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Engineering Services AgreementFor the consideration hereinafter set forth Morrison Maierle, Inc., (hereinafter referred to as the ENGINEER), agrees to provide construction administration, on -site observation, and other related engineering services as described herein to THE CITY OF KALISPELL (hereinafter referred to as the OWNER) for a project generally described as the " OLD SCHOOL STATION SID 344 INFRASTRUCTURE PROJECT." The project will involve project design, development of construction documents, project coordination, on -site observation and other services and tasks related to the design and construction of City -owned water, sewer, storm drainage and road facilities to be installed in conjunction with development of Old School Station, SID 344. The ENGINEER agrees to provide the required design services, construction administration, on - site observation, and other related engineering services for the OWNER's Project. The services to be provided, and the compensation for such services, shall be as mutually agreed to in this Agreement, executed by both parties and as described in the attached Proposal for Engineering Services and the Scope of Services included therein. Unless otherwise indicated, execution of this Agreement by the OWNER shall constitute notice to and authorization for the ENGINEER to proceed with the services enumerated in the Agreement. A. BUDGET The budget for the Scope of Services of this Agreement has been agreed upon by the parties to this agreement. The Scope of Services, by this reference, is hereby made a part of this Agreement. B. COMPENSATION As consideration for providing the services described as: Phase I, Design of Facilities, task 1 through task 7, the OWNER shall pay the ENGINEER for materials and services and at rates and costs as shown on the attached task and cost detail $159,868.00. Phase II, Construction Services, task 8 through task 11 the OWNER shall pay the ENGINEER for materials and services at rates and costs as shown on the attached task and cost detail $118,068.00. The total to be paid for all services provided under this agreement shall net exceed $277,963.00. Pay requests shall be submitted and payment shall be made as described in Article 3. C. CHANGE OF SCOPE OR PERSONNEL The Scope of Services and its related budget for this Agreement shall be limited to the scope and budget so contained herein. Changes in the indicated Scope of Services shall be subject to renegotiation and shall be implemented by a formal amendment to this Agreement. ENGINEER shall notify OWNER of any changes in personnel assigned to this project and shall obtain concurrence of OWNER prior to such changes. D. ADDITIONAL SERVICES Additional services not specified in Article 1 and subsequently requested by the OWNER, or services mutually agreed to be required for the timely completion of this contract, shall be described and the cost thereof outlined in a formal amendment to this Agreement E. LITIGATION ASSISTANCE The ENGINEER will not be obligated to provide expert witness or other litigation support related to its services, unless expressly agreed in writing. In the event the ENGINEER is required to respond to a subpoena, government inquiry or other legal process related to the services in connection with a proceeding to which it is not a party, the OWNER shall reimburse the ENGINEER for reasonable costs and compensate the ENGINEER at its then standard rates for reasonable time incurred in gathering information and documents and attending depositions, hearings, and the like. Payment to the ENGINEER, as prescribed in Article 2, shall be made as follows: A. REQUEST FOR PAYMENT The ENGINEER shall submit pay requests in a consistent detailed format. The submittal shall include a summary sheet to indicate total Professional Services, Reimbursable Expenses, Subcontracted Services and Total Payment Requested. Additional sheets shall be attached as necessary to describe hours worked and billable rates for each employee, itemized reimbursable expenses and itemized subcontracted services, including hours worked and billable rates for all subcontractors' employees. B. PAYMENT FOR SERVICES For all services described in Article 1 and subsequent amendments, payment is due within 30 days after the OWNER's receipt of the ENGINEER's pay request. Payment shall be for actual invoiced costs but shall not exceed the total amount shown in Scope of Services 2 A. AUTHORIZATION TO PROCEED The ENGINEER will not begin work on any of the services listed in Article 1 until the OWNER directs him to proceed. Authorization to proceed on work elements not defined in this Agreement as to scope, cost, and time for completion shall be in the form of a formal amendment as previously described. C t►�n�93K4W."INN The ENGINEER will perform the services described in this Agreement and in any work release documents or change orders, which are issued under this Agreement and signed by both parties. In performing the services, the ENGINEER will exercise the degree of care and skill ordinarily exercised by reputable companies performing the same or similar services in the same geographic area. The ENGINEER is obligated to provide only those services, which are described in this Agreement, in work release documents signed by the