CCR1991069COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #69-91
AUTHORIZE EXECUTION OF AGREEMENT FOR
ENGINEERING SERVICES
(Guernsey Meadows and Kristin Down)
(Renovate Well Pumpstations)
WHEREAS, City Engineers Ruekert & Mielke, Inc., submitted to the
City of Muskego an Agreement for Engineering Services to modify
Guernsey Meadows and Kristin Down well pumpstations, and
the piping, pump controls and chemical addition equipment at the
1 WHEREAS, the Public Utilities Committee has recommended approval of the Agreement.
NOW, THEREFORE, BE IT RESOLVED that the Common Council of the
City of Muskego, upon the recommendation of the Public Utilities
Committee, does hereby approve the Agreement for Professional
Services between Ruekert & Mielke, Inc., and the City of Muskeqo
as attached.
0 DATED THIS 26TH DAY MARCH , 1991.
PUBLIC UTILITIES COMMITTEE
Ald. Daniel J. Hilt
Ald. William T. Simmons
Ald. David J. Sanders
ATTEST :
City Clerk
3 19 lcac
AGREEMENT FOR PROFESSIONAL SERVICES
THIS IS AN AGREEMENT made as of March 11, 1991, between the City of Muskego, hereinafter referred to as the OWNER and Ruekert & Melke, Inc, hereinafter referred to as the ENGINEER. OWNER intends to modify the piping, ump controls and chemical addition e uipment at the Guernsey Meadows and tm Downs well pumpstations herein er called the Project.
OWNER and ENGINEER in consideration of their mutual menants herein agree in respect of the performance of rofessional en eering services by ENGINEER and the payment €or those services by 8 WNER as set P orth below.
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SECTION 1 - BASIC SERVICES OF ENGINEER
1.1 GENERAL
1.1.1. ENGINEER shall provide €or OWNER professional engineering services in all phases of the Project to which this A eement applies as hereinafter provided. These services will include serving as 0 & R'S professional engineering consultant and advisor and furnishing customary civil, structural, mechanical and electrical engineering services and customary architectural services incidental thereto.
1.2 PRELIMINARY DESIGN PHASE.
After written authorization to proceed with the Preliminary Design Phase, ENGINEER shak
1.2.1. In consultation with OWNER determine the general scope, extent and character of the Project.
preliminary drawings, outline specifications and written descnptions of the Project. 1.2.2. Prepare Preliminary Design documents consisting of Enal design criteria,
1.23. Advise OWNER if any additional data or services of the types described in paragraph 3.4 are necessary and assist OWNER in obtaining such data and services.
1.2.4. Based on the information contained in the preliminary design documents, submit an opinion of probable Total Project Costs.
1.25. Furnish five copies of the above Preliminary Design documents and present and review them in person with OWNER.
The duties and responsibilities of WGINEER during the Preliminary Design Phase are amended and supplemented as indicated in paragraph 2 of Wait A ''Further Description of Basic Engineering Services and Related Matters".
1.3 FINAL DESIGN PHASE.
After written authorization to proceed with the Final Design Phase, ENGINEEX shall.
1.3.1. On the basis of the accepted Preliminary Design documents and the opinion of probable Total Proiect Costs Dreoare for incornration in the Contract Documents iinal .-
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drawings to show the general scope, extent and character of the work to be furnished and performed by Contractor(s) (hereinafter called "Drawings") and Specifications.
1.3.2. Provide technical criteria, written descriptions and design data for OWNER'S use in filing a plications for permits with or obtaining approvals of such governmental authorities as R ave jurisdiction to approve the design of the Project, and assist OWNER
in consultations with appropriate authorities.
1.3.3. Advise OWNER of any adjustments to the latest opinion of probable Total Project Costs caused by changes m general scope, extent or character or design requirements of the Project or Construction Costs. Furnish to OWNER a revised
opmion of probable Total Project Costs based on the Drawings and Specifications.
1.3.4. Prepare for review and approval by OWNER, its legal counsel and other advisors contract agreement forms, eeneral conditions and supplementary conditions, and (where appropriate) bid forms, mvitations to bid and instructions to bidders and
assist in the preparation of other related documents.
Specifications and present and review them in person with OWNER.
1.3.5. Furnish five copies of the above documents and of the Drawings and
The duties and responsibilities of ENGINEER during the Fmal design Phase are amended and supplemented as indicated in paragraph 3 of Exhibit A "Further Description of Basic Engineering Senices Related Matters".
1.4 BIDDING OR NEGOTIATING PHASE.
After written authorization to proceed with the Bidding or Negotiating Phase, ENGINEER shall:
1.4.1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for
where applicable, maintain a record of prospective bidders to whom Bidding Documents each separate prime contract for construction, materials, equipment and S~MC~S; and,
have been issued, attend pre-bid conferences and receive and process deposits for
Bidding Documents.
1.4.2 Issue addenda as appropriate to interpre; clariQ or expand the Bidding Documents.
1.4.3. Consult with and advise OWNER as to the acceptability of subcontractors,
suppliers and other persons and organizations proposed by the prime contractor(s)
(herein called "Contractor(s)" for those portions of the work as to which such acceptability is required by the B idding Documents.
