ITEM 6.1 West WWTFP
OtCI�egog
MINNESOTA V
DEPARTMENT INFORMATION
Request for
City Council Action
ORIGINATING DEPARTMENT:
Administration
REQUESTOR:
Lori Johnson, City Administrator
MEETING DATE:
May 26, 2015
PRESENTER(s):
REVIEWED BY:
ITEM #:
Lori Johnson, City Administrator
Andy MacArthur, City Attorney
6.1
Ron Wagner, City Engineer
Kurt Neidermeier, Utility
Operations Manager
AGENDA ITEM DETAILS
RECOMMENDATION:
Recommend entering into an Agreement Between Owner and Engineer for Professional Services
(Agreement) with AE2S for the West Waste Water Treatment Facility Digester Improvement Proi
ARE YOU SEEKING APPROVAL OF A CONTRACT?
Yes
IS A PUBLIC HEARING REQUIRED?
No
BAC KG R O U N D/J U STI F I CATION :
On May 6, 2015, the City Council held a special meeting to discuss waste water processing, capacity, and
odor matters. Following a thorough presentation of the situation and possible solutions, as they
currently exist, by Scott Schaefer, P.E., of AE2S, the Council directed Mr. Schaefer to submit a proposal
for an engineering study on the needed improvements. AE2S submitted a proposal which is attached.
The proposal has been reviewed by the City Engineer and Utility Operations Manager, and both agree
with the scope of services identified in the contract. The City Engineer stated the proposed cost of
$126,900 is reasonable. The City Attorney has reviewed the legal provisions of the contract and his
comments are attached.
A revised Agreement including the City Attorney's comments will not be available in time for Tuesday's
meeting. Therefore, we are requesting that the Agreement be approved contingent upon the addition
of the modifications requested by the City Attorney and City Council. The City Attorney will ensure that
all changes are made prior to signing the agreement.
SUPPORTING DOCUMENTS: X ❑ ATTACHED ❑ NONE
• Agreement Between Owner and Engineer for Professional Services
• Memo from City Attorney Andy MacArthur with recommended modifications to the
Agreement
POSSIBLE MOTION
Please word motion as you would like it to appear in the minutes.
Motion to enter into an Agreement Between Owner (Otsego) and Engineer (AE2S) for Professional
Services for the West Waste Water Digester Improvement Project at a not to exceed cost of $126,900
contingent upon incorporation of the City Attorney's (and Council's) recommended changes.
BUDGET INFORMATION
FUNDING: BUDGETED: X ❑ YES
Waste Water Fund
❑ NO
ACTION TAKEN
❑ APPROVED AS REQUESTED ❑ DENIED ❑ TABLED ❑ OTHER (List changes)
COMMENTS:
AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT effective as of May 26 , 2015
("Effective Date") between
City of Otsego, Minnesota ("Owner") and
Advanced Engineering and Environmental Services, INC (AE2S) (`Engineer")
Owner intends to expand biosolids processing capacity at the Otsego West Wastewater Treatment Facility (West
WWTF) with the West WWTFDigester Improvements project.
Owner and Engineer agree as follows:
ARTICLE 1 - SERVICES OF ENGINEER 3.02 Time for Completion
1.01 Scope
A. Engineer shall provide, or cause to be provided,
the services set forth herein and in Exhibit A.
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. Owner shall have the responsibilities set forth
herein and in Exhibit B.
B. Owner shall pay Engineer as set forth in
Exhibit C.
C. Owner shall be responsible for, and Engineer
may rely upon, the accuracy and completeness of all
requirements, programs, instructions, reports, data, and
other information furnished by Owner to Engineer pursuant
to this Agreement. Engineer may use such requirements,
programs, instructions, reports, data, and information in
performing or furnishing services under this Agreement.
ARTICLE 3 - SCHEDULE FOR RENDERING
SERVICES
3.01 Commencement
A. Engineer shall begin rendering services as of the
Effective Date of the Agreement.
("Project").
A. Engineer shall complete its obligations within a
reasonable time. Specific periods of time for rendering
services are set forth or specific dates by which services are
to be completed are provided in Exhibit A, and are hereby
agreed to be reasonable.
B. If, through no fault of Engineer, such periods of
time or dates are changed, or the orderly and continuous
progress of Engineer's services is impaired, or Engineer's
services are delayed or suspended, then the time for
completion of Engineer's services, and the rates and
amounts of Engineer's compensation, shall be adjusted
equitably.
C. If Owner authorizes changes in the scope,
extent, or character of the Project, then the time for
completion of Engineer's services, and the rates and
amounts of Engineer's compensation, shall be adjusted
equitably.
D. Owner shall make decisions and carry out its
other responsibilities in a timely manner so as not to delay
the Engineer's performance of its services.
E. If Engineer fails, through its own fault, to
complete the performance required in this Agreement
within the time set forth, as duly adjusted, then Owner shall
be entitled to the recovery of direct damages resulting from
such failure.
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Agreement Between Owner and Engineer for Professional Services
ARTICLE 4 - INVOICES AND PAYMENTS
4.01 Invoices
A. Preparation and Submittal of Invoices.
Engineer shall prepare invoices in accordance with its
standard invoicing practices and the terms of Exhibit C.
Engineer shall submit its invoices to Owner on a monthly
basis. Invoices are due and payable within 30 days of
receipt.
4.02 Payments
A. Obligation to Pay. Except as noted in paragraph
D., Owner's obligation to pay for our services under this
Agreement is not contingent on Owner's ability to obtain
financing, governmental or regulatory agency approval,
permits, final adjudication of lawsuit in which Engineer is
not involved, Owner's successful completion of a project,
or any other event. No retainage will be withheld.
B. Application to Interest and Principal. Payment
will be credited first to any interest owed to Engineer and
then to principal.
C. Failure to Pay. If Owner fails to make any
payment due Engineer for services and expenses within 30
days after receipt of Engineer's invoice, then:
1. Amounts due Engineer will be increased at
the rate of 1.0% per month (or the maximum rate of
interest permitted by law, if less) from said thirtieth
day; and
2. Engineer may, after giving seven days
written notice to Owner, suspend services under this
Agreement until Owner has paid in full all amounts
due for services, expenses, and other related charges.
Owner waives any and all claims against Engineer for
any such suspension.
D. Disputed Invoices. If Owner contests an
invoice, Owner may withhold only that portion so
contested, and must pay the undisputed portion.
