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AGREEMENT FOR PERSONAL SERVICES FOR DESIGN AND CONSTRUCTION MONITORING OF CITY OF MOSCOW WASTEWATER PRE-SCREENING FACILITIES THIS AGREEMENT, made and entered into this day of 19¡ by and between the CITY OF MOSCOW, IDAHO, a municipal corporation ofldaho (hereinafter referred to as THE OWNER), and KIMBALL ENGINEERING, P.A. (hereinafter referred to as THE ENGINEERS). W I T N E S S E T H: WHEREAS THE OWNER intends to construct wastewater pre-screening facilities (hereinafter referred to as THE PROJECT). THE ENGINEERS agree to perform the various professional services required for the design of THE PROJECT and construction monitoring of THE PROJECT. NOW, THEREFORE, it is agreed that for and in consideration of the mutual covenants and promises between the parties hereto, that: SECTION I: THE ENGINEERS shall furnish the following Design Engineering Services for wastewater pre-screening/headworks facilities: Task I. Prepare Plans and Specifications and Bidding Documents for wastewater pre screening facilities utilizing in-channel fine screen or grinder/ Auger system, additive grit removal system. Facility shall include Parshall flume, concrete block building or other design approved by the City, utility water wash system, yard piping, and electrical/instrumentation. Coordinate design with City of Moscow staff and IDEQ. Task II. Update Hydra Wastewater Collection System Computer Model to include infiltration/inflow data and other calibration data. SECTION II: THE ENGINEERS shall furnish the following Bidding and Construction Monitoring Services: AGREEMENT FOR PERSONAL SERVICES Page 1 F,\BEITYIWFW!N\CONTRACTIMOSCOW-HW.CON.wpd Oct<>ber 15, 1996 96-61 ---PAGE BREAK--- 2. Review and Comment on Shop Drawings. Review and process all mechanical, civil, structural and electrical Shop Drawings for substantial conformity with the intent of the Contract Plans and Specifications. A complete set of all reviewed Shop Drawings will be supplied at the completion of THE PROJECT. Corrections or comments on the Shop Drawings during this review do not relieve the Contractor from compliance with requirements of the Drawings and Specifications. This check is only for review of general conformance with the design concept of THE PROJECT and general compliance with the information given in the Contract Documents. The Contractor is responsible for selecting fabrication processes and techniques of construction, coordinating his work with that of all other trades, and performing his work in a safe and satisfactory manner. 3. Assisting in final inspection, testing, startup and training. Make final walk-through inspection and provide a punch list for construction completion. 4. Prepare As-built Drawings. THE ENGINEERS and Contractor shall maintain an up-to-date set of Drawings which reflects all additions, deletions and revisions to the design. After THE PROJECT has been completed, the original Drawings shall be changed to show as-built conditions, with two copies submitted to THE OWNER, and one copy to IDHW. One set of reproducible copies of the final Plans shall be furnished to THE OWNER. 5. Participate in a pre-construction conference on the construction site prior to Contractor mobilization. 6. Update wastewater treatment plant Operation and Maintenance Manual for the headworks. Three copies of the final O&M Manual will be provided to THE OWNER. 7. Provide sixteen (16) hours of operation maintenance training. E. Perform Construction Monitoring Activities as follows: 1. THE ENGINEERS will direct their efforts toward determining that the completed PROJECT will conform to the Plans and Specifications, but THE ENGINEERS shall not be responsible for the means, methods, techniques, or procedures of construction selected by the Contractor(s) or the safety precautions and programs incident to the work of Contractor(s), or for any failure of Contractor(s) to comply with laws, ordinances, rules or regulations applicable to the construction work; however, this paragraph shall not serve to reduce or relieve THE ENGINEERS of its responsibility to inform THE OWNER of any conditions which, in THE ENGINEERS' opinion, are not in compliance with the Contract Documents, design, or applicable laws, ordinances, rules or regulations, or which are deemed AGREEMENT FOR PERSONAL SERVICES Page 3 F:\BEITY\WPWIN\CONTRACI'\MOSCOW-HW.CON.wpd October 15, 1996 ---PAGE BREAK--- by THE ENGINEERS to be unsafe. The parties recognize that the Contractor(s) is/are responsible for insuring that construction is in accordance with the Plans and Specifications. THE ENGINEERS shall immediately report any deficiencies in construction to THE OWNER. 