1.4.4. Consult with OWNER concerning, and determine the acceptability of substitute materials and equipment pro osed by Contractor(s) when substitution prior to the award of contracts is allowed by the \ idding Documents
1.45. Attend the bid opening, prepare bid tabulation sheets and assist OWNER in
evaluating bids or proposals and in assembling and awarding contracts for construction,
materials, equipment and services.
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1.5 CONSTRUCTION PHASE.
During the Construction Phase:
1.5.1. ENGINEER shall consult with and advise OWNER and act as OWNERS representative as provided in Articles 1 through 16, inclusive, of the General Conditions
of the Construction Contract. The extent and limitations of the duties, res onsibilities and authority of ENGINEER as assigned in said General Conditions s alI not be modified except as ENGINEER may othenvise a ee in writing. All of OWNERS
instructions to Contractor s will be issued through &GINEER who will have authority to act on behalf of 0 dd to the extent provided in said General Conditions except as othenvise provided in writing.
progress: 1.5.2. In connection with observations of the work of Contractor(s) while it is in
stages of construction as ENGINEER deems necessary in order to observe as an 1.5.21. ENGINEER shall make visits to the site at intervals appropriate to the various
experienced and qualified design professional the progress and quality of the various aspects of Contractor s work. Based on information obtained during such +kits and on such observations, E Ad INEER shall endeavor to determine in eneral if such work is proceeding in accordance with the Conmct Documents and &GINEER shall keep OWNER informed of the progress of the work.
1.5.22. The purpose of ENGINEER’S visits to the site will be to enable ENGINEER to better carry out the duties and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by exercise of ENGINEER’S efforts as an experienced and qualified design professional, to provide for OWNER greater degree of confidence that the completed work of Contractor(s) will conform generally to the Contract Documents and that the integrity of the design concept as reflected in the Contract documents has been implemented and preserved by
Contractor(s). On the other hand, ENGINEER shall not, during such visits or as a result
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of such observations of work in progress, supervise, direct or have control
over Contractor(s)’ shall not have authority over or responsibility for
Contractor(s), for safety precautions and programs incident to the work of the means, methods, techniques, sequences or procedures of construction selected
for any failure of Contractor(s) to comply with laws, rules, regulations, ordinances, codes or orders a pliable to Contractor(s) furnishing and performing their work. Accordingly, ENGd can neither guarantee the performance of the construction contracts by Contractor(s) nor assume responsibility for Gmtractor(s)’ failure to furnish and perform their work in accordance with the Contract Documents.
1.5.3. During such visits and on the basis of such observations, ENGINEER may disapprove of or reject Contractor(s)’ work while it is in progress if ENGINEER believes
that such work will not produce a completed Project that conforms generally to the Contract Documents or that it will prejudice the integrity of the design concept of the
Project as reflected in the Contract Documents.
1.5.4. ENGINEER shall issue necessary interpretations and clarifications of the Contract Documents and in connection therewith prepare work directive changes and change orders as required.
respect 00 Shop Drawings (as that term is defined in the aforesaid Standard General 15.5. ENGINEER shall review and approve (or take other appropriate action in
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Conditions), samples and other data which Contractor(s) are required to submit, but only for conformance with the design concept of the Project and compliance with the information given in the Contract Documents. Such reviews and approvals or other
action shall not extend to means, methods, techniques, sequences or procedures of
construction or to safety precautions and programs inadent thereto.
15.6. ENGINEER shall evaluate and determine the acceptability of substitute materials and equipment proposed by Contractor(s), but subject to the provision of paragraph 2.2.2.
1.5.7. ENGINEER shall have authority, as OWNER'S representative, to require special inspection or testing of the work, and shall receive and review all certiiicates of
orders or the Contract Documents (but only to determine generally that their content inspections, testings and approvals required by laws, rules, regulations, ordinances, codes,
complies with the re uirements of, and the results certified indicate compliance with, the
Contract Documents?.
1.5.8. ENGINEER shall act as initial interpreter of the requirements of the Contract
Documents and jud e of the acceptability of the work thereunder and make decisions on
all claims of OWN& and Contractor(s relating to the acceptability of the work or the
interpretation of the requirements o d the Contract Documents pertaining to the execution and progress of the work. ENGINEER shall not be liable for the results of any such interpretations or decisions rendered in good faith.
1.5.9. Based on ENGINEER'S on-site observations as an experienced and qualified design professional and on review of applications for payment and the accompanying
data and schedules:
1.5.9.1. ENGINE= shall determine the amounts owing to Contractor(s) and recommend in writing payments to Contractor(s) in such amounts. Such recommendations of payment will constitute a representation to OWNER, based on such observations and review, that the work has progressed to the point indicated, and that, to the best of ENGINEER'S knowledge, information and beliec the quality of such work is generally in accordance with the Contract Documents (subject to an evaluation of such
work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests ded for m the Contract Documents and to any other ualifications
stated in the recommendation). In the me of unit price work, & GINEER's recommendations of payment will include final deterrmnations of quantities and classifications of such work (subject to any subsequent adjustments allowed by the
Contract Documents).