E. Legislative Actions. If after the Effective Date
of the Agreement any governmental entity takes a
legislative action that imposes taxes, fees, or charges on
Engineer's services or compensation under this Agreement,
then the Engineer may invoice such new taxes, fees, or
charges as a Reimbursable Expense to which a factor of
1.0 shall be applied. Owner shall pay such invoiced new
taxes, fees, and charges; such payment shall be in addition
to the compensation to which Engineer is entitled under the
terms of Exhibit C.
F. Legal Actions. Owner agrees to compensate
Engineer as set forthin Exhibit C, if Engineer is asked or
required to respond to legal process arising out of a
proceeding related to the Project and as to which Engineer
is not a party.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. Engineer's opinions of probable Construction
Cost 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 construction industry. However, since
Engineer has no control over the cost of labor, materials,
equipment, or services furnished by others, or over
contractors' 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. Not Used.
5.03 Opinions of Total Project Costs
A. The services, if any, of Engineer with respect to
Total Project Costs shall be limited to assisting the Owner
in collating the various -cost categories which comprise
Total Project Costs. Engineer assumes no responsibility
for the accuracy of any opinions of Total Project Costs.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. The standard of care for all professional
engineering and related services performed or furnished by
Engineer under this Agreement will be the care and skill
ordinarily used by members of the subject profession
practicing under similar circumstances at the same time and
in the same locality. Engineer makes no warranties,
express or implied, under this Agreement or otherwise, in
connection with Engineer's services.
B. Owner shall not be responsible for discovering
deficiencies in the technical accuracy of Engineer's
services. Engineer shall correct any such deficiencies in
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Agreement Between Owner and Engineer for Professional Services
technical accuracy without additional compensation except
to the extent such corrective action is directly attributable
to deficiencies in Owner -furnished information.
C. Engineer may employ such Consultants as
Engineer deems necessary to assist in the performance or
furnishing of the services, subject to reasonable, timely,
and substantive objections by Owner.
D. Subject to the standard of care set forth in
paragraph 6.01.A, Engineer and its Consultants may use or
rely upon design elements and information ordinarily or
customarily furnished by others, including, but not limited
to, specialty contractors, manufacturers, suppliers, and the
publishers of technical standards.
E. Engineer and Owner shall comply with
applicable Laws and Regulations and Owner -mandated
standards that Owner has provided to Engineer in writing.
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, and compensation.
G. Engineer shall not be required to sign any
documents, no matter by whom requested, that would result
in the Engineer 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 signing any such documents.
H. 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 (No. C-700, 2002 Edition) unless
both parties mutually agree to use other General Conditions
by specific reference in Exhibit J.
I. Engineer shall not at any time 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 or used by Contractor, for security or
safety at the Site, 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, subcontractor, or supplier, or
of any of their agents or employees or of any other persons
(except Engineer's own employees and its Consultants) at
the Site or otherwise furnishing or performing any Work;
or for any decision made on interpretations or clarifications
of the Contract Documents given by Owner without
consultation and advice of Engineer.
6.02 Design without Construction Phase Services
A. 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, then (1) Engineer's services under this
Agreement shall be deemed complete no later than the end
of the Bidding or Negotiating Phase; (2) Engineer shall
have no design or shop drawing review obligations during
construction; (3) Owner assumes all responsibility for the
application and interpretation of the Contract Documents,
contract administration, construction observation and
review, and all other necessary Construction Phase
engineering and professional services; and (4) Owner
waives any claims against the Engineer that may be
connected in any way thereto.
6.03 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
copyright and the right of reuse at the discretion of the
Engineer) whether or not the Project is completed. Owner
shall not rely in any way on any Document unless it is in
printed form, signed or sealed by the Engineer or one of its
Consultants.
B. A party may rely that data or information set
forth on paper (also known as hard copies) that the parry
receives from the other party by mail, hand delivery, or
facsimile, are the items that the other party intended to
send. Files in electronic media format of text, data,
graphics, or other types that are furnished by one party to
the other are furnished only for convenience, not reliance
by the receiving party. Any conclusion or information
obtained or derived from such electronic files will be at the
user's sole risk. If there is a discrepancy between the
electronic files and the hard copies, the hard copies govern.
C. 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 transmittal errors detected
within the 60 -day acceptance period will be corrected by
the party delivering the electronic files.
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Agreement Between Owner and Engineer for Professional Services
D. When transferring documents in electronic
media format, the transferring party makes no
representations as to long term compatibility, usability, or
readability of such documents resulting from the use of
software application packages, operating systems, or
computer hardware differing from those used by the
documents' creator.
E. Owner may make and retain copies of
Documents for information and reference in connection
with use on the Project by Owner. Engineer grants Owner
a license to use the Documents on the Project, extensions
of the Project, and other projects of Owner, subject to the
following limitations: (1) Owner acknowledges that such
Documents are not intended or represented to be suitable
for use on the Project unless completed by Engineer, or for
use or reuse by Owner or others on extensions of the
Project or on any other project without written verification
or adaptation by Engineer; (2) any such use or reuse, or
any modification of the Documents, without written
verification, completion, or adaptation by Engineer, as
appropriate for the specific purpose intended, will be at
Owner's sole risk and without liability or legal exposure to
Engineer or to Engineer's Consultants; (3) 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 from
any use, reuse, or modification without written verification,
completion, or adaptation by Engineer; (4) such limited
license to Owner shall not create any rights in third parties.
F. If Engineer at Owner's request verifies or adapts
the Documents for extensions of the Project or for any
other project, then Owner shall compensate Engineer at
rates or in an amount to be agreed upon by Owner and
Engineer.
6.04 Insurance
A. Engineer shall procure and maintain insurance
as set forth in Exhibit G, "Insurance." Engineer shall cause
Owner to be listed as an additional insured on any
applicable general liability insurance policy carried by
Engineer.
B. Owner shall procure and maintain insurance as
set forth in Exhibit G, "Insurance." Owner shall cause
Engineer and Engineer's Consultants to be listed as
additional insureds on any general liability or property
insurance policies carried by Owner which are applicable
to the Project.
C. Owner shall require Contractor to purchase and
maintain general liability and other insurance in accordance
with the requirements of paragraph 5.04 of the "Standard
General Conditions of the Construction Contract,"
(No. C-700, 2002 Edition) as prepared by the Engineers
Joint Contract Documents Committee and to cause
Engineer and Engineer's Consultants to be listed as
additional insureds with respect to such liability and other
insurance purchased and maintained by Contractor for the
Project.
D. Owner and Engineer shall each deliver to the
other certificates of insurance evidencing the coverages
indicated in Exhibit G. Such certificates shall be furnished
prior to commencement of Engineer's services and at
renewals thereafter during the life of the Agreement.
