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HomeMy WebLinkAboutAment Inc-7/12/2010STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of July 12 2010 ("Effective Date") between the City of Waterloo ("OWNER") and Ament, Inc. ("ENGINEER"). OWNER intends to complete the Allen Hospital Area Storm System Improvements Project ("Project"). The Project involves (See attached Figures 1 and 2): • The project involves the design of a greenway drainage channel, detention basin, and rcp storm sewer system west of West Dale Street in accordance with the Allen Hospital Area Storm Water Study, Alternate 2, dated March 1985. The storm sewer system will outlet the detention basin and will extend under the existing CN railway and Broadway Street to connect to the existing storm sewer system near the intersection of Thorson Avenue and Avon Avenue. The OWNER intends to construct the Project under several funding sources under separate contracts. Up to three (3) separate contracts are anticipated. The construction dates are undetermined at this time. OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Engineer for Professional Services Page 1 of 12 ARTICLE 1- SERVICES OF ENGINEER 1.01 Scope A. ENGINEER shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. Upon this Agreement becoming effective, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A. ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. 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. Unless specific periods of time or specific dates for providing services are specified in this Agreement, ENGINEER's obligation to render services hereunder will be for a period which may reasonably be required for the completion of said services. B. 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. C. For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. If OWNER fails to give prompt written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if ENGLNEER's services are delayed through no fault of ENGINEER, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement. B. If ENGINEER's services are delayed or suspended in whole or in part by OWNER, or if ENGINEER's services are extended by Contractor's actions or inactions for more than 90 days 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, reasonable costs incurred by ENGINEER in connection with, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A. For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or furnished under Exhibit A, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, as set forth in Exhibit C. C. For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and 4.01.B, OWNER shall pay ENGINEER for Reimbursable Expenses incurred by ENGINEER and ENGINEER's Consultants as set forth in Exhibit C. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with ENGINEER's standard invoicing practices and will be submitted to OWNER by ENGINEER, unless otherwise agreed. The amount billed in each invoice will be calculated as set forth in Exhibit C. B. Payment of Invoices. Invoices are due and payable within 30 days of receipt If OWNER fails to make any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's invoice therefor, 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. 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 2 of 12 services, expenses, and other related charges. Payments will be credited fust to interest and then to principal. C. Disputed Invoices. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. D. Payments Upon Termination. 1. In the event of any termination under paragraph 6.06, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. In the event of termination by OWNER for convenience or by ENGINEER for cause, ENGINEER, in addition to invoicing for those items identified in subparagraph 4.02.D.1, shall be entitled to invoice OWNER and shall be paid a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with ENGINEER's Consultants, and other related close-out costs, using methods and rates for Additional Services as set forth in Exhibit C. E. Records of .ENGINEER'S Costs. Records of ENGINEER's costs pertinent to ENGINEER's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. To the extent necessary to verify ENGINEER's charges and upon OWNER's timely request, copies of such records will be made available to OWNER at cost. F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on ENGINEER's services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such taxes, fees, or costs be imposed, they shall be in addition to ENGINEER's estimated total compensation. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. 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 generally familiar with the industry. However, since ENGINEER has no control over the cost of labor, materials, equipment, or services furnished byothers, 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 byENGINEER. If OWNER- wishes WNERwishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit A. 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 F, "Construction Cost Limit," to this Agreement. 5.03 Opinions of Total Project Costs A. ENGINEER assumes no responsibility for the accuracy of opinions of Total Project Costs. ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. 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 circumstances 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. B. ENGINEER shall be responsible for the technical accuracy of its services and documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER -furnished information. C. ENGINEER shall perform or furnish professional engineering and related services in all phases of the Project to which this Agreement applies. ENGINEER shall serve as OWNER's prime professional for the Project. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 12 ENGINEER may employ such ENGINEER's Consultants as ENGINEER deems necessary to assist in the performance or furnishing of the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to ENGINEER. D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER -mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation. E. OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by OWNER to ENGINEER pursuant to this Agreement. ENGINEER may use such requirements, reports, data, and information in performing or famishing services under this Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER G. Prior to the commencement of the Construction Phase, OWNER shall notify ENGINEER of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that ENGINEER will be requested to provide to OWNER or third parties in connection with 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 notices or certifications requested. H. ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in the ENGINEER's having to certify, guarantee or warrant the existence of conditions whose existence the ENGINEER cannot ascertain. OWNER agrees not to make resolution of any dispute with the ENGINEER or payment of any amount due to the ENGINEER in any way contingent upon the ENGINEER's signing any such certification. I. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. J. ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. K. ENGINEER shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any -of the Contractor's agents -or employees or any other persons (except ENG1NEER's own employees) at the Site or otherwise furnishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER. L. The General Conditions for any construction contract documents prepared hereunder are to be the "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Documents Committee (Document No. 1910-8, 1996 Edition) unless both parties mutually agree to use other General Conditions as specifically referenced in Exhibit J. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, ENGINEER and OWNER shall designate specific individuals to act as ENGINEER's and OWNER's representatives with respect to the services to be performed or furnished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services A. Should OWNER provide Construction Phase services with either OWNER's representatives or a third party, ENGINEER's Basic Services under this Agreement will be considered to be completed upon completion of the Final Design Phase or Bidding or Negotiating Phase as outlined in Exhibit A. B. It is understood and agreed that if ENGINEER'S Basic Services under this Agreement do not include Project observation, or review of the Contractor's performance, or any other Construction Phase services, and that such services will be provided by OWNER, then OWNER assumes all responsibility for interpretation of the Contract Documents and for construction observation or review and Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 waives any claims against the ENGINEER that may be in any way connected thereto. 6.04 Use of Documents A. All Documents are instruments of service in respect to this Project, and ENGINEER shall retain an ownership and property interest therein (including the right of reuse at the discretion of the ENGINEER) whether or not the Project is completed. B. Copies of OWNER -furnished data that may be relied upon by ENGINEER are limited to the printed copies (also known as hard copies) that are delivered to the ENGINEER pursuant to Exhibit B. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to ENGINEER are only for convenience of ENGINEER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60 -day acceptance period will be corrected by the party delivering the electronic files. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, ENGINEER makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. OWNER may make and retain copies of Documents for information and reference in connection with use on the Project by OWNER. Such Documents are not intended or rep.esented to be suitable for reuse by OWNER or others on extensions of the Project or on any other project. Any such reuse or modification without written verification or adaptation by ENGINEER, 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. 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 therefrom. G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. H. My verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. OWNER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." OWNER shall cause ENGINEER and ENGINEER's Consultants to be Listed as additional insureds on any general liability or property insurance policies carried by OWNER, which are applicable to the Project. C. OWNER shall require Contractor to purchase and maintain general liability and other insurance as specified in the Contract Documents and to cause ENGINEER and ENGINEER's Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project D. OWNER and ENGINEER shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of ENGINEER's services and at renewals thereafter during the life of the Agreement. E. All policies of property insurance shall contain provisions to the effect that ENGINEER's and ENGINEER's Consultants' interests are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery against any of the insureds or additional insureds thereunder. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of I2 obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. The obligation to provide further services under this Agreement may be terminated: 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party b. By ENGINEER: 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 professional; or 2) upon seven days written notice if the ENGINEER's services for the Project are delayed or suspended for more than 90 days for reasons beyond ENGINEER's control. 3) ENGINEER shall have no liability to OWNER on account of such termination. c. 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 30 days of receipt thereof, provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 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 for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, a. By OWNER effective upon the receipt of notice by ENGINEER B. The terminating party under paragraphs 6.06.A.1 or 6.06.A.2 may set the effective date of termination at a time up to 30 days later than otherwise provided to allow ENGINEER to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. 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 6.08.B 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. 13. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or 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. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or ENGINEER to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 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 6.08.0 shall appear in the Contract Documents. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of 12 6.09 Dispute Resolution A. The OWNER and the ENGINEER agree that all disputes between them arising out of or relating to this Agreement shall be submitted to non-binding mediation unless the parties mutually agree otherwise. The OWNER and the ENGINEER further agree to include a similar mediation provision in all agreements with independent contractors and consultants retained for the project and to require all independent contractors and consultants to likewise include a similar mediation provision in all agreements with subcontractors, subconsultants, suppliers or fabricators so retained, thereby providing for mediation as the primary method for dispute resolution between parties to those agreements. Any costs incurred for a mediator, plus his or her expenses, shall be shared equally between the parties involved in the mediation. 