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AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES FOR THE LOWER MILLER CREEK ROAD IMPROVEMENTS PROJECT MT PLD 2002(1) This Agreement made and entered into this day of ,2009,in the City of Missoula, County of Missoula, State of Montana, by and between the City of Missoula, a municipal organization under the law of the State of Montana, hereinafter referred to as "OWNER" and DJ&A, P.C., hereinafter referred to as "ENGINEER". WHEREAS, Lower Miller Creek Road has been identified as a priority street improvements project by the Owner; WHEREAS, the OWNER desires to engage the ENGINEER to render professional engineering services related to the preliminary and final design phases of the project including construction staking services for the above described project; and WHEREAS, the OWNER has complied with city procurement requirements regarding the selection of a professional ENGINEER; and WHEREAS, the OWNER desires to enter into an agreement with the ENGINEER as hereinafter provided for the preliminary and final design services of the project including construction staking; NOW THEREFORE, for and in consideration of the mutual promises and agreements set forth herein, the OWNER and ENGINEER mutually stipulate and agree to the following provisions: I. Employment of ENGINEER The OWNER hereby agrees to retain the professional services of the ENGINEER pursuant to the terms and provisions of this Agreement, and the ENGINEER agrees to perform the professional services identified pursuant to the terms and provisions of this Agreement in a competent, professional, and acceptable manner. II. Independent Engineering Contractor It is understood by the parties hereto that the ENGINEER is an independent engineering contractor and that neither its principals nor its employees are employees of the OWNER for purposes of tax, retirement system, or social security (FICA) withholding. It is further understood that pursuant to Section 39-71-401 MCA, the ENGINEER has obtained and will maintain at its expense for the duration of the Contract, coverage in a Workers' Compensation Insurance program with Page 1 of 13 ---PAGE BREAK--- either the State of Montana, a private insurance carrier, or an approved self- insurance plan in accordance with Montana State law for its principals and employees for the services to be performed hereunder and that the OWNER has no liability for vendor's workers' compensation insurance of claims. The ENGINEER shall provide evidence of such coverage to the City Clerk prior to the city Clerk's validation of this Agreement. III. Contract Pricing Engineering services shall be at cost plus a negotiated fixed fee as the basis for compensation for a fixed scope of services. The cost proposal for this project is shown in Attachment B. IV. Liaison The OWNER'S designated liaison with the ENGINEER is Monte Sipe, Construction Projects Coordinator, 435 Ryman, Missoula, Montana, 59802-4928. The ENGINEER'S designated liaison with the OWNER is Christopher Anderson, Project Manager, DJ&A, P.C., 3203 Russell Street, Missoula, Montana, 59801. Any and all notices shall be sent to the project liaison. V. Effective Date and Time of Performance This Agreement takes effect as of the date entered into listed above. The project engineering services performed by the ENGINEER will be completed according to a schedule that is mutually agreed upon between the OWNER and the ENGINEER. VI. Scope and Fees of Professional Services A. The ENGINEER shall conform to the requirements of 18-2-121 and 18-2-122 MCA and all other codes of the State of Montana applicable to providing professional engineering services. B. the ENGINEER agrees to perform professional services in connection with the project and wili serve as the QVVNER'S representative in those phases of the project to which this agreement applies. C. The ENGINEER shall not be responsible or liable for project safety, efficiency and/or adequacy of the OWNER'S, Contractor's plant, appliances, and methods or for any damage or injuries which may result from their failure and/or improper construction, maintenance or operations. This indemnification includes damage to public and/or private property ir improvements and/or injuries to any employees of the OWNER, the Contractors and/or the general public that may be caused or contributed to Page 2 of 13 ---PAGE BREAK--- by the activities related to the OWNER'S project. Project safety shall be the sole responsibility of the OWNER'S Contractor, the contractor's construction superintendents, designated safety officers, or a project safety officer designated and employed by the OWNER. D. Extra services of the ENGINEER when authorized by the OWNER shall be as follows and will imply additional cost as negotiated between the OWNER and the ENGINEER: 1. Revisions in project scope, boundary, contract packages, and associated added meetings due to amendments in project scope. 