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AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES FOR Miller Creek Road Strom Drain This Agreement made and entered into this day of ,2010, in the City of Missoula, County of Missoula, State of Montana, by and between City of Missoula, hereinafter referred to as "Owner" and WGM Group, Inc., 1111 E. Broadway, Missoula, Montana 59802, hereinafter referred to as "Engineer." WHEREAS, the Owner desires to engage the Engineer to render professional services related to the project formation, design, construction observation, contract administration, and final period services for the above described project; and WHEREAS, the Owner has complied with state and federal 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 professional engineering design, construction observation, and administration of the project; 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. Scope of Professional Services The Engineer agrees to perform professional services in connection with the project and will serve as the Owner's representative in those phases of the project to which this agreement applies. Professional services to be provided by the Engineer are generally described as storm drain analysis and plan revisions for Miller Creek Road. The fixed scope of services for this agreement are detailed in the Scope of Services, Attachment A and by this reference are made a part of this agreement. II. Compensation A. The estimated cost for this scope of work is not to exceed $7,500 without the benefit of a supplement to this agreement. These estimated costs are in accordance with the Fee Estimate, Attachment A, and by this reference are made a part of this agreement. B. Engineering services shall be on an hourly basis for actual services provided. C. payment for services will be made within 30 calendar days of receipt of the invoice and will be based on actual work performed and actual costs incurred during the billing time period. D. Final payment shall be made within 30 calendar days after all data for the entire work have been turned over to the Owner, and upon receipt by the Owner of notice from the Engineer that services have been completed in accord with this agreement. E. The cost records and accounts pertaining to this agreement will be kept and made available for inspection by representatives of the Owner for a period of three years after final payment. III. Period of Service Page 1 of 5 C:\Documents and Settings~hoffman\Local Settings\Temporary Internet Files\OLK6A\Milier Cr Storm Drain Agreement.doc ---PAGE BREAK--- This Agreement takes effect as of the date entered into listed above. The project design services performed by the Engineer will be completed in accordance with the attached schedule, Attachment A. IV. Owners Responsibilities The Owner agrees to provide Engineer with all available information pertinent 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, receive and act upon all requirements in the development of the Project and pay all costs incident thereto. C. Furnish the Engineer with a copy of any design and construction standards the Owner shall require the Engineer to follow in the preparation of Contract Documents. D. Accept full technical, administrative, and legal responsibility for any Owner furnished test data, site data, record drawings, and similar items. V. Termination of Agreement This Agreement may be terminated as follows: A. 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. B. 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. C. If the Owner is the defaulting party it will pay the Engineer for those services satisfactorily performed to the date of the termination. VI. Compliance with Laws The Engineer will abide by the provisions of the Civil Rights Act of 1964 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 federal financial assistance. In accordance with applicable state and federal laws, 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. Page 2 of 5 C:\Documents and Settings~hoffman\Local Settings\Temporary Internet Files\OLK6A\Milier Cr Storm Drain Agreement.doc ---PAGE BREAK--- VII. Conflict of Interest The Engineer covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the project, which would conflict in any manner or degree with the performance of its services hereunder. The Engineer further covenants that, in performing this Agreement, it will employ no person who has any such interest. The Engineer further covenants that it has not employed or retained any company or person, other than a bona-fide employee working solely for the Engineer, to solicit or secure this Agreement, and that it has not paid or agreed to pay any company or person, other than a bona- fide employee working solely for the Engineer any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. VIII. Opinions of Construction Costs In providing opinions of probable construction cost, the Owner understands that the Engineer has no control over costs or the price of labor, equipment or materials, or over the Contractor's method of pricing, and that the opinions of probable construction costs provided are to be made on the basis of the Engineers qualifications and experience. The Engineer makes no warranty, expressed or implied, as to the accuracy of such opinions as compared to bid or actual costs. IX. Indemnification The Engineer and its officers and employees agree, to the fullest extent permitted by law, to indemnify and hold the Owner harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the Engineer's negligent acts, errors or omissions in the performance of professional services under this Agreement and those of the Engineer's subconsultants or anyone for whom the Engineer is legally liable. The Owner and its officers and employees agree, to the fullest extent permitted by law, to indemnify and hold the Engineer harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the Owner's negligent acts, errors or omissions and those of his or her contractors, subcontractors or consultants or anyone for whom the Owner is legally liable, and arising from the project that is the subject of this agreement. The Engineer is not obligated to indemnify the Owner in any manner whatsoever for the Owner's own negligence. X. Public Safety 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 or improvements and/or injuries to any employees of the Owner, the Contractors, and/or the general public that may be caused or contributed to the activities related to the project. Project safety sllall 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. XI. 