to be performed or furnished there under will be
considered complete upon commencement of the Construction
Phase or upon cessation of negotiations with prospective
Contractors (except as may otherwise be required to complete
the services called for in paragraph E7.2.5, if Exhibit E is a part
of this Agreement).
The duties and responsibilities of ENGINEER during the
Bidding or Negotiating Phase as set forth in this paragraph 2.4
are amended and supplemented as indicated in Exhibit A.
2.5. Construction Phase.
During the Construction Phaso:
2.5.1. Gonor:].! /ldministmtion of Constr_'ction Contract.
ENGINEER shall consult with and advise ()lNNER and act as
O'.'VNER's representative as provided in the Standard Gonel'3l
Conditions. Tho extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in
said Sbndard Goneral Conditions sholl not be modified,
excopt to tho extent provided in Exhibit ^ and except as
ENGI~JEER may othorwise agree in writing. 1\11 of OVVNER's
instruGtions to Contractor will be issued through ENGINEER
'....ho shall have authority to act on behalf of ()lNNER in
dealings '....ith Contractor to the extent provided in -this
.^.greement and said Standard Generol Conditions except-as
otherwiso provided in writing.
2.5.2. Visits to Site :md Obsorvaf.ion of Construction.-ffi
connection with observations of the 'Nork of Contractor 'NhikHt
is in progrecc:
2.5.2.1. ENGINEER shall make visits to the sit(~
intervals appropri3te to the various stages of construc-,tjoo
as ENGINEER deems necessary in order to obsGl'vH-as
an experionced and qucllified design prof-ossional-#le
progress and quality of the various aspects--Gf
Contractor's work. In addition, E~JGINEER sholl pro'.'iGe
the services of a Resident Project Representative at-tHe
site to assist ENGINEER and to provide more continueHS
obser.'ations of such work. The furnishing of E;HGA
Resident Project Represenbtive services will not exteM
ENGINEER's responsibilities or authority beyond-tHe
specific limits set forth elsewhere in this pal'3graph ~
Such '/isits and observations by ENGI~JEER and-tHe
Rosident Project Represenbtive are not intended tn-Be
exhaustive or to oxtend to overy aspect of the work-ifl
progress, or to involve detailod inspections of the '.'VGFk
beyond the responsibilities specifically ossigned-te
ENGINEER in this Agreement and the ContFaBt
Documents, but mther are to be limited to spot checkffig,
celectivo campling :md similar methods of genefal
obcervation of the work baced on ENGINEER'c exersise
of professional judgment as assisted by the Resident
Project Representative. Based on information obtoiAeG
during such visits ond such observations, ENGINEeR
shall endeavor to determine in geneml if such ....<ork-is
proceeding in occord:mce with the Contract Documcmts
and ENGINEER sholl keep OVVNER informed of-tHe
progress of the work. The responsibilities of ENGINEeR
contained in this paragraph are expressly subject to-tHe
limitations set forth in paragraph 2.5.2.2 and otl:lef
expresc or general limikltions in this I'.greement af\G
elsO\vhere.
2.5.2.2. Tho purpose of ENGINEER's visits to af\G
representation by the Resident Project Representative-at
the site will be to enable ENGINEER to better carry-eut
the duties and responsibilities assigned to af\G
undertaken by ENGINEER during the Construction
Phase, and, in addition, by the exercise of ENGINEER!s
efforts as an experienced and qualified deGigfl
professional, to provide for OWNER a greoter degre'a-ef
confidence that the completed work of Contr::lGtor-will
conform in general to the Contract Documents and tAat
the integrity of the design concept of the comploteG
Project os a RJActioning whole as indicated in -tAe
Contract Documents has been implemented aflG
preserved by Contr-actor. On tho other hand, ENGINEeR
shall not, during such visits or as a result of sYBIl
observations of Contractor's \'.<ork in progress, supervise,
direct or have control over Contractor's WDrk nor sRan
E~JGINEER have authority over or responsibility for-tAe
means. methods, techniques, sequences or procedufeS
of construction selocted by Contractor, for safety
preGautions and progr-Llms incident to tho 'Nork-4
Contractor or for any failure of Contractor to comply \Ni-tll
13'NS, rules, regulations, ordinances, codec or orclefs
applicablo to Controstor's furnishing and performing-tHe
'A<ork. /\ccordingly, ENGI~JEER neither guarantees -tHe
performance of any Contractor nor assumes responcibilliy
for any Contl'3ctor's failure to furnish and perform its wefk
in accordance \\4th the Contmct Documents.
Page 4 of 13
G:\wordproc\EMPLOYEE DIRECTORIES\Briana\Contracts\Oshkosh_ Main St. doc
2.5.3. Dofucti'lO Work. During such visits 3nd on the b3sis
of such observ3tions, ENGINEER Sh311 h3VO 3uthority to
dis3pprove of or rejoct Contr3ctor's \'lOrk whilo it is in progress
if ENGINEER believes that such work will not produce 3
completed Project th3t conforms genor311y to the Contr?ct
Documents or th3t it will projudico tho integrity of tho deSign
concept of the completod Projoct 3S 3 functioning whole 3S
indic3tod in the Contmct Documonts.
2.5.4. C!arifications and Intorpmt3tfons; Fiold Ordors.
ENGINEER sh311 issuo nocoss3ry c13rific3tions and
interpret3tions of tho Contract Documents as appropri3te to
the orderly completion of the work. Such c1arific3tions 3nd
interprot3tions will be consistont with the intent of and
reason3bly infor3blo from tho Contr3ct Documents.
ENGINEER m3Y issue Fiold Orders 3uthorizing minor
variations from the requirements of the Contr3ct Documonts.
2.5.5. Chango Ordors and Work Chango Dfroc:;til'os.
ENGINEER sh311 recommend Ch3nge ardors and 'Nork
Change Directives to OWNER 3S 3ppropri3to, 3nd sh311
prepare Change Orders 3nd Work Ch3nge Directives 3S
required.
2.5.6. Shop Drawings. ENGINEER sh311 review 3nd
approve (or t3ke other 3ppropriato 3ction in respoct of) Shop
Dr3wings and S3mples 3nd othor d3t3 which Contr3ctor is
required to submit, but only for conformance '.\lith. ~~e
inform3tion given in the Contr3ct Documents :md comp3tlblhty
with the design concept of the completed Project 3S 3
f-unctioning whole 3S indicated in the Contmct Documents.
Such reviews and 3pprov31s or othor 3ction will not ext-end to
me3ns, methods, techniques, sequonces or procedures of
construction or to safety prec3utions and programs incident
~
2.5.7. Substitvtos. ENGINEER shall eV31u3te and
determino the 3ccept3bility of substitute or "or equ31" m3terials
and equipmont proposed by Contr::lctor, but subjoct to the
provisions of p3r3gr3ph 3.2.2.
2.5.8. ,lnspec:;tIons ::md Tosts. ENGINEER m3Y require
spocial inspections or tests of the '1IOrk, and sh311 receive and
reviow 311 cortific3tes of inspections, tests and 3pprovals
required by 13'....s, rules, regulations, ordinances, codes, orders
or the Contr3ct Documents. ENGI~JEER's roviow of such
certific3tos 'NiII bo for the purpose of determining that tho
results certified indicate compliance '....ith the Contract
Documents 3nd will not constitute ::m independont evaluation
that tho content or procoduros of such inspections, tests or
3pprov31s comply with the requiroments of the Contract
Documents. ENGINEER sh311 bo entitled to rely on the results
of such tosts.
2.5.9. Disagroomont-s botl'lOOR OWNER and Contr::wtor.
ENGINEER shall render tho initi31 decisions on 311 claims of
OWNER and Contr3ctor rel3ting to the 3ccoptability of tho
work or the interpret3tion of the r-equirements of the Contract
Documents pertaining to the exocution :md progross of tho
work. In rondering such docisions, ENGINEER sh311 bo f-3ir
and not show p3rti3lity to OWNER or Contractor 3nd shall not
be Iiablo in connoction with any decision renderod in good faith
in such c3p3city.
2.5.10. AppHoations for ,D.aymoRt. B3sod on ENGINEER's
on site observ3tions 3S on exporienced and qualified dosign
profession31 3nd on review of .^.pplications for Paymont and
the 3ccomp3nying data and schedulos:
2.5.10.1. ENGINEER Sh311 determine the 3mounts tHat
ENGINEER rocommends Contr3ctor be p3id. SHGJ:l
recommend3tions of p3ymont will bo in writing 3nd-wiR
constituto ENGINEER's reprosent3tion to OI,lVNER, base€!
on such observations 3nd revie>N, th3t, to the best-ef
ENGINEER's knowledge, inform3tion 3nd beliof, tho weffi
h3S progressed to the point indic3ted, tho qU3lity of sHGJ:l
work is gener311y in 3ccordanco 'lAth tho ContraBt
Documents (subject to 3n eV31uation of such work as-a
functioning whole prior to or upon Subst3ntial Completkm;-
to the rosults of 3ny subsoquont tectc called for in-tRe
Contr3ct Documonts 3nd to any other qU3lifiC3tieoo
st3tod in the rocommond3tion), 3nd the conditieoo
precedont to Contractor's being ontitlod to such p3yrneAt
3ppe3r to h3'ie boon fulfillod in so f3r 3S it-is
ENGINEER's responsibility to obcerve tho work. In -tRe
C3S0 of unit price work, ENGINEER's rocommond3tieoo
of p3yment will includo fin31 dotermin3tionc of qU3ntities
and clossific3tions of such work (subject to aflj'
subsequent 3djustments allowed by the ContraBt
Documents). The responsibilitios of ENGINE~
cont3ined in p3r3gr3ph 2.5.10.1 ore oxprossly subjec;t-te
the Iimit3tions set forth in paragraph 2.5.10.2 3nd olRer
express or general limitations in this ^greement aRE!
olsewhoro.