6.10 Hazardous Environmental Condition A. OWNER represents to Engineer that to the best of its knowledge a Hazardous Environmental Condition does not exist. B. OWNER has disclosed to the best of its knowledge to ENGINEER the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including type, quantity and location. C. If a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER and, to the extent of applicable Laws and Regulations, appropriate governmental officials. D. It is acknowledged by both parties that ENGINEER's scope of services does not include any services related to a Hazardous Environmental Condition. In the event ENGINEER or any other party encounters a Hazardous Environmental Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that ENGINEER is performing professional services for OWNER and that ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the Site in connection with ENGINEER's activities under this Agreement. F. If ENGINEER's cannot be performed Environmental Condition, shall justify ENGINEER's cause on 30 days notice. services under this Agreement because of a Hazardous the existence of the condition terminating this Agreement for 6.11 AIlocation of Risks A. Indemnification 1. To the fullest extent permitted by law, ENGINEER shall indemnify and hold harmless OWNER, OWNER's officers, directors, partners, and employees from and against any and all 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, and ENGINEER's Consultants in the performance and furnishing of ENGINEER's services under this Agreement. 2. To the fullest extent permitted by law, OWNER shall indemnify and hold harmless ENGINEER, ENGINEER's officers, directors, partners, employees, and ENGINEER's Consultants from and against any and all 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 OWNER or OWNER's officers, directors, partners, employees, and OWNER's consultants with respect to this Agreement or the Project. 3. To the fullest extent permitted by law, ENGINEER's total liability to OWNER and anyone claiming by, through, or under OWNER for any cost, loss, or damages caused in part by the negligence of ENGINEER and in part by the negligence of OWNER or any other negligent entity or individual, shall not exceed the percentage share that ENGINEER's negligence bears to the total negligence of OWNER, ENGINEER, and all other negligent entities and individuals. 4. In addition to the indemnity provided under paragraph 6.11.A.2 of this Agreement, and to the Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 12 fullest extent permitted by law, OWNER shall indemnify and hold • harmless ENGINEER and its officers, directors, partners, employees, and ENGINEER's Consultants from and against all 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 resulting from a Hazardous Environmental Condition, provided that (i) any such cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction oftangtble property (other than completed Work), including the loss of use resulting therefrom, and (ii) nothing in this paragraph 6.11.A.4. shall obligate OWNER to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence or willful misconduct. 5. The indemnification provision of paragraph 6.11.A.1 is subject to and limited by the provisions agreed to by OWNER and ENGINEER in Exhibit 1, "Allocation of Risks," if any. 6.12 Notices A. Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. 6.13 Survival A. All express representations, indemnifications, or limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severability A. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed 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. 6.15 Waiver A. Non -enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof: 1. Addenda—Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services—The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement—This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment --The form acceptable to ENGINEER which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos—Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services—The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 1, of this Agreement. 7. Bid --The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of 12 8. Bidding Documents --The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 9. Change Order—A document recommended by ENGINEER, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. 10. Construction Agreement—The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the Work. 11. Construction Contract --The entire and integrated written agreement between the OWNER and Contractor concerning the Work. 12. Construction Cost—The cost to OWNER of those portions of the entire Project designed or specified by ENGINEER. Construction Cost does not include costs of services of ENGINEER or other design professionals and consultants, cost of land, rights-of-way, or compensation for damages to properties, or OWNER's costs for 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 Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 13. Contract Documents—Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between OWNER and Contractor, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price --The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times—The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Substantial Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by ENGINEER's written recommendation of final payment. 16. Contractor --An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period --The time after Substantial Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective --An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment. 19. Documents --Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGINEER to OWNER pursuant to this Agreement. 20. Drawings—That part of the Contract Documents prepared or approved by ENGINEER which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 21. Effective Date of the Construction Agreement --The date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement—The date indicated in this Agreement on which it becomes Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 12 effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 23. ENGINEER's Consultants—Individuals or entities having a contract with ENGINEER to furnish services with respect to this Project as ENGINEER's independent professional associates, consnitants, subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants. 24. Field Order A written order issued by ENGINEER which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 25. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 26. Hazardous Environmental Condition—The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial dimer to persons or property exposed thereto in connection with. the Work. 27. Hazardous Waste—The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 28. Laws and Regulations; Laws or Regulations -- Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 29. PCB's—Polychlorinated biphenyls. 