E. All policies of property insurance relating to the
Project 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
Engineer or its Consultants, or any insureds or additional
insureds thereunder.
F. At any time, Owner may request that Engineer
or its Consultants, 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, and if commercially
available, Engineer shall obtain and shall require its
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.
6.05 Suspension and Termination
A. Suspension.
By Owner: Owner may suspend the Project upon
seven days written notice to Engineer.
By Engineer: If Engineer's services are substantially
delayed through no fault of Engineer, Engineer may, after
giving seven days written notice to Owner, suspend
services under this Agreement.
B. Termination. The obligation to provide further
services under this Agreement may be terminated:
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
ply.
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Agreement Between Owner and Engineer for Professional Services
By Engineer:
1) upon seven days written notice
if Owner demands that Engineer furnish or
perform services contrary to Engineer's
responsibilities as a licensed professional;
or
2) upon seven days written notice
if the Engineer's services for the Project
are delayed or suspended for more than 90
days for reasons beyond Engineer's
control.
3) Engineer shall have no liability
to Owner on account of such termination.
C. Notwithstanding the foregoing, this
Agreement will not terminate under
paragraph 6.05.B.1.a if the party receiving such
notice begins, within seven days of receipt of
such notice, to correct its substantial failure to
perform and proceeds diligently to cure such
failure within no more than 30 days of receipt
thereof, provided, however, that if and to the
extent such substantial failure cannot be
reasonably cured within such 30 day period, and
if such party has diligently attempted to cure the
same and thereafter continues diligently to cure
the same, then the cure period provided for
herein shall extend up to, but in no case more
than, 60 days after the date of receipt of the
notice.
For convenience,
a. By Owner effective upon Engineer's
receipt of notice from Owner.
C. Effective Date of Termination. The terminating
party under paragraph 6.05.B 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.
D. Payments Upon Termination.
1. In the event of any termination under
paragraph 6.05, Engineer will be entitled to invoice
Owner and to receive full payment for all services
performed or furnished and all Reimbursable
Expenses incurred through the effective date of
termination. Upon making such payment, Owner
shall have the limited right to the use of Documents,
at Owner's sole risk, subject to the provisions of
paragraph 6.03.E.
2. In the event of termination by Owner for
convenience or by Engineer for cause, Engineer shall
be entitled, in addition to invoicing for those items
identified in paragraph 6.05.D.1, to invoice Owner
and to payment of a reasonable amount for services
and exp6nses 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.
6.06 Controlling Law
A. This Agreement is to be governed by the law of
the State of Minnesota without regard to conflict of law
principles.
6.07 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 6.07.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 Engi
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.
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Agreement Between Owner and Engineer for Professional Services
3. Owner agrees that the substance of the
provisions of this paragraph 6.07.0 shall appear in the
Contract Documents.
6.08 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
law.
6.09 Environmental Condition of Site
A. Owner has disclosed to Engineer in writing the
existence of all known and suspected Asbestos, PCBs,
Petroleum, Hazardous Waste, Radioactive Material,
hazardous substances, and other Constituents of Concern
located at or near the Site, including type, quantity, and
location.
B. Owner represents to Engineer that to the best of
its knowledge no Constituents of Concern, other than those
disclosed in writing to Engineer, exist at the Site.
C. If Engineer encounters an undisclosed
Constituent of Concern, then Engineer shall notify
(1) Owner and (2) appropriate governmental officials if
Engineer reasonably concludes that doing so is required by
applicable Laws or Regulations.
D. It is acknowledged by both parties that
Engineer's scope of services does not include any services
related to Constituents of Concern. If Engineer or any
other party encounters an undisclosed Constituent of
Concern, or if investigative or remedial action, or other
professional services, are necessary with respect to
disclosed or undisclosed Constituents of Concern, then
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: (1) retains appropriate specialist consultant(s)
or contractor(s) to identify and, as appropriate, abate,
remediate, or remove the Constituents of Concern; and (2)
warrants that the Site is in full compliance with applicable
Laws and Regulations.
E. If the presence at the Site of undisclosed
Constituents of Concern adversely affects the performance
of Engineer's services under this Agreement, then the
Engineer shall have the option of (1) accepting an equitable
adjustment in its compensation or in the time of
completion, or both; or (2) terminating this Agreement for
cause on 30 days notice.
F. 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
(CERCLA), as amended, which are or may be encountered
at or near the Site in connection with Engineer's activities
under this Agreement.
6.10 Indemnification and Mutual Waiver
A. Indemnification by Engineer. To the fullest
extent permitted by law, Engineer shall indemnify and hold
harmless Owner, and Owner's officers, directors, partners,
agents, consultants, 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, arbitration,
or other dispute resolution costs) arising out of or relating
to the Project, provided that 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 the Work itself), including the loss of use resulting
therefrom, but only to the extent caused by any negligent
act or omission of Engineer or Engineer's officers,
directors, partners, employees, or Consultants. The
indemnification provision of the preceding sentence is
subject to and limited by the provisions agreed to by
Owner and Engineer in Exhibit I, "Allocation of Risks," if
any.
B. Indemnification by Owner. To the fullest extent
permitted by law, Owner shall indemnify and hold harmless
Engineer, Engineer's officers, directors, partners, agents,
employees, and 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, arbitration, or other
dispute resolution costs) arising out of or relating to the
Project, provided that 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
the Work itself), including the loss of use resulting
therefrom, but only to the extent caused by any negligent
act or omission of Owner or Owner's officers, directors,
partners, agents, consultants, or employees, or others
retained by or under contract to the Owner with respect to
this Agreement or to the Project.
C. Environmental Indemnification. In addition to
the indemnity provided under paragraph 6.10.13 of this
Agreement, and to the fullest extent permitted by law,
Owner shall indemnify and hold harmless Engineer and its
officers, directors, partners, agents, employees, and
Consultants from and against any and all claims, costs,
losses, and damages (including but not limited to all fees
and charges of engineers, architects, attorneys and other
professionals, and all court, arbitration, or other dispute
resolution costs) caused by, arising out of, relating to, or
resulting from a Constituent of Concern at, on, or under the
Site, provided that (i) any such claim, cost, loss, or damage
is attributable to bodily injury, sickness, disease, or death,
or to injury to or destruction of tangible property (other
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Agreement Between Owner and Engineer for Professional Services
than the Work itself), including the loss of use resulting
therefrom, and (ii) nothing in this paragraph 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.
