HomeMy WebLinkAboutItem 06.oDecember 13, 2013 Item No.
APPROVE AGREEMENT WITH STONEBROOKE ENGINEERING, INC. FOR
ENGINEERING SERVICES FOR THE 190 STREET RECONSTRUCTION PROJECT
December 16, 2013 City Council Meeting
Proposed Action
Staff recommends adoption of the following motion: Move to approve Agreement with
Stonebrooke Enaineerina. Inc. for Enaineerina Services for the lao Street Reconstruction
Pr�omect, City Project 13 -16.
Passage of this motion will establish project responsibilities and costs associated with the lgo
Street Reconstruction project.
Overview
Traffic volumes on lgo Street are anticipated to increase as a result of development between
Dodd Boulevard and Holyoke Avenue. To provide for increased traffic volumes, improve
roadway /intersection operations and make safety improvements, lgo Street will be
reconstructed from its current rural local gravel roadway section to an urban collector roadway
section. In addition, turn lanes will be constructed along Dodd Boulevard and a roundabout
will be constructed at Holyoke Avenue. Stonebrooke Engineering, Inc. will prepare plans and
specifications for the project.
Primary Issues to Consider
• How will this project be funded? The property along lgo Street is primarily owned by
one developer and he may request the City's assistance in financing the improvements
via an assessment project. Benefitted properties will be assessed l00% of the 190
Street and Dodd Boulevard roadway costs. Costs associated with the roundabout and
the Holyoke Avenue realignments are proposed to be shared by the City. Detailed
project funding is identified in the draft 2014 -2o18 Capital Improvement Plan.
• When will this project be constructed? Construction is anticipated to begin in the
summer of 2014 and end in the fall of 2014.
Supportinz Information
• A copy of the Agreement for Professional Engineering Services is attached
Zach ohnso
City sneer
G.O. Improvement Bonds -
Financial Impact: $ 180,547.46 Budgeted: Yes Source: Special Assessments
Related Documents (CIP, ERP, etc.): Draft 2014 -2018 Capital Improvement Plan
Notes: Additional funding provided by Municipal State Aid
AGREEMENT FOR
PROFESSIONAL ENGINEERING SERVICES
AGREEMENT made this day of 20 between the CITY OF
LAKEVILLE, a Minnesota municipal corporation, hereinafter called the "OWNER ", and
STONEBROOKE ENGINEERING, INC., a Minnesota corporation, hereinafter called the
"ENGINEER."
1. SCOPE OF SERVICES. The Engineer shall provide professional engineering services for
190' Street Reconstruction (CP 13 -16) project as detailed in this Agreement.
2. PUBLIC IMPROVEMENT PROHEC -T SERVICES OF ENGINEER.
2.1. STUDY AND REPORT PHASE/FEASIBILITY REPORT
2.1.1. Consult with OWNER to clarify and define OWNER'S requirements for the Project,
review available data and attend necessary meetings and be available for general consultation.
2.1.2. Advise OWNER as to the necessity of OWNER'S providing or obtaining from
others data or services of the types described in paragraph 4, and assist OWNER in obtaining such
data and services.
2.1.3. Identify and analyze requirements of governmental authorities having jurisdiction to
approve the design of the Project and participate in consultations with such authorities.
2.1.4. Provide analyses of OWNER'S needs, planning surveys, site evaluations and
comparative studies of prospective sites and solutions.
2.1.5. Provide a general economic analysis of OWNER'S requirements applicable to
various alternatives.
2.1.6. The ENGINEER shall conduct and prepare preliminary studies, layouts, sketches,
preliminary field work, preliminary cost estimates, estimates of assessment rates, and shall assist the
OWNER in obtaining required subsurface investigations as required for the preparation of the
Feasibility Reports. The Feasibility Reports shall conform to the requirements of Minn. Stat.