30. Petroleum --Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non- Harardous Waste and crude oils. 31. Radioactive Materials—Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 32. Record Drawings—The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 33. Reimbursable Expenses --The expenses incurred directly by ENGINEER in connection with the • performing. Or- furnishing • of Basic • and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 34. Resident Project Representative—The authorized representative of ENGINEER, if any, 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 Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 35. Samples—Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 36. Shop Drawings—All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to ENGINEER to illustrate some portion of the Work. 37. Site—Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights-of-way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 38. Specications—That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 39. Substantial Completion—The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 40. Supplementary Conditions—That part of the Contract Documents which amends or supplements the General Conditions. 41. Total Project Costs—The sum of the Construction Cost, allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights-of- way, or compensation for damages to properties, or OWNER's costs for 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 Exhibit B of this Agreement. 42. Work—The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 43. Work Change Directive—A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the ENGINEER, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 44. Written Amendment --A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non -engineering or non-technical rather than strictly construction -related aspects of the Contract Documents. ARTICLE 8 - EXI-IIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "ENGINEER's Services," consisting of sixteen (16) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of three (3) pages. C. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of three (3) page(s), including Appendices. G. Exhibit G, "Insurance," consisting of two (2) Page(s). I. Exhibit 1, "Allocation of Risks," consisting of one page(s). 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 13 inclusive, with Figures 1, 2 and 3, together with 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. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: City of Waterloo By: Title: Date Signed: 1/12-J26 (0 Address for giving notices: 715 Mulberry Street Waterloo, IA 50703 ENGINEER- Ament, Inc. By: Mr. Rob Haaland. P.E. Title: Project Manager Date Signed: �- Address for giving notices: 3628 University Avenue Waterloo, IA 50701 Designated Representative (paragraph 6.02A): Designated Representative (paragraph 6.02.A): Mr. Eric Thorson, P.E. Mr. Rob Haaland, P.E. Title: City Engineer Title: Project Manager Phone Number. (319) 291-4312 Phone Number: (319) 233-1323 Facsimile Number: (319) 291-4262 Facsimile Number (319) 236-9042 E -Mail Address: eric.thorson(a,waterloo-iaorg E -Mail Address: rhaaland@,ament.com Standard Form of Agreement Between Owner and Engineer for Professional Services Page 12 of 12 This is EXHIBIT A, consisting of six (6) page(s), referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated July 12, 2010. O ENGINEER ENGINEER's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PROJECT IDENTIFICATION The PROJECT involves: (see attached Figures 1 and 2) • The design of approximately 1,200 linear feet of greenway drainage channel and 600 lineal feet of rep storm sewer extending from West Dale Street west across undeveloped agricultural land and forested areas towards an existing Quarry. This drainage channel receives cooling water discharge from Allen Hospital in addition to storm water. • The design of a detention basin to receive discharge from the existing drainage channel extending southwards from Donald Street and the new drainage channel extending westward from W. Dale Street. According to the Allen Hospital Area Storm Water Study dated March 1985, the detention basin will receive drainage from approximately 50 acres of residential land and shallow bedrock is expected. • The design of approximately 2,400 lineal feet of rcp storm sewer system to outlet the new detention basin. The storm sewer system will extend under the existing CN railway and Broadway Street to connect to the existing storm sewer system near the intersection of Thorson Avenue and Avon Avenue. Boring/Jacking a casing pipe under the railway and highway is anticipated for installation of the proposed storm sewer. With this agreement, the Project will include the following major tasks: • project management, including project review meetings with the OWNER and project stakeholders; • research and data collection; • control surveys, topographic surveys, boundary surveys, and base mapping; • preliminary environmental investigations (wetlands delineation), • geotechnical investigations and engineering; • preparation of preliminary acquisition plats, • the development of preliminary and final plans, special provisions, and cost opinions for the storm water management facilities, • preparation of separate bid packages for up to three Phases. When the tasks identified in this agreement are finished, the ENGINEER will have prepared and submitted final construction contract documents sufficient for the construction of the Project. The ENGINEER will also have prepared and submitted a) the preliminary acquisition plats necessary for the needed project right-of-way and permanent easements and b) the exhibits necessary for the needed temporary construction easements. The PROJECT will be let by the City of Waterloo. The OWNER intends to construct the Project under several funding sources under separate contracts. Up to three (3) separate contracts are anticipated. The construction dates are undetermined at this time. Page 1 of 6 Pages (Exhibit A - ENGINEER's Services) SCOPE OF SERVICES The scope of services to be performed by the ENGINEER shall be completed in accordance with generally accepted standards of practice and shall include the services and supplies to complete the following tasks: PART 1 1. Perform project administration. A. Project Team Kick -Off Meeting B. Track Project Schedule C. Monitor Project Scope — This task involves monitoring the project scope throughout the length of the design services contract and includes the preparation and submittal of monthly progress reports to the OWNER. These progress reports will be submitted with the project invoices from the time of project startup through the submittal of final construction documents. D. Project Review Meetings — This task involves attendance at project review meetings with representatives of the OWNER. Two (2) meetings are anticipated. ENGINEER will keep, prepare, and distribute minutes of meetings to attendees in a timely manner. The purpose of these review meetings will be to: 1. present design issues, 2. request that additional information be provided by the OWNER and/or obtain clarification of information that has been provided by the OWNER, 3. identify problems that have developed during project design, options to address these problems, advantages and disadvantages of these options, and the option that ENGINEER recommends, 4. update the project schedule, discuss project progress, and notify the OWNER whether or not the project is on schedule, 5. present an approach for bringing the project back on schedule if it is behind schedule, 6. inform the OWNER of needed design services not included in the scope of the design services contract. E. Consultant Management — This task involves the preparation of subcontracts and work orders for the ENGINEER's Consultants. This task also includes monitoring ENGINEER's Consultants activities, reviewing ENGINEER's Consultants invoices, and submitting these invoices to the OWNER for payment. This task also includes reviewing ENGINEER's Consultants' work for technical accuracy and conformance with project requirements. 