Agreement to Provide Design and Engineering Services for the Church Street Parking Deck Structural Repair Project
between the City of Durham and
Xxxxxx-Xxxx and Associates, Inc. (KHA)
This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Law
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR
ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE
Issued and Published Jointly By PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE
a practice division of the
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS
AMERICAN CONSULTING ENGINEERS COUNCIL
AMERICAN SOCIETY OF CIVIL ENGINEERS
This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (No. 1910-8, 1996 Edition) of the Engineers Joint Contract Documents Committee. Their provisions are interrelated, and a change in one may necessitate a change in the other. For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (No. 1910-17) (1996 Edition). For guidance on the completion and use of this Agreement, see EJCDC Users Guide, No. 1910-50.
EJCDC No. 1910-1 (1996 Edition)
Copyright ©1996 National Society of Professional Engineers 0000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000 American Consulting Engineers Council
0000 00xx Xxxxxx X.X., Xxxxxxxxxx, XX 00000
American Society of Civil Engineers 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000
TABLE OF CONTENTS Page
ARTICLE 1 - SERVICES OF ENGINEER 3
1.01 Scope 3
ARTICLE 2 - OWNER’S RESPONSIBILITIES 4
2.01 General 4
ARTICLE 3 - TIMES FOR RENDERING SERVICES 4
3.01 General 4
3.02 Suspension 4
ARTICLE 4 - PAYMENTS TO ENGINEER 4
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER 4
4.02 Other Provisions Concerning Payments 4
ARTICLE 5 - OPINIONS OF COST 5
5.01 Opinions of Probable Construction Cost 5
5.02 Designing to Construction Cost Limit 5
5.03 Opinions of Total Project Costs 5
ARTICLE 6 - GENERAL CONSIDERATIONS 5
6.01 Standards of Performance 5
6.02 Authorized Project Representatives 7
6.03 Design without Construction Phase Services 7
6.04 Use of Documents 7
6.05 Insurance 8
6.06 Termination 8
6.07 Controlling Law 9
6.08 Successors, Assigns, and Beneficiaries 9
6.09 Dispute Resolution 9
6.10 Hazardous Environmental Condition 9
6.11 Allocation of Risks 10
6.12 Notices 11
6.13 Survival 11
6.14 Severability 11
6.15 Waiver 11
6.16 Headings 11
ARTICLE 7 - DEFINITIONS 11
7.01 Defined Terms 11
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 14
8.01 Exhibits Included 14
8.02 Total Agreement 14
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR
THIS IS AN AGREEMENT effective as of December 20, 2011 (“Effective Date”) between the City of Durham, a North Carolina municipal corporation (“OWNER” or “Owner”) and Xxxxxx-Xxxx and Associates, Inc. (“ENGINEER” or “Engineer”). The title of this Agreement is stated at the top of page 1 , above.
ENGINEER is a
professional corporation organized and existing under the laws of North Carolina and authorized to do business in the State of North Carolina;
[In the space above, indicate the type of entity, for instance: a corporation organized and existing under the laws of [name of State];
a professional corporation organized and existing under the laws of [name of State]; a professional association organized and existing under the laws of [name of State]; a limited partnership organized under the laws of [name of State]
a limited liability partnership organized and existing under the laws of [name of State]; a sole proprietorship;
or a general partnership].
OWNER intends to contract for engineering services for the structural repairof the Church Street Parking Deck located at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, XX, including design, bidding, and construction administration services. (“Project”). OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
This Agreement is a total of
pages in the main part of the
Agreement and pages of Exhibits.
ARTICLE 1 - SERVICES OF ENGINEER
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.
If authorized by OWNER, ENGINEER shall furnish Resident Project Representative(s) with duties, responsibilities and limitations of authority as set forth in Exhibit D.
authorizes does not authorize
whole or in part by OWNER, or if ENGINEER’s
Engineer to furnish Resident Project Representative(s) with duties, responsibilities and limitations of authority as set forth in Exhibit D.
ARTICLE 2 - OWNER’S RESPONSIBILITIES
A. OWNER shall have the responsibilities set forth herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
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
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 but nevertheless, the total compensation shall be limited by any applicable provisions in this Agreement that set a ceiling on compensation. 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.