1.5.9.2 By recommending any payment ENGINEER will not thereby be deemed to have represented that exhaustive, continuous or detailed reviews or examinations have been
made by ENGINEER to check the quality or quantity of Contractor(s)' work as it is furnished and performed b ond the responsibiliaes s 135 assiped to ENGINEER
work for the purposes of recommending payments will not impose on ENG responsibility to supervise, direct or control such work or for the means, methods, techniques, sequences, or procedures of construction or safely precautions or programs incident thereto to Contractor(s) compliance with laws, rules, regulations, ordinances, codes or orders applicable to their furnishing and performing the work It will also not
impose responsibili on ENGINEER to make any examination to ascertain how or for what purposes any z ontractor has used the means paid on account of the Contract Price, or to determine that title to any of the work, materials or equipment has passed to
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in this Agreement and the 8 ntract Documents. EN e.9 INEER s mew of
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OWNER free and clear of any lien, claims, security interests or encumbrances, or that there may not be other matters at issue between OWNER and CONTRAmOR that
might affect the amount that should be paid.
1.5.10. ENGINEER shall receive and review maintenance and operating instructions, schedules, guarantees, bonds and certificates of inspection, tests and approvals which are to be assembled by Contractor(s) in accordance with the Contract Documents (but such review will only be to determine that their content complies with the requirements o& and in the case of certificates of ins ection, tests and approvals the results certified indicate compliance with, the Contract b ocuments); and shall transmit them to OWNER with written comments.
1.5.11. ENGINEER shall conduct an inspection to determine if the work is substantidy com lete and a find inspection to determine if the completed work is acceptable so that EN8INEER may recommend, in writing, final ayment to Contractor(s) and may give mitten notice to OWNER and the Contractor(s7 that the work is acceptable (subject to any conditions therein expressed), but any such recommendation and notice will be subject to the limitations expressed in paragraph 1.5.9.2
1.5.12. ENGINEER shall not be responsible for the acts or omissions of any Contractor,
suppliers agents or employees or any other persons (except ENGINEER'S own
or of any subcontractor or supplier, or any of the Contractor(s)' or subcontractor's or
employees and agents) at the site or otherwise furnishing or erformin any of the Contractor(s)' work; however, nothin contained in paragraphs 1.h thru 1.h1 inclusive, shall be construed to release ENG d EER from liability for failure to properly perform duties and responsibilities assumed by ENGINEER in the Contract Documents.
a 1.6. OPERATIONAL PHASE.
During the Operational Phase, ENGINEER shall, when requested by OWNER
Project. 1.6.1. Provide assistance in the closing of any financial or related transaction for the
1.6.2. Provide assistance in connection with the refining and adjusting of any equipment or system.
The duties and res onsibilities of ENGINEER during the Operational Phase are amended and supp P emented as indicated in paragraph 6 of Exhibit A "Further Description of Bas~c Engineering Services and Related Matten".
SECTION 2 - ADDITIONAL SERVICES OF ENGINEER
2.1. SERVICES REQUIRING AUTHORIZATION W ADVANCE.
If authorized in writin by OWNER, ENGINEER shall furnish or obtain from others Additional Services o I! the types listed in paragraphs 2.1.1 through 2.1.17, inclusive. These services are not included as part of Basic Services except to the extent provided otherwise in Exhibit A "Further Descri tion of Basic Engineering Services and Related Matters"; these wiU be paid for by 0 & R as indicated in Section 5.
21.1. Preparation of applications and supporting documents (in addition to those furnished under Basic Semces) for private or governmental grants, loans or advances in m
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connection with the Project; preparation or review of environmental assessments and
Project of any such statements and documents prepared by others; and assistance in
impact statements; review and evaluation of the effect on the design requirements of the
obtaining approvals of authorities having jurisdictlon over the anticipated environmental impact of the Project.
2.1.2 Services to verify the accuracy of drawings or other information furnished by OWNER.
21.3. 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 law, rules, regulations, ordinances, codes or orders enacted subsequent to the pre aration of such studies, reports or documents, or are due to any other causes beyond E 8 GINEERs control.
2.1.4. Providing renderings or models for OWNERS use.
2.1.5. Preparing documents for alternate bids requested by OWNER for
Contractor(s)’ work which is not executed or documents for out-of-sequence work.
2.1.6. Investigations and studies involving, but not limited to, detailed consideration of operations, maintenance and overhead expenses; providing value eering during the
course of design; the preparation of feasibility studies, and economic
evaluations, rate schedules and appraisals; assistance in obtainin financing for the
Project; evaluating processes available for licensing and assisting 0 kNER in obtaining process licensing; detailed quantity surveys of material, equipment and labor; and audits or inventories required in connection with construction performed by OWNER.
21.7. Furnishing services of independent professional associates and c~nsultants 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 descriied in paragraph 3.4
when OWNER employs ENGINEER to provide such data or services in lieu of furnishing the same in accordance with paragraph 3.4.
21.8. Services resulting from the award of more separate prime contracts for construction, materials or equipment for the Project than are contemplated by paragraph
5.1.1.3.2.
21.9. Services during out-of-town travel required of ENGINEER other than visits to the site or OWNER’S office as required by Section 1.
21.10. 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 6.225.
21.11. Providing any type of property surveys or related engineerin services needed for the transfer of interests in real property, and providing other special !I eld surveys.
21.12. Preparation of operating, maintenance and stafEng manuals.
2.1.13. Assist OWNER in tIaining OWNERS staff to operate and maintain the Projet%
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a 21.14. Assist OWNER in developing systems and procedures for control of the operation and maintenance of and record keeping for the Project.
