HomeMy Public PortalAboutExhibit MSD 94J - MSD Watershed Consultant ContractPage 1 of 27 WC contract-costplus-lumpsum.doc
7/8/13
CONTRACT NO.
An Agreement Between
THE METROPOLITAN ST. LOUIS SEWER DISTRICT
And
for Professional Services Related to:
Project Number:
Contract Type - Cost Plus Fixed Fee with Lump Sum Fee Work Orders
_________________________________________________________________ CONTENTS: PREAMBLE ARTICLE 1 - Definitions ARTICLE 2 - Scope of Services ARTICLE 3 - Additional Services of Consultant ARTICLE 4 - Responsibilities of the District ARTICLE 5 - Time ARTICLE 6 - Project Management and Staffing ARTICLE 7 - Documents ARTICLE 8 - Insurance ARTICLE 9 - Indemnification ARTICLE 10 - Subcontracting-Assignment ARTICLE 11 - Changes ARTICLE 12 – Conflict of Interest ARTICLE 13 - Termination ARTICLE 14 - Non-Discrimination ARTICLE 15 - Regulations/Laws/Hazardous Environmental Conditions ARTICLE 16 - Disputes and Remedies ARTICLE 17 - Fees and Payment ARTICLE 18 – Engineer’s Opinion of Probable Cost ARTICLE 19 – Jobsite Safety and Means and Methods of Construction ARTICLE 20 – Consequential Damages ARTICLE 21 – Consent Decree Requirement ARTICLE 22 – Document Retention
Exhibit MSD 94J
Page 2 of 27 WC contract-costplus-lumpsum.doc
7/8/13
The Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 63103-2555 Project Number:
CONTRACT NO.
(Note: All invoices, statements and correspondence pertaining to this
Contract must refer to these numbers)
THIS AGREEMENT is entered into this day of , 20___ by and
between THE METROPOLITAN ST. LOUIS SEWER DISTRICT, a municipal corporation
and political subdivision of the State of Missouri hereinafter called the
"DISTRICT," and , hereinafter called the
"CONSULTANT".
WITNESSETH:
WHEREAS, the DISTRICT initiated a Capital Improvement and Replacement
Program to build improvements in its service area, and of which
(the “PROJECT”) is part.
WHEREAS, the DISTRICT has selected the CONSULTANT to render certain
professional services in connection with this PROJECT, and the CONSULTANT has
submitted a proposal for furnishing such services, dated ,20__ ,
which is acceptable to the DISTRICT attached hereto and is part of this
Agreement. NOW, THEREFORE, in consideration of these premises and of the
mutual covenants set forth herein, the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
The meaning and intent of the following terms in this Contract shall be
as follows:
Page 3 of 27 WC contract-costplus-lumpsum.doc
7/8/13
1.1 COST: Includes Direct Labor Expense, plus a percentage of Direct Labor
Expense for total Indirect Costs, plus Other Direct Costs at actual out-
of-pocket expense.
1.2 DIRECT LABOR EXPENSE: Includes the direct compensation payable to
employees for time specifically chargeable to the PROJECT, with the
average hourly labor rate being the annual direct compensation divided
by 2,080.
1.3 DIRECTOR: The Executive Director of the DISTRICT or his properly
authorized agents.
1.4 FIXED FEE: A dollar amount to compensate the CONSULTANT for
contingencies, interest on invested capital, professional expertise,
readiness to serve, risk management, other non-reimbursable costs, and
profit. The amount varies with the complexity and size of a given
project and the scope of the engineering services required. The fee
shall be calculated as a percentage of the total initial contractual sum
of direct labor expenses, Other Direct Costs and total Indirect Costs
chargeable to the PROJECT.
1.5 MANAGER: The individual delegated by the Director to manage the PROJECT
and receive correspondence on behalf of the DISTRICT.
1.6 OTHER DIRECT COSTS: Includes such items as subcontract expenses,
computer run time and CADD charges, special equipment rental, special
material purchases, reproduction costs, mileage, traveling expenses,
and living costs for personnel on assignment away from their home
office, and other incidental expenses directly chargeable to the
PROJECT, charged at actual cost to the CONSULTANT.
1.7 PROJECT: As identified in the Preamble and as described in the
CONSULTANT'S proposal.
Page 4 of 27 WC contract-costplus-lumpsum.doc
7/8/13
1.8 PROJECT MANAGER: The individual responsible for management of the
PROJECT on behalf of the CONSULTANT.
1.9 SUBCONSULTANT OR SUBCONTRACTOR: Firms or individuals participating in
the PROJECT under subcontract to the CONSULTANT.1.10 TOTAL INDIRECT
COSTS: Includes labor overhead and general and administration overhead
costs. Overhead expenses shall also include costs of all required
insurance as specified in Article 8. Labor overhead includes allowances
for sick leave, vacation and holiday, plus unemployment, excise and
other payroll taxes; and statutory and usual contributions for Social
Security; Workmen's Compensation Insurance, retirement benefits, and
medical and other insurance benefits. General and administrative
overhead costs shall include Costs of preparing proposals for the
PROJECT and also consist of costs not directly identifiable with any
specific project and include allowable general corporate overhead such
as office rent, accounting and insurances. The provisional rate for
total Indirect Costs indicated in the attached proposal is for use
during the performance of this Contract. Once an audited overhead rate
becomes available, it shall be used to adjust any past billings for the
period for which the audited overhead rate applies. The audited
overhead rate shall become the new provisional rate until such time that
the audited overhead rate for the next period becomes available.