D. Percentage Share of Negligence. To the fullest
extent permitted by law, a party's total liability to the
other party and anyone claiming by, through, or under the
other party for any cost, loss, or damages caused in part by
the negligence of the party and in part by the negligence of
the other party or any other negligent entity or individual,
shall not exceed the percentage share that the party's
negligence bears to the total negligence of Owner,
Engineer, and all other negligent entities and individuals.
E. Mutual Waiver. To the fullest extent permitted
by law, Owner and Engineer waive against each other, and
the other's employees, officers, directors, agents, insurers,
partners, and consultants, any and all claims for or
entitlement to special, incidental, indirect, or consequential
damages arising out of, resulting from, or in any way
related to the Project.
6.11 Miscellaneous Provisions
A. Notices. 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, by facsimile, by registered or certified mail
postage prepaid, or by a commercial courier service. All
notices shall be effective upon the date of receipt.
B. Survival. All express representations, waivers,
indemnifications, and limitations of liability included in
this Agreement will survive its completion or termination
for any reason.
C. Severability. 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.
D. Waiver. A party's non -enforcement of any
provision shall not constitute a waiver of that provision,
nor shall it affect the enforceability of that provision or of
the remainder of this Agreement.
E. Accrual of Claims. To the fullest extent
permitted by law, all causes of action arising under this
Agreement shall be deemed to have accrued, and all
statutory periods of limitation shall commence, no later
than the date of Substantial Completion.
F. Executed in Counterparts. This Agreement
may be executed in counterparts, each of which together
will constitute one and the same instrument. Delivery of an
executed counterpart of this Agreement shall constitute
effective delivery of this Agreement. Each Party agrees
that the delivery of the Agreement by facsimile or
electronic mail shall have the same force and effect as
delivery of original signature and that each Party may use
such facsimile or electronic mail signatures as evidence of
the execution and delivery of the Agreement by the Parties
to the same extent that an original signature could be used.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) terms (including the singular and plural
forms) printed with initial capital letters have the meanings
indicated in the text above or in the exhibits; in the
following provisions; or in the "Standard General
Conditions of the Construction Contract," prepared by the
Engineers Joint Contract Documents Committee
(No. C-700,2002 Edition):
1. Additional Services --The services to be
performed for or furnished to Owner by Engineer in
accordance with Exhibit A, Part 2, of this Agreement.
2. Basic Services --The services to be
performed for or furnished to Owner by Engineer in
accordance with Exhibit A, Part 1, of this Agreement.
3. 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.
4. Constituent of Concern --Any substance,
product, waste, or other material of any nature
whatsoever (including, but not limited to, Asbestos,
Petroleum, Radioactive Material, and PCBs) which is
or becomes listed, regulated, or addressed pursuant to
[a] the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §§9601 et
seq. ("CERCLA" ); [b] the Hazardous Materials
Transportation Act, 49 U.S.C. §§1801 et seq.; [c] the
Resource Conservation and Recovery Act, 42 U.S.C.
§§6901 et seq. ("RCRA"); [d] the Toxic Substances
Page 7 of 10
Agreement Between Owner and Engineer for Professional Services
Control Act, 15 U.S.C. §§2601 et seq.; [e] the Clean
Water Act, 33 U.S.C. §§1251 et seq.; [f] the Clean
Air Act, 42 U.S.C. §§7401 et seq.; and [g] any other
federal, state, or local statute, law, rule, regulation,
ordinance, resolution, code, order, or decree
regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous,
toxic, or dangerous waste, substance, or material.
5. 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.
6. 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.
7. Drmvings--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.
8. Lmvs and Regulations; Lcnvs or Regulat-
ions --Any and all applicable laws, rules, regulations,
ordinances, codes, and orders of any and all govern-
mental bodies, agencies, authorities, and courts
having jurisdiction.
9. Reimbursable Expenses --The expenses
incurred directly by Engineer in connection with the
performing or furnishing of Basic and Additional
Services for the Project.
10. 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, if any, are as set forth in Exhibit D.
11. 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.
12. Total Project Costs --The sum of the
Construction Cost, allowances for contingencies, and
the total costs of services of Engineer or other design
professionals and consultants, together with such
other Project -related costs that Owner furnishes for
inclusion, including but not limited to cost of land,
rights-of-way, compensation for damages to
properties, Owner's costs for legal, accounting,
insurance counseling and auditing services, interest
and financing charges incurred in connection with the
Project, and the cost of other services to be provided
by others to Owner pursuant to Exhibit B of this
Agreement.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "Engineer's Services," consisting of
7 pages.
B. Exhibit B, "Owner's Responsibilities,"
consisting of 2 pages.
C. Exhibit C, "Payments to Engineer for Services
and Reimbursable Expenses," consisting of 1 page.
D. Exhibit G, "Insurance," consisting of 1 page.
L Exhibit I, "Allocation of Risks," consisting of 1
page.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 10
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 based on the format of Exhibit K to this
Agreement.
8.03 Designated Representatives
A. 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.
Page 8 of 10
Agreement Between Owner and Engineer for Professional Services
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is
indicated on page 1.
Owner: Lngineer:
By:
Title:
Date Signed:
Address for giving notices:
Designated Representative (see paragraph 8.03.A):
Title:
Phone Number:
Facsimile Number:
E -Mail Address:
By: Grant L, Meyer, P.M.
Title: Client Program Leader
Date Signed: 5/20/15
Engineer License or Certificate No. 43013
State of: MN
Address for giving notices:
6901 E Fish Lake Rd, Ste 184
Maple Grove, MN 55369
Designated Representative (see paragraph 8.03.A):
Scott Schaefer, P.E.
Title: Wastewater Practice Leader
Phone Number: 763-248-2929
Facsi vile Number: 763-463-5037
E -Mail Address: Scott.Schaefer@ae2s.com
Page 9 of 10
Agreement Between Owner and Engineer for Professional Services
This is EXIIIBIT A, consisting of 7 pages, referred to in and part of
the Agreement between Owner and Engineer for Professional
Services dated Ma�26, 2015.
Engineer's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. Engineer shall
provide Basic and Additional Services as set forth below.
Project Summary
Project includes aerobic digestion upgrades at the Otsego West Wastewater Treatment Facility including the following
components:
• Additional aerobic digester volume
• New aeration system (designed for up to 4.5 -percent total solids)
• New blowers (one new, one replacement)
• Yard piping
• Associated electrical improvements
The new digesters will serve as "primary" digesters with the existing digesters as "secondary/polishing" digesters. Provisions
will be included for connection of future odor control. Project schedule assumes design in 2015 for bidding and construction
in 2016.