Chapter 429 if the cost of the project may be assessed in whole or part. The report shall contain
schematic layouts, sketches and conceptual design criteria with appropriate exhibits to indicate
clearly the considerations involved (including applicable requirements of governmental authorities
having jurisdiction as aforesaid) and the alternative solutions available to OWNER and setting forth
ENGINEER'S findings and recommendations. This Report will be accompanied by ENGINEER'S
opinion of probable costs for the Project, including the following which will be separately itemized:
construction cost and indirect cost consisting of engineering costs and contingencies, and (on the
basis of information furnished by OWNER) allowances for such other items as charges of all other
professionals and consultants, for the cost of land and rights -of -way, for compensation for or
damages to properties, for interest and financing charges and for other services to be provided by
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others for OWNER. The total of all construction and indirect costs are hereinafter called "Total
Project Costs ".
2.1.7. Furnish five (5) printed copies of the Study and Report documents and one (1)
electronic file and review them in person with OWNER.
2.1.8. The ENGINEER shall assist with presenting the Feasibility Reports to the proper
reviewing agencies and to the City Council. The ENGINEER shall appear at the public hearing to
present the information.
2.2. PRELIMINARY DESIGN PHASE
2.2.1. In consultation with OWNER and on the basis of the accepted Study and Report
documents, determine the general scope, extent and character of the Project; attend necessary
meetings and be available for general consultation.
2.2.2. Prepare Preliminary Design documents consisting of final design criteria,
preliminary drawings, outline specifications and written descriptions of the Project.
2.2.3. Advise OWNER if additional data or services of the types described in paragraph
4.4 are necessary and assist OWNER in obtaining such data and services.
2.2.4. Based on the information contained in the Preliminary Design documents, submit a
revised opinion of probable Total Project Costs.
2.2.5. Furnish preliminary legal descriptions and exhibits for all permanent and temporary
easements anticipated to construct the Project.
2.2.6. Furnish three (3) copies of the above Preliminary Design documents and one (1)
electronic copy and present and review them in person with OWNER
2.3. FINAL DESIGN PHASE
2.3.1. On the basis of the accepted Preliminary Design documents, the City's design
standards, and the revised opinion of probable Total Project Costs prepare for incorporation in the
Bidding Documents final drawings to show the general scope, extent and character of the work to
be furnished and performed by Contractor(s) (hereinafter called "Plans ") and Specifications.
2.3.2. Provide technical criteria, written descriptions and design data for use in filing
applications for permits with or obtaining approvals of such governmental authorities as have
jurisdiction to approve the design of the Project, and assist OWNER in consultations with
appropriate authorities. The ENGINEER shall submit all applications and permit support data to the
appropriate agencies and submit copies to the OWNER.
2.3.3. Based on property information received from Owner in accordance with Paragraph
4.4, provide legal descriptions and exhibits for all easements, property surveys or related
engineering services needed for the transfer of interests in real property and field surveys for design
purposes and engineering surveys and staking to enable Contractor(s) to proceed with their work.
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2.3.4. Advise OWNER of any adjustments to the latest opinion of probable Total Project
Costs caused by changes in general scope, extent or character or design requirements of the Project
or Construction Costs. Furnish to OWNER a revised opinion of probable Total Project Costs based
on the Plans and Specifications.
2.3.5. Prepare for review and approval by OWNER, its legal counsel and other advisors
contract agreement forms, general conditions and supplementary conditions, and (where
appropriate) bid forms, invitations to bid and instructions to bidders, and assist in the preparation of
other related documents.
2.3.6. Attend necessary hearings and meetings and be available for general consultation.
2.3.'. Furnish three (3) copies of the listed Final Design documents, including the Plans
and Specifications, and present and review them in person with OWNER.
2.3.8. The ENGINEER shall furnish one copy of all design calculations when requested by
OWNER.
2.4. BIDDING OR NEGOTIATING PHASE.
2.4.1. The ENGINEER shall prepare and forward the Advertisement for Bids to the
designated publications, official newspaper and the OWNER. The ENGINEER shall supply up to
thirty (30) sets of full size final Plans and Specifications for use in obtaining bids and submitting for
general review. The ENGINEER shall maintain a record of prospective bidders to whom Bidding
Documents have been issued, attend pre -bid meetings and receive and process deposits for Bidding
Documents.
2.4.2. Prepare Contract Documents.
2.4.3. Issue addenda as appropriate to interpret, clarify or expand the Bidding Documents.
2.4.4. Consult with and advise OWNER as to the acceptability of the prime contractor and
subcontractors, suppliers, and other persons and organizations proposed by the prime contractor(s)
(herein called "Contractor(s) ") for the portions of the work where acceptability is required by the
Bidding Documents.