21.15. Prepare a set of reproducible record prints of Drawings showing those changes made during the construcfion process, based on the marked-u prints, drawings .and other data furnished by Contractor(s) to ENGINEER and which e, NGINEER considers significant.
21.16. 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 (except for assistance in consultations which is included as part of Basic Services under paragraph 1.3.2.).
21.17. Additional services in connection with the Project, including services which are to be furnished by OWNER in accordance with Article 3, and services not otherwise
provided for in this Agreement.
22 REQUIRED ADDITIONAL SERVICES.
When required b the Contract Documents in circumstances beyond ENGINEERS controI, ENGINE& shall furnish or obtain from others, as circumstances require during construction and without waiting for specific authorization from OWNER, Additional Services of the types listed in aragraphs 221 through 226, inclusive (except to the extent otherwise provided in !&hikit A "Further Description of Basic Engineering Services and Related Matters"). 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 as mdicated in Section 5.
221. Services in connection with work 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.
222 Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitutions proposed by Contractor(s); and services after the award of each contract in evaluating and determining the acceptability of an unreasonable or excessive number of substitutions proposed by Contractor.
2.23. Services resulting from significant delays, changes or price increases occurring as
a direct or indirect result of material, equipment or energy shortages.
224. Additional or extended services during constmction 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.
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225. Services (other than Basic Services during the Operational Phase) in connection
with any partial utilization of any part of the Project by OWNER prior to Substantial Completion.
226. Evaluating an unreasonable or extensive number of claims submitted by contractor(s) or others in connection with the work.
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SECTION 3 - OWNER'S RESPONSIBLlTIFS
Owner shall do the following in a timely manner so as not to delay the services of ENGINEER
3.1. Designate in writing a penon to act as Oms representative with respect to the services to be rendered under this Agreement. Such person shall have corn lete authority to transmit instructions, receive information, inte ret and define 0 policies and decisions with respect to ENGINEER'S services or the Project
3.2 Provide all criteria and full information as to OWNERS requiremenu for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budge limitations; and furnish copies of all design and construction standards which 0 % a require to be included in the Drawings and Specifications.
3.3. 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.
3.4. Furnish to ENGINEER, as required for performance of ENGINEERS Basic Services (except to the extent provided otherwise m Erhlbit A "Further Description of Basic Engineering Senices and Related Matters"), the following:
probings and subsurface explorations, hydrographic surveys, laboratory tests and
3.4.1. Data prepared by or services of others, including without limitation borings,
lnspections of samples, materials and equipment;
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0 3.4.2. Appropriate professional interpretations of all of the foregoing,
3.4.3. Environmental assessment and impact statements;
3.4.4. Property, boundary, easement, right-of-way, topographic and utility surveys;
3.4.5. Property descriptions;
3.4.6. Zoning, deed and other land use restriction; and
ENGINEER may use and rely upon in performing services under this Agreement. 3.4.7. Other special data or consultations not covered in Section 2; all of which
public and private property as required for EkGINEER to perform services under this 35. Arrange for access to and make all rovisions for ENGINEER to enter upon
Agreement.
3.6. Examine all studies, reports, sketches, Drawings, Specifications, proposals and
counselor and other consultants as OWNER deems appropriate for such examination other documents presented by ENGINEER, obtain advice of an attorney, insurance
and render in writin decisions ertaining thereto within a reasonable time so as not to
delay the services of kNGINEE8.
3.7. Furnish apprwals 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 e
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a services as ma be required for the Project, such legal services as OWNER may require 3.8. Provide such accounting, independent cost estimating and insurance counseling
or ENGINEE K may reasonably request with regard to le al issues pertaining to the Project including any that may be raised by Cootractor(sf, such auditing services as OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contraa and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or other applicable to their furnishing and performing the work.
3.9. If OWNER desi ates a person to represent OWNER at the site who is not
ENGINEER or ENGSERS agent or employee, the duties, responsibilities and limitations of authori of such other person and the affect thereof on duties and responsibilities of EN 8 INEER will be set forth in an &%it that is to be identified, attached to and made a part of this Agreement before such services begin.
3.10. 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 activiues among the various prime contractors.
3.11. Furnish to ENGINEER data or estimated fi es as to OWNER’S anticipated costs for services to be provided by others for O& such as services pursuant to aragraphs 3.6 through 3.10, inclusive) so that ENGINE L R may make the necessary &dings to support opmions of probable Total Project Costs.
3.12. Attend the pre-bid conference, bid opening, pre-construction conferences, construction progress and other job related meetings and substantial completion inspections and ha1 payment inspections.
3.13. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of any development that a€fecu the sco e or timing of ENGINEER’S services, or any defect or non-conformance in the work o P any Contractor.
3.14. Furnish, or direct ENGINEER to provide, Additional Services as stipulated in paragraph 2.1 of this Agreement or other services as required.
3.15. Bear all costs incident to compliance with the requirements of this Section 3.
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SECTION 4 - PERIODS OF SERVICE,
4.1. The provisions of this Section 4 and the various rates of compensation for ENGINEERS services provided for elsewhere in this Agreement have been agreed to in
antici ation of the orderly and continuous progress of the Project through completion of the 8 onstruction 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 o eration of the Project including extra work and required
extensions thereto. If in Ribit A “Further Description of Basic Engineering Services
and Related Matters” specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided and if such dates are exceeded through no fault of ENGINEER, all rates, measures and amounts of compensation provided herein shall be subject to equitable adjustment.