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 ENGINEER’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. The Owner may suspend the Engineer’s services in whole or in part. If ENGINEER’s services are delayed or suspended in
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, Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, 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 one per cent (1.0%) 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 services, expenses, and other related charges. Payments will be credited first 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. Failure to withhold a payment does not constitute a waiver of any of the Owner’s claims or defenses with respect to the services for which that payment is made.
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
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 (if applicable) 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, but the amount that the Engineer would have saved had it acted reasonably shall be subtracted.
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. The records shall be kept in such form and detail as will clearly identify all relevant charges and costs and the bases thereof, except to the extent the Owner’s representative and the Engineer’s representative concur otherwise in writing. Said concurrence is valid without an amendment to this Agreement. The Engineer shall maintain all such
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 by others, 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 by ENGINEER. If OWNER wishes 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. If Exhibit F is not used, or if a Construction Cost limit is not otherwise specified, it is agreed that a Construction Cost limit is not established.
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
records and provide the Owner access to them, and
the right to copy them at cost, until at least four years after Engineer’s last request for payment under this Agreement.
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
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. The Engineer warrants the accuracy of Engineer’s representations made to Owner as to Engineer’s qualifications and experience during the process in which the Owner selected the Engineer. The Engineer represents that it is registered, licensed, and authorized to practice engineering in North Carolina.
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. Without limiting the foregoing, it is agreed that the Owner’s approvals of documents and other items are not waivers or releases of the Engineer’s duty to provide the documents and other items in accordance with this Agreement and in accordance with applicable professional standards.
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. 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. Without limiting the foregoing, it is agreed that the Engineer shall comply with applicable provisions of N. C. General Statutes Chapter 133, Article 1.
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, except to the extent (i) that OWNER may indicate that the requirements, programs, instructions, reports, data, or other information is not necessarily accurate or complete, or (ii) that an engineer acting reasonably and in accordance with applicable
professional standards would question, doubt, or not rely thereon. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under this Agreement. This paragraph is subject to paragraph 6.04.
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 ENGINEER’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 1990 Edition) unless both parties mutually agree to use other General Conditions as specifically referenced in Exhibit J or any newer version selected by the Owner, supplemented by the Owner’s Supplementary Conditions, as modified by the Owner from time to time. The construction contract will be the EJCDC contract form issued in conjunction with the General Conditions, as that contract form has been modified by the Owner from time to time.
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 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 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 for a period of 3 years 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 represented to be suitable for reuse by OWNER or others on extensions of the Project or on any other project. ENGINEER shall not prohibit a
Any such reuse or modification withouteven if it lacks written verification or adaptation by ENGINEER, as appropriate for the specific purpose intended, but such reuse or modification 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 from such reuse by OWNER on extensions of the Project or on any other project. To reduce the likelihood that anyone will make claims against ENGINEER arising out of such reuse, OWNER may modify Documents involved in such reuse by either (a) indicating that ENGINEER did not prepare them for such reuse and is not responsible for their reuse or (b) unless prohibited by applicable Law and Regulations, deleting ENGINEER’s name from them.
G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern.
H. Any verification by ENGINEER or adaptation by ENGINEER 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.
A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, “Insurance.”
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 named as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project
OWNER and ENGINEER shall each deliver to the other Owner 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 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.
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 stating specifically how
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 stating that
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, neither the obligation to provide further services nor this Agreement will
not terminate pursuant to “a” or “b” of this subparagraph as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct cure the matters pointed out in the notice 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 matters 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 or at a later time specified in the notice.
The terminating Either 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. Any termination under this paragraph 6.06 shall occur automatically upon the passage of the requisite time period unless the cure provisions of 6.06(A)(1)(c), if applicable, are complied with and the terminating party has received notice of that compliance.
In case of any termination, the Engineer shall (a) cooperate with the Owner in completing the Project, (b) provide information requested by the Owner in connection with completion of the Project, (3) provide a reproducible copy of all Drawings, Specifications and other documents, even if incomplete, prepared by the Engineer up to the date of termination, and (4) if requested by the Owner, provide a reproducible copy of all Drawings, Specifications and other documents to describe the constructed Work as of the date of termination. Services provided after termination shall be compensated as Contingent Additional Services.”