2. Additional field and laboratory tests for the project to assure general compliance with project specifications. 3. Reset monuments lost or destroyed by construction of this project when restoration of such monuments is not the liability of the Contractor. 4. Prepare change orders which require additional engineering design or construction staking. 5. Payments to governing bodies for project review fees if required. 6. Services associated with excavations required to locate buried utility conflicts. 7. Additional printing and disbursement of plans and documents as requested by the OWNER, over and above the (10) sets provided for in the base contract. 8. Additional services authorized by the OWNER which are not part of the defined scope of work. VII. Payment for Services A. The OWNER shail pay the ENGiNEER on a percent complete basis for services related to all phases of the Lower Miller Creek Road Improvements Project. The total cost of services is summarized in Attachment B and by this reference made a part of this Agreement. The OWNER shall pay the ENGINEER within 45 days of submitting invoices. VIII. The OWNER agrees to provide ENGINEER with all available information pertinent Page 3 of 13 ---PAGE BREAK--- to the project and to perform the following services: A. Give thorough consideration to all reports, estimates, drawings, specifications, proposals, change orders, payment claims, and other documents presented by the ENGINEER and shall inform the ENGINEER of all decisions within a reasonable time. B. Hold all required special meetings, serve all required public and private notices and advertisements, receive and act upon all protests and requirements in the development of the Project and pay all costs incident thereto. C. Advertise for construction proposals and construction bond proposals from Bidders, open proposals at the appointed time and place and pay all costs incident thereto. D. Furnish legal, accounting, bonding and insurance counseling services as required for the project. E. Furnish the ENGINEER with a copy of any design and construction standards he shall require the ENGINEER to follow in the preparation of Contract Documents. F. Furnish the format and required content for the contract administrative documents (i.e. Notice Inviting Proposals, Information to Bidders, Performance Bond, Payment Bond, Proposal, General Conditions, Special Conditions, etc.). IX. The OWNER and the ENGINEER further agree to the following conditions: A. Conflict of Interest The ENGINEER covenants that is presently has no interest and will not acquire any interest, direct or indirect, in the project which would conflict in any rnanner or degree with the perfonllance of its services hereunder. The ENGINEER further covenants that, in performing this Agreement, it will employ no person who has any such interest. B. Modification and Waiver This Agreement may not be modified, altered, or changed except pursuant to a written agreement signed by the parties hereto A waiver of any term or condition of this Agreement or of any breach of this Agreement shall not be deemed a waiver of any other term or condition of this Agreement or any part Page 4 of 13 ---PAGE BREAK--- hereof or of any later breach of the Agreement. Any waiver must be in writing. C. Termination of Agreement This Agreement may be terminated as follows: 1. If, at any time before the date of completion, one of the parties determines that the other party has failed to comply with any of the terms and conditions of this Agreement, the aggrieved party may give notice, in writing, to the defaulting party of any deficiencies claimed. The notice will be sufficient for all purposes if it describes the default in general terms. If the defaulting party fails to cure and correct all defaults claimed within a reasonable period to be specified in the notice, the aggrieved may, with no further notice, declare this Agreement to be terminated in whole or in part. 2. If the ENGINEER is the defaulting party, it will thereafter be entitled to receive payment for those services satisfactorily performed to the date of termination less the amount of reasonable damages suffered by the OWNER by reason of the ENGINEER'S failure to comply with the Agreement's terms and conditions. 