Prosect Basis and Assumptions
• Blower building electrical is sufficient for the new blowers, although the electrical feed to the blower building will
likely need to be upgraded. Site electrical is assumed to be sufficient to re -feed the blower building.
• Emergency generator capacity is sufficient for new blowers.
• Instrumentation for new digesters will include process monitoring.
• Mechanical/HVAC system(s) do not require modification.
• Additional geotechnical investigation/report (two borings) will be conducted for detailed structural design.
Geotechnical work will be arranged by Engineer but contracted directly by Owner.
• Updated site survey will be conducted by City Engineer and provided to Engineer.
• Project delivery method will be traditional design -bid -build.
• Project funding will be municipal bonds (i.e. not SRF).
• Project is considered optimization by MPCA and will not trigger an Environmental Assessment Worksheet.
• Digester layout/design assuming future doubling of aerobic digestion capacity at the site.
• Design incorporates connection(s) for future vapor -phase odor control equipment.
• Project disturbance area will be greater than one acre.
• WWTF entrance road paving as a potential alternate using Owner standard paving details.
• Design concept lock -in at 30 -percent review.
• Design will be completed in 2015.
PART 1— BASIC SERVICES
A1.01 Study and Report Phase
A. Engineer shall:
Consult with Owner to define and clarify Owner's requirements for the Project and available data.
2. Advise Owner of any need for Owner to provide data or services of the types described in Exhibit B which
are not part of Engineer's Basic Services.
3. Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve
the portions of the Project designed or specified by Engineer.
Page 1 of 7 Pages
(Exhibit A — Engineer's Services)
Agreement Between Owner and Engineer for Professional Services
4. Desktop evaluation of West WWTF liquid treatment train: Determine potential for re -rating the load capacity
of the liquid treatment train. Determine bottlenecks to re -rating that could be corrected to "balance" the flow and load
capacities of the liquid treatment train. Determine up to three alternatives for improvements to mitigate liquid train load
capacity bottlenecks. Prepare technical memorandum report with recommendations.
5. Desktop evaluation of East WWTF biosolids capacity: Benchmark the East WWTF biosolids capacity based
upon recent experience at the West WWTF. Compare biosolids capacity rating to existing liquid treatment capacity
rating. Provide a projection of the likely biosolids treatment capacity based on future building permits. Prepare technical
memorandum report to document findings.
Perform or provide the following additional Study Phase tasks or deliverables:
Meetings
o Initial kick-off and on-site review meeting
o Presentation of desktop evaluation findings
Deliverables
o West WWTF Liquid Train Evaluation Tech Memo
o East WWTF Biosolids Capacity Tech memo
Furnish electronic (PDF) review copies of the Report(s) and any other deliverables to Owner.
8. Revise the Report and any other deliverables in response to Owner's comments, as appropriate, and furnish
electronic copies of the revised Report and any other deliverables to the Owner.
B. Engineer's services under the Study and Report Phase will be considered complete on the date when the revised
Report and any other deliverables have been delivered to Owner.
A1.02 Preliminary Design Phase
A. After acceptance by Owner of the Report and any other deliverables, selection by Owner of a recommended solution
and indication of any specific modifications or changes in the scope, extent, character, or design requirements of the Project
desired by Owner, and upon written authorization from Owner, Engineer shall:
1. Prepare Preliminary Design Phase documents consisting of final design criteria, preliminary drawings, outline
specifications, and written descriptions of the Project.
2. Advise Owner if additional reports, data, information, or services of the types described in Exhibit B are
necessary and assist Owner in obtaining such reports, data, information, or services.
3. Based on the information contained in the Preliminary Design Phase documents, prepare a revised opinion of
probable Construction Cost.
4. Perform or provide the following additional Preliminary Design Phase tasks or deliverables:
• Design Basis confirmation.
o Digester sizing to match liquid train rating, or
o Digester sizing for future liquid train expansion.
• Structural/foundation review and digester geometry pre -design for aeration system options.
• Aeration system pre -selection.
o Net present worth based pre -selection between draft -tube aeration/mixing (no direct competitor)
and jet-aeration/mixing (multiple options).
o Consideration for active aeration control process instrumentation and controls.
• Blower pre -selection.
o Dependent upon aeration selection due to differences in aeration requirements.
o Net present worth based pre -selection between "standard" and high efficiency blowers.
• Existing electrical system review to confirm adequacy for proposed improvements.
• Code review (NEPA 820) of existing blower room.
Page 2 of 7 Pages
(Exhibit A — Engineer's Services)
Agreement Between Owner and Engineer for Professional Services
MPCA coordination.
Meetings
0 30 -percent design confirmation meeting
0 30 -percent City Council update (design lock -in)
Deliverables/Review Milestones
o Design Memo and 30 -percent drawings
0 30 -percent Cost Opinion
b. Furnish electronic PDF review copies of the Preliminary Design Phase documents and any other deliverables
to Owner. Owner shall submit to Engineer any comments regarding the Preliminary Design Phase documents and any
other deliverables.
7. Revise the Preliminary Design Phase documents and any other deliverables in response to Owner's
comments, as appropriate, and furnish to Owner electronic PDF copies of the revised Preliminary Design Phase
documents, revised opinion of probable Construction Cost, and any other deliverables.
B. Engineer's services under the Preliminary Design Phase will be considered complete on the date when the revised
Preliminary Design Phase documents, revised opinion of probable Construction Cost, and any other deliverables have been
delivered to Owner.
A1.03 Final Design Phase
A. After acceptance by Owner of the Preliminary Design Phase documents, revised opinion of probable Construction
Cost as determined in the Preliminary Design Phase, and any other deliverables subject to any Owner -directed modifications
or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from
Owner, Engineer shall:
1. Prepare final Drawings and Specifications indicating the scope, extent, and character of the Work to be
performed and furnished by Contractor. If appropriate, Specifications shall conform to the 50 -division format of the
Construction Specifications Institute.
2. Provide technical criteria, written descriptions, and design data for Owner's use in filing applications for
permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the
Project; assist Owner in consultations with such authorities; and revise the Drawings and Specifications in response to
directives from such authorities.
3. Advise Owner of any adjustments to the opinion of probable Construction Cost known to Engineer.
4. Perform or provide the following additional Final Design Phase tasks or deliverables:
•Incorporate comments from Preliminary Design review meeting and 75 -percent review meeting.
• Final Design Components
o Drawings: General, Civil/Site, Process, Structural, Electrical, P&ID(s)
o Project specifications
• Submit drawings/specifications to MPCA for review/approval and incorporate MPCA required revisions.