2. Research and collect data pertinent to the Project area including: a. The March 1985 study, b. current topographical mapping, c. current aerial photography, d. 2007 LIDAR from the City of Waterloo, e. flood mapping, f. soils information, g. future land use mapping, h. record drawings of existing drainage structures and detention facilities, i. planned improvements including new development areas and public utilities, j. historical information regarding rainfall and drainage patterns, flooding, other problems, etc., k. current storm water management practices of the City of Waterloo, 1. current storm water discharge information from Allen Hospital m. GIS & DTM information from the City of Waterloo, and Page 2 of 6 Pages (Exhibit A - ENGINEER's Services) n. current basin hydraulics from the latest study. o. applicable design standards. 3. Establish project benchmarks and control points from City datum. a. Perform necessary design surveys within public right-of-way. b. Survey location of existing utilities that have been located in the field. c. Determine legal description of properties involved from Court House records. 4. Develop a design criteria worksheet. 5. Review drainage and detention requirements for the detention basin using the chosen Alternate 2 configuration from the 1985 Drainage Study. The TR -20 model will be used to route the design flows through the basin for both the existing and future design storms and will include the Allen Hospital discharge.. The design storms will be routed through the basin to determine the required configuration of the basin outlet. Improvement in water quality will be a component of the design. 6. Preparation of a Project base map combining the topographic survey information and existing public information including aerial photography. 7. Coordinate Geotechnical testing- This task will include subsurface exploration consisting of at least five (5) soil boringsto a depth of approximately ten to twenty-five (10-25) feet in the areas of the new detention basin and pipe crossing under the railway and highway. This task will also include laboratory evaluation of the samples collected and preparation of a summary report of the analyses performed. The report will contain the following items: a. b. c. d. a description of the project a summary of the drilling, sampling, and testing procedures logs of the borings and the laboratory test results recommendations regarding design and construction of the storm sewer facilities. The location and staking of soil borings and the determination of the ground elevation at each boring site shall be performed during the topographic survey tasks. This task assumes that field exploration can be performed without the need for environmental personal protective equipment. If evidence of contamination is encountered in any of the borings, this task does not include any level of environmental site assessment services, but identification of unusual or unnatural materials encountered while drilling must be discussed on the logs and report. 8. Coordinate Wetland Delineation - This task will include performing a wetlands determination and delineation of the Project area. 9. Photographic Review of the Project Site 10. Establish horizontal and vertical alignments for the proposed improvements. 11. Prepare a typical section for the drainage way improvements. Page 3 of 6 Pages (Exhibit A - ENGINEER's Services) 12. Prepare cross-sections for the drainage ways. 13. Prepare a drainage report summarizing the input information, design considerations and the performance of the detention basin, open channels and storm sewer. 14. Prepare a preliminary opinion of construction costs. 15. Review preliminary design with engineering staff to proceed with final design. 16. Notify property owners of survey requirements and soil test requirements. Coordinate with owners for access to their properties. 17. Coordinate with CN Railroad for crossing requirements and necessary Right -of -Entry permitting (see attached Figure 3). 18. Perform necessary design surveys with cross sections beyond the right-of-way as needed. Cross sections to be at 50 -foot intervals for the anticipated easement width and beyond, and select locations will have 25 -foot intervals as needed for clarification. 19. Locate existing property boundaries. 20. Prepare final design based on design criteria. 21. Prepare a grading plan and a storm water pollution prevention plan. 22. Permit Preparation - Prepare Iowa Department of Natural Resources general NPDES permit and a floodplain permit. 23. Right -of -Way and Easements - Determine permanent and temporary easement and permanent right-of-way needs for the drainage way. a. Provide a list of properties where either permanent right-of-way, or temporary easements are required. Up to eight (8) properties are anticipated. b. Prepare plats and legal descriptions for permanent and temporary easement acquisition & right-of-way acquisition expedite this task to allow the City to initiate appraisal process. c. Determine legal description of properties involved from Court House records. d. Prepare deed and easement documents, releases, etc. for signature. e. Stake right-of-way and easement boundaries for property owner negotiations. f. Incorporate items such as drain tile locations and water shut off valves discovered during negotiations into the plans. 24. Set construction limits. Page 4 of 6 Pages (Exhibit A - ENGINEER's Services) 25. Develop a construction staging plan. 26. Develop a Project Manual, including contract documents and technical specifications. 27. Quantities and Cost Opinion - Determine the anticipated construction quantities and prepare an Engineer's Opinion of Anticipated Construction Costs for the Project. PART 2 - ANTICIPATED PROJECT SCHEDULE A. Hold the Project Kick -Off Meeting within 10 days of authorization to begin services. [Target date is before July 14, 2010.1 B. Submit to OWNER final copies of the Preliminary Design documents and revised opinion of probable Construction Cost within 80 days after authorization to proceed [Target rlatP is September 15, 2010.] C. Submit final copies of the Check Plan Documents and a revised opinion of probable Construction Cost to OWNER within 60 days after receiving review comments. [Target date is November 17, 2010.] D. Submit final copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within 21 days after receiving review comments. [Target date is December 8, 2010.] Page 5 of 6 Pages (Exhibit A - ENGINEER's Services) PART 3 — DELIVERABLES A. ENGINEER Deliverables 1. Minutes of project review meetings. 