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4.2 U on written authorization from OWNER which will be given within thmy days after EN 8 INEER has signed this Agreement, ENGINEER shall proceed with the performance of the services called for in the Preliminary Design Phase, and shall submit preliminary design documents and an opinion of probable Total Pro'ect Costs within the stipulated period indicated in para ph 2 of &>it A 'Turther bescription of Basic Engineering Services and Related d%ers".
4.3. After acceptance by OWNER of the Preliminary Design Phase documents and opinion of probable Total Project Costs, indicating any specific modifications or changes
written authorizatlon from OWNER, ENGINEER shall proceed with the performance in the general scope, extent or character of the Project desired by OWNER, and upon
of the services called for in the Final Design 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 stipulated period indicated in para ph 3 of Exhibit A "Further Description of Basic Engineering Services and Related bF atters".
4.4. ENGINEERS services under the Preliminary Design Phase and Final Design Phase shall each be considered complete at the earlier of (1) the date when the submissions for that phase have been accepted by OWNER or (2) thiny days afier the date when such submissions are delivered to OWNER for final acceptance, plus in each case such additional time as may be considered reasonable for obtaining approval of governmental authorities having jurisdiction to approve the design of the Projed
4.5. After acceptance by OWNER of the ENGINEER'S Drawings, Specifications and other Final Design Phase documentation including the most reeent opinion of
probable Total Project Costs and upon written authorintion to roceed, ENGINEER shall proceed with performance of the services called for in the I! idding 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 (except as may otherwise be required to complete the services called for in paragraph 2 22.5).
4.6. The Construction Phase will commence with the execution of the first prime contract to be executed for the work of the Pro'ect or any part thereof, and will terminate upon written recommendation by ENGdR of hnal payment on the 1as:lfprime contract to be completed. Construction Phase services may be rendered at erent times in respect of separate prime contracts if the Project invoives more than one prime contract
4.7. The Operational Phase will commence during the Construction Phase and will terminate one year after the date of Substantial Completion of the last prime contract for construction, materials and equipment on which substantial completion is achieved.
scope, extent or character of the Projecf the time of performance of ENG 4.8. If OWNER has requested significant modifications or changes in the eneral
services shall be adjusted equitably.
4.9. If OWNER fails to give rompt written authorization to proceed with any phase
of services after completion of J e immediately preceding phase, or if the Construction Phase has not commenced within 180 calendar days (plus such additional time as may be required to complete the services called for under paragraph 6.2.25) after completion of
the Final Design Phase, ENGINEER may, after giving seven days' written notice to OWNER, suspend services under this Agreement.
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4.10. If ENGINEER'S services for design or during construction of the project are a delayed or suspended in whole or in part for more than three months for reasons beyond ENGINEER'S control, shall on written demand to
OW"NER (but without termination of this paid as provided in paragraph 5.3.2. If such delay or suspension one year for reasons beyond
ENGINEER'S control, or if ENGINEER for any reason is required to render Construction Phase services in respect of any prime contract for construction, materids or equipment more than one year after Substantial Completion is achieved under that
shall be subject to equitable adjustment.
contrach the various rates of compensation provided for elsewhere in this Agreement
4.11. 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-traclang), 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. This schedule is to be prepared whether or not the work under such contracts is to proceed concurrently and is to be included in Exhiiit A "Further Description of Basic Engineering Services and Related Matters", and the provisions of paragraphs 4.3 through 4.9 inclusive, will be modified accordingly.
SECTION 5 - PAYMENTS TO ENGMEER
ENGINEER. 5.1 METHODS OF PAYMENTS FOR SERVICES AND EXPENSES OF
0 5.1.1. For Basic Services. OWNER shall pay ENGINEER for Basic Services rendered under Section 1 as follows:
5.1.1.1. An amount equal to ENGINEER'S current hourly rates for all Basic Services
rendered by principals and employees engaged directly on the Project
5.1.1.2 Professional Associates and Consultants. For services and Reimbursable enses of independent rofessional associates and consultants employed by GINEER to render Basic f ervices, the amount billed to ENGINEER therefor times a 3
factor of 1.1.
5.1.2 Additional Services. OWNER shall pay ENGINEER for Additional Services rendered under Section 2 as follows:
5.121. General. For Additional Services of ENGINEERS principals and employees engaged directly on the Project and rendered pursuant to paragra h 2.1 or 22 (except services as a consultant or witness under paragraph 21.12, P on the basis of ENGINEER'S current hourly rates.
5.1.22 Professional Associates and Consultants. For services and Reimbusable
GINEER to render Additional Services pursuant to paragraph 21 or 22, the amount enses of independent professional associates and consultants employed by 3 billed to ENGWEER therefor times a factor of 1.1.