1.11 LUMP SUM FEE: The total dollar amount payable by the DISTRICT to the
CONSULTANT for completion of all professional services necessary to
design a Lump Sum Fee Work Order. It shall include the sum total of all
costs including but not limited to estimated engineering costs for
salaries, overhead and nonsalary expenses, allowance for contingencies,
interest on invested capital, all insurance costs, including
Page 5 of 27 WC contract-costplus-lumpsum.doc
7/8/13
professional liability, travel expenses, readiness to serve,
Subconsultant and Subcontractor costs, and a reasonable amount for
profit.
1.12 WORK ORDER: A specific professional or technical assignment for work
associated with the overall PROJECT that shall have a specific dollar
amount and schedule associated with it. WORK ORDERS can be paid for by
either the Cost Plus Fixed Fee or Lump Sum Fee methods. Designation of
either Cost Plus Fixed Fee or Lump Sum Fee shall be proposed by the
CONSULTANT at the time of annual negotiations, or during negotiations
for other assignments made during the year, based upon guidelines
provided by the District. The District shall determine the use of Cost
Plus Fixed Fee or Lump Sum Fee for each assignment.
ARTICLE 2 - SCOPE OF SERVICES
2.1 The CONSULTANT shall furnish those professional and technical services
necessary to design the PROJECT in full accordance with all sections of
the DISTRICT'S current "Plan Preparation Guidelines," and as detailed in
the CONSULTANT'S proposal, and as generally defined or described in the
DISTRICT'S Request for Proposal or solicitation for services. During
the beginning of the plan review stage, the CONSULTANT shall provide a
budget estimate of the various WORK ORDER’s construction cost that would
be accurate within +50 percent or -30 percent for the DISTRICT’S Capital
Improvement and Replacement Planning Program.
2.2 The CONSULTANT’S services shall be performed with the skill and care
which would be exercised by comparable professionals. If a failure to
meet that standard results in deficiencies in the CONSULTANT’S work or
services, the CONSULTANT shall promptly correct such deficiencies.
Page 6 of 27 WC contract-costplus-lumpsum.doc
7/8/13
2.3 Professional and technical services shall be designated as either Cost
Plus Fixed Fee, or Lump Sum Fee services. This designation shall be
made at the time of fee negotiation for a WORK ORDER.
2.4 The CONSULTANT shall keep separate accounting associated with each WORK
ORDER for Cost Plus Fixed Fee and Lump Sum Fee services provided.
2.5 The CONSULTANT shall not charge the District costs associated with
preparing fee(s) proposals, negotiating WORK ORDERS with Subconsultants
or the District.
ARTICLE 3 - ADDITIONAL SERVICES OF CONSULTANT
3.1 Additional services, beyond the Scope of Services described in
Article 2, will be undertaken only upon written agreement defining terms
and compensation therefor. Additional services are:
A. Services that are the responsibility of the DISTRICT under
Article 4.
B. Services related to litigation or claims, and preparation
for an appearance as witness in litigation.
C. Other services desired by the DISTRICT and agreed to by the
CONSULTANT as provided for in Article 11.
ARTICLE 4 - RESPONSIBILITIES OF THE DISTRICT
4.1 The DISTRICT shall appoint a Manager to provide liaison and
communication with the CONSULTANT.
4.2 The DISTRICT shall make available to the CONSULTANT all available
factual data and information which the DISTRICT and/or CONSULTANT deems
relevant to the PROJECT.
4.3 The DISTRICT shall assist the CONSULTANT with reviews and approvals of
regulatory agencies, if necessary.
Page 7 of 27 WC contract-costplus-lumpsum.doc
7/8/13
4.4 The DISTRICT shall be responsible for: (a) the payment of all fees
associated with obtaining permits, and (b) licenses and approvals of
regulatory agencies, if necessary.
4.5 Taxes
A. CONSULTANT shall include in their proposals any sales or use taxes
which they are required by law to pay. Attention should be made to
exceptions under Missouri State Statutes, Section 144.030, relative
to such taxes.
B. Missouri State Statutes, Section 144.062 allows for a sales tax
exemption to CONSULTANTS constructing, repairing, or remodeling
facilities or purchasing personal property and materials to be
incorporated into and consumed in the construction of projects for
a tax exempt entity such as the DISTRICT. The DISTRICT will
furnish a signed exemption certification authorizing such purchases
for this PROJECT to the CONSULTANT and their Subcontractors.