2.4.5. Consult with and advise OWNER concerning and determining the acceptability of
substitute materials and equipment proposed by Contractor(s) when substitution prior to the award
of contracts is allowed by the Bidding Documents.
2.4.6. Attend the bid opening, prepare bid tabulation sheets and assist OWNER in
evaluating bidder qualifications and recommendations on bids, and in assembling and awarding
contracts for construction, materials, equipment and services.
2.5. CONSTRUCTION PHASE
2.5.1. ENGINEER shall provide construction staking.
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2.6. OPERATIONAL PHASE
2.6.1. Within ninety (90) days after completion of a Project, prepare a set of reproducible
record prints of Dravings and an electronic version that satisfy the City of Lakeville Record
Drawing requirements, attached hereto, showing those changes made during the construction
process, based on the marked -up prints, drawings and other data furnished by Contractor(s) to
ENGINEER and which ENGINEER considered significant. ENGINEER will not be responsible for
any errors or omissions in the information provided by Contractor that is incorporated in the record
drawings and record documents. Final payment will be made only after record drawings are
received by the OWNER.
2.6.2. Assist OWNER in preparation of assessment roll for City improvement projects, and
attend assessment hearings.
3. ADDITIONAL PUBLIC IMPROVEMENT PROJECT SERVICES OF ENGINEER.
3.1. SERVICES REQUIRING ADVANCE AUTHORIZATION. If authorized in writing by
OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed in
paragraphs 3.1.1 through 3.1.12, inclusive.
3.1.1. 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 effect on the design requirements of 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.
3.1.2. Field Services to make measured drawings of or to investigate existing conditions or
facilities, or to verify the accuracy of drawings or other information furnished to OWNER by others,
including surveys to verify location or improve accuracy of record information.
3.1.3. Services resulting from significant changes in the general scope, extent or character
of the Project or its design 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, design documents or Contract Documents when such revisions are required by
changes in laws, rules. regulations, ordinances, codes or orders enacted subsequent to the
preparation of such studies, reports or documents, or are due to any other causes beyond
ENGINEER'S control.
3.1.4. Providing renderings or models for OWNER'S use.
3.1.5. Preparing documents for alternate bids requested by OWNER for Contractor(s)'
work which is not executed or documents for out -of- sequence work.
3.1.6. Investigations and studies involving, but not limited to, detailed consideration of
operations, maintenance and overhead expenses; providing value engineering during the course of
design; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules
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and appraisals; assistance in obtaining financing for the Project; evaluating processes available for
licensing; assisting OWNER in obtaining process licensing; detailed quantity surveys of material,
equipment and labor; and audits or inventories required in connection with construction performed
by OWNER.
3.1.7. Furnishing services of independent professional associates and consultants for other
than Basic Services (which include, but are not limited to, customary civil, structural, mechanical
and electrical engineering and customary architectural design incidental thereto); and providing data
or services of the types described in paragraph 4.4 when OWNER employs ENGINEER to provide
such data or services in lieu of furnishing the same in accordance with paragraph 4.4.
3.1.8. Services during out -of -town travel required of ENGINEER other than visits to the
site or OWNER'S office.
3.1.9. Assistance in connection with bid protests, rebidding or renegotiating contracts for
construction, materials, equipment or services, except when such assistance is required to complete
services called for in paragraph 2.4.
3.1.10. Preparation of operating, maintenance and staffing manuals to supplement Basic
Services.
3.1.11. Preparing to serve or serving as a consultant or witness for OWNER in any
litigation, arbitration or other legal or administrative proceeding involving the Project unless the
ENGINEER is a defendant (except for assistance in consultations which is included as part of Basic
Services.
3.1.12. Additional services in connection with the Project, including services which are to
be furnished by OWNER in accordance with Section 4, and services not otherwise provided for in
this Agreement.
3.2. SERVICES NOT REQUIRING ADVANCE AUTHORIZATION. When required by the
Contract Documents in circumstances beyond ENGINEER'S control, ENGINEER shall furnish or
obtain from others, as circumstances require during construction and without waiting for specific
authorization from OWNER, Additional Services listed in paragraphs 3.2.1 through 3.2.5, inclusive.