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e 5.1.2.3. Serving as a Witness. For services rendered by ENGINEERs principals and employees as consultants or witnesses in any litigation, arbitration or other le a1 or administrative proceeding in accordance with paragraph 21.12 at the rate of $750. Ill per day or any portion thereof (compensation for time spent in preparing to appear in any such litigation, arbitration or roceedin will be on the basis provlded in paragraph
5.1.21). Compensation for I!NGIdRS independent professional associates and consultants will be on the basis provided in paragraph 5.1.22
5.13. For Reimbursable enses. In addition to ayments provided for in paragraphs 5.1.1 and 5.1.2, OXR shall pay ENGINE 2 R the actual costs (except where specifically rovided otherwise) of all Reimbursable Expenses incurred m connection with all J asic and Additional Services.
5.1.4. The term "Reimbursable Expenses" has the meaning assigned to it in paragraph
5.4.
52 TIMESOFPAYMENTS.
5.21. ENGINEER shall submit monthly statements for Basic and Additional Services rendered and for Reimbursable enses incurred. OWNER shall make prompt monthly payments in response to EN 3 INEERs monthly statements.
5.3. OTHER PROVISIONS CONCERNING PAYMENTS.
5.3.1. If OWNER fails to make any payment due ENGINEER for services and expenses within thirty days after receipt of ENGINEERs statement therefor, the amounts due ENGINEER will be increased at the rate of 1% per month from said thirtieth day, and in addition, ENGINEER may, after givin seven days' written notice to OWNER, suspend services under this Agreement until EN 6 INEER has been paid in full
aIl amounts due for services, expenses and charges.
53.2. In the event of termination by OWNER under paragraph 7.1 u on the
completion of any phase of the Basic Services, progress payments due ENG&R for semces rendered through such phase shall constitute total payment for such services. In the went of such termination by OWNER during any phase of the Basic SeMces, ENGINEER also will be reimbursed for the charges of independent professional associates and consultants employed by ENGINEER to render Basic Services, and paid for services rendered during that phase on the basis of ENGINEERS current hour9 rates for services rendered during that phase to date of termination by ENGINEER s
principals and em 1 ees engaged directly on the Project. In the event of any such termination, ENG €3 ER will be paid for all unpaid Additional Services and unpaid Reimbursable Expenses, plus all termination expenses. Termination expenses mean additional Reimbursable Expenses directly attributable to termination, which, if
percentage of total compensation for Basic Services earned by ENGINEER to the date
termination is at OWNERS convenience, shall include an amount computed as a
of termination, as follows:
0
but prior to commencement of the Final Design Phase:
or
20% if termination occurs after commencement of the Preliminary Design Phase
10% if termination occurs after commencement of the Final Design Phase.
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5.3.3. Records of ENGINEER'S time and reimbursable expenses pertinent to ENGINEER'S compensation under this Agreement will be kept in accordance with generally accepted accounting practices. Co ies will be made available to OWNER at cost on request prior to final payment for EN e INEER's services.
5.4. DEFINITIONS.
ENGINEER'S independent professional associates or consultants, directly or indirectly in
5.4.1. Reimbursable Expenses mean the actual expenses incurred by ENGINEER or
connection with the Project, such as expenses for: transportation and subsistence incidental thereto; obtaining bids or pro osals from Contxactor(s); providing and maintaining field office fadties includm kk~~hin and utilities; toll tele hone calls reproduction of reports, rawmgs, pec~catiow Bidding 6 ocuments, and s ar PrOJeCt-related items in addition to those required under Section 1; and, if authorized in advance by OWNER, overtime work requiring higher than regular rates. In addition, if authorized in advance by OWNER, Reimbursable Expenses will also include expenses incurred for computer time and other highly specialized equipment, including an appropriate charge for previously established programs and expenses of photographic production techmques times a factor of 1.1.
and 'P. %' r.
SECTION 6 - CONSTRUCI'ION COST AND OPTNIONS OF COST
6.1. CONSTRUCT'ION 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 ENGINEER'S compensation and expenses, the cost of land, rights-of-way, or compensation for or damages to, properfies unless this Agreement so specifies, nor will it include OWNER'S legal, accountmg, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project or the cost of other senices to be provided by others to OWNER pursuant to paragraphs 3.6 through 3.10, inclusive.
6.2. OPINIONS OF COST.
6.21. Since ENGINEER has no control over the cost of labor, materials, equipment OT services furnished by others, or over the Contractor s ' methods of determining prices, or over com etitive bidding or market conditions, EN &iEER's opinions of probable Total Project osts and Construction Cost provided for herein are to be made on the basis of ENGINEER'S experience and qualifications and represent ENGINEERS best judgment
as an experienced and ualified professional engmeer, familiar with the construction
industry; but ENGINEE 3 cannot and does not arantee that proposals, bids or ad Total Project or Construction Costs will not vary E om opinions of probable cost prepared by ENGINEER. If prior to the Bidding or Negotiating Phase OWNER wishes
assurance as to Total Project or Constructlon Cosrs, OWNER shall empoy rter an independent cost estimator as provided in paragraph 3.8.
6.2.2 If a Construction Cost limit is established by mitten agreement between OWNER and ENGINEER and specifically set forth in this Agreement as a condition thereto, the following will apply:
6.22.1. The acceptance by OWNER at any time during the Basic Services of a revised opinion of probable Total Project or Construction Costs in excess of the then established
2
AG-13
cost limit will constitute a corresponding revision in the Construction Cost limit to the extent indicated in such revised opinion.