2.5.10.2. By recommending 3ny p3yment ENGINE~
ch311 not thereby be deemed to h3\'e reprosonted th3t-eR-
site obsorv3tions m3do by ENGINEER to check-tRe
qu::lIity or qU3ntity of Contr3ctor's work 3S it is performe€l
3nd furniched h3vo been exh3usti'/e, extended to e'lefY
3SpOOt of tho work in progrosc, or involvod dOt3HeG
inspoctions of tho '....ork boyond tho responcibilities
cpecifically 3scigned to ENGINEER in thic l\groorneAt
3nd the Contr3ct Documonts. Neither ENGINEE;R!s
review of Contr3ctor's work for tho purposes -ef
reoommending p3ymonts nor ENGINEE-R!s
recommendation of 3ny payment (including fma!
p3ymont) will impose on ENGINEER rospom:ibility-te
supervice, direct or control such 'Nork or for tho moaA&;-
methods, tochniquec, soquoncos or procoduros -ef
constructien or c3fety precGutions or progr3ms incicleAt
thoreto, or Contractor's compliance with laws, rule&,-
regul3tionc, ordin::lI1cec, codes or ordors applio3blo-te
Contractor's furniching 3nd porforming tho work. It -wiR
31co not impose rocponsibility on ENGINEER to mak-e
3ny examin3tion to 3scortain how or for wh3t purposes
Contr3ctor has uced tho moneys p3id on account of-tlle
Contract Price, er to dotermino th3t titlo to 3ny of-tlle
work, m3teri3ls or equipment h3s p3ssod to OWNER f-ree
3nd cl03r of 3ny lions, cl3ims, security interests-ef
encumbrances, or that thore m3Y not be other m3ttors-at
issuo botv:oen O'NNER 3nd Contr3ctor th3t might affeGt
the 3mount th3t chould bo p3id.
2.5.11. Contr:1c:;tor's Comp,lot.'on DOGlJrTlonts. ENGINE~
shall rooeivo, review 3nd tmncmit to o'....ner with writteR
commontc m3inten3nco and opor3ting inctructions, schedule&,-
gU3r3ntoos, Bonds, certific3tec or othor cvidenoe of incuraAGe
required by tho Contract Documents, cortificates of inspoctkm;-
tosts 3nd 3ppro'lals, and marked up rocord documoRts
(including Shop Drawings, Samplos 3nd other d3ta approve€!
3S provided undor p3ragraph 2.5.6 and markod up roc;er€l
Drawings) which 3re tG be 3scemblod by Contract-or-ffi
3ccord3nce with the Contract Documents to obt3in fiflal
p3ymont. ENGINEER's review of such documonts will only-Se
to determine genor311y th3t their content complios with -tf:\e
requirements of, and in tho CGce of ccrtificates of incpocticH'lS,
tests and 3pprovalc th3t the rocults certificd indicate
compli3nco with, tho Contr3ct Doouments.
Page 5 of 13
G:\wordproc\EMPLOYEE DI RECTORIES\Briana\Contracts\Oshkosh_ Main St.doc
2.5.12. Substantial Camp.Iotion. Following notice fmm
Controctor that Contractm considers the entire work reody for
its intended use, ENGINEER ond OW~IER, occomponied by
Controctor, sholl conduct on inspection to determine if the
work is subsklntiolly complete. If otter considering ony
objections of OWNER, ENGINEER considers the work
substonti3l1y completo, ENGII'IEER sholl deliver 0 certificoto of
Substontiol Complotion to OW~IER and Controctor.
2.5.13. Final Notice of ,I',ceoptabi!ity of the Work.
ENGINEER sholl conduct 0 finol inspection to detormine if the
completed work of Controctor is occeptoble so thot
ENGIt-JEER may recommend, in writing, fin:31 payment to
Contr::lCtor. /\ccomponying the rocommendotion for finol
poyment, ENGII'JEER sholl olso provide :3 notice in the form
ottoched hereto os Exhibit D (the "Notice of Acceptability of
VVork") thot the work is occopbble (subject to the pro'/isions of
pal'3gmph 2.5.10.2) to the best of ENGINEER's knowledge,
informotion :3nd belief ond bosed on the extent of the services
perf{)rmed ond furnished by ENGINEER under this Agreement.
2.5.14. Limit-o.tion of Respons!I:J!!ittos. ENGINEER sholl not
be responsible for the oets or omissions of an)' Controctor, or
of ony subcontroctor, ony supplier, or of any other person or
orgonizotion performing or furnishing on)' of the work.
El'IGIt-IEER sholl not be responsible for Contmctor's biluro to
pmform or furnish the work in occordonce with the Contmct
Documents.
2.5.15. Dutatton of Consttuetion .Ph3so. The .Construction
Ph3se will commence '.'lith the execution of the construction
contmct for the Project or ony port thereof ond will termin3to
upon written rocommendation by ENGINEER of final p3yment.
If the Pmject involves more thon one prime contract os
indicoted in por3gmph 5.5, Construction Phose services m3Y
be rendered 3t different times in respect of seporote prime
contmcts.
The duties and responsibilities of ENGINEER during the
ConstructionPh3se 3S set forth in this p3rograph 2.5 ore
3mended 3nd supplementod os indicoted in Exhibit 1\.
2.6. Operational Phase.
During the Oper3tion31 Phase, ENGINEER sholl, '",hen
requested by OWNER:
2.6.1. Provide ossistonco in connection with the refining
3nd ocijusting of on)' equipment or system.
2.6.2. Assist OWNER in training QJNNER's staff to operate
3nd mointoin the Project.
2.6.3. Assist OWNER in developing systems and
procedures. for control of the operation ond m3intenonce of
3nd record I<ceping f{)r the Pr<>ject.
2.6.1. Prep3re 3 set of reproducible record dm'.'lings
showing recor.cf information 'Nhich ENGINEER considers
signific3nt b3sed on the Dr3wings, Shop Drawings, 3nd other
record documents furnished by Contr3ctor to ENGINEER
which wore annotated by Contractor to show all ch3ngos made
during construction. ENGINEER will not be responsible for
any errms in or omissions in tho information provided by
Contr3ctor th3t is iilcorpomted in the record dr3'Nings or other
record documents.
2.6.5. In compony with OlNNER, visit the Project to
observe 3ny app3rent defects in the completed worl<, ossist
OWNER in consultotions and discussions with Contractor
conceming correction of such defects, 3nd make
recommend3tions 3S to repl3cement or correction of defuc:live
wefk.,
2.6.6. Provide miscell3neous services 3S requested-by
OVVNER in connection with Project closeout.
2.6.7. The Operation31 Ph3se may commence during-lRe
Construction Ph3se 3nd will terminoID one yeor 3fter the elate
of Subsklnti31 Completion.
The duties 3nd responsibilities of ENGINEER during -IRe
Operation31 Phose as set forth in this p3r3gr3ph 2.6 -afe
3mended and supplemented 3S indicated in Exhibit A.
SECTION 3 - ADDITIONAL SERVICES OF ENGINEER
3.1. Additional Services Requiring Authorization in
Advance.
If authorized in writing by OWNER, ENGINEER shall furnisl1 or
obtain from others Additional Services of the types listed in
paragraphs 3.1.1 through 3.1.19, inclusive, as amended and
supplemented as indicated in Exhibit A. These services are
not included as part of Basic Services except to the extent
otherwise provided in Exhibit A. These services will be paid
for by OWNER as indicated in Section 6.
3.1.1. Preparation of applications and supporting
documents (in addition to those furnished under Basic
Services) for private or governmental grants, loans or
advances in connection with the Project; preparation or review
of environmental assessments and impact statements; review
and evaluation of the effect on the design requirements of the
Project of any such statements and documents prepared by
others; and assistance in obtaining approvals of authorities
having jurisdiction over the anticipated environmental impact of
the Project.
3.1.2. Services to make measured drawings of or to
investigate existing conditions or facilities, or to verify the
accuracy of drawings or other information furnished by
OWNER.
3.1.3. Services resulting from evaluation by ENGINEER
during the Study and Report Phase at OWNER's request of
alternative solutions in addition to those specified in Exhibit A.
3.1.4. Services resulting from significant changes in the
scope, extent or character of the portions of the Project
designed or specified by ENGINEER or its design
requirements including, but not limited to, changes in size,
complexity, OWNER's schedule, character of construction or
method of financing; and revising previously accepted studies,
reports, Drawings, Specifications or Contract Documents when
such revisions are required by changes in laws, rules,
regulations, ordinances, codes or orders enacted subsequent
to the preparation of such studies, reports, Drawings,
Specifications, or Contract Documents, or are due to any other
causes beyond ENGINEER's control.
3.1.5. Services resulting from facts revealed about
conditions:
3.1.5.1. which are different from information about such
conditions that OWNER previously provided to
ENGINEER under paragraph 4.4 and upon which
ENGINEER was entitled to rely; or
Page 6 of 13
G:\wordproc\EMPLOYEE DI RECTORI ES\Briana\Contracts\Oshkosh _Main St.doc
3.1.5.2. as to which OWNER had responsibility to
provide information under paragraph 4.4 if such
information was not previously provided.
3.1.6. Providing renderings or models for OWNER's use.
3.1.7. Preparing documents for altemate bids requested by
OWNER for Contractor's work which is not executed or
documents for out-of-sequence work.
3.1.8. Undertaking investigations and studies including, but
not limited to, detailed consideration of operations,
maintenance and overhead expenses; the preparation of
feasibility studies, cash flow and economic evaluations, rate
schedules and appraisals; assistance in obtaining financing for
the Project; evaluating processes available for licensing and
assisting OWNER in obtaining process licensing; detailed
quantity surveys of materials, equipment and labor; and audits
or inventories required in connection with construction
performed by OWNER.
3.1.9. Furnishing services of ENGINEER's Consultants for
other than Basic Services; and furnishing data or services of
the types described in paragraph 4.4 when OWNER employs
ENGINEER to provide such data or services in lieu of
furnishing the same under paragraph 4.4.
3.1.10. Services attributable to a variation in the number of
prime contracts from the number specified in Exhibit A for work
designed or specified by ENGINEER.
3.1.11. Services during out-of-town travel required of
ENGINEER other than visits to the site or OWNER's office as
required by Section 2.
3.1.12. Preparing for, coordinating with, participating in and
responding to structured independent review processes,
including, but not limited to, Construction Management, Cost
Estimating, Project Peer Review, Value Engineering and
Constructability Review requested by OWNER; and performing
or furnishing services required to revise studies, reports,
Drawings, Specifications or Contract Documents as a result of
such review processes.
3.1.13. Determining the acceptability of substitute materials
and equipment proposed during the Bidding or Negotiating
Phase when substitution prior to the award of contracts is
allowed by the Bidding Documents.
3.1.14. Assistance in connection with bid protests, rebidding
or renegotiating contracts for construction, materials,
equipment or services, except when such assistance is
required to complete services called for in paragraph E7.2.5, if
Exhibit E is a part of this Agreement.
3.1.15. Providing field surveys for design purposes,
engineering surveys and staking to enable Contractor to
proceed with its work, and any type of property surveys or
related engineering services needed for the transfer of
interests in real property; and providing other special' field
surveys.