ENGINEER or in change orders signed by the ENGINEER C. CONFIDENTIAL INFORMATION Confidential information shall be designated as such by the OWNER. The ENGINEER and his subcontractors will not disclose confidential information provided by the OWNER or developed by the ENGINEER and his subcontractors in the course of its services without the OWNER's specific prior written consent. A. AUTHORIZATION TO PROCEED The OWNER shall authorize the ENGINEER to proceed on Phase I Design, task 1 through task 7 by executing this Agreement. Authorization to proceed with Phase II Construction Services, task 8 through task 11 shall be separately authorized after completion of Phase I and award of a construction contract. B. OWNER -FURNISHED DATA The OWNER shall provide to the ENGINEER all technical data in the OWNER's possession, including previous reports, maps, surveys, borings, and all other information required by the ENGINEER and relating to the ENGINEER's work on the project. Such information shall include, but not be limited to, the OWNER's requirements for the project, any design criteria or constraints, and copies of design and construction details or standards that OWNER requires to be included. The ENGINEER may rely upon the accuracy, timeliness, and completeness of the information provided by the OWNER in performing ENGINEER's services to the OWNER. C. ACCESS TO FACILITIES AND PROPERTY The OWNER shall as necessary make its system facilities and properties available and accessible for inspection by the ENGINEER and provide labor and safety equipment as reasonably required by the ENGINEER and as authorized by OWNER. D. ACCESS TO PRIVATE PROPERTY The ENGINEER shall obtain permission for access from individual property owners, as necessary to perform required services on private property. E. TIMELY REVIEW The OWNER shall examine all reports, sketches, drawings, specifications, proposals, and other documents presented by the ENGINEER, obtain advice of an attorney, insurance counselor, accountant, auditor, and other consultants as the OWNER deems appropriate for such examination and render in writing decisions pertaining thereto in a timely manner so as to not delay the services of the ENGINEER. F. PROMPT NOTICE The OWNER shall give prompt written notice to the ENGINEER whenever the OWNER observes or otherwise becomes aware of any development that affects the scope or timing of the ENGINEER's services or any defect in the work of the ENGINEER or Contractors. A. FORCE MAJEURE The OWNER shall not be responsible for any delay or failure of performance caused by fire or other casualty, labor dispute, government or military action, transportation delay, inclement weather, Act of God, act or omission of OWNER or its contractors, failure of OWNER or any government authority to timely review or to approve the services or to grant permits or approvals, or any other cause beyond the OWNER'S reasonable control. B. INDEMNIFICATION Indemnification by OWNER: The OWNER agrees to indemnify, hold harmless and defend the ENGINEER from and against any and all liabilities, demands, claims, causes of actions and judgments (including costs and reasonable attorneys fees) which the ENGINEER may incur, become responsible for or pay out as a result of death or bodily injury or threat thereof to any person, destruction of or damage to any property, contamination of or adverse effect on natural resources or the environment, any violation of local, state, or federal laws, regulations or orders, or any other damages claimed by third parties, including without limitation any arising out of or related to hazardous materials or substances and including costs of response or remediation arising out of the application of common law or laws imposing strict liability, based on or arising in whole or in part from the negligent acts or omissions or willful misconduct of the OWNER, its employees, agents and subcontractors. Indemnification by ENGINEER: The ENGINEER agrees to indemnify, hold harmless and defend the OWNER from and against any and all liabilities, demands, claims, causes of actions and judgments (including costs and reasonable attorneys fees) which the OWNER may incur, become responsible for or pay out as a result of death or bodily injury or threat thereof to any person, destruction of or damage to any property, contamination of or adverse effect on natural resources or the environment, any violation of local, state, or federal laws, regulations or orders, or any other damages claimed by third parties, including without limitation any arising out of or related to hazardous materials or substances and including costs of response or remediation arising out of the application of common law or laws imposing strict liability, based on or arising in whole or in part from the negligent acts or omissions or willful misconduct of the ENGINEER, its employees, agents and subcontractors. A�h(.Intffl-2 The ENGINEER shall acquire and maintain statutory workmen's compensation insurance coverage. ENGINEER shall acquire and maintain bodily injury and property damage insurance coverage in an amount not less than seven hundred fifty thousand ($750,000) dollars for each claim and one and one- half million ($1,500,000) dollars per occurrence. The ENGINEER shall acquire and maintain bodily injury liability automobile