6.2.22. Any construction Cost limit so established wiU include a contingency of ten
percent unless amount is agreed upon in writing.
and component systems are to be included in the Drawings and Specifications and to
6.2.2.3. ENGINEER will be permitted to determine what types of materials, equipment
make reasonable adjustments in.the general scope, extent and character of the Project to bring it within the cost limit.
6.22.4. If the Bidding or Negotiating Phase has not commenced within six months after completion of the Final Design Phase, the established Construction cast limit will not be
bmdmg on ENGINEER, and OWNER shall consent to an adjustment in such cost limit commensurate with any applicable change in the eneral level of rices in the
construction industry between the date of completion ofthe Final Design F hase and the date on which proposals or bids are sought.
6.2.2.5. If the lowest bona fide proposal or bid exceeds the established Construction Cost limit, OWNER shall (1) give written approval to increase such cost limit, (2). authorize
negotiating or rebidding the Project withln a reasonable time, or (3) cooperate in revising the Project's general scope, extent or character to the extent consistent with the Project's requirements and with sound engineering practices. In the case of (3), ENGINEER shall
cost limit. In lieu of other compensation for services in making such modifications, modify the Contract Documents as necessary to bring the Construction Cost within the
OWNER shall pay ENGINEER, ENGINEERS cost of such services, all overhead emenses reasonablv related thereto and Reimbursable Emenses. but without orofit to ,~ ~
~ ~ ~ ~ ~ ~~~ ~~ ~~
EfiGINEER on account of such services. The providing of such service wd be the
ENGINEERS responsibility in this regard and, having done so, ENGINEER shall be entitled to Payment for services in accordance with this keement and will not otherwise
~..~", "~ .~ "". "" ~-
be liable fir damages attributable to the lowest bona fide proposal or bid exceeding the
established Construction Cost.
SECTION 7 - GENERAL CONSTDERATION
7.1. TERMINATION.
The obligation to provide further services under this Agreement may be terminated by either party upon thirty days' written notice in the event of substantial failure by the other
party to perform in accordance with the terms hereof through no fault of the terminating
Party-
7.2 REUSE OF DOCUMENTS.
AU documents includin Drawings and Specifications prepared or furnished b ENGINEER (and ENGb's independent rofessional associates and consultants !
bGINEER shall retain an ownership and roperty interest therein whether or not the ursuant to this Agreement are instruments of service in respect of the Project and
Project is completed. OWNER may m aE e and retain copies for 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
AG-14
without written verification or adaptation by ENGINEER for the specific purpose intended will be at OWNER’S sole risk and without liability or legal exposure to
and OWNER shall indemnify and hold harmless ENGINEER and ENGINEER’S ENGINEER, or to ENGINEER‘S independent professional associates or consultants,
independent professional associates and consultants from all claims, damages, losses and
verification or ada tation wdl entitle ENG expenses including attorneys’ fees arisin out of or resulting therefrom. Any such
&NER and ENGINEER. b to further compensation at rates to be agreed upon by 0
7.3 INSURANCE.
7.3.1. ENGINEER shall procure and maintain insurance for rotection from claims
under workers’ compensation acts, claims for damages because o P bodily injury including
personal injury, sickness or disease or death of any and all employees or of any person
destruction of property including loss of use resulting therefrom. other than such employees, and from claims or damages because of injury to or
7.4. CONTROLLING LAW.
This eement is to be governed by the law of the principal place of business of mG&ER.
7.5. SUCCESSORS AND ASSIGNS.
7.5.1. OWNER and ENGINEER each is hereby bound and the artners, successors,
the extent permitted by paragraph 73.2 the assigns of OWNER and ENG hereby bound to the other party to his Agreement and to the artners, suceessors, executors, administrators and legal representatives (and said assignsrof such other party, in respect of all covenants, agreements and obligations of this Agreement
7.5.2 Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other, except to the extent that any assignmenf 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
hom any duty or responsibility under this Agreement Nothing contained in this
paragraph shall prevent ENGINEER kom employing such independent professional
associates and consultants as ENGINEER may deem appropnate to assist in the
performance of services hereunder.
7.53. Nothing under this Agreement shall be construed to ‘ve any rights or benefits in this Agreement to anyone other than OWNER and ENGkR, and 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.
7.6. ARBITRATION.
7.6.1. All claims, counterclaims, disputes and other matters in question between the parties hereto arising out of or relating to this Agreement or the breach thereof will be
decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining, subject to the Iimitations and restrictions stated in paragraphs 7.6.3 and 7.6.4 below. This Agreement so to arbitrate
executors, administrators and legal representatives of OWNER and
AG-15
and any other agreement or consent to arbitrate entered into in accordance herewith as provided in this paragraph 7.6 will be specifically enforceable under the prevailing law of
any court having jurisdiction.
7.6.2. Notice of demand for arbitration must be filed in writing with the other parties to this Agreement and with the American Arbitration Association. The demand must be
made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event may the demand for arbitration be made after the date when
institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.