ARTICLE 5 - TIME
5.1 CONSULTANT shall commence work immediately upon execution of this
Contract and receipt of notice to commence work, and shall diligently
prosecute the work to completion in accordance with the "Coordination
Schedule With The District".
5.2 Failure of the CONSULTANT to meet the design completion date may cause
the CONSULTANT to be declared ineligible for additional contracts with
the DISTRICT until all work required by this Contract is satisfactorily
completed. Any requests for extension of the WORK ORDER's design
completion date must be submitted in writing by the CONSULTANT and
approved by the DISTRICT prior to the originally scheduled date.
Page 8 of 27 WC contract-costplus-lumpsum.doc
7/8/13
5.3 If CONSULTANT is delayed by failure of the DISTRICT to make information
available or to complete the required reviews or approvals in accordance
with the "Coordination Schedule With The District," or if the scope of
design has been significantly changed and amended by the
DISTRICT, the time for completion will be extended for a duration
mutually agreed to by both parties. For other reasons beyond the
CONSULTANT'S control, upon written request, consideration of a time
extension, and if appropriate, an equitable adjustment in compensation
will be given by the DISTRICT.
5.4 The initial contract will be for one year with annual extensions by
contract amendment. Extension of the contract is contingent upon
acceptable performance by the CONSULTANT and their SUBCONSULTANTS, and
is subject to the District’s discretion. Annual reviews will be prepared
each year to document the overall CONSULTANT’S performance. The
CONSULTANT will be required to maintain a Good rating by the DISTRICT.
If a Good rating is not maintained, the CONSULTANT will be subject to
penalties associated with milestones for the next year’s assignments or
termination of the contract at the discretion of the DISTRICT.
ARTICLE 6 - PROJECT MANAGEMENT AND STAFFING
6.1 The DISTRICT will appoint a Manager to administer the Contract and
provide liaison on behalf of the DISTRICT. All communications will be
directed to the Manager, who shall be responsible for fulfilling the
responsibilities of the DISTRICT described in Article 4.
6.2 The CONSULTANT will appoint a PROJECT MANAGER who will exercise overall
management of the PROJECT, who will be responsible for the timely
completion, and who will constitute the final authority on behalf of the
Page 9 of 27 WC contract-costplus-lumpsum.doc
7/8/13
CONSULTANT. The PROJECT MANAGER will be responsible for overall
administration of the PROJECT, technical decisions, continuous liaison
with the DISTRICT, management of personnel assigned, and satisfactory
prosecution of the work. The CONSULTANT will assign such project
engineers and other qualified personnel as are necessary to carry out
the work, under the supervision and control of the PROJECT MANAGER. The
individual assigned as PROJECT MANAGER must be acceptable to the
DISTRICT. The CONSULTANT agrees to remove from the PROJECT work any of
its employees or Subconsultants found to be objectionable or
unacceptable to the DISTRICT.
6.3 The CONSULTANT’S PROJECT MANGER is , who is committed for the
duration of the PROJECT. If the CONSULTANT proposes a subsequent
change, the DISTRICT reserves the right to approve such a change;
approval would not be withheld unreasonably. During the progress of the
work, the CONSULTANT shall submit monthly progress reports, in a form
acceptable to the DISTRICT. Such progress reports shall show the
percentage of the work completed during the reporting period for each
WORK ORDER, the amount of work completed by SUBCONSULTANTS and the
overall percentage of the PROJECT completed at the reporting date, and
shall include minutes of the review stages, if not previously submitted.
The progress report shall be submitted even if no invoice is sent.
6.4 For invoice purposes the maximum amount submitted for payment shall not
exceed the percentages indicated on the "Coordination Schedule With The
District" unless otherwise provided.
6.5 If the progress of the design is delayed, the CONSULTANT shall submit a
revised schedule of review stages for work remaining to be completed.
However, any extension of time and/or fee for "Design Completion" must
be approved by the DISTRICT. Continued failure to meet scheduled review
Page 10 of 27 WC contract-costplus-lumpsum.doc
7/8/13
stages, including the "Design Completion" may be cause for termination
of this Agreement in accordance with Article 13.2A.
6.6 Accounting Records
The CONSULTANT must provide for the accounting work necessary to
segregate and record the appropriate expenditures. Adequately detailed
hourly time records must be maintained for principals, engineers, and
other employees who devote time to the PROJECT work, and any part of
whose salary is included in direct Cost. The District is authorized to
audit all records including both direct and indirect Costs. Applicable
payroll records, together with receipts or other documents to
substantiate chargeable expenditures, should be available for inspection
audit by the DISTRICT. However, CONSULTANT shall not be required to
keep records of, nor provide access to the DISTRICT, those of its costs
covered by the Fixed Fee or expressed as fixed rates, a lump sum, or of
costs, which are expressed in terms of percentage of other costs. The
CONSULTANT shall be required to retain records for a period of five (5)
years after the expiration of the contract.