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.
B. 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.C shall appear in the Contract Documents.
6.09 Dispute Resolution
A. OWNER and ENGINEER agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to exercising their rights under Exhibit H or other provisions of this Agreement, or under law. In the absence of such an agreement, the parties may exercise their rights under law.
B. If and to the extent that OWNER and ENGINEER have agreed on a method and procedure for resolving disputes between them arising out of or relating to this Agreement, such dispute resolution method and procedure is set forth in Exhibit H, “Dispute Resolution.”
6.10 Hazardous Environmental Condition
A. OWNER represents to Engineer that to the best of its knowledge a Hazardous Environmental Condition does not exist. ENGINEER
represents to OWNER 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, and ENGINEER has disclosed to the best of its knowledge to OWNER, 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, xxxxx, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants or provides a warranty from a third party that the Hazardous Environmental Condition has been abated, remediated, or removed
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 services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify ENGINEER's terminating this Agreement for cause on 30 days notice.
6.11 Allocation of Risks
1. To the fullest extent permitted by law, ENGINEER shall indemnify and hold harmless OWNER, OWNER’s officers, officials,
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 or otherwise wrongful 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.
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.
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, 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 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 of tangible 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.
The indemnification provision of paragraph 6.11.A.1 is subject to and limited as follows: by the provisions agreed to by OWNER and ENGINEER in Exhibit I, “Allocation of
A. The headings used in this Agreement are for general reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
Risks,” if any. The total liability of Engineer and
Engineer’s officers, directors, partners, and
employees for all claims, losses, costs, and damages for (a) Engineer’s breach of this Agreement, or (b) Engineer’s breach of the applicable duty of care owed to the Owner with respect to services performed or required to be performed pursuant to this Agreement shall not exceed one million dollars. If Engineer breaches its obligations under this Agreement to provide insurance, the preceding sentence shall not limit damages payable by Engineer for breach of those obligations.
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. The address can be changed from time to time by giving notice pursuant to this Agreement.
A. All express representations, indemnifications, or limitations of liability included in this Agreement will survive its completion or termination for any reason.
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.
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.
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 document, consisting of the main body of this Agreement, together with the Exhibits.
“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.
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 that 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 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, consultants, 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 danger 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-Hazardous 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. Specifications--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 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
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 - EXHIBITS AND SPECIAL PROVISIONS
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
8.01 Total Agreement
A. This Agreement (defined in paragraph 7.01)
consisting of pages 1 to 15 inclusive, 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.
8.02 City of Durham Provisions
A. Choice of Law and Forum. This Agreement shall be deemed made in Durham County, North Carolina. This Agreement shall be governed by and construed in accordance with the law of North Carolina. The exclusive forum and venue for all actions arising out of this Agreement shall be the North Carolina General Court of Justice, in Durham County. Such actions shall neither be commenced in nor removed to federal court. This section shall not apply to subsequent actions to enforce a judgment entered in actions heard pursuant to this section.
B. Performance of Government Functions. Nothing contained in this Agreement shall be deemed or construed so as to in any way estop, limit, or impair the City from exercising or performing any regulatory, policing, legislative, governmental, or other powers or functions.
C. City Policy. THE CITY OPPOSES DISCRIMINATION ON THE BASIS OF RACE AND SEX AND URGES ALL OF ITS CONTRACTORS TO PROVIDE A FAIR
OPPORTUNITY FOR MINORITIES AND WOMEN TO PARTICIPATE IN THEIR WORK FORCE AND AS SUBCONTRACTORS AND VENDORS UNDER CITY CONTRACTS.