2. Notwithstanding any inferences, references or omissions to the contrary contained within this Proposal, THE OWNER understands that THE ENGINEERS shall not direct any Contractor(s), subcontractors, etc. at the job site. THE ENGINEER'S duties relative to field observations shall be understood to amount to "monitoring" only, in accordance with the requirements as set forth under codes of various municipal, State and other regulatory bodies; and it is hereby agreed that THE ENGINEERS shall assume no obligation for any acts, errors or omissions of parties other than THE ENGINEERS. 3. Initiate clarifications and approve construction revisions. 4. Maintain an up-to-date set of As-built Drawings which reflects all additions, deletions and revisions to the design. 5. Mill and shop inspection of manufactured and fabricated items where necessary. 6. Prepare a brief report prior to the end of the first year describing the performance of the facilities in relationship to the design. A. Independent Contractor SECTION III: The contracting parties warrant by their signature that no employer/ employee relationship is established between THE ENGINEERS and the City by the terms of this Contract. It is understood by the parties hereto that THE ENGINEERS is an independent contractor and as such neither it nor its employees, if any, are employees of the City for purposes of tax, retirement system, or social security (FICA) withholding. B. Fees and Conditions for Consulting Services 1. Payment for services is provided in accordance with the cost described in the following Section III B 2. 2. Maximum Costs a. Section I - Design. The cost for Engineering Services as described in Section I, Task 1, Design of Headworks!Pre-screening Facilities, is a lump AGREEMENT FOR PERSONAL SERVICES Page 4 F:IBEITYI WPWIN\CONTRACf\MOSCOW-HW .CON .wpd October 15, 1996 ---PAGE BREAK--- sum of $38,000 and Task II, Hydra Update, is a lump sum of $4,000. Fees include Fixed Fee (Profit), overhead and indirect costs. Costs assume bidding by March 15, 1997. The cost cannot be exceeded without prior approval from the City. The fee may only be increased if there is a scope change. b. Section II - Construction Monitoring Services. Maximum fee is $30,000. Payment shall be based on the hourly rates provided below, which shall include all Fixed Fees (Profit), overhead, and direct costs: 1996 Hourly Rate Schedule Principal Engineer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $75/hr Project Engineer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $62/hr Engineer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $52/hr Technician . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $37/hr Bills shall list individual performing work and description of work performed. Bills shall be submitted on a basis to the City Engineer for approval and payment. 3. Additional Services Costs a. A mutually agreed fee for any additional services shall be negotiated. C. Time of Completion 1. Design Services shall begin upon receipt of Notice to Proceed, with completion of 90% Plans in ninety (90) days and final Plans fourteen (14) days after receiving comments from IDHW and the City. A. Termination of Agreement SECTION IV: This Agreement may be terminated by THE ENGINEERS upon thirty (30) days written notice, should THE OWNER fail to substantially perform in accordance with its terms through no fault of THE ENGINEER. THE OWNER may terminate this Agreement with thirty (30) days notice without cause and without further liability to THE ENGINEERS except as designated by this section. In the event of termination, THE ENGINEERS shall be paid for services performed to termination date, including direct expense and including a percentage of the Fixed Fee based upon the work completed. All working Drawings shall become the property of, and shall be surrendered to, THE OWNER. AGREEMENT FOR PERSONAL SERVICES Page 5 F:\BETfY\WPWIN\CONTRACT\MOSCOW-HW .CON. wpd November 18, 1996 ---PAGE BREAK--- B. Extent of Agreement This Agreement may be amended only by written instrument signed by both parties hereto. C. Data of Record THE OWNER shall make available to THE ENGINEERS all technical data of record in THE OWNER's possession, including maps, surveys, borings and other information required by THE ENGINEERS relating to this work. D. Qualified Estimates of Cost The estimates of cost for THE PROJECT herein are to be prepared by THE ENGINEERS through exercise of their experience and judgment in applying presently available cost data; but it is recognized that THE ENGINEERS have no control over cost of labor and materials, or over competitive bidding procedures and market conditions so that they cannot warrant THE PROJECT construction costs will not vary from their