3.1.16. Preparation of operating, maintenance and staffing
manuals to supplement Basic Services under paragraph 2.6.3.
3.1.17. Preparing to serve or serving as a consultant or
witness for OWNER in any litigation, arbitration or other legal
or administrative proceeding involving the Project (except for
assistance in consultations which is included as part of Basic
Services under paragraph 2.1.3 and 2.3.2).
3.1.18. Providing more extensive services required to
enable ENGINEER to issue notices or certifications requested
by OWNER under paragraph 4.12.
3.1.19. Other additional services performed or furnished by
ENGINEER in connection with the Project, including services
which are to be furnished by OWNER under Section 4, and
services not otherwise provided for in this Agreement.
3.2. Required Additional Services.
When required by the Contract Documents in connection with
the performance or furnishing of ENGINEER's services during
the Construction Phase, ENGINEER shall perform or furnish,
without waiting for specific authorization from OWNER,
Additional Services of the types listed in paragraphs 3.2.1
through 3.2.6, inclusive. These services are not included as
part of Basic Services except to the extent provided in Exhibit
A. Required Additional Services will be paid for by OWNER as
indicated in Section 6. ENGINEER shall advise OWNEH in
writing promptly after starting any such Additional Services.
3.2.1. Services in connection with Work Change Directives
and Change Orders to reflect changes requested by OWNER
if, because of the method of compensation agreed upon by
OWNER and ENGINEER, the resulting change in
compensation for Basic Services is not commensurate with the
extent of the additional services rendered.
3.2.2. Services in making revisions to Drawings and
Specifications occasioned by the acceptance of substitute
materials or equipment other than "or-equal" items; and
services . after the award of the construction contract in
evaluating and determining the acceptability of a substitution
which is inappropriate for the Project or an excessive number
of substitutions.
3.2.3. Services resulting from significant delays, changes
or price increases occurring as a direct or indirect result of
materials, equipment or energy shortages.
3.2.4. Additional or extended services during construction
made necessary by (1) work damaged by fire or other cause
during construction, (2) a significant amount of defective,
neglected or delayed work of Contractor, (3) acceleration of
the progress schedule involving services beyond normal
working hours, or (4) default by Contractor.
3.2.5. Services (other than Basic Services during the
Operational Phase) in connection with any partial utilization of
any part of the Project by OWNER prior to its Substantial
Completion.
3.2.6. Evaluating an unreasonable claim or an excessive
number of claims submitted by Contractor or others in
connection with the work.
SECTION 4 - OWNER'S RESPONSIBILITIES
Except as otherwise provided in Exhibit A, OWNER shall do
the following in a timely manner so as not to delay the services
of ENGINEER and shall bear all costs incident thereto:
4.1. Designate in writing a person to act as OWNER's
representative with respect to the services to be performed or
furnished by ENGINEER under this Agreement. Such person
will have complete authority to transmit instructions, recE~ive
information, interpret and define OWNER's policies and
decisions with respect to ENGINEER's services for the Projl~ct.
Page 7 of 13
G:\wordproc\EMPLOYEE DI RECTORIES\Briana\Contracts\Oshkosh_Main St.doc
4.2. Provide all criteria and full information as to
OWNER's requirements for the Project, including design
objectives and constraints, space, capacity and performance
requirements, flexibility and expendability, and any budgetary
limitations; and furnish copies of all design and construction
standards which OWNER will require to be included in the
Drawings and Specifications.
4.3. Assist ENGINEER by placing at ENGINEER's
disposal all available information pertinent to the Project
including previous reports and any other data relative to design
or construction of the Project.
4.4. Furnish to ENGINEER, as requested by ENGINEER
for performance of Basic Services or as required by the
Contract Documents, the following:
4.4.1. data prepared by or services of others, including
without limitation explorations and tests of subsurface
conditions at or contiguous to the site, drawings of physical
conditions in or relating to existing surface or subsurface
structures at or contiguous to the site, or hydrographic
surveys;
4.4.2. the services of an independent testing laboratory
to perform all inspections, tests and approvals of
samples, materials and equipment prior to and after
installation, or to evaluate the performance of materials,
equipment and facilities of OWNER, prior to specification,
and during construction;
4.4.3. appropriate professional interpretations of all of
the foregoing;
4.4.4. environmental assessments, audits, investigations
and impact statements, and other relevant environmental
or cultural studies as to the Project, the site and adjacent
areas;
4.4.5. field surveys for design purposes and property,
boundary, easement, right-of-way, topographic and utility
surveys or data, including relevant reference points;
4.4.6. property descriptions;
4.4.7. zoning, deed and other land use restrictions; and
4.4.8. other special data or consultations not covered in
Section 2.
OWNER shall be responsible for, and ENGINEER may rely
upon the accuracy and completeness of all reports, data and
other information fumished pursuant to this paragraph.
ENGINEER may use such reports, data and information in
performing or furnishing services under this Agreement.
4.5. Provide, as required by the Contract Documents,
engineering surveys and staking to enable Contractor to
proceed with the layout of the work, and other special field
surveys.
4.6. Arrange for access to and make all provisions for
ENGINEER to enter upon public and private property as
required for ENGINEER to perform services under this
Agreement.
4.7. Examine all alternate solutions, studies, reports,
sketches, Drawings, Specifications, proposals and other
documents presented by ENGINEER (including obtaining
advice of an attorney, insurance counselor and other
consultants as OWNER deems appropriate with respec:t to
such examination) and render in writing decisions pertaining
thereto.
4.8. Provide approvals and permits from all govemmemtal
authorities having jurisdiction to approve the portions of the
Project designed or specified by ENGINEER and such
approvals and consents from others as may be necessary for
completion of such portions of the Project.
4.9. Provide, as may be required for the Project:
4.9.1. accounting, bond and financial advisory,
independent cost estimating and insurance counsHling
services;
4.9.2. such legal services as OWNER may require or
ENGINEER may reasonably request with regard to legal
issues pertaining to the Project, including any that may be
raised by Contractor; and
4.9.3. such auditing services as OWNER may require to
ascertain how or for what purpose Contractor has lIsed
the moneys paid on account of the Contract Price.
4.10. Provide such inspection or monitoring services by an
individual or entity other than ENGINEER as OWNER may
desire to verify:
4.10.1. that Contractor is complying with any law, rule,
regulation, ordinance, code or other applicable to
Contractor's performing and furnishing the work; or
4.10.2. that Contractor is taking all necessary
precautions for safety of persons or property and
complying with any special provisions of the Contract
Documents applicable to safety.
ENGINEER does not undertake in this Agreement to perform
the services referred to in 4.10.1 and 4.10.2 above. The
identity of any individual or entity employed to perform such
services and the scope of such services will be disclosed to
ENGINEER.
4.11. Advise ENGINEER of the identity and scopel of
services of any independent consultants employed by OWNER
to perform or furnish services in regard to the Project,
including, but not limited to, Construction Management, Cost
Estimating, Project Peer Review, Value Engineering and
Constructability Review. If OWNER designates a person or
entity other than, or in addition to, ENGINEER to represent
OWNER at the site, OWNER shall define and set forth in an
exhibit that is to be mutually agreed upon and attached to and
made a part of this Agreement before such services begin, the
duties, responsibilities and limitations of authority of such other
party and the relation thereof to the duties, responsibilities and
authority of ENGINEER.
4.12. Prior to the commencement of the Construc:tion
Phase, notify ENGINEER of any variations in the language of
the Notice of Acceptability of Work, or of any notice, or
certification other than such Notice that ENGINEER will be
requested to provide to OWNER or third parties in connection
with the financing or completion of the Project. OWNER and
ENGINEER shall reach agreement on the terms of any such
requested notice or certification and OWNER shall authorize
such Additional Services as are necessary to enable
ENGINEER to provide the notice or certification requested
under this paragraph.
Page 8 of 13
G:\wordproc\EMPLOYEE DI RECTORI ES\Briana\Contracts\Oshkosh _Main St.doc
4.13. If more than one prime contract is to be awarded for
work designed or specified by ENGINEER, designate a person
or entity to have authority and responsibility for coordinating
the activities among the various prime contractors, and define
and set forth the duties, responsibilities and limitations of
authority of such person or entity and the relation thereof to the
duties, responsibility and authority of ENGINEER in an exhibit
that is to be mutually agreed upon and attached to and made a
part of this Agreement before such services begin.
4.14. Furnish to ENGINEER data or estimated figures as
to OWNER's anticipated costs for services to be provided by
others for OWNER (such as services pursuant to paragraphs
4.4,4.5 and 4.7 through 4.14, inclusive) and other costs of the
types referred to in paragraph 2.1.5 so that ENGINEER may
make the necessary calculations to develop and periodically
adjust ENGINEER's opinion of Total Project Costs.
4.15. Attend the pre-bid conference, bid opening, pre-
construction conferences, construction progress and other job
related meetings and Substantial Completion and final
payment inspections.
4.16. Give prompt written notice to ENGINEER whenever
OWNER observes or otherwise becomes aware of any
development that affects the scope or time of performance or
furnishing of ENGINEER's services, or any defect or
nonconformance in ENGINEER's services or in the work of
any Contractor.
4.17. Furnish, or direct ENGINEER to provide, Additional
Services as stipulated in paragraph 3.1 of this Agreement or
other services as required.
SECTION 5 - TIMES FOR RENDERING SERVICES
5.1. ENGINEER's services and compensation under this
Agreement have been agreed to in anticipation of the orderly
and continuous progress of the Project through completion of
the design contract. Unless specific periods of time or specific
dates for providing services are specified in this Agreement,
ENGINEER's obligation to render services hereunder will
extend for a period which may reasonably be required for the
design, award of construction contracts, construction and initial
operation of the Project including extra work and required
extensions thereto.
5.2. If in this Agreement specific periods of time for
rendering services are set forth or specific dates by which
services are to be completed are provided and if such periods
of time or dates are changed through no fault of ENGINEER,
the rates and amounts of compensation provided for herein
shall be subject. to equitable adjustment. If OWNER has
requested changes in the scope, extent or character of the
Project, the time of performance of ENGINEER's services shall
be adjusted equitably.
5.3. If OWNER fails to give prompt written authorization
to proceed with any phase of services after completion of the
immediately preceding phase, or if the Construction Phase has
not commenced within the stipulated period identified in this
Agreement (plus such additional time as may be required to
complete the services called for under paragraph E7.2.5 if
Exhibit E is a part of this Agreement) after completion of the
Final Design Phase or does not proceed in an orderly and
continuous progression, ENGINEER may, after giving seven
days' written notice to OWNER, suspend services under this
Agreement.