D. Equal Employment Opportunity (EEO) Provisions. During the performance of this Contract the Engineer agrees as follows: (1) The Engineer shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, political affiliation or belief, age, or handicap. The Engineer shall take affirmative action to insure that applicants are
employed and that employees are treated equally during employment, without regard to race, color, religion, sex, national origin, political affiliation or belief, age, or handicap. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Engineer shall post in conspicuous places, available to employees and applicants for employment, notices setting forth these EEO provisions. (2) The Engineer shall in all solicitations or advertisement for employees placed by or on behalf of the Engineer, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, political affiliation or belief, age, or handicap. (3) The Engineer shall send a copy of the EEO provisions to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding. (4) In the event of the Engineer's noncompliance with these EEO provisions, the City may cancel, terminate, or suspend this Agreement, in whole or in part, and the City may declare the Engineer ineligible for further City contracts. (5) Unless exempted by the City Council of the City of Durham, the Engineer shall include these EEO provisions in every purchase order for goods to be used in performing this Agreement and in every subcontract related to this Agreement so that these EEO provisions will be binding upon such subcontractors and vendors.
E. Small Disadvantaged Business Enterprises (SDBE). The Engineer shall comply with all applicable provisions of Chapter 26 of the Durham City Code (Equal Business Opportunities Ordinance), as amended from time to time. The failure of the Engineer to comply with that chapter shall be a material breach of contract which may result in the rescission or termination of this contract and/or other appropriate remedies in accordance with the provisions of that chapter, this contract, and State law. The Participation Plan submitted in accordance with that chapter is binding on the Engineer. For purposes of this part E, in the following quoted sentences, the “Contractor” means the Engineer, Section 26-10(f) of that chapter provides, in part, “If
the City Manager determines that the Contractor has failed to comply with the provisions of the Contract, the City Manager shall notify the Contractor in writing of the deficiencies. The Contractor shall have 14 days, or such time as specified in the Contract, to cure the deficiencies or establish that there are no deficiencies.” It is stipulated and agreed that those two quoted sentences apply only to the Engineer’s alleged violations of its obligations under Chapter 26 and not to the Engineer’s alleged violations of other obligations.
F. Prompt Payment to Subcontractors.
(a) Within 7 days of receipt by the Engineer of each payment from the Owner under this Agreement, the Engineer shall pay all Subcontractors (which term includes subconsultants and suppliers) based on work completed or service provided under the subcontract. Should any payment to the Subcontractor be delayed by more than 7 days after Engineer’s receipt of payment from the Owner under this Agreement, the Engineer shall pay the Subcontractor interest, beginning on the 8th day, at the rate of 1% per month or fraction thereof on such unpaid balance as may be due. By appropriate litigation, Subcontractors shall have the right to enforce this subsection (a) directly against the Engineer, but not against the City of Durham.
(b) If the Owner’s Designated Representative determines that it is appropriate to enforce subsection
(a) in this manner, the Owner may withhold from progress or final payments to the Engineer the sums estimated by the Owner’s Designated Representative to be
(i) the amount of interest due to the Subcontractor under subsection (a), and/or
(ii) the amounts past-due under subsection (a) to the Subcontractor but not exceeding 5% of the payment(s) due from the Owner to the Engineer.
This subsection (b) does not limit any other rights to withhold payments that the Owner may have.
(c) Nothing in this section (titled “Prompt Payment to Subcontractors”) shall prevent the Engineer at the time of invoicing, application, and certification to the Owner from withholding invoicing, application, and certification to the Owner for payment to the Subcontractor for unsatisfactory job progress; defective goods, services, or construction not remedied; disputed work; third-party claims filed or reasonable evidence that such a claim will be filed; failure of the subcontractor to make timely payments for labor, equipment, and materials; damage to the Engineer or another subcontractor; reasonable evidence that the subcontract cannot be completed for the unpaid balance of the subcontract sum; or a reasonable amount for retainage not to exceed 10%.
(d) The Owner’s Designated Representative may require, as a prerequisite to making progress or final payments, that the Engineer provide statements from any Subcontractors designated by the Owner’s Designated Representative regarding the status of their accounts with the Engineer. The statements shall be in such format as the Owner’s Designated Representative reasonably requires, including notarization if so specified.