• Meetings
0 75 -percent review meeting
o Final design presentation to City Council
• Deliverables/Review Milestones
0 75 -percent Design drawings/specifications
o Bid Documents
o Final Opinion of Probable Construction Cost
Page 3 of 7 Pages
(Exhibit A — Engineer's Services)
Agreement Between Owner and Engineer for Professional Services
5. Prepare and furnish Bidding Documents for review by Owner, its legal counsel, and other advisors, and assist
Owner in the preparation of other related documents. Owner shall submit to Engineer any comments and, subject to the
provisions of paragraph 6.01.G, instructions for revisions.
6. Revise the Bidding Documents in accordance with comments and instructions from the Owner, as
appropriate, and submit final electronic PDF copies of the Bidding Documents, a revised opinion of probable
Construction Cost, and any other deliverables to Owner.
B. Engineer's services under the Final Design Phase will be considered complete on the date when the submittals
required by paragraph A1.03.A.6 have been delivered to Owner.
C. In the event that the Work designed or specified by Engineer is to be performed or furnished under more than one
prime contract, or if Engineer's services are to be separately sequenced with the work of one or more prime Contractors (such
as in the case of fast -tracking), Owner and Engineer shall, prior to commencement of the Final Design Phase, develop a
schedule for performance of Engineer's services during the Final Design, Bidding or Negotiating, Construction, and Post -
Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such
separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or
not the work under such contracts is to proceed concurrently.
D. The number of prime contracts for Work designed or specified by Engineer upon which the Engineer's compensation
has been established under this Agreement is one. If more prime contracts are awarded, Engineer shall be entitled to an
equitable increase in its compensation under this Agreement.
A1.04 Bidding or Negotiating Phase
A. After acceptance by Owner of the Bidding Documents and the most recent opinion of probable Construction Cost as
determined in the Final Design Phase, and upon written authorization by Owner to proceed, Engineer shall:
1. Assist Owner in advertising for and obtaining bids or proposals for the Work and, where applicable, maintain
a record of prospective bidders to whom Bidding Documents have been issued and receive and process contractor
deposits or charges for the Bidding Documents.
Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
Provide information or assistance needed by Owner in the course of any negotiations with prospective
contractors.
4. Consult with Owner as to the acceptability of subcontractors, suppliers, and other individuals and entities
proposed by prospective contractors for those portions of the Work as to which such acceptability is required by the
Bidding Documents.
5. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: host
electronic bidding documents on Engineer's Quest CDN webpage.
6. Attend the Bid opening, prepare Bid tabulation sheets, and assist Owner in evaluating Bids or proposals and
in assembling and awarding contracts for the Work.
B. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase or
upon cessation of negotiations with prospective contractors (except as may be required if Exhibit F is a part of this
Agreement).
A1.05 Construction Phase
A. Reserved for fixture use.
Page 4 of 7 Pages
(Exhibit A — Engineer's Services)
Agreement Between Owner and Engineer for Professional Services
A1.06 Post -Construction Phase
A. Reserved for fitture use.
A1.07 I&C Programming Services
B. Reserved for future use.
Additional Services not included in this Scope
• Geotechnical investigation (to be direct contracted by Owner).
• Survey will be by City Engineer with electronic coordinate file provided to Engineer.
• Design beyond the scope listed in the Project Summary.
• Additional design for liquid re -rate items/equipment.
• Electrical design beyond new MCCs/VFDs for new blowers and upgraded electrical feed to the blower building.
• Environmental assessment (i.e. an MPCA EIW/EAW).
• Additional meetings beyond those included in the scope.
• Operational assistance.
PART 2 -- ADDITIONAL SERVICES
A2.01 Additional Services Requiring Owner's Written Authorization
A. If authorized in writing by Owner, Engineer shall furnish or obtain from others Additional Services of the types
listed below.
1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services)
for private or governmental grants, loans, or advances in connection with the Project; preparation or review of
environmental assessments and impact statements; review and evaluation of the effects on the design requirements for
the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of
authorities having jurisdiction over the anticipated environmental impact of the Project.
2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the
accuracy of drawings or other information furnished by Owner or others.
3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project
designed or specified by Engineer or its design requirements including, but not limited to, changes in size, complexity,
Owner's schedule, character of construction, or method of financing; and revising previously accepted studies, reports,
Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations
enacted subsequent to the Effective Date of this Agreement or are due to any other causes beyond Engineer's control.
4. Services resulting from Owner's request to evaluate additional Study and Report Phase alternative solutions
beyond those identified in paragraph ALO1.A.4.
5. Services required as a result of Owner's providing incomplete or incorrect Project information to Engineer.
6. Providing renderings or models for Owner's use.
7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations,
maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate
schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing,
and assisting Owner in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and
audits or inventories required in connection with construction performed by Owner.
Page 5 of 7 Pages
(Exhibit A— Engineer's Services)
Agreement Between Owner and Engineer for Professional Services
8. Furnishing services of Engineer's Consultants for other than Basic Services.
9. Services attributable to more prime construction contracts than specified in paragraph A1.03.C.
10. Services during out-of-town travel required of Engineer other than for visits to the Site or Owner's office.
11. Preparing for, coordinating with, participating in and responding to structured independent review processes,
including, but not limited to, construction management, cost estimating, project peer review, value engineering, and
constructibility review requested by Owner; and performing or furnishing services required to revise studies, reports,
Drawings, Specifications, or other Bidding Documents as a result of such review processes.
12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by
Owner for the Work or a portion thereof.
13. Determining the acceptability of substitute materials and equipment proposed during the Bidding or
Negotiating Phase when substitution prior to the award of contracts is allowed by the Bidding Documents.
14. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials,
equipment, or services, except when such assistance is required by Exhibit F.
15. Providing construction surveys and staking to enable Contractor to perform its work other than as required
under paragraph A1.05.A.5, and any type of property surveys or related engineering services needed for the transfer of
interests in real property; and providing other special field surveys.
16. Providing Construction Phase services beyond the original date for final completion of the Work.
17. Providing assistance in responding to the presence of any Constituent of Concern at the Site, in compliance
with current Laws and Regulations.
18. Preparing and furnishing to Owner Record Drawings showing appropriate record information based on
Project annotated record documents received from Contractor.
19. Preparation of operation and maintenance manuals.
20. Preparing to serve or serving as a consultant or witness for Owner in any litigation, arbitration, or other
dispute resolution process related to the Project.
21. Providing more extensive services required to enable Engineer to issue notices or certifications requested by
Owner.