5.4. If ENGINEER's services for design or during
construction of the Project are delayed or suspended in wlhole
or in part by OWNER:
5.4.1. for more than three months through no fault of
ENGINEER, ENGINEER shall be entitled to equitable
adjustment of rates and amounts of compensation
provided for elsewhere in this Agreement to reflect,
among other things, reasonable costs incurred by
ENGINEER in connection with such delay or suspension
and reactivation and the fact that the time for
performance under this Agreement has been revised; or
5.4.2. For more than one year through no fault of
ENGINEER, or if ENGINEER for any reason is required
to render Construction Phase services more than one
year after Substantial Completion is achieved, the rates
and amounts of compensation provided for elsewhere in
this Agreement will be subject to equitable adjustment to
reflect, among other things, changes in the various
elements that comprise such rates of compensation.
5.5. In the event that the work designed or specified by
ENGINEER is to be performed or furnished under more than
one prime contract, or if ENGINEER's services are to be
separately sequenced with the work of one or more plime
contractors (such as in the case of fast-tracking), OWNER and
ENGINEER shall, prior to commencement of the Final Design
Phase, develop a schedule for performance of ENGINEER's
services during the Final Design, Bidding or Negotiating and
Construction Phases in order to sequence and coordinate
properly such services as are applicable to the work under
such separate prime contracts. This schedule is to be
prepared and included in Exhibit A whether or not the work
under such contracts is to proceed concurrently.
SECTION 6 - PAYMENTS TO ENGINEER FOR SERVICES
AND REIMBURSABLE EXPENSES
6.1. Methods of Payment For Services and Expenses
of ENGINEER.
6.1.1. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Section 2 on
the basis set forth in Exhibit B.
6.1.2. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Section 3 on the basis set forth in Exhibit B.
6.1.3. For Reimbursable Expenses. In addition to
payments provided for in paragraphs 6.1.1 and 6.1.2, OWNER
shall pay ENGINEER for Reimbursable Expenses incurred by
ENGINEER and ENGINEER's Consultants as set forth in
Exhibit B. The amount payable for Reimbursable Expenses
will include a factor to the extent so indicated in Exhibit B.
6.2. Other Provisions Concerning Payments.
6.2.1. Preparation of Invoices. Invoices for Basic and
Additional Services and Reimbursable Expenses will be
prepared in accordance with ENGINEER's standard invoicing
practices and will be submitted to OWNER by ENGINEEF~ at
least monthly. The amount billed for Basic Services and
Additional Services in each invoice will be calculated on the
basis set forth in Exhibit B. Invoices are due and payablEi on
receipt.
6.2.2. Unpaid Invoices. If OWNER fails to make any
payment due ENGINEER for services and expenses within
Page 9 of 13
G:\wordproc\EMPLOYEE DIRECTORI ES\Briana\Contracts\Oshkosh_ Main St. doc
thirty days after receipt of ENGINEER's invoice therefore, the
amounts due ENGINEER will be increased at the rate of 1.5%
per month (or the maximum rate of interest permitted by law, if
less) from said thirtieth day; and, in addition, ENGINEER may,
after giving seven days' written notice to OWNER, suspend
services under this Agreement until ENGINEER has been paid
in full all amounts due for services, expenses and charges.
Payments will be credited first to interest and then to principal.
In the event of a disputed or contested billing, only that portion
so contested may be withheld from payment, and the
undisputed portion will be paid.
6.2.3. Payments Upon Termination.
6.2.3.1. Termination by OWNER for Cause. In the
event of termination by OWNER for cause under
paragraph 8.1.1:
6.2.3.1.1. Upon the completion of any phase of
Basic Services, progress payments due
ENGINEER in accordance with this Agreement for
all such services performed or furnished by
ENGINEER and ENGINEER's Consultants through
the completion of such phase will constitute total
payment for such services. ENGINEER also will
be paid for all unpaid Additional Services and
unpaid Reimbursable Expenses.
6.2.3.1.2. During any phase of the Basic
Services, ENGINEER also will be paid for such
services performed or furnished in accordance with
this Agreement by ENGINEER during that phase
through the date of termination on the basis
specified in Exhibit B. ENGINEER also will be paid
for the charges of ENGINEER's Consultants
employed to perform or furnish Basic Services to
the extent such services have been performed or
furnished in accordance with this Agreement
through the effective date of the termination.
ENGINEER also will be paid for all unpaid
Additional Services and unpaid Reimbursable
Expenses.
6.2.3.2. Termination by OWNER for Convenience. In
the event of termination by OWNER under paragraph
8.1.2:
6.2.3.2.1. Upon the completion of any phase of
Basic Services, progress payments due
ENGINEER in accordance with this Agreement for
all such services performed or furnished by
ENGINEER and ENGINEER's Consultants through
the completion of such phase will constitute total
payment for such services. ENGINEER also will
be paid for all unpaid Additional Services and
unpaid Reimbursable Expenses, and for
termination expenses under subparagraph
6.2.3.2.3 below.
6.2.3.2.2. During any phase of Basic Services,
ENGINEER also will be paid for such services
performed or furnished by ENGINEER during that
phase through the date of the termination on the
basis specified in Exhibit B. In addition,
ENGINEER will be paid for the charges of
ENGINEER's Consultants employed to perform or
furnish Basic Services through the effective date of
termination. ENGINEER also will be paid for all
unpaid Additional Services and unpaid
Reimbursable Expenses, and for termination
expenses under subparagraph 6.2.3.2.3 below.
6.2.3.2.3. In the event of termination by OWNER
for convenience during or at completion of any
phase of Basic Services, OWNER shall pay
ENGINEER's reasonable expenses dimctly
attributable to termination in accordance with rates
applicable to the various categories of Additional
Services measured from the date of termination,
including other fair and reasonable sums for
overhead and profit, costs of terminating contracts
with ENGINEER's Consultants.
6.2.3.3. Termination by ENGINEER for Cause. In the
event of termination by ENGINEER for cause under
paragraph 8.1.1, ENGINEER shall be entitled to receive
compensation calculated as set forth in paragraph
6.2.3.2.
6.2.4. Records of ENGINEER's Costs. Records of
ENGINEER's costs pertinent to ENGINEER's compensation
under this Agreement will be kept in accordance with generally
accepted accounting practices. Copies will be made available
to OWNER at cost on request prior to final payment for
ENGINEER's services.
SECTION 7 - OPINIONS OF COST
7.1. Opinions of Probable Construction Cost.
ENGINEER's opinions of probable Construction Cost provided
for herein are to be made on the basis of ENGINEER's
experience and qualifications and represent ENGINEER's best
judgment as an experienced and qualified professional
engineer 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 the Contractor's 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 from 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
paragraph 4.9.1.
7.2 Designing to Construction Cost Limit.
If a Construction Cost limit is established between OWNER
and ENGINEER, such Construction Cost limit and a statement
of ENGINEER's rights and responsibilities with respect thereto
will be speCifically set forth in Exhibit E, "Construction Cost
Limit", to this Agreement.
7.3 Opinions of Total Project Costs.
ENGINEER assumes no responsibility for the accuracy of
opinions of Total Project Costs provided for in Section 2.
SECTION 8 - GENERAL CONSIDERATIONS
8.1. Termination.
The obligation to provide further services under this
Agreement may be terminated:
8.1.1. For Cause,
8.1.1.1. by either party upon thirty days' written notice in
the event of substantial failure by the other party to
Page 10 of 13
G:\wordproc\EMPLOYEE DI RECTORIES\Briana\Contracts\Oshkosh_ Main St.doc
perform in accordance with the terms hereof through no
fault of the terminating party. Notwithstanding the
foregoing, this Agreement will not terminate as a result of
such substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice, to
correct its failure to perform and proceeds diligently to
cure such failure within no more than thirty days of receipt
thereof; provided, however, that if and to the extent such
substantial failure cannot be reasonably cured within such
thirty-day period, and if such party has diligently
attempted to cure the same and thereafter continues
diligently to cure the same, then the cure period provided
from herein shall extend up to, but in no case more than,
sixty days after the date of receipt of the notice.
8.1.1.2. by ENGINEER:
8.1.1.2.1. upon seven days' written notice if
ENGINEER believes that ENGINEER is being
requested by OWNER to furnish or perform
services contrary to ENGINEER's responsibilities
as a licensed design professional; or
8.1.1.2.2. upon seven days' written notice if the
ENGINEER's services for design or during the
construction of the Project are delayed or
suspended for more than ninety days for reasons
beyond ENGINEER's control.
8.1.1.2.3. In the case of termination under this
paragraph 8.1.1.2, ENGINEER shall have no
liability to OWNER on account of such termination.
8.1.2. For convenience, by OWNER effective upon the
receipt of notice by ENGINEER.
8.2. Reuse of Documents.
All documents including Drawings and Specifications provided
or furnished by ENGINEER (or ENGINEER's Consultants)
pursuant to this Agreement are instruments of service in
respect of the Project, and ENGINEER and ENGINEER's
Consultants, as appropriate, shall retain an ownership and
property interest therein (including the right of reuse by and at
the discretion of ENGINEER and ENGINEER's Consultants, as
appropriate) whether or not the Project is completed. OWNER
may make and retain copies for information and reference in
connection with the use and occupancy of the Project by
OWNER and others; however, such documents are not
intended or represented to be suitable for reuse by OWNER or
others on extensions of the Project or on any other project.
Any such reuse without written verification or adaptation by
ENGINEER and ENGINEER's Consultants, 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, and 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 there from. Any such
verification or adaptation will entitle ENGINEER to further
compensation at rates to be agreed upon by OWNER and
ENGINEER.
8.3. Insurance.
8.3.1. ENGINEER shall procure and maintain insurance as
set forth in Exhibit F, "Insurance", for protection from claims
under workers' compensation acts, claims for damages
because of bodily injury including personal injury, sickness or
disease or death of any and all employees or of any person
other than such employees, and from claims or damages
because of injury to or destruction of property including loss of
use resulting there from.
8.3.2. OINNER shall list ENGINEER :1I1d ENGINEER's
Consult3nts 3S addition31 insureds on 3ny general liabilit~f--0F
property insurance policies cnrried by O'lVNER, which -afe
npplic3ble to the Project. OWNER shall require ContractoF-te
purchnse and mnint3in genernl Iinbility and other insurnnco-as
specified in the Contrnct Documents nnd to list ENGINEeR
nnd ENGINEER's Consultants as nddition31 insureds ,~
respect to such Ibbility, property and other insurnAGe
purchased and maintnined by contr3Ct. All policies of propeFty
insurnnce shall contain provisions to he effect th3t ENGINEeR
nnd ENGINEER's Consultnnt's interests are covered nnd .tJ:la.t
in the event of pnyment of nny loss or dnm3ge the insurers-wiU
have no rights of recovery against nny of the insured-ef
3dditionnl insureds there under.