These services are not included as part of Basic Services. ENGINEER shall advise OWNER
promptly after starting any such additional services which will be paid for by OWNER.
3.2.1. Services in connection with v,ork directive changes and change orders to reflect
changes requested by OWNER if the resulting change in compensation for Basic Services is not
commensurate with the additional services rendered.
3.2.2. Services in making revisions to Plans and Specifications occasioned by the
acceptance of substitutions proposed by Contractor(s); and services after the award to each contract
in evaluating and determining the acceptability of an unreasonable or excessive number of
substitutions proposed by Contractor.
3.23'. Services resulting from significant delays, changes or price increases occurring as a
direct or indirect result of material, equipment or energy shortages.
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3.2.4. Additional or extended services during construction made necessary by (1) work
damaged by fire or other cause during construction, (2) a significant amount of defective or
neglected work of any Contractor, (3) acceleration of the progress schedule involving services
beyond normal working hours, and (4) default by any Contractor.
3.2.5. Services (other than Basic Services during the Operational Phase) in connection with
any partial use of any part of the Project by OWNER prior to Substantial Completion.
4. OWNER'S PUBLIC IMPROVEMENT PROJECT RESPONSIBILITIES. OWNER
shall do the following:
4.1. Designate in writing a person to act as OWNER'S representative with respect to the services
to be rendered under this Agreement, such person shall have complete authority to transmit
instructions, receive information. interpret and define OWNER'S policies and decisions with respect
to ENGINEER'S services for the Project.
4.2. Provide criteria and 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 design and construction
standards OWNER will require to be included in the Plans and Specifications.
4.3. Assist ENGINEER by placing at ENGINEER'S disposal all available information pertinent
to the Project including previous reports and any other data relative to design or construction of the
Project.
4.4. Furnish to ENGINEER as required for performance of ENGINEER'S Basic Services except
to the extent provided otherwise by attached amendment, the following:
4.4.1. Data prepared by or services of others, including without limitation, borings, and
subsurface explorations, hydrographic surveys, laboratory tests and inspections of samples,
materials and equipment;
4.4.2. Appropriate professional interpretations of all the foregoing;
4.4.3. Environmental assessment and impact statements, if needed;
4.4.4. Property, boundary, easement, right -of -way, topographic and utility surveys;
4.4.5. Property descriptions; and
4.4.6. Zoning, deed and other land use restrictions;
All of which ENGINEER may use and rely upon in performing services under this Agreement.
4.5. Provide engineering surveys or authorize ENGINEER to establish reference points for
construction to enable Contractor(s) to proceed with the layout of the work.
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4.6. Arrange for access to and make all provisions for ENGINEER to enter upon public and
private property as required for ENGINEER to perform services under this Agreement.
4.7. Examine all studies, reports, sketches, Drawings, Specifications, proposals and other
documents presented by ENGINEER. Obtain advice of an attorney, insurance counselor and other
consultants as OWNER deems appropriate for such examination and render in writing decisions
pertaining thereto within a reasonable time so as not to delay the services of ENGINEER.
4.8. Prepare applications and provide support for approvals and permits from all governmental
authorities having jurisdiction over the Project and such approvals and consents from others as may
be necessary for completion of the Project.
4.9. Provide such accounting, independent cost estimating and insurance counseling services as
maybe required for the Project, such legal services as OWNER may require or ENGINEER may
reasonably request with regard to legal issues pertaining to the Project including any that may be
raised by Contractor(s), such auditing service as OWNER may require to ascertain how or for what
purpose any Contractor has used the monies paid under the construction contract, and such
inspection services as OWNER may require to ascertain that Contractor(s) are complying with any
law, rule, regulations, ordinance, code or order applicable to their furnishing and performing the
work.
4.10. If OWNER designates a person to represent OWNER at the site who is not ENGINEER or
ENGINEER'S agent or employee, the duties, responsibilities and limitations of authority of such
other person and the affect thereof on the duties and responsibilities of ENGINEER and the
Resident Project Representative (and any assistants) will be set forth in a supplemental agreement.