8.03 Addresses for Notice.
The OWNER’s address for giving notices is:
ATTN: Xxxxxx X. Xxxxxxxx, City Manager 000 Xxxx Xxxx Xxxxx
Xxxxxx, XX 00000 and
Xxxx Xxxxxxx, Director, General Services Dept. 000 Xxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Phone Number: 000-000-0000 - Ext.21242 Fax Number: 000-000-0000
The ENGINEER’s address for giving notices is:
Xxxxxx-Xxxx and Associates, Inc. XX XXX 00000
Xxxxxxx, XX 00000
Title of ENGINEER’s Designated Representative (per paragraph 6.02.A): Xxxxx Xxxx
Phone Number: 000-000-0000
Fax Number: 000-000-0000
E-Mail Address: xxxxx.xxxx@kimley- xxxx.xxx
OWNER’s Designated Representative (per paragraph 6.02.A): Xxxxxxxx Xxxxxxxx, Senior Project Manager
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 3.
ATTEST: CITY OF DURHAM
preaudit certificate, if applicable
signature for Engineer:
Xxxxxx-Xxxx and Associates, Inc. By:
Title of officer:
(Affix corporate seal.)
acknowledgment for Engineer:
State of ACKNOWLEDGMENT BY CORPORATION
I, a notary public in and for the aforesaid county and state, certify that
personally appeared before me this day and stated that he or she is
(strike through the inapplicable:) chairperson/ president/ chief executive officer/ vice-president/ assistant vice- president/ treasurer/ chief financial officer of
Xxxxxx-Xxxx and Associates, Inc. a corporation, and that by authority duly given and as the act of the corporation, he or she signed the foregoing contract or agreement with the City of Durham and the corporate seal was affixed thereto. This the day of , 20 .
My commission expires:
EXHIBIT D (4 pages)
ARTICLE 14 DUTIES, RESPONSIBILITIES, AND LIMITATIONS OF AUTHORITY
OF RESIDENT PROJECT REPRESENTATIVE
14.1 Resident Project Representative pursuant to Paragraph 1.01C of the Agreement
A. ENGINEER shall furnish a Resident Project Representative (“RPR”), assistants, and other field staff to assist ENGINEER in observing progress and quality of the Work. The RPR, assistants, and other field staff under this Exhibit D may provide full time representation or may provide representation to a lesser degree.
B. Through such additional observations of Contractor’s work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the Work. However, ENGINEER shall not, during such visits or as a result of such observations of Contractor’s work in progress, supervise, direct, or have control over the Contractor’s Work nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures selected by Contractor, for safety precautions and programs incident to the Contractor’s work in progress, for any failure of Contractor to comply with Laws and Regulations applicable to Contractor’s performing and furnishing the Work, or responsibility of construction for Contractor’s failure to furnish and perform the Work in accordance with the Contract Documents.
In addition, the specific limitations set forth in section A.1.05 of Exhibit A of the Agreement are applicable.
C. The duties and responsibilities of the RPR are limited to those of ENGINEER in the Agreement with the OWNER and in the Contract Documents, and are further limited and described as follows:
1. General: RPR is ENGINEER’s agent at the Site, will act as directed by and under the supervision of ENGINEER, and will confer with ENGINEER regarding RPR’s actions. RPR’s dealings in matters pertaining to the Contractor’s work in progress shall in general be with ENGINEER and Contractor, keeping OWNER advised as necessary. RPR’s dealings with subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with OWNER with the knowledge of and under the direction of ENGINEER.
2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and schedule of values prepared by Contractor and consult with ENGINEER concerning acceptability.
3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences and other project-related meetings, and prepare and circulate copies of minutes thereof.
a. Serve as ENGINEER’s liaison with Contractor, working principally through Contractor’s superintendent and assist in understanding the intent of the Contract Documents.
b. Assist ENGINEER in serving as OWNER’s liaison with Contractor when Contractor’s operations affect OWNER’s on-Site operations.
c. Assist in obtaining from OWNER additional details or information, when required for proper execution of the Work.
5. Interpretation of Contract Documents: Report to ENGINEER when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by ENGINEER.
6. Shop Drawings and Samples:
a. Record date of receipt of Samples and approved Shop Drawings.
b. Receive Samples which are furnished at the Site by Contractor, and notify ENGINEER of availability of Samples for examination.
c. Advise ENGINEER and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by ENGINEER.
7. Modifications: Consider and evaluate Contractor’s suggestions for modifications in Drawings or Specifications and report with RPR’s recommendations to ENGINEER. Transmit to Contractor in writing decisions as issued by ENGINEER.