8.3.3. At any time OWNER may request that ENGINEER,
at OWNER's sole expense, provide additional insurance
coverage, different limits or revised deductibles in excess of
those specified in Exhibit F. If so requested by OWNER, and if
commercially available, ENGINEER shall obtain and shall
require ENGINEER's Consultants to obtain such additional
insurance coverage, different limits or revised deductibles, for
such periods of time as requested by OWNER, at OWNER's
sole expense, and Exhibit F will be supplemented to
incorporate these requirements.
8.4.
Controlling Law.
This Agreement is to be governed by the law of the Stato of
Wisconsin.
8.5. Successors and Assigns.
8.5.1. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors, administrators and legal
representatives of OWNER and ENGINEER (and to the extent
permitted by paragraph 8.5.2 the assigns of OWNER and
ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
8.5.2. Neither OWNER nor ENGINEER may assign, sublet
or transfer any rights under or interest (including, but without
limitation, moneys that may become due or moneys that are
due) in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting or transfer
is mandated by law or the effect of this limitation may be
restricted by law. Unless specifically stated to the contrary in
any written consent to an assignment, no assignment will
release or discharge the assignor from any duty or
responsibility under this Agreement.
8.5.3. Unless expressly provided otherwise in this
Agreement:
8.5.3.1. Nothing in this Agreement shall be construed to
create, impose or give rise to any duty owed by
ENGINEER to any Contractor, Subcontractor, Supplier,
other person or entity, or to any surety for or employeo of
any of them, or give any rights in or benefits under lihis
Agreement to anyone other than OWNER and
ENGINEER.
Page 11 of 13
G:\wordproc\EMPLOYEE DI RECTORIES\Briana\Contracts\Oshkosh _Main St.doc
8.5.3.2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not for
the benefit of any other party. The OWNER agrees that
the substance of the provisions of this paragraph shall
appear in the Contract Documents.
8.6. Dispute Resolution.
If and to the extent that OWNER and ENGINEER have agreed
on a method and procedure for resolving disputes between
them arising out of or relating to this Agreement, such dispute
resolution method and procedure, if any, is set forth in Exhibit
G, "Dispute Resolution." OWNER and ENGINEER agree to
negotiate in good faith for a period of thirty days from the date
of notice of all disputes between them prior to exercising their
rights under Exhibit G or other provisions of this Agreement, or
under law.
8.7. Allocation of Risks-Indemnification.
8.7.1. To the fullest extent permitted by law, ENGINEER
shall indemnify and hold harmless OWNER, OWNER's
officers, directors, partners, employees and agents 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 or
arbitration or other dispute resolution costs) caused solely by
the negligent acts or omissions of ENGINEER or ENGINEER's
officers, directors, partners, employees, agents and
ENGINEER's Consultants in the performance and fumishing of
ENGINEER's services under this Agreement. The
indemnification provision of the preceding sentence is subject
to and limited by the provisions agreed to by OWNER and
ENGINEER in Exhibit H, "Allocation of Risks", if any.
8.7.2. To the fullest extent permitted by law, OWNER shall
indemnify and hold harmless ENGINEER, ENGINEER's
officers, directors, partners, employees and agents and
ENGINEER's Consultants from and against any and all claims,
costs, losses and damages (including but not limited to all fees
and charges of engineer, architects, attorneys and other
professionals and all court or arbitration or other dispute
resolution costs) caused solely by the negligent acts or
omissions of OWNER or OWNER's officers, directors,
partners, employees, agents and OWNER's consultants with
respect to this Agreement or the Project.
8.7.3. In addition to the indemnity provided under
paragraph 8.7.2 of this Agreement, and to the fullest extent
permitted by law, OWNER shall indemnify and hold harmless
ENGINEER and its officers, directors, partners, employees,
and agents and ENGINEER's Consultants from and against 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 or arbitration or other dispute
resolution costs) caused by, arising out of or relating to the
presence, discharge, release, or escape of Asbestos, PCBs,
Petroleum, Hazardous Waste, or Radioactive Material at, on,
under or from the Project site.
8.8 Betterment.
If, due to ENGINEER'S error, any required or necessary item
or component of the project is omitted from the construction
documents, ENGINEER'S liability shall be limited to the
reasonable costs of correction of the construction, less what
OWNER'S cost of including the omitted item or component in
the original construction would have been had the item or
component not been omitted. It is intended by this provision
that ENGINEER will not be responsible for any cost or
expense that provides betterment, upgrade, or enhancement
of the project.
8.9. Notices.
Any notice required under this Agreement will be in writing,
addressed to the appropriate party at the address which
appears on the signature page to this Agreement (as modified
in writing from time to time by such party) and given
personally, by registered or certified mail, return receipt
requested, by facsimile, or by a nationally recognized
overnight courier service. All notices shall be effective upon
the date of receipt.
8.10. Survival.
All express representations, indemnifications or limitations of
liability made in or given in this Agreement will survive the
completion of all services of ENGINEER under this Agreement
or the termination of this Agreement for any reason.
8.11. Severability.
Any provision or part of the Agreement held to be void or
unenforceable under any law or regulation shall be deerned
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.
SECTION 9 - EXHIBITS AND SPECIAL PROVISIONS
9.1. This Agreement is subject to the provisions of the
fOllowing Exhibits which are attached to and made a part of the
Agreement:
9.1.1. Exhibit A, "Further Description of Basic Engineering
Services and Related Matters", consisting of pages.
9.1.2. Exhibit B, "Payments to Engineer for Services and
Reimbursable Expenses", consisting of pages.
9.1.3. Exhibit C, "Duties, Responsibilities and Limitntions-ef
Authority of Resident Project Representative".
9.1.4. Exhibit D, "Notice of I\ccoptnbility of Work".
9.1.5. Exhibit E, "Construction Cost Limif'.
9.1.6. Exhibit F, "Insurance," consisting of one page.
9.1.7. Exhibit G, "Dispute Resolution," consisting of one
page.
9.1.8. Exhibit H, "Spoci:al PrGvisions".
9.1.10. Exhibit I, "Equal Opportunity Provisions".
9.2. This Agreement (consisting of pages one to 13,
inclusive and 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.
Page 12 of 13
G:\wordproc\EMPLOYEE DIRECTORIES\Briana\Contracts\Oshkosh _Main St.doc
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first above written.
OWNER:
SIGNED FOR AND IN BEHALF OF THE
CITY OF OSHKOSH
~~~~Manager
2QA.~a ~
Edward A. Nokes, City Comptroller
I hereby certify that the necessary provisions
have been made to pay the liability which will
accrue under this contract.
Address for giving notices:
215 Church Avenue, P.O. Box 1130
Oshkosh, WI 54903-1130
Phone: (920) 236-5065
Fax: (920) 236-5068
ENGINEER:
MSA PROFES IONAL SERVICES, INC.
()
g--8~o (,
Gilbert G rdman, P.E.
CmJ;;jhief Exec~~e Officer
~-
!
Michael J. Statz,
Team Leader
Ef-8-0(p
Address for giving notices:
2901 International Lane, Suite 300
Madison, WI 53704
Phone: (608) 242-7779
Fax: (608) 242-5664
Page 13 of 13
G:\wordproc\EMPLOYEE DIRECTORIES\Briana\Contracts\Oshkosh _Main St.doc
This is EXHIBIT A, consisting of one page, referred to
in the Agreement between OWNER and ENGINEER
for Professional Services, dated , __'
Further Description of Basic Engineering Services and Related Matters
Sections 2, 3,4 and 5 of the Agreement are amended and supplemented and the time
periods for the performance of the Basic SeNices as indicated in Section 5 of the
Agreement are established, all as indicated below:
SECTION A2--BASIC SERVICES OF ENGINEER
A.2.0. General
The Basic Services are premised on the following general scope of professional services:
I. PROJECT ADMINISTRATION & COORDINATION
A. Administration
1. Monthly Invoices
a. review and prepare invoices
b. set up initial invoice
2. Monthly Spreadsheets
a. update contract hours spreadsheet monthly in support of monthly
invoice
B. Project Management
1. Scheduling
a. initial setup and monthly review of personnel scheduling for
office wide scheduling system
2. Design Team Meetings and Coordination
II. ENVIRONMENTAL DOCUMENTATION
A. Hazardous Materials/Contamination Assessments
1. Phase 1 Hazardous Materials Assessment shall be completed for each
property along the project. A checklist will be filled out for each propE~rty
having the potential for contamination. One checklist will be utilized for all
the other properties that do not have the potential for contamination.
2. Phase 2 Environmental Assessment is not included.
B. Historical Survey
1. MSA to follow normal DOT Section 106 process through Step 2 Identification.
Historical survey to be completed.
III. AGENCY COORDINATION
A. WisDNR
1. Prepare letter and exhibits stating proposed project concepts including
erosion control plans.
B. Storm Sewer Permit WPDES - work for this not included.
Page 1 of5
(Exhibit A - Basic Services and Related Matters)
C. Sanitary Sewer and Water Main permits from the Fox River Bridge to Irving Avenue.
IV. UTILITY COORDINATION
A. Utility Coordination
1. MSA to coordinate with the utilities inside the project limits; plans sent to
affected utilities. Conflict with utilities is anticipated.
B. City of Oshkosh Utilities
1. Replacement of the water main inside the project limits (from the Fox River
Bridge to Irving Avenue) is included. MSA will verify size of pipes and
locations of valves, services, and hydrants. New water main is to tie into
existing system.
2. Replacement of the sanitary sewer inside the project limits (from the Fox
River Bridge to Irving Avenue) is included. MSA will verify size of pipes and
locations of services. New sanitary sewer is to tie into existing system. No
force main work is included.
C. New streetlights will be installed along project. Style of light is to be determined.
Temporary lighting during construction is not included. MSA is anticipating that an
electrical engineer will not be necessary.
V. PUBLIC INVOLVEMENT: The DOT project will be the lead with the public involvement. The
scope for this project will include coming to the DOT public meetings with exhibits of the
Algoma Boulevard to Irving Avenue, being prepared to discuss design issues, and
coordinating with the property owners along the project area.