2. Weekly project status reports via email. 3. Monthly progress reports (submitted with project invoices). 4. Drainage Report. 5. Copies of the Geotechnical Report and Wetland Delineation Report. 6. Five (5) sets of the Plans and Project Manual, including the SWPP and permit applications. 7. Electronic (PDF) file of the Plans and Project Manual. 8. One (1) copy of each permit application. Electronic files of field survey notes, plans, plats, associated documents in CAD and/or MS Word/Excel format. PART 4 — ADDITIONAL SERVICES A. The following are additional services you may require for your project We can provide these services, but they are not part of this Agreement at this time. 1. Bid Phase Services 2. Construction Staking, 3. Construction Observation, 4. Construction Administration, 5. Distribution of Plans and Project Manual to contractors, 6. Environmental Assessment, 7. Wetland Mitigation, and 8. Archeological Investigation. Page 6 of 6 Pages (Exhibit A - ENGINEER's Services) OWNER's Responsibilities This is EXHIBIT B, consisting of three (3) page(s), referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated July 12, 2010. Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Provide ENGINEER with 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 expandability, 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; and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. Following ENGINEER's assessment of initially -available Project information and data and upon ENGINEER's request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services. Such additional information or data would generally include the following: Property descriptions. 2. Zoning, deed, and other land use restrictions. 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 4. 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, with appropriate professional interpretation thereof. 5. Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 6. Data or consultations as required for the Project but not otherwise identified in the Agreement or the Exhibits thereto. D. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of a Hazardous Environmental Condition or of any other development that affects the scope or time of performance of ENGINEER's services, or any defect or nonconformance in ENGINEER's services or in the work of any Contractor. E. Authorize ENGINEER to provide Additional Services as set forth in Part 4 of Exhibit A of the Agreement as required. Page 1 of 3 Pages (Exhibit B - OWNER's Responsibilities) F. Notify, by letter, the owners of properties affected by project of the project and the ENGINEER to perform services under the Agreement. G. 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 advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Project designed or specified by ENGINEER and such reviews, approvals, and consents from others as may be necessary for completion of each phase of the Project. 1. Provide, as required for the Project: 1. Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services. 2. Legal services with regard to issues pertaining to the Project as OWNER requires, Contractor raises, or ENGINEER reasonably requests. 3. Such auditing services as OWNER requires to ascertain how or for what purpose Contractor has used the moneys paid. 4. Placement and payment for advertisement for Bids in appropriate publications. J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's opinion of Total Project Costs. L. If OWNER designates a construction manager or an individual or entity other than, or in addition to, ENGINEER to represent OWNER at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER M. If more than one prime contract is to be awarded for the 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 individual or entity and the relation thereof to the duties, responsibilities, and authority of ENGINEER as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin. N. Attend the pre-bid conference, bid opening, pre -construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment inspections. O. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of Samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of OWNER, prior to their incorporation into the Work with appropriate professional interpretation thereof. P. Provide inspection or monitoring services by an individual or entity other than ENGINEER (and disclose the identity of such individual or entity to ENGINEER) as OWNER determines necessary to verify: 1. That Contractor is complying with any Laws and Regulations applicable to Contractor's performing and furnishing the Work. Page 2 of 3 Pages (Exhibit B - OWNER's Responsibilities) 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. Q. Provide ENGINEER with the findings and reports generated by the entities providing services pursuant to paragraphs B2.01.O and P. R. Perform or provide the following additional services: 1. Provide the data identified under Item 2 of the Scope of Services, pertaining to research and data collection. 2. A representative(s) to meet with Ament, Inc. staff, as necessary, to assist with the development of the project deliverables. 3. Negotiation and acquisition of right-of-way, permanent easements and temporary easements. 4. Payment of all fees relating to the Project. Page 3 of 3 Pages (Exhibit B - OWNER's Responsibilities) This is EXHIBIT C, consisting of one (I) page(s), referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated July 12, 2010. OWNE ENGINEER Payments to ENGINEER for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 4 -- PAYMENTS TO THE ENGINEER -- C4.01 For Basic Services Having A Determined Scope -- Standard Hourly Rates Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A, except for services of ENGINEER's Resident Project Representative and Post -Construction Phase services, if any, as follows: 1. An amount equal to the cumulative hours charged to the Project by each class of ENGINEER's employees times Standard Hourly Rates for each applicable billing class for all services performed on the Project, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. 2. ENGINEER's Reimbursable Expenses Schedule and Standard Hourly Rates are attached to this Exhibit C as Appendices 1 and 2. 3. The total compensation for services under paragraph C4.01 is estimated to be $ 99,800 based on the following assumed distribution of compensation: a. b. c. d. e. Survey Services Design Services ROW Plats Geotech & Environmental RxR Coordination $ 17,500 $59,900 $ 6,900 $ 11,500 $ 4,000_ 4. ENGINEER may alter the distribution of compensation between individual phases of the work noted herein to be consistent with services actually rendered, but shall not exceed the total estimated compensation amount unless approved in writing by OWNER. 5. The total estimated compensation for ENGINEER's services included in the breakdown by phases as noted in paragraph 4.01.A.3 incorporates all labor, overhead, profit, Reimbursable Expenses and ENGINEER's Consultant's charges. 