3. If the OWNER is the defaulting party it will pay the ENGINEER for those services satisfactorily performed to the date of the termination plus the amount of reasonable damages suffered by the ENGINEER by reason of the OWNER'S failure to comply with the Agreement's terms and conditions. 4. Notwithstanding the above, the defaulting party is not relieved of liability to the aggrieved party for damaged sustained by the aggrieved party by virtue of any breach of this Agreement. 5. If the ENGINEER is the defaulting party, the OWNER may withhold any payments to the Contractor for purposes of setoff until the exact amount of damages due the OWNER from ENGINEER is determined. D. Civil Rights Act of 1964 ENGINEER will abide by the provisions of the Civil Rights Act of 1964 which states that under Title VI, no person may, on the grounds of race, color, or national origin, be excluded from participation in, be denied, the benefits of, or be subjected to discrimination under any program or activity receiving Page 5 of 13 ---PAGE BREAK--- federal financial assistance. E. Section 109 of the Housing and Community Development Act of 1974 The ENGINEER will comply with the following provision: No person in the United States may on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or in part with the funds made available under this title. any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to any otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 will also apply to any such program or activity. F. Non-Discrimination The ENGINEER agrees that any and all hiring by them related to this Agreement shall be on the basis of merit and qualifications and there shall be no discrimination on the basis of race, color, religious creed, political ideas, gender, age, marital status, physical or mental handicap, national origin or ancestry, by persons performing this Agreement. Qualifications mean such abilities as are genuinely related to competent performance of the particular occupational task. G. Ownership and Publication of Materials All reports, information, data and other materials prepared by the ENGINEER pursuant to this Agreement are the property of the OWNER, which has the exclusive and unrestricted authority to release, publish or otherwise use, in whole or part, information relating hereto. Any reuse without written verification or adaptation by the ENGINEER for the specific purpose intended will be at the OWNER'S sole risk and without liability or legal exposure to the ENGINEER. No material produced in whole or in part under this Agreement may be copyrighted or patented in the United States or in any other county without the prior written approval of the OWNER and the above departments. H. Reports and information The ENGINEER will maintain accounts and records, including personnel, property and financial records, adequate to identify and account for all costs pertaining to this Agreement and such other records as may be deemed necessary by the OWNER to assure proper accounting for all project funds, both federal and non-federal shares. these records will be made available Page 6 of 13 ---PAGE BREAK--- for audit purposes to the OWNER and its authorized representative and will be retained for three years after receipt of final payment for the services rendered under this Agreement unless permission to destroy them is granted by the OWNER. I. Access to Records It is expressly understood that the ENGINEER'S records relating to this Agreement will be available during normal business hours for inspection by the OWNER. J. Construction and Venue This Agreement will be construed under and governed by the laws of the State of Montana. In the event of litigation concerning it, venue is the Fourth judicial District in and for the County of Missoula, State of Montana. K. Affirmative Action Policy Contractors, subcontractors, subgrantees, and other firms doing business with the OWNER or any agency connected with the OWNER must be in compliance with the City of Missoula's Affirmative Action Plan and Title 49, M.C.A., or forfeit the right to continue such business dealings. See Attachment A. L. Insurance ENGINEER hereby certifies that it has and shall maintain during the time period of this Agreement, liability insurance in the minimum amount of $300,000 per occurrence that includes liability for accidents occurring during delivery or at the delivery sites that are attributable to the ENGINEER