A. Public Informational Meetings (2 meetings)
1. Meeting Arrangements
a. MSA will coordinate meeting schedules with the city. Meeting
locations will be secured by the City of Oshkosh.
2. Meeting Notification
a. MSA to provide press releases for city's use.
b. MSA shall notify all adjacent property owners based on mailing labels
supplied by the city.
3. Prepare Meeting Exhibits
a. Exhibits will be prepared for the PIM.
b. General meeting exhibits and handouts will be prepared by MSA with
the City reviewing the exhibits prior to the meeting.
4. Follow-up Documentation
a. Prepare written summaries of comments received during PIM.
B. Media Contacts to be done through city first. City can refer media to MSA.
VI. SURVEY
The survey was completed under a different contract.
Page 2 of5
(Exhibit A - Basic Services and Related Matters)
VII. SOILS INVESTIGATION
A. Coordinate the geotechnical exploration services with Nummelin Testing Services.
Four (4) pavement borings will be completed to a depth of 20 feet each for a total of
80'. Traffic control during boring operation is included.
B. Analyze Soil Borings & Review Recommendations
1. Review soil boring logs for familiarity with soil types and ground water
elevations
VIII. ROADWAY DESIGN
A. Basic Road Plan Concept includes reconstruction of Main Street from Algoma Blvd. to
Irving Avenue. The project area will be closed during construction. MSA will prepare
plans utilizing Eagle Point and Microstation. MSA will provide AutoCAD files to the
City of Oshkosh.
1 . Research
a. Collect information such as-built drawings, existing right of way, CDR
reports, utility contact lists, utility maps, etc.
2. Develop One Typical Section Alternative (Urban)
a. Develop the proposed typical section to be used including lane
widths, cross slopes, terraces, sidewalk location, finishing items, etc.
for mainline in Eagle Point.
3. Alignment (Horizontal and Vertical)
a. Design horizontal alignment. It is anticipated that the proposed
centerline will match the existing centerline.
b. Design vertical alignment. It is anticipated the profile will be adjusted
as necessary to avoid/reduce impacts to properties or improve storm
water drainage.
c. Run design typical section in highway design software. Revise
horizontal and vertical alignments to better match existing features
and improve drainage.
4. Drainage/Storm Sewer
a. Replacement of the storm sewer inside the project limits is includE~d.
MSA will verify size of pipes and location of inlets. New storm sewer
is to tie into existing storm sewer system. Outlets at existing
locations to be replaced if within the project limits. Storm sewer
inlets shall include sumps. No other sediment reduction items
included.
5. Intersection Geometries
a. Develop road plans along side streets to the end of the radius at
intersections.
6. Cross Sections
a. Review preliminary design cross sections for impacts to properties.
b. Scale will be 1 "=5' horizontal and 1 "=5' vertical on 11 x17 sheets.
7. Lighting Plans
a. City to select the style of street light poles and provide it to the
design team. Temporary Lighting is not included.
Page 3 of5
(Exhibit A - Basic Services and Related Matters)
8. Traffic Control and Construction Staging Plans included for sidewalk access
to businesses. Road will be closed and traffic will be detoured. No staging
plans for Main Street are included.
9. Traffic Signal Plans for three intersections. No temporary traffic signals are
included. No traffic counts are included.
a. Main Street & Church Avenue
b. Main Street & Parkway Avenue
c. Main Street & Irving Avenue
10. Preliminary Cost Estimates
a. Develop preliminary construction cost estimates based on
preliminary design.
b. Develop quantities for the major work items such as pavement, base
course, earthwork, city utilities, and drainage. The remaining items
will be included as a percentage or a lump sum cost.
11. Pavement Marking Plans and Permanent Signing Plans are included.
12. Utilizing information (plats, CSMs, etc.) provided by the City of Oshkosh,
layout existing right of way.
13. Plan/Profile
a. Develop 11 x17 sheets at 1 "=40' scale ratio. MSA will provide 22x34,
1"= 20' scale plans to the City for review at 30% plans, 60% plans
and 90% plans.
b. Show preliminary alignments and annotation
14. Streetscape Design and Plans (by Ken Saiki Design)
15. Additional Plan Sheets
a. Control Point Ties Sheet
b. Construction Details
c. Miscellaneous Quantities Sheet
d. Earthwork Summary Sheet
e. Sanitary Sewer from Fox River Bridge to Irving Avenue
f. Water Main from Fox River Bridge to Irving Avenue
16. A crack and damage survey of the adjacent buildings by the contractor prior
to starting construction will be included in the construction special provisions.
IX. P.S.&E.
A. PS&E
1. Special Provisions & Proposal
a. Write special provisions for non-standard bid items
b. Prepare standard provision sections including traffic control and
utilities
Page 4 of 5
(Exhibit A - Basic Services and Related Matters)
X. MEETINGS & CONFERENCES: The DOT project will be the lead with the meetings. The
scope for this project will include coming to the DOT meetings with exhibits of the Algoma
Boulevard to Irving Avenue, being prepared to discuss design issues, and coordinating with
the city and utilities along the project area.
A. Operational Planning Meeting (1 meeting)
1. Provide exhibits as necessary for the meeting
a. Attend the OPM.
b. Complete OPM follow-up letter.
2. 60% and 90 % Plan Review Meetings (2 meetings)
a. Meet with WisDOT and the City of Oshkosh to review plans.
3. Local Official Meetings (2 meetings)
a. Coordinate with local officials to discuss the project concepts two
weeks prior to public informational meetings.
4. Utility Coordination Meetings (2 meetings)
5. Progress Meetings (6 meetings)
a. Includes one Business/Property Owner Meeting, if needed.
XI. SERVICES PROVIDED BY THE MUNICIPALITY OR DEPARTMENT
A. Adjacent property owner names and addresses (City).
B. Existing right-of-way widths (plats, subdivision plats, CSMs, etc.) (City).
C. Benchmark locations and elevations. Section corner tie sheets and coordinates.
Horizontal control locations and coordinates (DOT).
D. As builts of city's utilities and any other street improvement projects on Main Street or
adjacent streets (City).
E. Existing traffic counts for all intersections for use in traffic signal design if available
(City).
Page 5 of5
(Exhibit A - Basic Services and Related Matters)
This is EXHIBIT B, consisting of two pages, referred to
in the Agreement between OWNER and ENGINEER
for Professional Services, dated , __'
Payments to ENGINEER for Services and Reimbursable Expenses
Section 6 of the Agreement is amended and supplemented to include the following
agreement of the parties:
Lump Sum Method of Payment
SECTION B6 - PAYMENTS TO ENGINEER
86.1. Methods of Payment for Services and
Expenses of ENGINEER.
B6.1.1. For Basic Services. OWNER shall pay
ENGINEER for Basic Services as follows:
B6.1.1.1. General. A lump sum fee of
$211.328.78 for all design services (except for
services of ENGINEER's Resident Project
Representative performed or furnished under
paragraph 2.5.2.1 and Operational Phase services
performed or furnished under paragraph 2.6)
including services of ENGINEER's Consultants.
86.1.1.2. Rosidont P:-ojOGt Roprosontati'/o
So.n/!GOS. For E:orvicos of ENGINEER's Residcnt
Project Representative performed or furnishcd
under paragraph 2.5.2.1, an amount equal to the
hourly labor rote for each employee of the
ENGINEER for services engagcd directly in
Resident Project Reprosent3tion.
give OWNER written notice thereof. Promptly
thereafter OWNER and ENGINEER shall review the
matter of compensation for such hourly services, and
either OWNER shall accede to such compensation
exceeding said estimated amounts or OWNER and
ENGINEER shall agree to a reduction for such hourly
services will not exceed said estimated amount when
such services are completed. The ENGINEER shall
be paid for all services rendered if ENGINEER
exceeds the estimated amount before OWNER and
ENGINEER have agreed to an increase in the
compensation due to ENGINEER or a reduction in the
remaining services.
B6.1.2. For Additional Services. OWNER shall pay
ENGINEER for Additional Services as follows:
B6.1.1.3. Oporat!onal P-IKISO Sorvicos. For
Operational Phase services performed or
furnished under paragraph 2.6, an ::Jmount equ::J1
to the hourly l::Jbor rate for each employoe for the
ENGINEER for services eng::Jged directly on the
~
B6.1.2.1. General. For services of ENGINEER's
principals and employees engaged directly on the
Project performed or furnished pursuant to paragraph
3.1 or 3.2 (except services as a consultant or witness
under paragraph 3.1.17), an amount equal to
ENGINEER's hourly labor rate under B6.1.4 for each
employee for services provided.
B6.1.1.4 Compensation for Hourly Services. The
above stated hourly amounts are an estimate for
planning purposes and shall not be binding on the
parties and is not the maximum amount payable to
ENIGNEER for hourly services under this
Agreement. Notwithstanding the fact that the
estimated amount for hourly services is exceeded,
ENGINEER shall receive compensation for all
hourly services furnished or performed under this
Agreement.
B6.1.2.2. ENGINEER's Consultants. For services of
ENGINEER's Consultants performed or furnished
pursuant to paragraph 3.1 or 3.2, the amount billed to
ENGINEER therefore times a factor of 1.1.
B6.1.1.5. Notice of Relationship of Payments to
Estimated Compensation for Hourly Services. If it
becomes apparent to ENGINEER at any time
before hourly services are to be performed or
furnished under this Agreement that the total
amount of compensation to be paid to ENGINEER
on account of hourly services will exceed
ENGINEER's estimated amount for such hourly
services set forth above which is applicable to the
services performed or furnished, ENGINEER shall
B6.1.2.3. Serving as a Witness. For services
performed by ENGINEER's principals and employees
as consultants or witnesses in any litigation, arbitration
or other legal or administrative proceeding under
paragraph 3.1.17, at the rate of $1,000 per day or any
portion thereof (but compensation for time spent in
preparing to appear in any such litigation, arbitration or
proceeding will be on the basis provided in paragraph
B6.1.2.1). Compensation for ENGINEER's
Consultants for such services will be on the basis
provided in paragraph B6.1.2.2.
Page 1 of 2
(Exhibit B - Lump Sum)
B6.1.3. For Reimbursable Expenses. OWNER shall pay
ENGINEER for Reimbursable Expenses such as:
Reimbursable Expense Rate
Copies/Prints ............................Rate based on volume
Fax ............................................................ $1.00/page
GPS Equipment.................. $40/hour; 2 hour minimum
Mailing/UPS...................................................... At cost
Mileage........................................................ $0.50/mile
Nuclear Density Testing.................. $25/day + $10/test
Organic Vapor Field Meter.............................$100/day
PC/CADD Machine................... Included in labor rates
Robotics Geodimeter .......... $30/hour; 2 hour minimum
Stakes/Lathe/Rods ........................................... At cost
Total Station ............................. Included in labor rates
Travel Expenses............................................... At cost
The amount payable to ENGINEER for Reimbursable
Expenses will be the charge actually incurred or the imputed
cost allocated by ENGINEER therefore times a factor of 1.0.