cost estimates as a result of these described factors. Nothing in this paragraph shall serve to release or relieve THE ENGINEERS from exercising the skill, care, and professional judgment exercised by similarly situated profession engineers. E. THE ENGINEERS' Evaluation of Subsurface Conditions In solid rock investigation work and in determining subsurface soils conditions for THE PROJECT, the characteristics may vary greatly between successive test points and sample intervals. THE ENGINEERS will coordinate this work in accordance with generally aceepted soils engineering practices and make no other warranties, expressed or implied, as to the professional advice furnished by others. Nothing in this paragraph shall serve to release or relieve THE ENGINEERS from exercising the skill, care, and professional judgment exercised by similarly situated profession engineers. F. Termination of THE PROJECT If any portion of THE PROJECT covered by this Agreement shall be suspended, abated, abandoned or terminated, THE OWNER shall pay THE ENGINEERS for the services rendered to the date of such suspended, abated, abandoned or terminated work; the payment to be based, insofar as possible, on the amounts established in this Agreement or, where the Agreement cannot be applied, the payment shall be based upon a reasonable estimate as mutually agreed upon between the two parties as to the percentage of the work completed. AGREEMENT FOR PERSONAL SERVICES Page 6 F:IBETfYIWPWINICONTRACTIMOSCOW·HW .CON. wpd October 15, 1996 ---PAGE BREAK--- G. THE OWNER's Responsibility for Special Costs and Rights-of-Way THE OWNER shall pay for all costs for obtaining licenses and permits that may be required by local, State and Federal authorities; and shall be responsible for securing necessary land, easements, and rights-of-way where applicable. H. The ENGINEER's Errors and Omissions Insurance In performance of professional services, THE ENGINEERS will use that degree of care and skill ordinarily exercised under similar circumstances by members of the engineering profession; and no other warranty, either expressed or implied, is made in connection with rendering THE ENGINEERS' services. Should THE ENGINEERS or any of THE ENGINEERS' agents or employees be found to have been negligent in the performance of professional services from which THE OWNER sustains damage, THE ENGINEERS have obtained Errors and Omissions Insurance in the amount of Five Hundred Thousand Dollars ($500,000), and said insurance shall be held active for a one year (minimum) period from the date of completion of THE PROJECT. THE OWNER shall receive notice of any pending termination of said insurance. I. The ENGINEER's Additional Insurance THE ENGINEERS shall maintain Automobile Insurance and Statutory Workmen's Compensation Insurance coverage, Employer's Liability, and Comprehensive General Liability Insurance coverage. The Comprehensive General Liability Insurance shall have a minimum limit of Five Hundred Thousand Dollars ($500,000) per claim and One Million Dollars ($1,000,000) aggregate, and THE ENGINEERS shall cause the City to be named as an additional insured under said policy. J. Indemnification THE ENGINEERS waives any and all claims and recourse against the City, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to THE ENGINEERS' performance of this Contract except for liability arising out of the sole negligence of the City or its officers, agents, or employees. Further, THE ENGINEERS shall indemnify, hold harmless, and defend the City against any and all claims, demands, damages, costs, expenses, or liability arising out of THE ENGINEERS' performance of this Contract except for liability arising out of the sole negligence of the City or its officers, agents, or employees. AGREEMENT FOR PERSONAL SERVICES Page 7 Fo\BETITIWPWIN\CONTRACT\MOSCOW-HW.CON.wpd Octobe. 15, 1996 ---PAGE BREAK--- K. Costs and Attorney Fees In the event either party incurs legal expenses to enforce the terms and conditions of this Contract, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. L. Jurisdiction and Venue It is agreed that this Contract shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. M. Binding of Successors THE OWNER and THE ENGINEERS each bind themselves, their partners, successors, assigns and legal representatives to the other parties to this Agreement and to the partner, successors, assigns and legal representatives of such other parties with respect to all covenants of this Agreement. N. Modification and Assignability of Agreement This Contract contains the entire agreement between the parties, and no statements, promises, or inducements made by either party, or agents of either party, are valid or binding unless contained herein. This Contract may not be enlarged, modified, or altered except upon written agreement signed by the parties hereto. THE ENGINEERS may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder without the prior written consent and express authorization of the City of Moscow. Any such subcontractor or assignee shall be bound by all of the terms and conditions of this Contract as if named specifically herein. 