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 have the authority to release, publish or otherwise use, in whole or part, information relating hereto. Any reuse by the Owner without Page 3 of 5 C:\Documents and Settings~hoffmanlLocal Internet Files\OLK6AIMilier Cr Storm Drain Agreement.doc ---PAGE BREAK--- 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. XII. 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 this Contract, coverage in a Workers' Compensation insurance program with 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. XIII. Governing Law 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. XIV. Insurance Engineer hereby certifies that it has and shall maintain during the time period of this Agreement, liability insurance in the minimum amount of $750,000 per occurrence and $1,500,000 annual aggregate that includes liability for accidents occurring during delivery or at the delivery sites that are attributable to the Engineer or its agents' conduct. Engineer shall maintain, during the term of this contract, Professional Errors and Omissions Insurance in the minimum amount of $1,000,000.00 XV. Liaison The designated liaison's for the Owner and Engineer are as follows: City of Missoula Attn.: Monte Sipe 435 Ryman Missoula, MT 59802 WGM Group, Inc. Attn.: Jeremy Keene, P.E. 1111 E. Broadway Missoula, MT 59802 All notices and correspondence related to this agreement shall be sent to the above listed individuals. XVI. 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 Agr-eement shall not be deemed a waiver of any other term or condition of this Agreement or any part hereof or of any later breach of the Agreement. Any waiver must be in writing. XVII. Binding Effect This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the Owner and the Engineer respectively and their 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. Page 4 of 5 C:\Documents and Settings~hoffman\Local Settings\Temporary Internet Files\OLK6A\Miller Cr Storm Drain Agreement.doc ---PAGE BREAK--- XVIII. 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. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year in this certificate first hereinabove written. Engineer: Owner: John Engen, Mayor WGM GROUP, INC. 1111 E. Broadway Missoula, Montana 59802 Date: City of Missoula 435 Ryman Street Missoula, MT 59802 Date: _ Attest: _ Martha L. Rehbein, City Clerk Approved As To Form: Date: Date: _ Jim Nugent, City Attorney Page 5 of 5 C:\Documents and Settings~hoffman\Local Settings\Temporary Internet Files\OLK6A\Milier Cr Storm Drain Agreement.doc ---PAGE BREAK--- ATTACHMENT I March 15,2010 Mr. Steve King, P.E. City of Missoula Public Works 435 Ryman Missoula, Montana 59802 RE: Miller Creek Road Storm Drain Dear Steve: Missoula County desires to include drainage from Upper Miller Creek Road in the storm drain system being constructed for Miller Creek Road. Accommodating runoff from Upper Miller Creek will require upsizing approximately 1,150 linear feet of 12-inch pipe to 18-inch and upsizing approximately 820 linear feet of 18-inch pipe to 24-inch. The estimated upsizing cost, including larger diameter manholes, is $28,290. WGM Group will provide the following scope of services: o Perform a complete hydraulic analysis and document it in a letter report o Reset all inverts on that segment of storm drain and address all utility conflicts o Prepare revised drawings and change order o Conduct a standard in-house QAlQC review o Communicate and coordinate changes with City, County and selected contractor The estimated cost to provide these services is not to exceed $7,500. A detailed cost estimate is attached. Thank you for the opportunity to provide these services. Please feel free to call us at 728-4611 if you have any questions or need additional information. Sincerely, WGM Group, Inc. Jeremy W. Keene, P.E. Principal Engineer Ene!. ---PAGE BREAK--- Professional Services Estimate Project Name: Project Number: Client: Date: Miller Cr Rd Storm Drain CITY OF MISSOULA 3/15/2010 3/15/2010 4:41 PM DIRECT LABOR Rate $/Hr Hours Total $ Senior Principal Engineer $150 Principal Engineer $120 4 $480 Sr Project Engineer $130 Sr Traffic Engineer $110 Project Engineer $95 40 $3,800 Const Project Manager $95 8 $760 Staff Engineer $80 Engineering Intern $70 Principal Planner $150 Land Use Planner $80 Environmental Planner $58 Senior Land Surveyor $115 Land Surveyor $90 Staff Surveyor $80 Senior CADD Draftsperson $80 24 $1,920 CADD Draftsperson $65 GIS Specialist $65 2-Person Crew $125 3-Person Crew $170 Project Assistant $75 Admin. Assistant $40 12 $480 Graphic Artist $70 Accountant $70 TOTAL LABOR 88 $7,440 DIRECT EXPENSES Photocopies 60.00 Prints Mileage Lodging / Per Diem Shipping/Postage Consultants / Contractors Materials Fees / Permits Survey Equip / Software Other TOTAL DIRECT EXPENSES $ 60.00 SUMMARY Hours 88 Labor 7,440.00 Expenses 60.00 TOTAL $ 7,500.00