4.11. If more than one prime contract is to be awarded for construction, materials, equipment and
services for the entire Project, designate a person or organization to have authority and
responsibility for coordinating the activities among the various prime contractors.
4.12. Furnish to ENGINEER data or estimated figures as to OWNER'S anticipated costs for
services to be provided by others for OWNER so that ENGINEER may make the necessary
findings to support opinions of probable Total Project Costs.
4.13. Attend the pre -bid meeting, bid opening, pre - construction meetings, construction progress
and other job related meetings and substantial completion inspections and final payment
inspections.
4.14. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise
becomes aware of any development that affects the scope of timing of ENGINEER'S services, or
any defect or nonconformance in the work of any Contractor.
4.15. Furnish, or direct ENGINEER to pro-vide, Additional Services as stipulated in paragraph 3.1
of this Agreement or other services as required.
4.16. Require all Private Utilities with facilities in the OWNER'S right of way to:
(a) Locate and mark said utilities upon request;
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(b) Relocate and/or protect said utilities as determined necessary to accommodate the
proposed Work;
(c) Submit a schedule of the necessary relocation/protection activities to the OWNER
for review.
4.17. Bear all costs incident to compliance with the requirements of this Section 4.
5. PERIODS OF PROJECT SERVICE.
5.1. The provisions of Section 6 and the various rates of compensation for ENGINEER'S
services provided for elsewhere in this Agreement have been agreed to in anticipation of the orderly
and continuous progress of the Project through completion of the Construction Phase.
ENGINEER'S obligation to render services hereunder will extend for a period which may
reasonably be required for the design, award of contracts, construction and initial operation of the
Project including extra work and required extensions thereto.
5.2. The services called for in the Study and Report Phase will be completed and the Report
submitted on or before June 1, 2014.
5.3. After acceptance by OWNER of the Study and Report Phase documents indicating any
specific modifications or changes in the general scope, extentt or character of the Project desired by
OWNER, and upon written authorization from OWNER, ENGINEER shall proceed with the
performance of the services called for in the Preliminary Design Phase, and shall submit preliminary
design documents and a revised opinion of probable Total Project Costs within the agreed period.
5.4. After acceptance by OWNER of the Preliminary Design Phase documents and revised
opinion of probable Total Project Costs, indicating any specific modifications or changes in the
general scope, extent or character of the Project desired by OWNER, and upon written authorization
from OWNER, ENGINEER shall proceed with the performance of the services called for in the
Final Dcsign Phase; and shall deliver Contract Documents and a revised opinion of probable Total
Project Costs for all work of Contractor(s) on the Project within the agreed period.
5.5. ENGINEER'S services under the Study and Report Phase, Preliminary Design Phase, and
Final Design Phase, shall each be considered complete when the submissions for that phase have
been accepted by OWNER.
5.6. After acceptance by OWNER of the ENGINEER'S Drawings, Specifications and other
Final Design Phase documentation including the most recent opinion of probable Total Project
Costs and upon written authorization to proceed. ENGINEER shall proceed with performance of the
sen ices called for in the Bidding or Negotiating phase. This Phase shall terminate and the services
to be rendered thereunder shall be considered complete upon commencement of the Construction
Phase or upon cessation of negotiations with prospective Contractor(s).
5.7. The Construction Phase will commence with the execution of the first prime contract to be
executed for the work of the Project or any part thereof, and will terminate upon written
recommendation by ENGINEER of final payment on the last prime contract to be completed.
Construction Phase services may be rendered at different times in respect of separate prime
contracts if the Project involves more than one prime contract.
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5.8. The Operational Phase will commence during the Construction Phase and will terminate
upon the last of the following events: (1) one year after the date of Substantial Completion, as
defined in the Contract Documents, if the last prime contract for construction, materials and
equipment on which substantial completion is achieved; (2) after final payment to the Contractor(s);
(3) after all known issues have been satisfactorily resolved.
5.9. If OWNER requests significant modifications or changes in the general scope, extent or
character of the Project, the time of performance of ENGINEER'S services shall be adjusted
equitably.
5.10. OWNER shall give prompt authorization to proceed or not proceed with any phase of
services after completion of the immediately preceding phase.