insurance coverage in an amount not less than seven hundred fifty thousand ($750,000) dollars for each claim and one and one- half million ($1,500,000) dollars per occurrence and property damage liability automobile insurance coverage in the amount of fifty thousand ($50,000) dollars for each occurrence. The ENGINEER shall acquire and maintain catastrophe or excess insurance coverage in the amount of one million (1,000,000) dollars for each occurrence and one million (1,000,000) dollars for each aggregate with ten thousand ($10,000) dollars deductible amount. The ENGINEER shall acquire and maintain professional liability insurance coverage in the amount of one million ($1,000,000) dollars with a forty thousand ($40,000) dollar deductible amount. D. TERMINATION The OWNER for its convenience may terminate this Agreement by giving 30 days' written notice to the ENGINEER. This Agreement may be terminated by either party upon 30 days' written notice should the other party fail substantially to perform in accordance with this Agreement through no fault of the other or if the project is stopped by conditions beyond the control of the OWNER. In the event of termination, the ENGINEER shall be paid in full for all work previously authorized and performed up to the termination date, plus termination expenses if termination is not caused by failure of the ENGINEER to perform. If no termination is implemented, relationships and obligations created by this Agreement shall terminate upon completion of all applicable requirements of this Agreement. E. SUSPENSION, DELAY, OR INTERRUPTION OF WORK The OWNER may suspend, delay, or interrupt the work of the ENGINEER on the project for the convenience of the OWNER or for reasons beyond the control of the OWNER or ENGINEER. In the event of such suspension, delay, or interruption, an adjustment in compensation due the ENGINEER shall be made for all increases in cost of the ENGINEER's performance under this Agreement, including personnel relocation and/or replacement costs, and all other identifiable labor and expense costs. F. ASSIGNMENT This Agreement is to be binding on the heirs, successors, and assigns of the parties hereto and is not to be assigned by either party without first obtaining the written consent of the other. No assignment of this Agreement shall be effective until the Assignee assumes in writing the obligations of the assigning party, and delivers such written assumption to the other original party to this Agreement. Use of subconsultants by the ENGINEER for technical or professional services shall not be considered an assignment of a portion of this Agreement. Nothing herein shall be construed to give any rights or benefits hereunder to anyone other than OWNER and ENGINEER. G. LITIGATION In the event either party to this Agreement shall be required to bring an action against the other party to enforce this Agreement, or any portion thereof, the prevailing party shall be entitled to reasonable attorney fees and costs therefore in addition to any damages that may be awarded. H. VENUE In the event of litigation concerning this Agreement, venue shall be in the Eleventh Judicial District in and for the County of Flathead, Montana, and this Agreement shall be governed by the laws of the State of Montana both as to interpretation and performance. I�I':IiTl71M �i>�!'111�� �1.7_� 1� �:Z/iil .�[�7►f` A. ACCESS TO DOCUMENTS The ENGINEER shall provide access to any of the documents relating to this project to the OWNER, the City of Kalispell, or authorized representative of the above during normal working hours. The ENGINEER shall maintain project and financial records for this project for at least three years after final payment and closure of the project. C. REPRODUCIBLE COPIES Reproducible hard copies and electronic copies of all records and other forms of documentation produced for this project shall be provided in standard formats and made available to the OWNER. D. COVENANT AGAINST CONTINGENT FEES The ENGINEER warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the ENGINEER, to solicit or secure this Agreement, and that he has not paid or agreed to pay any company or persons, other than a bona fide employee working solely for the ENGINEER, any fee, commission, percentage, brokerage fee, gifts, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, the OWNER shall have the right to annul this Agreement without liability or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. E. SCHEDULE Time is of the essence for this project. The ENGINEER shall proceed immediately to begin performing the services required herein in conformance with the schedule attached hereto. A. AGREEMENT DESCRIPTION This Agreement (consisting of pages 1 through 8, inclusive) and attached Proposal for Engineering Services and Scope of Services constitute the entire Agreement between the OWNER and the ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written addendum. DATED this day of , 2005 CITY OF KALISPELL James H. Patrick, City Manager MORRISON MAIERLE, Inc. MOMS0,4 ENGINEERS SURVEYORS SCSTS A lamPLANNERS MAIERLE, INC. 1228 WHITEFISH STAGE ROAD - BOX 8057 - KALISPELL, MT 59904-1057.406-752-2216 - FAX: 4 61752I2 911 An Employee-Oicned Company July 13, 2005 Mr. James C. Hansz, P.E. Director of Public Works/City Engineer City of Kalispell PO Box 1997 