0. OWNER's Representatives THE OWNER shall designate a representative authorized to act in behalf of THE OWNER. The authorized representative shall examine the documents of the work as necessary, and shall render decisions related thereto in a timely manner so as to avoid unreasonable delays. P. Conflict of Interest THE ENGINEERS 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 ENGINEERS further covenants that, in performing this Contract, it will employ no person who has any such interest. AGREEMENT FOR PERSONAL SERVICES Page 8 F:\BE1TY\WP\\1NICONTRACTIMOSCOW-HW.CON.wpd October 15, 1996 ---PAGE BREAK--- Q. Services Requiring Supplemental Authorization The services outlined hereinafter shall only be provided by THE ENGINEERS when requested and authorized in writing by THE OWNER. Such authorization shall also state the negotiated amount and method of compensation by THE OWNER. When authorized to proceed, THE ENGINEER will: 1. Re-design any or all of the facilities or re-design any component previously approved by THE OWNER. 2. Assist THE OWNER in resolving disputes over claims, bankruptcy, court proceedings or default of the Contractor. 3. Assist THE OWNER as a result of fire, flood, acts of God, and similar causes through no fault of THE ENGINEERS. 4. Assist or extend services as a result of strikes, walkouts, and other labor disputes; and including acts relating to settlement of minority group problems. 5. Provide all other specialty consulting or other miscellaneous services not enumerated in this Contract and as may be required by THE OWNER. 6. Work with archaeologists as may be required to avoid problems associated with archaeological findings within THE PROJECT area. 7. Meet with representatives of the various agencies involved in THE PROJECT in excess of meetings stipulated elsewhere in this Agreement when requested to do so by THE OWNER. 8. Assist THE OWNER in the acquisition of rights-of-way and easements for THE PROJECT, and including property surveys and descriptions for design surveying work. 9. Prepare documents for and appear before courts and boards on matters of litigation related to THE PROJECT. 10. Provide additional services as may be required in the event of delinquency or insolvency of the Contractor, suspension of work, damage to the construction site by fire, flood or other natural disaster. Provide assistance as may be required in the event of strikes, walkouts or other acts of trade or labor unions. AGREEMENT FOR PERSONAL SERVICES Page9 p,\BEITYIWPWIN\CONTRACT\MOSCOW-HW.CON.wpd October 15, 1996 ---PAGE BREAK--- R. Changes in Regulations THE ENGINEERS are to perform their work under the current Federal, State and local laws and regulations in full force and effect at the date of this Agreement. In the event that THE ENGINEERS are requested or directed to perform work, or amend work previously accomplished, due to unforeseen or unanticipated changes or additions to current laws or regulations, such work shall be deemed a change in scope of the work and shall be cause to amend Section III 2 of this Agreement in respect to Maximum Cost by mutually agreeable amounts commensurate with the change in conditions. S. Special Provisions 1. Ownership and Publication of Materials. All reports, information, data and other materials prepared by THE ENGINEERS pursuant to this Contract shall be the property of the City, which shall have the exclusive and unrestricted authority to release, publish, or otherwise use them, in whole or in part. All such materials developed under this Contract shall not be subject to copyright or patent in the United States or in any other country without the prior written approval and express authorization of the City. 2. Non-discrimination. THE ENGINEERS shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sex, age, marital status, physical or mental handicap, or national origin. AGREEMENT FOR PERSONAL SERVICES Page 10 p,\BEITYIWPWIN\CONTRACTIMOSCOW-HW.CON.wpd October 15, 1996 ---PAGE BREAK--- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. THE ENGINEERS KIMBALL ENGINEERING THE OWNER THE CITY OF MOSCOW, IDAHO AGREEMENT FOR PERSONAL SERVICES Page 11 F:IBEITYI WPWINICONTRACf\MOSCOW·HW .CON. wpd / . . By Paul C. Agidius, Mayor ATTEST: Elaine Russell, City Clerk Fv day of October 15, 1996