ARTICLE 7 - DOCUMENTS
7.1 The DISTRICT shall be the owner of all documents, designs, work
products, surveys, patents, copyrights, etc. that may develop out of the
PROJECT work by the CONSULTANT. Upon completion or termination of the
PROJECT design all of the items, as appropriate, shall be given to the
DISTRICT.
7.2 The CONSULTANT shall, be permitted to: (i) retain record copies of the
foregoing items; (ii) continue to have the right to use the foregoing
items on other projects subject to the provisions of Section 7.4; and
(iii) use representations of this PROJECT in its promotional materials,
Page 11 of 27 WC contract-costplus-lumpsum.doc
7/8/13
provided such representations do not involve disclosure of any
confidential information provided by the DISTRICT.
7.3 Generally, electronically transferred files are for the benefit of the
receiving party. Therefore, only printed copy, signed and sealed by the
engineer, shall be relied on by the DISTRICT or the CONSULTANT. In
addition, if the transmission of electronic files occurs both the
DISTRICT and CONSULTANT shall agree to an acceptance testing procedure
and acceptance period. Any errors found during that period will be the
responsibility of the party delivering the electronic files.
7.4 To prevent unauthorized or inappropriate use, if the CONSULTANT reuses
on other work any of the documents to be owned by the DISTRICT, it shall
be at the CONSULTANT’S sole risk unless authorized in writing by the
DISTRICT.
7.5 All documents, including, but not limited to, drawings, specifications,
and computer software prepared by CONSULTANT pursuant to this Agreement
are instruments for service specific to this PROJECT. They are not
intended or represented to be suitable for reuse by the DISTRICT or
others on extensions of the PROJECT or on any other project. Any reuse
without the prior written verification or adaptation by CONSULTANT for
the specific purpose intended shall be at the sole risk of the District.
ARTICLE 8 - INSURANCE
8.1 Within fifteen (15) days after written notification by the District
that the fee proposal has been accepted and receipt of the contract for
signature, the Consultant must provide five (5) copies of executed
Certificates of Insurance on ISO Accord 25S forms with the District,
indicating that the Consultant has obtained and will continue to carry
comprehensive automobile liability, workers' compensation, commercial
general liability, professional liability and pollution liability as
required. A sample Certificate of Insurance Form and Insurance Binder
Form will be transmitted with the contract.
Page 12 of 27 WC contract-costplus-lumpsum.doc
7/8/13
8.2 Consultant shall maintain in force for the duration of this contract
errors and omissions/professional liability insurance appropriate to the
Consultant’s profession. Coverage as required in this Article shall
apply to liability for professional errors, acts or omissions arising
out of the scope of the Consultant’s services as set forth in this
Contract and the Project Specifications. Coverage shall be written
subject to limits of not less than $5,000,000 per occurrence. The
insurance coverage shall be retroactive to the earlier of the date of this
Contract or the commencement of the Consultant’s work on the Project,
and Consultant shall cause the same to remain in effect for a period of at
least two (2) years after final acceptance of the Project by the District
or such other period as may be set forth in the Contract or in the
Project Specifications.
8.3 Consultant shall carry and maintain adequate liability insurance for
bodily injury, personal injury and property damage with a company
satisfactory to the District which is (1) licensed to do business in the
State of Missouri (Admitted) with a financial strength rating of "B+" or
better and a financial size category of Class VI or higher per AM Best
Company; or (2) not licensed in the State of Missouri (Non- admitted)
with a financial strength rating of "A" or better and a financial size
category of Class IX or higher per AM Best Company; or (3) with regard to
worker’s compensation coverage only, organized pursuant to the Missouri
Insurance Company Act (R.S. Mo. §§ 287.900 to 287.920). An insurance
policy will be acceptable regardless of the above requirements if the
insurance company furnishes a guarantee or policy containing a provision
(commonly referred to as a "cut-thru" endorsement) giving all claimants
thereunder a direct right of recovery against the company's reinsurer,
provided the reinsurer meets one of the qualifications listed in the
preceding sentence.
8.4 The Consultant providing geotechnical services shall maintain or shall
cause their sub-consultant performing geo-technology services to maintain
in force for the full period of the contract, contractor’s pollution
liability insurance covering losses caused by pollution conditions that
arise from the operations of the Consultant and/or the sub-consultant.
Such insurance shall apply to bodily injury and property damage,
including loss of use of the damaged property or property that has not
been physically injured, and shall cover cleanup and defense costs,
including all expenses incurred in the investigation, defense, payment
or settlement of claims. To the extent the sub-consultant provides
the contractor’s pollution liability insurance, the Consultant must
require that both the Consultant and the District are covered as
“Additional Insured(s)” by endorsement to the policy.
8.5 The amounts of coverage required herein shall not be construed to
limit the liability of the Consultant under the Indemnification
provision of the contract.
8.6 The District (including its agents, directors, officers, attorneys and
employees and if applicable to the particular project and required by the
Page 13 of 27 WC contract-costplus-lumpsum.doc
7/8/13
project specifications, its consultants and sub-consultants), shall be
named as “Additional Insured(s)” by endorsement for all required
insurance coverage with respect to the work covered by the contract
(except professional liability).