22. Other services performed or furnished by Engineer not otherwise provided for in this Agreement.
A2.02 Additional Services Not Requiring Owner's Written Authorization
A. Engineer shall advise Owner that Engineer is commencing to perform or furnish the Additional Services of the types
listed below. For such Additional Services, Engineer need not request or obtain specific advance written authorization from
Owner. Engineer shall cease performing or furnishing such Additional Services upon receipt of written notice from Owner.
1. Services in connection with Work Change Directives and Change Orders to reflect changes requested by
Owner.
2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute
materials or equipment other than "or -equal" items; and services after the award of the Construction Contract in
evaluating and determining the acceptability of a substitution which is found to be inappropriate for the Project or an
excessive number of substitutions.
Page 6 of 7 Pages
(Exhibit A — Engineer's Services)
Agreement Between Owner and Engineer for Professional Services
3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result
of materials, equipment, or energy shortages.
4. Additional or extended services during construction made necessary by (1) emergencies or acts of God
endangering the Work, (2) the presence at the Site of any Constituent of Concern, (3) Work damaged by fire or other
cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5)
acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor.
5. Services (other than Basic Services during the Post -Construction Phase) in connection with any partial
utilization of any part of the Work by Owner prior to Substantial Completion.
6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in
connection with the Work.
Services during the Construction Phase rendered after the date stated in A1.05.B.
Page 7 of 7 Pages
(Exhibit A — Engineer's Services)
Agreement Between Owner and Engineer for Professional Services
This is EXHIBIT B, consisting of 2 pages, referred to in and part of the
Agreement between Owner and Engineer for Professional Services
dated May 26, 2015.
Owner's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of Owner as set forth in this Agreement, Owner shall at its expense:
A. Provide Engineer with all criteria and full information as to Owner's requirements for the Project, including design
objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary
limitations; and furnish copies of all design and construction standards which Owner will require to be included in the
Drawings and Specifications; and furnish copies of Owner's standard forms, conditions, and related documents for Engineer
to include in the Bidding Documents, when applicable.
B. Furnish to Engineer any other available information pertinent to the Project including reports and data relative to
previous designs, or investigation at or adjacent to the Site.
C. Following Engineer's assessment of initially -available Project information and data and upon Engineer's request,
furnish or otherwise make available such additional Project related information and data as is reasonably required to enable
Engineer to complete its Basic and Additional Services. Such additional information or data would generally include the
following:
1. Property descriptions.
2. Zoning, deed, and other land use restrictions.
3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant
reference points.
4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions
in or relating to existing surface or subsurface structures at or contiguous to the Site, or hydrographic surveys, with
appropriate professional interpretation thereof.
5. Environmental assessments, audits, investigations, and impact statements, and other relevant environmental or
cultural studies as to the Project, the Site, and adjacent areas.
6. Data or consultations as required for the Project but not otherwise identified in the Agreement or the Exhibits
thereto.
7. Geotechnical report as identified in Exhibit A.
8. Site survey as identified in Exhibit A.
D. Give prompt written notice to Engineer whenever Owner observes or otherwise becomes aware of the presence at the
Site of any Constituent of Concern, or of any other development that affects the scope or time of performance of Engineer's
services, or any defect or nonconformance in Engineer's services, the Work, or in the performance of any Contractor.
E. Authorize Engineer to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as required.
F. Arrange for safe access to and make all provisions for Engineer to enter upon public and private property as required
for Engineer to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents
presented by Engineer (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as
Owner deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto.
H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases
of the Project designed or specified by Engineer and such reviews, approvals, and consents from others as may be necessary
for completion of each phase of the Project.
I. Provide, as required for the Project:
1. Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services.
2. Legal services with regard to issues pertaining to the Project as Owner requires, Contractor raises, or
Engineer reasonably requests.
3. Such auditing services as Owner requires to ascertain how or for what purpose Contractor has used the
moneys paid.
4. Placement and payment for advertisement for Bids in appropriate publications.
J. Advise Engineer of the identity and scope of services of any independent consultants employed by Owner to perform
or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value
engineering, and constructibility review.
K. Furnish to Engineer data as to Owner's anticipated costs for services to be provided by others (including, but not
limited to, accounting, bond and financial, independent cost estimating, insurance counseling, and legal advice) for Owner so
that Engineer may assist Owner in collating the various cost categories which comprise Total Project Costs.
L. If Owner designates a construction manager or an individual or entity other than, or in addition to, Engineer to
represent Owner at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations
of authority of such other party and the relation thereof to the duties, responsibilities, and authority of Engineer.
M. If more than one prime contract is to be awarded for the Work designed or specified by Engineer, designate a person
or entity to have authority and responsibility for coordinating the activities among the various prime Contractors, and define
and set forth the duties, responsibilities, and limitations of authority of such individual or entity and the relation thereof to the
duties, responsibilities, and authority of Engineer as an attachment to this Exhibit B that is to be mutually agreed upon and
made a part of this Agreement before such services begin.
N. Attend the pre-bid conference, bid opening, pre -construction conferences, construction progress and other job related
meetings, and Substantial Completion and final payment inspections.
O. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of Samples,
materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and
facilities of Owner, prior to their incorporation into the Work with appropriate professional interpretation thereof.
P. Provide Engineer with the findings and reports generated by the entities providing services to Owner pursuant to this
paragraph.
Page 2 of 2 Pages
(Exhibit B - Owner's Responsibilities)
Agreement Between Owner and Engineer for Professional Services.
This is EXHIBIT C, consisting of 1 page, referred to in and part
of the Agreement between Owner and Engineer for Professional
Services dated May26, 2015
Payments to Engineer for Services and Reimbursable Expenses
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties:
ARTICLE 2 --Owner's Responsibilities
C2.01 Compensation For Basic Services (other than Resident Project Representative and Post -Construction) -- Lump Sum
Method of Payment
A. Owner shall pay Engineer for Basic Services set forth in Exhibit A, except for services of Engineer's Resident
Project Representative and Post -Construction Phase services, if any, as follows:
A Lump Sum amount of $126,900 based on the following assumed distribution of compensation:
a. Study and Report Phase
b. Preliminary Design Phase
c. Final Design Phase
d. Bidding and Negotiating Phase
e. Construction Phase
f. Post -Construction Phase
g. I&C Programming
$ 9,800
$28,700
$71,800
$16,600
Reserved for Facture Use
Reserved for Future Use
Reserved for Future Use
2. Engineer may alter the distribution of compensation between individual phases noted herein to be consistent
with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the
Owner.