B6.1.4. For Additional Services. Labor will be charged at
the individual charge rate. Charge rate ranges are:
Classification Labor Rate per Hour
Architects.................................................... $ 90-$108
Clerical....................................................... $ 40-$ 60
Draftsperson............................................... $ 45-$ 85
Technician .................................................. $ 49-$ 96
Hydrogeologists.......................................... $ 62-$105
Planners ..................................................... $ 45-$114
Principals.... .................................... ............ $120-$180
Professional Engineers............................... $ 70-$142
Project Manager ......................................... $ 70-$142
Registered Land Surveyors ........................ $ 62-$ 95
Staff Engineers ........................................... $ 60-$ 80
Wastewater Treatment Plant Operators............... $ 61
Geographic Information Systems (GIS) ...... $ 46-$ 90
Housing Administration ............................... $ 32-$ 95
B.6.1.5. Adjustment of Labor Rates. Labor rates represent
a range for aparticular job classification. The rate for the
individual assigned to the Project will be charged. These
rates are in effect until April 1 , 2005 and may increase by not
more than 5% per year thereafter.
86.2. Other Provisions Concerning Payments.
B6.2.1 The portion of the amount billed for ENGINEER's
services which is related to services rendered on a Standard
Hourly Rate basis will be billed based on the Labor Rates
incurred at the time services were provided.
B6.2.3. Payments Upon Termination.
B6.2.3.4. In the event of termination during any
phase of the Basic Services, ENGINEER will be
paid for services performed or furnished in
accordance with this Agreement during that phase
on the basis of ENGINEER's Standard Hourly
Rates for services performed or furnished during
that phase to date of termination by ENGINEER's
employees engaged directly on the Project.
Page 2 of 2
(Exhibit B - Lump Sum)
Insurance
This is EXHIBIT F, consisting of 1 page, referred to
in the Agreement between OWNER and ENGINEI::R
for Professional Services, dated
Section 8 of the Agreement is amended and supplemented to include the
following agreement of the parties:
F8.3. Insurance.
The limits of liability for the insurance required by paragraph 8.3 of the Agreement are as follows:
F8.3.1. By ENGINEER:
1.
Workers' Compensation:
A. Workers Compensation Insurance
B. Employer's Liability Insurance
Statutory
$100,000 per accident/employee
2.
General Liability:
Each Occurrence:
General Aggregate:
$1,000,000
$1,000,000
3.
Excess Umbrella Liability:
Each Occurrence:
General Aggregate:
$4,000,000
$4,000,000
4.
Automobile Liability:
Combined Single Limit:
Each Accident
$1,000,000
$1,000,000
5.
Professional Liability Insurance:
Each Claim:
Aggregate:
$2,000,000
$2,000,000
F.8.3.2. By OWNER:
General Li3bility:
$1,000,000
$1,000,000
$1,000,000
1.
2.
Property D:::lmage Liability Insurance:
3.
Property Insurance:
^ddition31 Insureds. The follO\,ving persons or entities are to be listed on OVVNER's policios-ef
insurance as addition31 insureds as provided in 8.3.2:
MS/\ Professional Services, Inc.
F.8.3.3. OWNER and ENGINEER shall each deliver to the other certificates of insurance evidencing the
coverage indicated.
Page 1 of 1
(Exhibit F - Insurance)
This is EXHIBIT G, consisting of 1 page, referred to
in the Agreement between OWNER and ENGINEIER
for Professional Services, dated
Dispute Resolution
Section 8 of the Agreement is amended and supplemented to include the following
agreement of the parties:
G8.6 DISPUTE RESOLUTION
OWNER and ENGINEER desire to resolve any disputes or areas of disagreement involving the subject
matter of this Agreement by a mechanism that facilitates resolution of disputes by negotiation rather than
by litigation. OWNER and ENGINEER also acknowledge that issues and problems may arise after
execution of this Agreement which were not anticipated or are not resolved by specific provisions in this
Agreement. Accordingly, both OWNER and ENGINEER will endeavor to settle all controversies, claims,
counterclaims, disputes, and other matters in accordance with the Construction Industry Mediation Rules
of the American Arbitration Association currently in effect, unless OWNER and ENGINEER mutually
agree otherwise. Demand for mediation shall be filed in writing with the other party to this Agreement. A
demand for mediation shall be made within a reasonable time after the claim, dispute or other matter in
question has arisen. In no event shall the demand for mediation be made after the date when institution
of legal or equitable proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. Neither demand for mediation nor any term of this Dispute
Resolution clause shall prevent the filing of a legal action where failing to do so may bar the action
because of the applicable statute of limitations. If despite the good faith efforts of OWNER and
ENGINEER any controversy, claim, counterclaim, dispute, or other matter is not resolved through
negotiation or mediation, OWNER and ENGINEER agree and consent that such matter may be resolved
through legal action in any state or federal court having jurisdiction.
Page 1 of 1
(Exhibit G - Dispute Resolution)
Consultant Contract Total Fee Computation
I
~~m~t~~~,~t~ff I
];~t~l:di~~~,i7L~bo'
:1f:~:tat(1)y~~h.~~~..
'Co$ts'. '
.'fix~dFEtelPr()rd~:
'" ".,: . ',.:.:-:'y'
. T ot~l,for Cci",tract""
Work Order
2502
$68,884.09
$108,409.78
$16,842.91
$1,98,4tl~f!~~
$16~8ltZ'l~~,;
"$403d:obi-
, . ..t.. ..', ':." .~,
. ~ "
$5,2~?OO '
$1;935.9.0
Negotiated Overhead Rate:
Percent Profit:
$211,32:8:00
=:I
9.~
Schedule of Subcontracts
]
WORK ELEMENT
Streetsca e Architecture
Historical Coordination
Subsurface Investi ation
Subcontract Amount:
$5,945.00
$5,282.00
$1,935.00
$13,162.00
Copy of Oshkosh CONTRACT Algoma to Irving 4/18/2006
FROM
FAX NO.
Apr. 17 2006 02:37PM P2
CENTRAL WISCONSIN AREA:
3217 Whiting Avenue
P.O. Box 127
Stevens Point, WI 54481 ~0127
(715) 341-7974. Fax (715) 341-8654
MADISON AREA;
5820 Woodland Drive
Waunakea,VVl53597
(608) 849-9120 . Fax (608) 849-9122
NUMMEllN
TESTING SERVICES, INC.
MSA Professional Serviccs~ Inc.
2901 Tnternational Lane
Madison, WI 53704
VIA FAX (60R)242~5664
September 19,2005
Revised: 04-17-06
ATTN:
Mr. Mike Statz
NTS 7509503.psl
RE: Subsurface Investiga.tion
Main Street
City of Oshkosh, Wil1nebago County, WI
We are pleased to submit tbis proposal. We propose to do the subject underground exploration
and report in accordance wIth the rates itemized below. The rates givell below are only valid. if
our proposal for adjacent work (see NTS 750940t"psl) is accepted also.
1. Standard soil auger borings: Perfo1'm four (4) hoJ]ow- or solid-stem soil auger $ 800.00
borings to deptl) of" 20 -feel. Sample interval will be 2.5 to 10 feet then 5 feet
thereafter. Rstir.nate 80 feet in the 0- to 20-foot range at $10.00 per foot.
Mobili7..ati<.m/demob of drill crew, rig, all materials to site and return.
Estimate O.
Dri11ing of bedrock or hard material (> 50 blows/ft) with augers Is not
included in the above drilling costs, and will be performed at an
additional rate of $1 O/fhot. Drilling will be terminated at auger refusal.
The bore holes will be backlilled in accordance with WDNR requirements
at $4.00 per foot. Estimate 80 feet.
\
2. Utility C1wck. - Contact diggers hotlinc and co()rdinate locate. Lump sum.
3. Staking of boring locations hy u.<;e of a t.ape measure. Lump sum.
4. Elevations ofbodl1g locations. A temporary bench111ark(s) will be
established. Lump sum.
5. Project coordination; administration, set~up and planning. Lurn}' sum.
6. Clearing brush and small trees to gain access to the site wlll be oluu:ged at
$100.00 per hour. Esthnatc 0 hours.
$
0.00
$
0.00
$ 320.00
$ 50.00
$ 75.00
$ 50.00
$ 50.00
:I> 0.00
$ 0.00
7. Stand-by time associated with !:lite acoess at $125/hr. Estimate O.
GEOTE;CHNICAL ENGINEERING. ENV1RONMENTAl. SOil ANALYSIS . CONSTRUCTION MATERIALS TESTING
FROM
FAX NO.
Apr. 17 2006 02:37PM P3
Subsurface Exploration
Main Street
City of" Oshkosh, WI
2
8. Penetration of concrete (10" or less) @ $30.00/ea. Estlt'l,ate O.
to. Asphalt patches @ $ IO.OO/ea, Estimate 4.
$ 0.00
$ 150,00
$ 40.00
$ 100.00
$ 0,00
$ 0.00
$ 300.00
9. Traffic control including signs and cones only. Lump Sum.
11. Clean up and dispose of drill CUtthlgS. Lump sum.
12. Per diem. Estimate O.
13. Prepare boring logs. Tncluded with report.
14. Engineering report to include, but not be limited to, l.\ summary of
findings and observations noted on the boring logs, interpretation of
available project information, and recommendations regarding foundation
design~ compaction, site grading, pavement design parameters, potential
groundwater problem:>, and specially concerns.as needed. Lump sum.
OTHER ITEMS OF CONCERN
15. This proposal assumes access to the boring locations with a truck-mounted rig. If an A.T.V.
rig is required, contact Nummclin Testing Serviccs, Inc. tor an estimate. No additional
allowances are made for special site preparation to gain ~'lccess wHh drill rigs. Nuro.m.elin
Testing Services, Inc. wi11110t be responsible for any tire ruts~ tire tnarks~ or damage to any
pavement surface or lawn caused by the normal, prudent operation of a driJJ rig. One rig-day
is assumed in the ahove estimate. Additional borings~ requiring a return to the site, may
require an additional llloh/dem('>b charge. rf a drill rig gelS sluck, we will charge u)r all
down time as stand-by time and we will charge tbe cost of any tow truck or bulldozer
needcd.