8.7 The limits of liability shall not be for less than the amounts listed
below and shall be in larger amounts if such are required in the Project
Specifications:
Required Minimum Insurance Coverage
A. Business Automobile Liability:
$3,000,000 Each Occurrence
OR
$1,000,000 Each Occurrence
AND
$2,000,000 Excess (Umbrella)
The policy must cover all owned vehicles including hired, non- owned,
and leased vehicles used in connection with the work.
B. Workers' Compensation
1. Workers' Compensation: Statutory Limit 2. Employers' Liability:
$ 500,000 Each Occurrence
$ 500,000 Policy Limit $ 500,000 Each Employee
C. Commercial General Liability (occurrence form):
$3,000,000 Each Occurrence
OR
$1,000,000 Each Occurrence
AND
$2,000,000 Excess (Umbrella)
The following wording must be stated in the Description of
Operations section:
"No amendments to the ISO Commercial General Liability
policy have been made with the exception of ”.
Page 14 of 27 WC contract-costplus-lumpsum.doc
7/8/13
An insurance policy will not be acceptable if any of the following
are excluded from the coverage of the Commercial General Liability
policy:
1. Premises - Operations Liability 2. Blanket Contractual Liability 3. Completed Operations Liability 4. Contractor's Protective Liability (Independent Contractors) 5. Personal Injury Liability 6. Broad Form Property Damage Liability Endorsement (a specific
endorsement may be needed if non-standard coverage is
provided) 7. Coverage for explosion, collapse and underground hazards
(X.C.U.) 8. Blasting (provided that blasting coverage may be excluded if
blasting is not to be performed in connection with the
Contract work as governed by the Project Specifications).
9. Policy must include primary and non-contributory endorsement
as to comply with CG 20 01 04 13 Primary and noncontributory
other insurance condition.
D. Professional Liability/Errors & Omissions
$5,000,000 Each Occurrence
E. Pollution Liability
$2,000,000 Each Occurrence
8.8 Deductible/Self-Insured Retention:
In any coverage a deductible or retention that exceeds $100,000 shall be
noted and approved by the District’s Risk Management Department. The
District reserves the right to review the funding for any such
deductible or retention program.
8.9 Cancellation/Termination/Material Alteration
The endorsement to the Policies in favor of the additional insured(s)
shall require at least thirty (30) days advance written notice to the
terminated or materially altered before the expiration date. An
insurance policy endorsement which contains the above provision will
not be deemed unacceptable for including an additional limitation of
only ten (10) days advance notice to the additional insured(s) for
cancellation for non-payment of premium.
8.10 Replacement Policy
Upon receipt of any notice of insurance cancellation, termination or
alteration, the Consultant shall procure other policies of insurance
identical in all material respects to the policy or policies about to be
Page 15 of 27 WC contract-costplus-lumpsum.doc
7/8/13
canceled, terminated or altered and shall provide the District with
evidence of coverage before the alteration, cancellation or termination
date; and if Consultant fails to provide, procure and deliver acceptable
policies of insurance and satisfactory certificates or other evidence
thereof, the District may obtain such insurance at the cost and expense
of Consultant without notice to Consultant or may elect to pursue any
other remedy permitted by law or the Contract terms, including but not
limited to termination of the Contract.
8.11 The DISTRICT agrees and shall take the necessary steps such that the
DISTRICT, CONSULTANT AND SUBCONSULTANTS shall be indemnified and shall be
made additional insured under the General Contractor’s General Liability
Insurance Policy and be made a named insured under any builders’ risk or
other property insurance policy purchased for the PROJECT without
liability for the payment of premiums.
ARTICLE 9 - INDEMNIFICATION
9.1 The CONSULTANT shall defend, indemnify and save harmless the DISTRICT,
its Trustees and employees, from and against any and all loss, damages,
liability, costs and expenses (including but not limited to attorneys'
fees) arising out of any third party claim, suit or action against the
DISTRICT for or on account of any personal injuries or bodily injury,
including death, property damages, errors or omissions, sustained or
claimed to be sustained by any person or persons, to the extent caused
by any negligent act or omission on the part of the CONSULTANT or any
Subcontractor, their agents or employees, in any way related to the
services performed under this Agreement.
9.2 The indemnity provided for in Paragraph 9.1 shall continue not only
during the time period in which the CONSULTANT performs the work but
shall continue thereafter for a period of five (5) years.
9.3 In the event such liability, claims, actions, causes of action or
demands are caused by the joint or concurrent negligence of more than
one party, such liability shall be borne by each party in proportion to
their own fault.
Page 16 of 27 WC contract-costplus-lumpsum.doc
7/8/13
9.4 On August 4, 2011, the U.S. Department of Justice and the U.S.
Environmental Protection Agency lodged a consent decree in U.S. District
Court for the Eastern District of Missouri, against the DISTRICT. While
not a final document, the CONSULTANT must be clear on its contents and
anticipate additional stipulations to be placed on the CONSULTANT at the
DISTRICT’S discretion when the consent decree is entered by the court.