Kalispell, MT 59903-1997 RE: Old School Station Subdivision Design and Construction Phase Services Dear Jim: The purpose of this letter is to provide a scope of services, fee estimate, and schedule for services related to the design and construction administration of improvements within the Old School Station Subdivision. r r r The Scope of Services defined herein is generally for the design and construction administration of water, sewer, storm water, site grading, and interior subdivision roads and related appurtenant items for a 50-acre commercial site. The major elements of this phase include the following tasks. Task 1 — Preliminary Design: Task 1 consists of the work required to prepare a Basis of Design Report as required by the City of Kalispell and the Montana Department of Environmental Quality which summarizes the design criteria for the water, sewer, and storm water improvements. The work will include a water and sewer layout plan for the entire 50 acres, a hydraulic model of the water system to show that the required fire flows for the major tenant and various future pad sites can be achieved, and a preliminary storm water drainage plan for the entire 50 acre site. Also, during this phase we will coordinate with the power, phone, gas and cable companies regarding service to the development. Task 2 — Construction Drawings: Task 2 consists of the preparation of construction drawings for water and sewer mains, interior subdivision roads, site grading/paving plan, storm water retention basin, storm sewer inlets and piping, and site lighting. Task 3 — Final Specifications: Task 3 consists of the preparation of the final technical specifications and contract documents for the site work. The Montana Public Works Standard Specifications and the City of Kalispell Design Standards 1 of 3 "Providing resources in partnership with clients to achieve their goals" _ MORMSON A MMERLE, INC. will be used as the basis of the technical specifications, but will be modified as necessary to incorporate site specific issues. Task 4 — Permits: Task 4 consists of the work required to complete the Montana Department of Environmental Quality Storm Water Pollution Prevention Plan and the Water and Sewer Certified Checklists. Task 5 — Cost Opinion: Task 5 consists of the development of a final opinion of probable construction cost for the site work. Task 6 — City/MDEQ Review: Task 6 consists of the work required to submit the design to the City of Kalispell and the Montana Department of Environmental Quality and responding to comments as required for final approval of the plans. Task 7 — Quality Control: Task 7 consists of our internal quality assurance review. Task 8 — Bidding: Task 8 consists of the services related to the bidding phase including answering questions, issuing addenda, attendance at a pre -bid meeting and the bid opening, and providing an award recommendation. Task 9 — Construction Staking: Our scope of services does not include construction staking. We anticipate that these services will be provided by the Contractor during construction. Task 10 — Construction Administration: Construction administration services include site visits, review of material shop drawings, correspondence with the contractor during construction, response to requests for information, coordination with the surveyor for staking, and substantial and final completion inspections and reports. Task 11 — Construction Observation: The Montana Department of Environmental Quality requires that a professional engineer be retained to perform construction observation services for the water and sewer main installation, and when the project is completed, certify that the water and sewer mains were constructed in accordance with approved plans and specifications. To address these requirements, our services under Task 11 include providing an on -site resident project representative (RPR) throughout the construction of the site work. The fee was developed assuming full time observation during installation of the buried utilities and half time observation during the site grading, paving, installation of curb and gutter, etc. The fee was also developed assuming that the buried utilities would take 5 weeks to construct and the final grading, paving, curb and gutter would take an additional 5 weeks to construct. 2of3 MORRISON 4 ' MAIERLE, iNc. Task 12 — Post Construction: Post construction activities include preparation of record drawings as required by the City of Kalispell and the Montana Department of Environmental Quality. Work excluded from this scope of services includes the following major tasks Landscape Architecture Pylon and Internal Sign Design Geotechnical Investigation Fee Estimate A detailed breakdown of the fee estimate for the scope of services is defined above. The estimated fee for the design phase is $159,868 and the estimated fee for the construction phase is $118,068. l+`M�'T.�`111C Assuming that we receive a Notice to Proceed, we anticipate completion of the final plans and specification for submittal to the Montana Department of Environmental Quality by September 5, 2005. Please see the attached schedule. If you have any questions, please do not hesitate to call. Sincerely, MO/RRIISON-MAIERLE, INC. 4/ Ig -- William A. Buxton, P.E. 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