5.11. In the event that the work designed or specified by ENGINEER is to be furnished or
performed 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 and Construction Phases in order to sequence and coordinate properly such services as
are applicable to the work under such separate contracts.
6. PAYMENTS TO ENGINEER.
6.1. PAYMENT. For services required under this Agreement and Optional Service ENGINEER
will be paid on an hourly basis in accordance with Exhibit "A" attached hereto with a
maximum not to exceed cost of $150,947.34, inclusive of taxes and expenses, for required
services, and $29,600.12 for Optional Services, if requested by Owner, inclusive of taxes
and expenses. These not to exceed costs shall not be adjusted even if the estimated
number of hours to perform a task, the estimated number of meetings, or any other matter
is exceeded.
6.2. OTHER PROVISIONS CONCERNING PAYMENTS.
6.2.1. If OWNER fails to make any payment due ENGINEER for services and expenses
within thirty five (35) days after receipt of ENGINEER'S statement therefor, the amounts due
ENGINEER will be increased at the rate of one -half percent (1/2 %) per month from said thirtieth
day, and in addition, ENGINEER may, after giving seven (7) days' written notice to OWNER,
suspend services under this Agreement until ENGINEER has been paid in full all amounts due for
services, expenses and charges.
6.2.2. In the event of termination by OWNER under paragraph 8.2 upon the completion of
any phase of the Basic Services, progress payments due ENGINEER for services rendered through
such phase shall constitute total payment for such services. In the event of such termination by
OWNER during any phase of the Basic Services, ENGINEER will be paid for services actually and
necessarily rendered during that phase by ENGINEER'S principals and employees engaged directly
on the Project, on the basis of ENGINEER'S Hourly Costs based upon the fee schedule on file with
the City.
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In the event of any such termination, ENGINEER also will be reimbursed for the reasonable
charges of independent professional associates and consultants employed by ENGINEER to render
Basic Services, and paid for all unpaid Additional Services and unpaid reimbursables.
6.2.3. Records of ENGINEER'S time pertinent to ENGINEER'S compensation under this
Agreement will be kept in accordance with generally accepted accounting principles. Copies will be
made available to OWNER at cost on request prior to final payment for ENGINEER'S services.
6.2.4. ENGINEER shall comply with Minnesota Statute § 471.425. ENGINEER must pay
Subcontractor for all undisputed services provided by Subcontractor within ten (10) days of
ENGINEER'S receipt of payment from OWNER. ENGINEER must pay interest of one and five -
tenths percent (1.5 %) per month or any part of a month to Subcontractor on any undisputed amount
not paid on time to Subcontractor. The minimum monthly interest penalty payment for an unpaid
balance of One Hundred Dollars ($100) or more is Ten Dollars ($10).
7. CONSTRUCTION COST AND OPINIONS OF COST.
7.1. CONSTRUCTION COST. The construction cost of the entire Project (herein referred to as
"Construction Cost ") means the total cost to OWNER of those portions of the entire Project
designed and specified by ENGINEER, but it will not include indirect costs such as ENGINEER'S
compensation and expenses, the cost of land, rights -of -way, or compensation for or damages to,
properties unless this Agreement so specifies, nor will it include OWNER'S 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
paragraph 4. (Construction Cost is one of the items comprising Total Project Cost which is defined
in paragraph 2.1.6).
7.2. OPINIONS OF COST. 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'S opinions of probable Total Project
Costs and 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 engineer, familiar with the construction industry; but ENGINEER cannot and
does not guarantee that proposals, bids or actual Total Project or Construction Costs will not vary
from opinions of probable cost prepared by ENGINEER.
8. GENERAL.
8.1. INDEPENDENT CONTRACTOR. The City hereby retains the Engineer as an independent
contractor upon the terms and conditions set forth in this Agreement. The Engineer is not an
employee of the City and is free to contract with other entities as provided herein. Engineer shall be
responsible for selecting the means and methods of performing the work. Engineer shall furnish
any and all supplies, equipment, and incidentals necessary for Engineer's performance under this
Agreement. City and Engineer agree that Engineer shall not at any time or in any manner represent
that Engineer or any of Engineer's agents or employees are in any manner agents or employees of
the City. Engineer shall be exclusively responsible under this Agreement for Engineer's own FICA
payments, workers compensation payments, unemployment compensation payments, withholding
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amounts, and/or self - employment taxes if any such payments, amounts, or taxes are required to be
paid by law or regulation.