These additional stipulations could include provisions for liquidated
damages related to the CONSULTANT’S actions which affect the DISTRICT’S
ability to complete remedial measures as defined in the consent decree.
ARTICLE 10 - SUBCONTRACTING-ASSIGNMENT
10.1 Notwithstanding the below, CONSULTANT may have portions of the services
performed by its related and affiliated entities.
10.2 No part of the services to be performed by CONSULTANT hereunder shall be
subcontracted without prior written consent of the DISTRICT. Any such
subcontracts shall be approved by the DISTRICT. The total of all
subcontracts may not be more than 50% of the total Contract amount,
unless approved by the DISTRICT.
10.3 Neither the DISTRICT nor the CONSULTANT shall assign nor transfer any
rights, obligations or interest in this Agreement without the written
consent of the other, except as provided in Article 10.1.
10.4 The CONSULTANT’S staff shall self perform between 30 and 50 percent of
the total CONTRACT value. The CONSULTATNT will be responsible for
submitting a Subconsultant Involvement Report at the beginning of the
contract, at each contract amendment and with every invoice. If the
CONSULTANT cannot meet the percentages in their proposal, the CONSULTANT
must submit a plan to make the necessary adjustments in the projected
work remaining to the DISTRICT’s satisfaction.
Page 17 of 27 WC contract-costplus-lumpsum.doc
7/8/13
10.5 The DISTRICT reserves the right to limit the amount of work given to a
SUBCONSULTANT that cannot demonstrate they have the capacity to perform
the work.
ARTICLE 11 - CHANGES
11.1 The DISTRICT may increase or decrease the scope of services of this
Agreement. No changes will be made in the scope of services, the time
of performance, the fees to be paid or other provisions which may
increase or decrease the total cost of the PROJECT without prior written
order of the DISTRICT and the execution of a suitable Amendment to this
Agreement.
Neither the DISTRICT nor the CONSULTANT may authorize any substantive
change in this Agreement by oral or other directions in lieu of a
written Contract Amendment.
11.2 The total maximum amount to be paid by the DISTRICT shall not exceed the
cost ceilings stated in Article 17 without a written Amendment to this
Agreement.
11.3 If during the progress of the work, the CONSULTANT anticipates that he
may exceed the cost ceilings set forth in Article 17, the CONSULTANT
shall notify the DISTRICT in writing at least fifteen (15) calendar days
prior to any cost overrun, setting forth the status of the PROJECT and
the reasons for the possible overrun. The DISTRICT shall respond to
this notification in writing within fifteen (15) calendar days of its
receipt.
11.4 If, in the opinion of the DISTRICT, the potential overrun is justified,
the parties will negotiate and execute a written Amendment to this
Agreement modifying the scope of services and/or the cost ceiling
provisions of Article 17. If, in the opinion of the DISTRICT, the
Page 18 of 27 WC contract-costplus-lumpsum.doc
7/8/13
potential cost overrun is not justified, the CONSULTANT must complete
the work without exceeding the Contract ceiling price stated in
Article 17 or shall file a claim as provided under Article 16.
ARTICLE 12 – CONFLICT OF INTEREST
12.1 If not currently on file with the DISTRICT, the CONSULTANT receiving
compensation for work completed on behalf of the DISTRICT shall be
required to review the DISTRICT’S Conflict of Interest Policy and fully
complete and execute the Vendor’s Conflict of Interest Questionnaire.
In addition, the CONSULTANT must continue to abide by the Conflict of
Interest Policy in order to remain eligible to conduct work with the
DISTRICT.
ARTICLE 13 – TERMINATION
13.1 This Agreement may be terminated in whole or in part by either party
upon ten (10) days written notice. In case of termination, all PROJECT
specific data, drawings, documents and work performed by the CONSULTANT
to the date of termination shall become the property of and shall be
delivered to the DISTRICT. Before termination for cause, the DISTRICT
shall notify CONSULTANT in writing and CONSULTANT shall have fifteen
(15) calendar days to cure or to submit a plan to cure that is
acceptable to the DISTRICT.
13.2 If the DISTRICT terminates this Agreement, compensation to the
CONSULTANT will be made as follows:
A. If termination is made for cause, CONSULTANT defaults or fails
substantially to perform his duties under this Agreement
through no fault of the DISTRICT, then the DISTRICT will make
equitable payment to the CONSULTANT for services
Page 19 of 27 WC contract-costplus-lumpsum.doc
7/8/13
satisfactorily performed to date of termination, provided that
payments due the CONSULTANT may be reduced by the amount of
additional costs, if any, incurred by the DISTRICT
attributable to such default.
B. If termination is made in absence of default by the
CONSULTANT, then the DISTRICT will make equitable payment for
services satisfactorily performed to the date of termination,
and a reasonable amount for costs caused the CONSULTANT by
such termination.