3. The Lump Sum includes compensation for Engineer's services and services of Engineer's Consultants, if any.
Appropriate amounts have been incorporated in the Lump Sum to account for labor, overhead, profit, and Reimbursable
Expenses.
4. The portion of the Lump Sum amount billed for Engineer's services will be based upon Engineer's estimate
of the proportion of the total services actually completed during the billing period to the Lump Sum.
C2.02 [Not used]
C2.03 [Not used]
Page 1 of 1 Page
Exhibit C— Basic Services (other than RPR and Post -Construction) — Lump Sum Method of Payment
Agreement Between Owner and Engineer for Professional Services.
This is EXHIBIT G, consisting of 1 page, referred to in and part of the
Agreement between Owner and Engineer for Professional Services
dated May 26, 2015.
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
A. The limits of liability for the insurance required by paragraph 6,05.A and 6.053 of the Agreement are as follows:
1. By Engineer:
a. Workers' Compensation:
Statutory
b. Employer's Liability --
1) Each Accident:
$1,000,000
2) Disease, Policy Limit:
$1,000,000
3) Disease, Each Employee:
$1,000,000
C. General Liability --
1) Each Occurrence (Bodily Injury and
Property Damage):
$1,000,000
2) General Aggregate:
$2,000,000
d. Automobile Liability --
1) Combined Single Limit
(Bodily Injury and Property Damage):
Each Accident
$1,000,000
f. Professional Liability —
1) Each Claim Made $2,000,000
2) Annual Aggregate $2,000,000
B. Additional Insureds
1. The Owner shall be listed on Engineer's general liability policy as provided in paragraph 6.05.A.
Page 1 of I Page
(Exhibit G - Insurance)
Agreement Between Owner and Engineer for Professional Services.
This is EXHIBIT I, consisting of 1 page, referred to in and part of the
Agreement between Owner and Engineer for Professional Services
dated May 26, 2015.
Allocation of Risks
Paragraph 6.10 of the Agreement is amended and supplemented to include the following agreement of the parties:
I6.10.A Limitation of Engineer's Liability
1. Engineer's Liability Limited to Amount of Insurance Proceeds. Engineer shall procure and maintain
insurance as required by and set forth in Exhibit G to this Agreement. Notwithstanding any other provision of this
Agreement, and to the fullest extent permitted by law, the total liability, in the aggregate, of Engineer and Engineer's
officers, directors, partners, employees, and Consultants, and any of them, to Owner and anyone claiming by, through,
or under Owner for any and all losses, costs, or damages whatsoever arising out of, resulting from or in any way related
to the Project or the Agreement from any cause or causes, including but not limited to the negligence, professional errors
or omissions, strict liability or breach of contract, or warranty express or implied, of Engineer or Engineer's officers,
directors, partners, employees, or Consultants, or any of them (hereafter "Owner's Claims"), shall not exceed the total
insurance proceeds paid on behalf of or to Engineer by Engineer's insurers in settlement or satisfaction of Owner's
Claims under the terms and conditions of Engineer's insurance policies applicable thereto (excluding fees, costs and
expenses of investigation, claims adjustment, defense, and appeal).
2. Exclusion of Special, Incidental, Indirect, and Consequential Damages. To the fullest extent permitted by
law, and notwithstanding any other provision in the Agreement, consistent with the terms of paragraph 6.10.E the
Engineer -and Engineer's officers, directors, partners, employees, and Consultants, or any of them, shall not be liable to
Owner or anyone claiming by, through, or under Owner for any special, incidental, indirect, or consequential damages
whatsoever arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or
causes, including but not limited to any such damages caused by the negligence, professional errors or omissions, strict
liability, breach of contract, or warranties, express or implied, of Engineer or Engineer's officers, directors, partners,
employees, agents, or Engineer's Consultants, or any of them.
Page 1 of 1 Page
(Exhibit I — Allocation of Risk)
Agreement Between Owner and Engineer for Professional Services.
Memo
To: Otsego City Council
From: Andy MacArthur, City Attorney
CC: Lori Johnson, City Administrator; Ron Wagner, City Engineer
Date: May 21, 2015
Re: Proposed Contract- City of Otsego & AEES, Inc.
I have been asked to review the attached contract for engineering services related to expansion of
biosolids capacity at the west wastewater treatment facility proposed by AEES, Inc. The contract was
received yesterday and I have had a chance to quickly review the document prior to the next City
Council meeting on May 26. It is my understanding that the Agreement will be on that agenda for
possible approval. Following are my comments on the proposed Agreement.
• Page 3, Section 6.03 indicates that the documents provided by the Engineer are instruments
of service and not actually the property of the City. Section A states that the documents are
only instruments of service. Section E purports to give the City only a license to use or reuse of
these documents. The City is paying for these documents and should have ownership.
Section 6.03 should be modified in its entirety to state that the completed documents are the
property of the City.
• Page 4, Section 6.04, B of the proposed Agreement calls for the City to procure and maintain
certain insurance. Exhibit G references 6.05 rather than 6.04 and has no provision for City
insurance. Section 6.04 E states that all property insurance related to the Project shall include
Engineer and its consultants as additional insured and that no recovery be allowed against the
Engineer or consultants if an insurance payment is made. 6.04, B and Exhibit G should be
clarified and modified to include only Engineer required insurance. 6.04, E should be deleted.
• Page 5, Section 6.05, D, 1 of the proposed Agreement related to payments upon termination
needs to be revised in light of my comments on Section 6.03 above.
• Page 6, Section 6.09, D, the words "and without liability for consequential or any other
damages" should be deleted.
• Page 6, Section 6.10, A, the last full sentence should be deleted and Exhibit I to the contract
regarding "Allocation of Risks" should be entirely deleted. Exhibit I, 1 proposes to limit any
damages recoverable against the Engineer to the insurance limits in place and No. 2 proposes
to limit the type of damages which are recoverable.
• Page 7, Section 6.10, E should be deleted as it once again proposes to limit certain types of
damages.
• Page 7, Section 6.11, E should be deleted as this proposes that causes of action and all
statutes of limitation either accrue or begin to run upon the date of Substantial Completion.
This would eliminate any cause of action accruing upon actual discovery of problems which
might not occur until years after the date of Substantial Completion.
The rest of the document appears to be acceptable. I do reserve the right to bring up
additional concerns upon further review of the contract before the Council meeting. Council
member's additional comments and concerns are encouraged.
• 1 have no opinion on the specifics of the proposed Engineering services or the proposed costs.
I will be available to go over the proposed contract, my suggested revisions and deletions, and to
answer any questions at the next regularly scheduled City Council meeting.
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