8.2. TERMINATION. OWNER may terminate this Agreement and any Supplemental
Agreement without cause by written notice delivered to the ENGINEER. Upon termination
under this provision if there is no fault of the ENGINEER, the ENGINEER shall be paid for
services rendered and reimbursable expenses until the effective date of termination. If however,
the OWNER terminates the Agreement because the ENGINEER has failed to perform in
accordance with this Agreement, no further payment shall lie made to the ENGPIEER, and the
OWNER may retain another contractor to undertake or complete the work identified in the
Contract Documents. If as a result, the OWNER incurs total costs for the work (including
payments to both the present contractor and a future contractor) which exceed the not to exceed
amount specified in the Contract Documents, if any, then the ENGINEER shall be responsible
for the difference between the cost actually incurred and the Agreement amount.
8.3. DOCUMENTS. All documents including Plans and Specifications prepared or furnished by
ENGINEER (and ENGINEER'S independent professional associates and consultants) pursuant to
this Agreement are instruments of service in respect of the Project and the OWNER will be
provided with information and reference in connection with the use and occupancy of the Project by
OWNER and others; however, 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. Any reuse without
written verification or adaptation by ENGINEER for the specific purpose intended will be at
OWNER'S sole risk. If the OWNER or ENGINEER terminates this Agreement, copies of all files,
records, and drawings in ENGINEER'S possession relating to service performance for OWNER
shall be turned over to OWNER without cost to OWNER.
8.4. MINNESOTA GOVERNMENT DATA PRACTICES ACT. The ENGINEER must
comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it
applies to (1) all data provided by the City pursuant to this Agreement, and (2) all data, created,
collected, received, stored, used, maintained, or disseminated by the ENGINEER. pursuant to this
Agreement. The ENGINEER is subject to all the provisions of the Minnesota Government Data
Practices Act, including but not limited to the civil remedies of Minnesota Statutes Section 13.08, as
if it were a government entity. In the event the ENGINEER receives a request to release data, the
ENGINEER must immediately notify the OWNER. The OWNER will give the ENGINEER
instructions concerning the release of the data to the requesting party before the data is released and
the ENGINEER will be reimbursed as Additional Public Improvement Services by OWNER under
Paragraph 3.1 for ENGINEER'S reasonable costs in complying with a request to release data.
ENGINEER agrees to defend, indemnify, and hold the OWNER, its officials, officers, agents,
employees, and volunteers harmless from any claims resulting from ENGINEER'S officers',
agents', owners', partners', employees', volunteers', assignees' or subcontractors' unlawful
disclosure and/or use of protected data. The terms of this paragraph shall survive the cancellation or
termination of this Agreement.
8.5. INSURANCE
8.5.1. ENGINEER shall secure and maintain such insurance as will protect ENGINEER
from claims under the Worker's Compensation Acts, automobile liability, and from claims for
Doc. #173815v.2 11
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bodily injury, death, or property damage which may arise from the performance of services under
this Agreement. Such insurance shall be written for amounts not less than:
Commercial General Liability $1,000,000 each occurrence/aggregate
Automobile Liability $2,000,000 combined single limit
Excess/Umbrella Liability $1,000,000 each occurrence /aggregate
The OWNER shall be named as an additional insured on the general liability and umbrella policies
on a primary and non - contributory basis. That part of the Excess/Umbrella Liability Insurance limit
in excess of the required Excess/Umbrella coverage may be utilized to supplement and meet the
required limits for Commercial General and Automobile Liability Insurance.
8.5.2. Professional Liability Insurance. The ENGINEER shall secure and maintain a
professional liability insurance policy. Said policy shall insure payment of damages for legal
liability arising out of the performance of professional services for the OWNER, in the insured's
capacity as ENGINEER, if such legal liability is caused by a negligent act, error or omission of the
insured or any person or organization for which the insured is legally liable. Said policy shall
provide minimum limits of $1,000,000 with a deductible maximum of $50,000 unless the OWNER
agrees to a high deductible.