13.3 If the CONSULTANT terminates this Agreement, payments will be made as
follows:
A. If termination is made because of default of the DISTRICT,
then the DISTRICT will make equitable payment for services
satisfactorily performed to the date of termination, and a
reasonable amount for costs caused the CONSULTANT by such
termination.
B. If termination is made in absence of default by the DISTRICT,
then the DISTRICT will make equitable payment to the
CONSULTANT for services satisfactorily performed to the date
of termination, less the amount of additional costs incurred
by the DISTRICT attributable to such termination.
13.4 In no case of termination shall the CONSULTANT be entitled to payments
for work not performed.
ARTICLE 14 - NONDISCRIMINATION
14.1 The CONSULTANT shall not discriminate against any employee or applicant
for employment on account of race, creed, color, sex, disability or
national origin. The CONSULTANT shall take affirmative action to avoid
Page 20 of 27 WC contract-costplus-lumpsum.doc
7/8/13
discrimination in recruiting, employment, promotion, training, layoff,
compensation, or discharge.
14.2 The CONSULTANT shall comply with the requirements of the DISTRICT's
published Minority and Women Owned Business Enterprise (MWBE) and equal
employment opportunity policies and programs in effect on the date of
execution of this Agreement, insofar as policy is applicable to the
DISTRICT's contractors and consultants.
14.3 Failure of the CONSULTANT to comply with the provisions of this Article
14 may result in termination of this Agreement in whole or in part by
the DISTRICT, and the CONSULTANT may be declared ineligible for further
contracts with DISTRICT. The rights and remedies of the DISTRICT
provided in this paragraph shall not be exclusive, but are in addition
to any remedies provided in this Agreement or provided by law.
ARTICLE 15 - REGULATIONS/LAWS/HAZARDOUS ENVIRONMENTAL CONDITIONS
15.1 Contingent Fees
The CONSULTANT represents and warrants that no arrangement has been made
with any person or agency to solicit or secure this Contract upon an
agreement or understanding for a commission, percentage, brokerage, or
contingent fee, in any form to any person, excepting bona fide employees
of the CONSULTANT or bona fide established commercial or sales agencies
retained by the CONSULTANT for the purpose of securing business. For
breach or violation of this representation and warranty, the DISTRICT
shall have right to:
A. Terminate the Contract and pursue the same remedies against
the CONSULTANT as it could pursue for a breach of this
Contract, and
Page 21 of 27 WC contract-costplus-lumpsum.doc
7/8/13
B. As a penalty, in addition to any other damages to which it may
be entitled under law, the DISTRICT is entitled to exemplary
damages in an amount as determined by a court of competent
jurisdiction which shall not be less than three (3) nor more
than ten (10) times the amount the CONSULTANT paid or agreed
to pay as such commission, percentage, brokerage, or
contingent fee.
15.2 This Agreement is to be governed by the laws of the State of Missouri.
15.3 The DISTRICT shall notify the CONSULTANT in writing with disclosure of
any hazardous environmental conditions of which it is aware prior to
Notice to Proceed. Likewise, during the PROJECT design services, the
CONSULTANT shall notify the DISTRICT of any such encountered conditions
as soon as they become known. Anything herein to the contrary
notwithstanding, title to, ownership of, and legal responsibility and
liability for any and all pre-existing contamination shall at all times
remain with the DISTRICT. “Pre-existing contamination” is any hazardous
or toxic substance, material or condition present at the PROJECT site or
sites concerned which CONSULTANT did not bring onto such site or sites
for the exclusive benefit of CONSULTANT. The DISTRICT shall release,
defend, indemnify, and hold CONSULTANT harmless from and against any and
all liability which may in any manner arises from or be in any way
directly or indirectly caused by such pre-existing contamination except
if, and then only to the extent, such liability is caused by
CONSULTANT’S sole negligence or willful misconduct.
ARTICLE 16 - DISPUTES AND REMEDIES
16.1 Any disputes, claims, or matters in question between the parties arising
out of the work of this Agreement shall be filed in writing with the
Page 22 of 27 WC contract-costplus-lumpsum.doc
7/8/13
other party within forty-five (45) days of its occurrence. Should such
claims not be formally filed within said forty-five (45) day period, the
aggrieved party agrees not to make such claim against the other party at
any time in the future. Should any claim or dispute not be mutually
resolved between the parties within sixty (60) days after filing, the
aggrieved party shall then seek to resolve the matter in accordance with
the provisions of Article 16.2 herein.
16.2 Except as provided in Article 16.1 herein, all claims, disputes and/or
matters in question between the DISTRICT and CONSULTANT arising out of
or relating to this Contract, or the breach to it, will be decided by
arbitration if the parties hereto mutually agree upon arbitration, or in
a court of competent jurisdiction within the State of Missouri if the
parties do not so agree.
16.3 Upon mutual agreement to arbitrate, notice of demand for arbitration
must be filed in writing by this aggrieved party with the other party
and with the American Arbitration Association. Said notice must be
filed within one hundred twenty-five (125) days after the claim, dispute
or other matter in question has first arisen. Otherwise the matter will
be dropped and the aggrieved party agrees not to make such claim against
the other party at any time in the future. In no event may the demand
for arbitration be made after institution of litigation. Filing fees
for initiating arbitration shall be paid by the filing party. Payment
of arbitration costs shall be borne equally by both parties.