6. The amounts billed for ENGINEER's services under paragraph C4.01 will be based on the cumulative hours charged to the Project during the billing period by each class of ENGINEER's employees tiines Standard Hourly Rates for each applicable billing class, plus Reimbursable Expenses and ENGINEER's Consultant's charges. 7. The Standard Hourly Rates and Reimbursable Expenses Schedule will be adjusted annually (as of July 1 ) to reflect equitable changes in the compensation payable to ENGINEER. 8. The Standard Hourly Rates Method of Payment is conditioned on Contract Times to complete the Work not exceeding _12 months. Should the Contract Times to complete the Work be extended beyond this period, the total compensation to ENGINEER shall be appropriately adjusted. 9. If more prime contracts are awarded for Work designed or specified by ENGINEER for this Project than identified in Exhibit A, the ENGINEER shall be compensated an additional amount equal to $ (To be determined) for all Basic Services for each prime contract added. Page 1 of 1 Pages (Exhibit C - Basic Services With Determined Scope -- Standard Hourly Rates Method of Payment) This is Appendix 1 to EXHIBIT C, consisting of one (I) page(s), referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated July 12, 2010. Reimbursable Expenses Schedule itial: OWNER ENGINEER Current agreements for engineering services stipulate that the Reimbursable Expenses are subject to review and adjustment per Exhibit C. Reimbursable expenses for services performed on the date of the Agreement are: Service Center Charges Computer Costs 7.00 /hour Survey Costs _5.00 /hour Communications Costs 1.00 /hour Mileage 0.65 /mile GPS Equipment 50.00 /hour Robotic Total Station Equipment 50.00 _/hour Bond Copies 0.37 /sq. ft. 8"xl 1" Copies / Impression / Facsimile 0.28 /page Postage 0.44 /ounce Meals and Lodging At Cost Page 1 of 1 Pages (Appendix 1 to Exhibit C - Reimbursable Expenses Schedule) This is Appendix 2 to EXHIBIT C, consisting of one (1) page(s), referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated July 12, 2010. Standard Hourly Rates Schedule OWNE ENGIN ER Initial: Current agreements for engineering services stipulate that the standard hourly rates are subject to review and adjustment per Exhibit C. Hourly rates for services performed on the date of the Agreement are: Engineer 1 Engineer 2 Engineer 3 Engineer 4 Engineer 5 Engineer 6 Engineer 7 Engineer 8 $ 65.00 /hour 80.00 /hour 85.00 /hour 100.00 /hour 105.00 /hour 120.00 /hour 130.00 Jhour 150.00 /hour Administrative 1 $ 60.00 /hour Administrative 2 70.00 /hour Administrative 3 100.00 /hour Administrative 4 120.00 /hour Clerical 1 35.00 /hour Clerical 2 40.00 /hour Clerical 3 50.00 /hour Clerical 4 60.00 /hour Architect 1 60.00 /hour LS - Intern 75.00 /hour Architect 2 75.00 /hour LS - 1 90.00 /hour Architect 3 90.00 /hour LS - 2 100.00 /hour Senior Architect 115.00 /hour LS - Manager 115.00 ,hour Technician 1 45.00 /hour Designer 1 65.00 /hour Technician 2 55.00 /hour Designer 2 75.00 /hour Technician 3 65.00 /hour Designer 3 85.00 /hour Technician 4 75.00 /hour Designer 4 100.00 /hour Page 1 of 1 Pages (Appendix 2 to Exhibit C - Standard Hourly Rates Schedule) This is EXHIBIT G, consisting of two (2) page(s), referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated July 12, 2010. OWNE ENGINEER Initial: Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance A. The limits of liability for the insurance required by paragraph 6.05.A and 6.05.B of the Agreement are as follows: 1. By ENGINEER: a. Workers' Compensation: Statutory b. Employer's Liability — 1) Each Accident: $0 2) Disease, Policy Limit: $0 3) Disease, Each Employee: $0 c. General Liability — 1) Each Occurrence (Bodily Injury and Property Damage): 2) General Aggregate: d. Excess or Umbrella Liability -- 1) Each Occurrence: 2) General Aggregate: e. Automobile Liability — 1) Bodily Injury: a) Each Accident 2) Property Damage: a) Each Accident f. Other (specify): $1,000,000 $2,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000 Professional Liability (Errors & Omissions) 1) Per Claim: $ 1,000,000 2) Aggregate: $ 1,000,000 Page 1 of 2 Pages (Exhibit G - Insurance) 2. By OWNER a. Workers' Compensation: Statutory b. Employer's Liability — 1) Each Accident $0 2) Disease, Policy Limit $0 3) Disease, Each Employee $0 c. General Liability — 1) General Aggregate: $1,000,000 2) Each Occurrence (Bodily Injury and Property Damage): $2,000,000 d. Excess Umbrella Liability — 1) Each Occurrence: $1,000,000 2) General Aggregate: $1,000,000 e. Automobile Liability -- 1) Bodily Injury: a) Each Accident $1,000,000 2) Property Damage: a) Each Accident $1,000,000 f. Other (specify): B. Additional Insureds 1. The following persons or entities are to be listed on OWNER's policies of insurance as additional insureds as provided in paragraph 6.05.B: a. Ament, Inc. ENGINEER b. Terracon Consultants, Inc. c. d. e. E ENGINEER'S CONSULTANT ENGINEER'S CONSULTANT ENGINEER'S CONSULTANT ENGINEER'S CONSULTANT ENGINEER'S CONSULTANT Page 2 of 2 Pages (Exhibit G - Insurance) Allocation of Risks This is EXHIBIT I, consisting of one (1) page(s), referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated July 12, 2010. OWNER ENGINEER Initial: Paragraph 6.11 of the Agreement is amended and supplemented to include the following agreement of the parties: 16.11.B Limitation of ENGINEER's Liability 1. ENGINEER's Liability Lbnited to the Amount of S50,000. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, the total liability, in the aggregate, of ENGINEER and ENGINEER's officers, directors, partners, employees, agents, and ENGINEER's Consultants, and any of them to OWNER and anyone claiming by, through, or under OWNER for any and all claims, losses, costs, or damages whatsoever arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability or breach of contract, or warranty express or implied of ENGINEER or ENGINEER's officers, directors, partners, employees, agents, or ENGINEER's Consultants, or any of them shall not exceed the total amount of $50.000. Page 1 of 1 Pages (Exhibit 1 - Allocation of Risks) Figure 1 Allen Hospital Area Storm System Improvements Project City of Waterloo, Iowa PROJECT 2009 Orthophotos - USDA The viewport is centered on X=553432, Y=4708283 (UTM Zone 15, Meters, NAD83). Iowa Geographic Map Server - Iowa State University Geographic Information Systems Support & Research Facility Copyright ©1999 Massachusetts Institute of Technology. 