16. It is assumed that land ownerl'/occupants will be contaded by others before amval ofthe
drill crew. The drill crew will attempt to contact owners/oCC~lpants before entering property,
if requested. Telephone numbers of land owners/occupants would be helpful
17, Mud-r.otary dri,11in.g is not included in the above drilling costs.
18. Borings will be performed to the specified depth or to auger refu."ial. An attempt will be
made to contact client if subsurf.,.ce con.ditiotls may warrant a change in specified boring
depth(s). .Item 1. (above) includes costs fot the maximUlu depth of boring anticipated. If
shallower borings are pern.wmedl because of auger refusal or other reason, Nummelin
Testing Services. Inc. will use their discretion when deter.mining the final billing amount.
Nummelin Testing Services, Inc. will contact client if cost of borings is anticipated to
exceed this estimate.
7509503 -psI
FROM
FAX NO.
Apr. 17 2006 02:37PM P4
Subsurfaee Explorntion
Main Street
City of Oshkosh~ WI
3
19. A Monday-Friday daylight only working schedule will be employed.
20. paymen.t for this work will be due within thirty days after submission of O't.u' invoice,
following completion of the work. A service charge of 1.5% per month (18.0% per year)
will be charged on an remainil1g balances.
The work, as itemized above, i~ e."ltimated to be accomplished for a total of $ 1935.00. The final
total will be based on the actual work performed. Work wHl begin upon receipt of written
approvallo proceed. Nummelin Testi1lg Services rue, reRerves the right to delay drilling because~
of weather conditions. poor site access, or other condition.Oj beyond Olu' control.
Inasmuch as this exploration is being conducted to obtain a general knowledge of the soil and
groundwater conditions by a limited number ofborings~ the Clicllt agrees to limit the Soil and
Foundadon (...:ngineer's pl'{)fessionalliability. This Soil and Foundation Engineer is only involved
with identifYing soil and groundwater characteristics based on a limited number of observations,
and theretore, the Soil and Foundation Engineer's total aggregate professional liability due to his
negligent act~, error or omission. shall be limited to the extent of the Soil and Foundation
Engineer's negligence.
Unanticipated soil conditions are cnmmonly encountered and cannot, at all times, be fully
determined by a limited number of :JoiJ horings. Extra costs, due to unexpected conditions, are
possihle. Our professional services will be pertbrmcd. our fmdings obtained, an.d our
recommendations prepared in accordance with gcncrally accepted engineering principles and
practices. No other warranty, either expressed or in"lpHed, is made.
We look forward to working with you on this pmject. Please let liS know Ifyou have any
questions regarding this submittal. You may indicate your authorization. for us to proceed with
this work by signing this proposal and returning it.
SinCerel"i'-",~
--. ... . 7. .-----
Mi el J. Krawczyk, P.R.
NUMMELIN TESTING SERVICES~ INC.
mjk/jkg
Authc.ni7.oo by:
Name and Title
Date
7S09S03_PSL
H ERl TAG.E RESEARCH t lTD.
17 April 2006
Mr. Mike Statz, P.E.
MSA Professional Services
Suite 300
2901 International Lane
Madison, WI 53704
RE: WisDOT #0000-00-00
N. Main Street
Algoma Boulevard to Irvine Street
City of Oshkosh
Winnebago County
Dear Mr. Statz,
As you and I discussed in our telephone conversation today, this letter constitutes HRL's
proposal for completing the historical survey work for the captioned and expanded project.
Previously, we had discussed the two block area between Algoma Boulevard and E.
Parkway, and the fact that it is included in the the National Register-listed North Main Street
Historic District. And since it is listed on the Register, the need to survey the project area
and consider appropriate Determinations of Eligibility (DOEs) was obviated, although the
survey cards previously prepared for the area would need to be updated so that an
Assessment of Effects document (phase 3 of the Section 106 process) could be appropriately
prepared.
Now, however, by extending the project from Parkway to Irvine Street, another block that
is not included in the National Register Historic District is introduced. Thus it will need to
be formally surveyed and any necessary DOEs completed (phase 1 and 2 of the Section 106
process). And if any Register-eligible properties were located along that block, they would
also have to be considered in the Phase 3 Assessment of Effects that will be needed for the
Algoma to E. Parkway segment.
Consequently, HRL's proposal is now revised to include-as before-updating the survey
cards as needed for the properties in the Historic District between Algoma and Parkway (400
and 500 blocks ofN. Main), as well as the actual reconnaissance level survey of that block
between Parkway and Irving (600 Block ofN. Main). We lmow that there are presently at
HISTORICALfENVIRONMENTAL CONSULTANTS
N89 W16785 APPlEfON AVENUE MENOMONEE FMlS,1'i1 53051 PHONE (262) 25 f -7792 FAX (262) 251-3776 E-MAIl; inOlOCleIt1ilhrltd.orq
Mr. Mike Statz, P.E.
17 April 2006
Page 2
least nine previously surveyed properties on this block that will need to be recognized.
Therefore, we assume that eight to eleven properties will need to be surveyed or resurveyed.
The cost for completing this work will be a lump sum fee of $5,282.00, a breakdown of
which is provided in Attachment A. Should properties in excess of eleven need to be
surveyed, or should any DOEs be needed for the 600 block, they will all be considered extra
work and require a contact amendment. Similarly, the Assessment of Effects document,
when it needs to be prepared, will also considered extra work.
If you have any subsequent questions or thoughts about this proposal, Mike, please do not
hesitate to contact me.
Yours truly,
John N. Vogel, Ph.D.
Attachment A
04/17/06
Historical Reconnaissance Survey
FEE COMPUTATION SUMMARY
N. Main Street (Algoma Blvd. to Irvine St.), City of Oshkosh, Winnebago County
1. Direct Labor Cost
Sr. Historian
10 hours x $40.00/hr $ 400.00
Project Historian II
25 hours x $21.25/hr 531.00
Staff Historian
60 hours x $16.00/hr 960.00
Project Architectural Historian
16 hours x $25.25/hr 404.00
2,295.00
2. Direct, General & Administrative Overhead
$2,295 x .98
2.249.00
Subtotal (lines 1 & 2)
4,544.00
3.
Fee (profit) 9.0% of Direct Costs/Overhead
408.00
4. Direct Charges (Reimbursables)
Mileage (750 x .44/mi)
330.00
5.
Total Fee Proposed
$5.282.00
.c
o
o
~
.c
0_
001
'0.5
~~
O~
~ >
a;-
CDal
~ ~
wE
c 0
.- 01
lIS<(
==--
co
o
t:::
......
--
N
-5
Q)
-
:E
e
<(
Q)
0.
ctI
U
III
'0
C
ctI
~
, c
c 0
01._
.- -
lIlQ.
Q) .-
a 5
.- In
~ CD
ctlc
Cf)~
c 0
~~
.a
c
CII
IE
E
o
o
ccec't:cc
CII CII CII CII CII CII QI
IE E IE IE IE IE IE
~ ~ ~ ~ ~ ~ ~
ggogggg
.5 .5 .5 .5 .5 .5 .5
o 0 0 000 0
c c c c c c c
C
.~ ~
'c 0
.co
oil)
~~
.c '-
~.c
<(0
-o~
Co:>
j~
1Ol:
0.0
'0 ~
.5 C>
'-0
0.......
~
c
o III
;:: (J)
J!! .5
C Q)
c III CD Q)
001 Ec :2
._c::Jo -
e~ u;::5'E~
.... (l) 8:g ;:: ECD .2
.!!! :2: - .- ~ Iii
.5E J!!"2.5~E
Ern co"2-,-
"OQ) CDOo~.E
<(I- EOocc
oa,~5>>O-:Q
CI)'{i) O.!:: g~g:c
.0....(l)Q.>(I)=.c:::l
~a (I) c t:n:;:::::Jo..
Q. O::W<(::::)Q.
E
l\l
2
c
OJ
'w
al
"0
.s
r/)
.~
ro
c
ctI
2
'w
al
"0
.;;
e
c.",
~g-
alQ)
.c '"
~!!!
al .9-
~'5
(/) E
C')
C\l
C\l
I'-
I'-
C\l
C\l
lIl~ ~ !A
OIU U U
9! t:..!2 0 0
::i1 ';: .c :a :a
U Ctl- ': -
o -u:g c l:1!
i (1).2 ~ ~
~ ~~5l:S :s
c · III o.~ E!:i-5 i
.2 c.- :::l CD 0. (I) CD ..... t: CD
-t:nlll-CDoECDrnO(l)
~'iii.2:-Q) _(i) Q)'" ~:;::l_
;::g~%:5ij).g:5(1)~:5
1Il ctI(I)...'OlJ)...'-........
> >>:ei;::.e-0.......e~.E.e
~ III ~ ctI ~
>>.5 St.s;:t'.: (I) CD oCl)'c.: IllW III
(1)(/)"0 oEu.-ECD-E t:
,==~:m c.;:: l5 m;::1ii ~:;:::~ Ctl
~~&CI)~ <'>0 :2U ~a:
o
C')
'<t
......
!A !A
U U
o 0
:a :a
'i iii
t: c
o 0
:;; ;:
:s :s
'D "0
~ ~ ell
III .2 (I)
~ III f
:5 's;: :5
a..e '-
.e~$.e
CD .!!! E CD
.5 g:;::l.E
- 0. lIl....
Cl)W
I
I
,
"0. '0 "0 "0 'C "0
al Q) Q) Q) Q) al
"0 "0 "0 '0 "0 "0
:J :J :J :J :J :J
13 13 13 13 13 13
.5 .5 .5 .5 ,5 .5
15 15 15 - 15 15
0
z z z z z z
C> Cl
0 Cl
0" 0 u;
ll') '<t
Cl:) "<t CI)
ri' otl'
~~
0
0
r-. lri
C\l 0>
C\l
N
&"l-
0
0
N 0
C>
N
&"l-
I'-
"<t
III
01
C
~OI
f5, CD .5
t:~1i>
:;::lcCDlIl
,~~~,g~g>
>'s;::2: ~ l5~
CD (l)Cii'-:;::l Q)
a::: a::: '0 'E g:2: (/)...
CCtl::o,-
In ctlctI~o1ii(/)::J
g' a:a:~<'>l5~:~
-_ :2 ~O ~o co .i::' U 01._
0..... 0..... U .- CD
310..0000:6..... E.B
:E co 0> ~ ::J 0.. 0.. I~
c
.2
....
ell
"S
U
iii
o
CD
CD
u.
'i
'0
I-