8.5.3. Before commencing work the ENGINEER shall provide the OWNER a certificate
of insurance evidencing the required insurance coverage in a form acceptable to OWNER. The
certificate shall provide that such insurance will not be canceled, materially changed, or renewal
refused until at least 10 days prior written notice has been given to ENGINEER and OWNER in
the case of cancellation due to non - payment of premium and at least 30 days prior written notice
for any other reason, or such longer notification periods as may be required by statute. Within
three days of receipt of such written notice, ENGINEER shall provide a copy of the notice to
OWNER.
8.6. INDEMNIFICATION. The ENGINEER agrees, to the fullest extent permitted by law, to
indemnify and hold OWNER harmless from any damage, liability, or cost (including reasonable
attorney's fees and costs of defense) to the extent caused by ENGINEER's acts, errors, or omissions
in the performance of professional services under this Agreement and those of his or her
subcontractors or anyone for whom the ENGINEER is liable.
8.7. PROFESSIONAL STANDARDS. ENGINEER shall exercise the same degrees of care,
skill, and diligence in the performance of the Services as is ordinarily possessed and exercised by a
professional engineer under similar circumstances. No other warranty. expressed or implied, is
included in this Agreement. ENGINEER shall comply with applicable laws, statutes, ordinances,
and regulations and the OWNER's mandated standards that OWNER has provided ENGINEER in
writing. OWNER shall not be responsible for discovering deficiencies in the accuracy of
ENGINEER'S services.
8.8. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to
give any rights to anyone other than OWNER and ENGINEER.
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8.9. CONTROLLING LAWNENUE. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without giving effect to the principles of
conflict of laws. All proceedings related to this contract shall be venued in the Dakota County
District Court.
8.10. SUCCESSORS AND ASSIGNS
8.10.1. OWNER and ENGINEER each is hereby bound and the partners, successors,
executors, administrators and legal representatives 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.
8.10.2. Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under
or interest in (including, but without limitation, monies that may become due or monies that are
due) this Agreement without the written consent of the other, except to the extent that any
assignment, subletting or transfer is mandated by law or the effect of this limitation may be
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. Nothing contained in this paragraph shall prevent ENGINEER from employing such
independent professional associates and consultants as ENGINEER. may deem appropriate to assist
in the performance of services hereunder.
8.10.3. Nothing under this Agreement shall be construed to give any rights or benefits in
this Agreement to anyone other than OWNER and ENGINEER, and all duties and responsibilities
undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the OWNER and
ENGINEER and not for the benefit of any other party.
8.11. PROMPT PAYMENT TO SUBCONTRACTORS. Pursuant to Minn. Stat. §471.25,
Subd. 4a, the Contractor must pay any subcontractor within ten (10) days of the Contractor's
receipt of payment from the City for undisputed services provided by the subcontractor. The
Contractor must pay interest of 1% percent per month or any part of the month to the
subcontractor on any undisputed amount not paid on time to the subcontractor. The minimum
monthly interest penalty payment for an unpaid balance of $100.00 or more is $10.00. For an
unpaid balance of less than $100.00, the Contractor shall pay the actual penalty due to the
subcontractor. A subcontractor who prevails in a civil action to collect interest penalties from
the contractor shall be awarded its costs and disbursements, including attorney's fees, incurred in
bringing the action.
8.12. COPYRIGHT/PATENT INFRINGEMENT. ENGINEER shall defend actions or claims
charging infringement of any copyright or patent by reason of the use or adoption of any designs,
Drawings or Specifications supplied by it, and it shall hold harmless the OWNER from loss or
damage resulting there from.
8.13. 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.
Doc. #173815v.2 13
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8.14. SURVIVAL. All express representations, waivers, indemnifications, and limitations of
liability included in this Agreement will survive its completion or termination for any reason.
8.15. 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.
8.16. WAIVER. A paiVs 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.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the
day and year first above written.
OWNER:
CITY OF LAKE VILLE
BY:
Matt Little, Mayor
AND
Charlene Friedges, City Clerk
ENGINEER:
STONEBROOKE ENGINEERING, INC.
BY:
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Doc. #173815v.2 14
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