7.6.3. AU demands for arbitration and all answering statements thereto which include any monetary claim must contain a statement that the total sum or value in controversy as alle ed by the party making such demand or answering statement is not more than
which totals more than $200,000 (exclusive of interest and costs). The arbitrators A not power or authority to render a monetary award in response thereto against any arty
have jurisdiction, power or authority to consider, or make hdings (except in denial of their own jurisdiction) concerning any claim, counterclaim, dispute or other matter in question where the amount in controversy of any such claim, counterclaim, dispute or
matter is more than S200,OOO (exclusive of interest and costs).
7.6.4. No arbitration arising out of, or relating to, this Agreement may include, by consolidation, joinder or in any other manner, any person or entity who is not a party to this Agreement.
7.6.5. By written consent signed by all the parties to this Agreement and containing a
specific reference hereto, the Limitations and restrictions contained in paragraphs 7.6.3 and 7.6.4 may be waived in whole or in part as to any claim, counterclaim, drspute or other matter specifically descnbed in such consent. No consent to arbitration in respect
of a specifically described claim, counterclaim, dispute or other matter in question wiU
constitute consent to arbitrate any other claim, counterclaim, dispute or other matter in question which is not specifically descnied in such consent or in which the sum or value
in controversy exceeds $200,000 (exclusive of interest and costs) or which is with any party not specifically desmid therein.
7.6.6. The award rendered by the arbitrators wid be Enal, judgment may be entered upon it in any court having jurisdiction thereof, and d not be subject to modification or
appeal exce t to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act (9 IJ.S.(! 10,ll).
$2d,,000 ( exclusive of interest and costs) and the arbitrators will not have jurisdiction,
7.7. LIMITATION OF LJABILlTY
ENGINEER and ENGINEERS officers, directors, employees, agents and independent
7.7.1. To the fullest extent permitted by law, the total liability, in the aggregate, of
professional associates and consultants, and any of them, to OWNER and anyone
claiming by, through or under OWNER, for any and all injuries, claims, losses, expenses or damages whatsoever arising out of or in any way related to ENGINEER'S services, the
Pro'eb or this Agreement from any cause or causes whatsoever, including but not limited
or ENG ERs officers, directors, employees, agents or independent professional
to he nee errors, omissions, strict liability or breach of contract of ENGINEER
associates or consultants, or any of them, shall not exceed the total corn ensation
received by ENGINEER under this Agreement, or the total amount of $5&,oW.W, whichever is greater.
AG-16
SECTION 8 - SPECIAL PROVISIONS. EXHIBITS AND SCHEDULES.
8.1. This Agreement is subject to the following special provisions:
None
8.2 The following Exhiits are attached to and made a part of this Agreement:
8.1.2.2. Exhiiit B "1991 Rate Schedule" consisting of 1 page.
8.3. This Agreement (consisting of pages 1 to 17, inclusive) to ether with the Exhibits
and schedules Identified above constitute the entire agreement % etween OWNER and ENGINEER and supersede all prior written or oral understandings. This Agreement
and said Fxhiiits and schedules may only be amended, supplemented, modified or canceled by a duly executed written instrument
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement
as of the day and year first above written.
OWNER ENGINEER
Address for giving notices: Address for giving notices:
W239 N1812 Rockwood Drive
Waukesha, Wisconsin 53188
AG-17
e EXHIBIT A TO AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES, dated March 11,1991.
FURTHER DESCRIPTION OF BASIC ENGINEERING SERVICES AND RELATED MATTERS
2.
1. This is an exhibit attached to, made a part of and incorporated by reference into the eement made on March 11,1991, between Ci of Muskego (O&) and Ruekert & Mieke, lnc. (ENGINEE4 roviding for professional engineering services. The Basic Services of
sup lemented as indicated below and the time periods for the gineer as descn3ed in Section 1 of the Agreement are amended or
pe rF ormance of certain services as indicated in Section 4 of the
Agreement are stipulated as indicated below.
En
During the Preliminary Design Phase ENGINEER shall visit all sites, measure and record sizes and locations of existing equipment to determine the nature of new equipment required.
The PreIiminary Design Phase Services will be rmmpleted and ENGINEER'S documentation and opinion of costs submtted within 30 calendar days following written authorization from OWNER to ENGINEER to proceed wth that phase of services.
3. The Final Design Phase Services will be completed and Contract Documents and ENGINEER'S opinion of costs submitted within 30 calendar days following written authorization born OWNER to ENGINEER to proceed with that phase of services.
A- 1
I nueKert I IVhelke
I CLASSIFICATION
EXHIBIT "8"
RATE SCHEDULE
1991
1991 lizauam
Engineer 7 $ 90.00
Engineer 6
Engineer 5
Engineer 4
Engineer 3
Engineer Technician 1
Engineer Technician 2
Draftsperson 1
Draftsperson 2
Inspector/Grade 1
Inspector/Grade 2
Inspector/Grade 3
Crew Chief/Surveyor/Grade 1
Crew Chief/Sunreyor/Grade 2
Surveyor's Aide/Grade 1
Sweyor's Aide/Grade 2
Secretary Class 1
Secretary Class 2
Accounting CPA
72.00
61.00
55.00
44.00
44.00
34.00
32.00
29.00
38.00
34.00
29.00
44.00
39.00
24.00
20.00
26.00
21.00
55.00
Landscape Architect 44.00
WISCELLANEOUS
Mileage - $0.245/Hile - For Engineers and Technicians
Mileage - $0.275/Wile - For Field Crews/Inspectors