or it s agents' conduct. ENGINEER shall maintain, during the term of this contract, Professional Errors and Onlissions Insurance in the minimum amount of $1,000,000.00. M. Previous Agreements This Agreement constitutes the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof. There are no promises, terms, conditions, or obligations, other than contained herein. This Agreement shall supersede all previous communications, representations, or agreements, either oral or written, between the parties. Page 7 of 13 ---PAGE BREAK--- N. Binding Effect This Agreement and all of the covenants hereof shall insure to the benefit of and be binding upon the OWNER and the ENGINEER respectively and his partners, successors, assigns and legal representatives. Neither the OWNER nor the ENGINEER shall have the right to assign, transfer or sublet his interest or obligations hereunder without written consent of the other party. O. Service Rates The service costs and hourly fee schedules contained in this Agreement are based on the ENGINEER's current 2009 service rates. Any extra work agreed upon and completed after January 1, 2010 shall reflect the current ENGINEER's fiscal year service rates. P. Indemnification The ENGINEER shall indemnify and hold the OWNER and their officers and employees harmless from and shall process and defend at its own expense all claims, demands, or suits at law or equity arising in whole or in party from the ENGINEER's negligence or breach of any of its obligations under this Agreement; provided that nothing herein shall require the ENGINEER to indemnify the OWNER against and hold harmless the OWNER from claims, demands or suits based solely upon the conduct of the OWNER, their agents, officers and employees and provided further that if the claims or suits are caused by or rest from the concurrent negligence of the ENGINEER's agents or employees and the OWNER, their agent, officers and employees, this indemnity provision with respect to claims or suits based upon such negligence, the costs to the OWNER of defending such claims and suits, etc., shall be valid and enforceable only to the extent of the ENGINEER's negligence or the negligence of the ENGINEER's agents or employees. Q. Severability If a part of this Agreement is valid, all valid parts that are severable from the invalid part remain in effect. If a part of this Agreement is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. Page 8 of 13 ---PAGE BREAK--- IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year in this certificate first herein above written. ENGINEER: DJ&A, P.C 3203 S. Russell Street Missoula, MT 59801 Date ( I OWNER: CITY OF MISSOULA Missoula City Hall Missoula, Montana 59802 John Engen, Mayor Date Martha L. Rehbein, City Clerk Approved as to form: Jim Nugent, City Attorney Date Date Page 9 of 13 ---PAGE BREAK--- ATTACHMENT A NON-DISCRIMINATION All hiring shall be on the basis of merit and qualifications and there shall be no discrimination on the basis of race, color, religious creed, political ideas, sex, age, martial status, physical or mental handicap, national origin or ancestry, by persons performing this contract. Qualifications mean such abilities as are genuinely related to competent performance of the particular occupation task. AFFIRMATIVE ACTION POLICY Contractors, subcontractors, subgrantees, and other firms doing business with the City of Missoula must be in compliance with the City of Missoula's Affirmative Action Plan, and Title 49 Montana Code Annotated entitled "Human Rights" or forfeit the right to continue such business dealings. The City's Affirmative Action Policy Statement is: The Mayor of the City of Missoula is committed to implement affirmative action to provide all persons equal opportunity for employment without regard to race, color, religion, national origin, age, marital status, ancestry, receipt of public assistance, political beliefs, physical or mental handicap, ex-offender status, or sex. In keeping with this commitment, we are assigning to all department heads and their staff the responsibility of actively facilitating equal opportunity for present employees, applicants, and trainees. This responsibility shall include all assurance that employment decisions are based on furthering the principle of equal employment opportunity by imposing only valid requirements for employment and assuring that all personnel actions are administered on the basis of job necessity. Specific responsibility for development, implementation, monitoring and reporting will be assigned