8. Review of Work and Rejection of Defective Work:
a. Conduct on-Site observations of Contractor’s work in progress to assist ENGINEER in determining if the Work is in general proceeding in accordance with the Contract Documents.
b. Report to ENGINEER whenever RPR believes that any part of Contractor’s work in progress will not produce a completed Project that conforms generally to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise ENGINEER of that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval.
9. Inspections, Tests, and System Startups:
a. Consult with ENGINEER in advance of scheduled major inspections, tests, and systems startups of important phases of the Work.
b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate OWNER’s personnel, and that Contractor maintains adequate records thereof.
c. Observe, record, and report to ENGINEER appropriate details relative to the test procedures and systems startups.
d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections, and report to ENGINEER.
a. Maintain at the Site orderly files for correspondence, reports of job conferences, reproductions of original Contract Documents including all Change Orders, Field Orders, Work Change Directives, Addenda, additional Drawings issued subsequent to the execution of the Contract, ENGINEER’s clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing and Sample submittals received from and delivered to Contractor, and other Project related documents.
b. Prepare a daily report or keep a diary or log book, recording Contractor’s hours on the Site, weather conditions, data relative to questions of Change Orders, Field Orders, Work Change Directives, or changed conditions, Site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to ENGINEER.
c. Record names, addresses and telephone numbers of all Contractors, subcontractors, and major suppliers of materials and equipment.
d. Maintain records for use in preparing Project documentation.
e. Upon completion of the Work, furnish original set of all RPR Project documentation to ENGINEER.
a. Furnish to ENGINEER periodic reports as required of progress of the Work and of Contractor’s compliance with the progress schedule and schedule of Shop Drawing and Sample submittals.
b. Draft and recommend to ENGINEER proposed Change Orders, Work Change Directives, and Field Orders. Obtain backup material from Contractor.
c. Furnish to ENGINEER and OWNER copies of all inspection, test, and system startup reports.
d. Report immediately to ENGINEER the occurrence of any Site accidents, any Hazardous Environmental Conditions, emergencies, or acts of God endangering the Work, and property damaged by fire or other causes.
12. Payment Requests: Review Applications for Payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to ENGINEER, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the Site but not incorporated in the Work.
13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Specifications to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered to ENGINEER for review and forwarding to OWNER prior to payment for that part of the Work.
a. Before ENGINEER issues a Certificate of Substantial Completion, submit to Contractor a list of observed items requiring completion or correction.
b. Observe whether Contractor has arranged for inspections required by Laws and Regulations, including but not limited to those to be performed by public agencies having jurisdiction over the Work.
c. Participate in a final inspection in the company of ENGINEER, OWNER, and Contractor and prepare a final list of items to be completed or corrected.
d. Observe whether all items on final list have been completed or corrected and make recommendations to ENGINEER concerning acceptance and issuance of the Notice of Acceptability of the Work.
D. Resident Project Representative shall not:
1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including “or-equal” items).
2. Exceed limitations of ENGINEER’s authority as set forth in the Agreement or the Contract Documents.
3. Undertake any of the responsibilities of Contractor, subcontractors, suppliers, or Contractor’s superintendent.
4. Advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor’s work unless such advice or directions are specifically required by the Contract Documents.
5. Advise on, issue directions regarding, or assume control over safety precautions and programs in connection with the activities or operations of OWNER or Contractor.
6. Participate in specialized field or laboratory tests or inspections conducted off-site by others except as specifically authorized by ENGINEER.
7. Accept Shop Drawing or Sample submittals from anyone other than Contractor.
8. Authorize OWNER to occupy the Project in whole or in part.
EXHIBIT E (2 pages)
NOTICE OF ACCEPTABILITY OF WORK
Owner: City Of Durham
Owner’s Construction Contract Identification:
Effective Date of the Construction Agreement:
Construction Contract Date:
The undersigned Engineer hereby gives notice to the above Owner and Contractor that the completed Work furnished and performed by the Contractor under the above Contract is acceptable, expressly subject to the provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
Dated: , 20
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work (“Notice”) on the front side of this sheet is expressly made subject to the following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of the Engineer.