24K Topographic Map - USGS Allen Hospital Area Storm System Improvements Project City of Waterloo, Iowa AdniS 831VM NHOIS V3 JV 1VIJdsOH N311V FIGURE 3 Page 1 of 3 Right of Entry (ROE) Information Cost is $750.00 for application The CN requires everyone (contractor, consultants, etc) working on CN property to have a Right -of -Entry (ROE) agreement. ROE agreement application is handled by contacting me by email. Once we receive the information requested below, we will draw up a ROE Agreement. We will forward two copies to you for your execution. After you sign the agreement you will return both copies, a check for $750.00 and proof of insurance, together in one package, to me. Your application will be delayed if we receive the required documents in pieces. I will have the ROE signed by the railroad and return a fully executed copy for you. Only then is your company good to go after securing a flagman. Please use this form and email it back as a word document if possible, Just fill in the gray areas. Contact name — Name of contractor - Street Address — City, State, Zip — Telephone — Reason for ROE — Duration of ROE — Location of project�- FRA/AAR/DOT Crossing No. — If unable to locate this number at jobsite, please use following link to obtain http: //www. icc. i l l i not s. gov/ra it road/advanced. aspx?county=0085&s=o If project job site does not have a FRA/AAR/DOT Crossing Number, please attach an aerial snapshot to help identify specific location. Public Agency's Project No. Public agency Easement No. (if known) — ROE may take up to 5+ weeks to obtain FAQ What' are the insurance requirements? FIGURE 3 Page2of3 We allow others to come onto our property to perform work for other parties. These would include rights of entry to allow survey or inspection work, licenses to install pipelines and wirelines, and similar projects. Before commencing work, and until this Agreement shall be terminated, you shall provide and maintain the following insurance in form and amount with companies satisfactory to and as approved by the RAILROAD. a Statutory Workers Compensation and Employer's Liability insurance. b. Automobile Liability in .an amount not less than $1,000,000 dollars combined single limit. Comprehensive General Liability in an amount not less than $5,000,000 dollars per occurrence, with an aggregate limit of not less than $10,000,000 dollars. The Policy must name: the appropriate RAILROAD and its parents as an Additional Insured and must not contain any exclusions related to: 1. Doing business or undertaking construction or demolition on, near, or adjacent to railroad facilities. 2. Loss or damage resulting from surface, subsurface pollution contamination or seepage, or handling, treatment, disposal, or dumping of waste materials or substances. Before commencing work, you shall deliver to the RAILROAD a certificate of insurance evidencing the foregoing coverage and upon request you shall deliver a certified, true and complete copy of the policy or policies. An ILDOT contractor can use the insurance submitted for the ILDOT project but will have to attach an "Accord Form Certificate" to the Right of Entry Agreement. All others will need to submit appropriate proof of insurance, which may be a copy of the policy. The policies shall provide for not Tess that ten (10) days prior written notice to the RAILROAD of cancellation of or any material change in, the policies; and shall contain the waiver of right of subrogation. It is understood and agreed that the foregoing insurance coverage is not intended to, and shall not, relieve you from or serve to limit your liability under the indemnity provisions of any applicable agreement. It is further understood and agreed that, so long as the Agreement shall remain in force, the RAILROAD shall have the right, from time to time, to revise the amount or form of insurance coverage provided as circumstances or changing economic conditions may require. The RAILROAD shall give you written notice of any such requested change at least thirty (30) days prior to the date of expiration of the then existing policy or policies; and you agree to, and shall, thereupon provide the RAILROAD with such revised policy or policies thereof. If your policy contains the exclusion for work taking place in the vicinity of railroad tracks, you must obtain your own Railroad Protective Liability Policy (RRPL). Such insurance shall have a minimum combined single limit of $5,000,000 per occurrence with an aggregate limit of at least $10,000,000, The following is an option to get the RRPL from a CN approved vendor. vw. Raiiroadnrotectivesolutionscorr Others using our property can not be added to our single RRPL program. However, many of our contracts with these persons do require RPL coverage (in addition to CGL coverage), and we have found that sometimes RRPL coverage can be difficult to locate. We have therefore located an insurance broker that can provide CN's required RRPL coverage at market-based rates, which should be of great assistance to companies that are not used to the usual railroad insurance requirements. A link to Railroad Protective Solutions will also be installed on CN's web site (http://www.cn.ca/en/public-issues-insurance-requirements.htm) where these persons can make a prompt request for RRPL coverage, thereby helping anyone who has trouble locating a vendor for RRPL coverage. Note that we are not requiring these persons to use this insurance vendor for their RRPL coverage. If they wish to secure the RPL coverage through their own broker, they may do so. Rather, we are simply providing it as a convenience; an option for persons wishing to use CN property. FIGURE 3 Page 3 of 3 Is safety training required? ALL contractor personal will have to comply with CN safety requirements including and before entering upon the property of the Railroad for performance of any work, secure permission from the Engineering Superintendent of the Railroad Company or his authorized representative for the occupancy and use of the Railroad's property and shall confer with the Railroad relative to requirements for railroad clearances, operation and general safety regulations. All employees of contractors not hired by CN that will work on CN property are required to have minimum CN Safety and Security Awareness training. This training can be obtained through the eRailSafe.com website. If not done before, the contractor must contact CN Special Agent James Conroy at 708- 332-5947 or James.Conroy@cn.ca to be issued a vendor number prior to accessing the noted website. This training is good for a period of two years. a. Such employees have been exempted from undergoing the background check portion of the eRailSafe.com process, but must take and pass the required Safety and Security Awareness exam portion. b. EXCEPTION: CN has exempted those it classifies as "Delivery Persons" from this training. This will include contractors such as UPS, FedEx, trucking companies, etc. who merely access the property to supply materials or equipment. What are the flagman rates? Flagman Rates CN and State DOT projects - Daily rate - (Monday thru Friday $840.00/day average) Basic rate - up to 8 hours of work = $600.00 Overtime rate - hours in excess of 8 hours = $120.00/hr Weekend or holiday rate = $120.00 per hour with a 8 hour minimum or $960.00 All Others - Daily rate - (Monday thru Friday $950.00/day average) Basic rate - up to 8 hours of work = $700.00 Overtime rate - hours in excess of 8 hours = $125.00/hr Weekend or holiday rate = $125.00 per hour with a 8 hour minimum or $1,000.00 Email the above back to harlan.arians@cn.ca 'r6 � J r.