to the City Personnel staff under the supervision of the Mayor's Administrative Assistant. It is the policy of the City of Missoula to take affirmative action to eliminate discrimination in personnel policies and procedures that have adverse impact on the "affected class" unless sex, ex-offenders status, and/or physical or mental handicap relates to a bona fide occupational qualification. Equal opportunities shall be provided for all City employees during their terms of employment. All applicants for City employment shall be recruited from the available labor market, and employed on the basis of their qualifications and abilities. The City of Missoula, where practical, shall utilize minority owned enterprises and shall ensure that subcontractors and vendors comply with this policy. Failure of subcontractors and vendors to comply wit this policy statement shall jeopardize initial, continued, or renewed funds. Our commitment is intended to promote equal opportunity in all employment practices and provide a positive program of affirmative action for the City of Missoula, its employees, C. E.T.A. program participants, trainees, and applicants. Page 10 of 13 ---PAGE BREAK--- ATTACHMENT B Rate 2.1 Property pin and easement research $ 773.12 2.2 Coordinate with property owners adjacent to project $ 386.56 (permission to access land) 2.3 Set intervisible control points $ 935.00 2.4 Cadastral ties and property pin ties $ 825.00 2.5 Topographic survey - roadway (4300 feet) $ 2,640.00 2.6 Topographic survey - approach roads and driveways $ 715.00 2.7 Data reduction and mapping $ 1,215 2.8 Topo and boundary survey review $ 241.60 78.0 $7,731.46 3.1 Preliminary curb and sidewalk layout $ 870.88 3.2 Develop typical sections showing finished roadway widths $ 541.50 3.3 Identify proposed ADA ramp locations $ 453.35 3.4 Identify possible utility conflicts $ 96.64 3.5 Identify areas were small retaining walls are proposed $ 144.96 3.6 Curb plan and profile design $ 1,001.38 3.7 Preliminary Drainage design $ 869.20 Preliminary permanent traffic control plan $ 349.90 3.9 Preliminary design and drainage plans for approaches $ 482.92 3.10 Plan and profile sheets showing proposed construction limits $ 444.86 3.11 Preliminary quantity calculations $ 471.82 3.12 Preliminary Engineer's Estimate $ 435.44 3.13 List of anticipated special contract requirements (SCR's) $ 226.60 3.14 30% Submittal to and City of Missoula $ 696.46 3.15 Review meeting with City of Missoula $ 654.81 3.16 Meeting minutes $ 193.28 Page 11 of 13 ---PAGE BREAK--- Total Hours 97.0 I Total labor Cost $7,934.00 J 4.1 Address comments from 30% design submittal $ 289.92 4.2 Plan and profile design - curb and sidewalk $ 1,483.46 4.3 Plan and profile design - retaining walls $ 1,109.96 4.4 Plan and profile design - approach roads $ 917.52 4.5 Typical section sheets $ 361.00 4.6 Plan and profile sheets $ 722.00 4.7 Drainage design $ 532.08 4.8 ADA ramp details and design $ 710.90 4.9 Approach road plan and profile and detail sheets $ 1,230.20 4.10 Drainage detail sheets $ 614.26 4.11 Temporary traffic control plan and detail sheets $ 1,037.20 4.12 Permanent traffic control plan and detail sheets $ 976.10 4.13 Erosion control plans and details $ 589.82 4.14 Special contract requirements (SCR's) $ 936.40 4.15 Engineer's Estimate with Perito analysis $ 616.78 4.16 Final Design submittal $ 996.23 4.17 Review meeting with City of Missoula $ 654.81 4.18 Meeting minutes $ 193.28 Total Hours 176.5 Total labor Cost $13,971.92 5.1 Address comments from 95% design $ 289.92 5.2 Finalize plan set $ 915.28 5.3 Finalize Engineer's Estimate and support data $ 362.68 5.4 Finalize special contract requirements (SCR's) $ 661.48 5.5 Submit stamped copy of PS&E Package $ 468.20 5.6 Submit design documentation $ 193.28 Total Hours 35.0 Total labor Cost $2,890.84 6.1 Pre-construction meeting with City and Contractor $ 386.56 6.2 Prepare curb and wall staking data $ 870.88 6.3 Control checks $ 440.00 6.4 Stake curb and gutter (7800 feet - 350 pts) $ 3,850.00 6.5 Level curb and gutter points (350 points) $ 1,980.00 6.6 Check data and provide cut sheet to contractor $ 423.50 6.7 Stake retaining walls with RP's $ 1,100.00 6.8 Run levels on retaining wall points $ 550.00 6.9 Check data and provide cut sheet to contractor $ 338.80 6.10 Stake drainage features $ 804.10 6.11 Stake sign locations $ 829.40 Total Hours 111.0 Page 12 of 13 ---PAGE BREAK--- mileage materials, postage, stakes, etc. Page 13 of 13 $47,057.28 $47,057.28 $47,057.28 $27.50 $750.00 $777.50 Total $47,834.78