3. Said Notice is given as to the best of the Engineer’s knowledge, information, and belief as of the date hereof.
4. Said Notice is based entirely on and expressly limited by the scope of services the Engineer has been employed by the Owner to perform or furnish during construction of the Project (including observation of the Contractor’s work) under the Engineer’s Agreement with the Owner and under the Construction Contract referenced on the other side hereof, and applies only to facts that are within the Engineer’s knowledge or could reasonably have been ascertained by the Engineer as a result of carrying out the responsibilities specifically assigned to the Engineer under the Engineer’s Agreement with the Owner and the Construction Contract referenced on the other side hereof.
5. Said Notice is not a guarantee or warranty of the Contractor’s performance under the Construction Contract referenced on the other side hereof nor an assumption of responsibility for any failure of the Contractor to furnish and perform the Work thereunder in accordance with the Contract Documents.
ARTICLE 15 Construction Cost Limit
ARTICLE 16 Insurance
[SEE SEPARATE ATTACHMENT, TITLED “EXHIBIT G -- Insurance Requirement –
Church Street Structural Repairs”]
ARTICLE 17 Dispute Resolution
The parties’ attention is directed to the construction contract’s dispute resolution provisions, which apply according to their terms.
Allocation of Risks
Exhibit I is not applicable
ARTICLE 18 Special Provisions
18.1 (Compensation for Engineer’s Errors)
A. If the Engineer creates plans or specifications containing an error that causes actual construction of a portion of Work that needs to be changed solely because of the Engineer’s error, the Engineer shall pay the Owner all costs of correcting the error, including an amount to compensate the Owner for time spent by Owner’s employees because of the error without regard to what other services those employees might have done for the Owner had the error not occurred.
1 (Unforeseen Conditions) An error shall not be grounds for payment under this Paragraph 18.1 if the error occurred because of physical conditions were:
not in fact known to the Engineer,
not in fact known to the Engineer’s consultants, not readily apparent to the Engineer, and
not readily apparent to the Engineer’s consultants.
2 (Cost of Employees’ Time) The cost of the employees’ time will be calculated as follows: the time spent by any salaried employee of the Owner because of the error shall be compensated at an hourly rate equal to the employee’s gross salary (using standards to determine gross salary for federal income tax purposes) during the applicable fiscal year of the Owner divided by the number of hours worked by that employee for the Owner during that fiscal year.
3 (Limits on Double Payments) If this Paragraph 18.1 is applied to compensate the Owner for an error, the Engineer shall not owe the Owner any other compensation to remove the erroneously built Work and replace it with correct Work. However, the payment of such compensation or the application of this Paragraph 18.1 shall not affect liability for personal injury or damage to property. (In the preceding sentence, “damage to property” excludes the damage suffered by the Owner for the cost of replacing the erroneously installed Work for which this Paragraph provides compensation, but it includes all other general, special, consequential, or other kinds of damage resulting from the error.)
4 (Limit on Use of Payment against Engineer) A payment by the Engineer pursuant to this Paragraph 18.1 shall be considered a compromise, and the City shall not introduce the fact of the payment in any legal action or proceeding except to the extent that compromises are admissible.
5 (Nonpayment Hereunder Not to Prevent Other Claims) If this Paragraph 18.1 is not applied so as to compensate the Owner for an error, this Paragraph 18.1 shall not be used to construe this Agreement so as to reduce any remedy that is available to the Owner because of that error. For example, to the extent an error is not compensated for because of the amount exceeds the insurance deductible, the Owner will not be deemed to have waived a claim therefor.
18.2 (Assignment of Subcontracts) All contracts between the Engineer and others to provide services on the Project, in which the services are expected to take more than one month to complete and the compensation is expected to exceed $5,000, shall contain a provision allowing the Owner or a person designated by the Owner to assume the Engineer’s rights under the contract so as to require continued performance according to the terms of the contract, provided, however, that neither the Owner nor the person designated by the Owner shall be liable for breaches or other events or occurrences that took place before it assumed the contract. The Engineer will demonstrate compliance with this Paragraph 18.2 when requested by the Owner.
(end of Exhibit J)