16.4 All notices for arbitration, which include any monetary claims, shall
contain a detailed explanation and breakdown of the amount claimed. The
award rendered by the arbitrators will be final and judgment may be
entered upon it in any court having jurisdiction thereof.
Page 23 of 27 WC contract-costplus-lumpsum.doc
7/8/13
ARTICLE 17 - FEES AND PAYMENT
17.1 For completing the Professional services described in this Agreement,
the DISTRICT shall pay and the CONSULTANT shall accept as full
compensation, a total amount determined on the "Cost Plus a Fixed Fee"
or “Lump Sum Fee Work Order” basis.
17.2 Progress payments for services rendered will be made not less than
monthly upon submission of a correctly detailed invoice for work
performed during the previous month. Invoices shall include the MWBE
Involvement Report, Invoice Worksheet, and Exhibit(s) approved by the
District to present a Summary of Project’s Progress. The CONSULTANT may
vary the form of the invoice documentation only with prior approval from
the District. The total amount billed shall not exceed the maximum
allowable as indicated in the "Coordination Schedule With The District."
With each invoice, the CONSULTANT shall submit a written progress
report certifying the amount of work completed, and the minutes of
project reviews in a form acceptable to the DISTRICT.
17.3 The MWBE Involvement Reports and SUBCONSULTANT Involvement Reports must
be submitted with all invoices.
17.4 The DISTRICT will make progress payments not later than thirty (30) days
after receipt of an acceptable invoice and all required submittals. In
the event the DISTRICT disputes any invoice item, the DISTRICT shall
give CONSULTANT reasonable written notice of such disputed item within
ten (10) days after receipt of such invoice. If the dispute cannot be
immediately resolved, the CONSULTANT may submit a revised invoice
excluding the item(s) in dispute.
17.5 Final payment will be made within thirty (30) days of satisfactory
completion of the services and submission of the final invoice.
Page 24 of 27 WC contract-costplus-lumpsum.doc
7/8/13
17.6 The CONSULTANT shall make payment to Subconsultants or Subcontractors no
later than ten (10) days after receipt of applicable monies from the
DISTRICT. The DISTRICT may withhold final payment to the CONSULTANT
until the CONSULTANT provides written verification that all reasonable
payments to any Subconsultants or Subcontractors used to complete the
PROJECT have been made.
17.7 The total cost of the services as described in Article 2 (exclusive of
fixed fee) is estimated to be $ . The total fixed fee shall
be $ . The total amount to be paid shall not exceed
$ including costs and fixed fee, without written approval
of the DISTRICT.
17.9 The CONTRACT amount shall be amended annually to reflect the next years
services to be provided.
ARTICLE 18 – ENGINEER’S OPINION OF PROBABLE COST
18.1 When required by the Scope of Services, the CONSULTANT shall prepare an
Engineer’s Opinion of Probable Cost for the WORK ORDER construction.
The CONSULTANT shall take care to ensure that the Opinion of Probable
Cost reflects the work environment, conditions and availability of labor
and materials within the DISTRICT’S boundaries at the time of the
preparation of the Opinion. Said Opinion shall also reflect any
economic factors that are recognized within the Industry.
18.2 Notwithstanding the above, the CONSULTANT does not guarantee that
proposals, bids, or actual project costs will not vary from CONSULTANT’S
Opinion of Probable Cost, nor is the District obligated to accept or
adhere to any Opinion of Probable Cost.
Page 25 of 27 WC contract-costplus-lumpsum.doc
7/8/13
ARTICLE 19 – JOBSITE SAFETY AND MEANS AND METHODS OF CONSTRUCITON
19.1 CONSULTANT shall not be responsible for construction jobsite safety and
health other than for its own employees.
19.2 CONSULTANT shall not be responsible for construction means, methods,
techniques, sequences or procedures unless said elements of the
construction have been specified in the Contract Documents.
19.3 CONSULTANT shall not be responsible for the failure of any contractor,
subcontractor, vendor or other PROJECT participant, not under contract
to CONSULTANT, to fulfill its contractual responsibilities to the
DISTRICT or to comply with municipal, local, regional, state or national
laws, regulations and codes.
19.4 CONSULTANT shall not be responsible for procuring permits, certificates,
and licenses for any construction, unless so required by the Scope of
Services.
ARTICLE 20 – CONSEQUENTIAL DAMAGE
20.1 Notwithstanding any provision of this Agreement to the contrary, and to
the fullest extent permitted by law, DISTRICT and CONSULTANT shall not
be liable to each other for any consequential damages incurred due to
the fault of the other party, regardless of the nature of this fault.
Consequential damages include, but are not limited to, loss of profits
or revenue; loss of use; loss of opportunity; loss of goodwill; cost of
substitute facilities; goods, or services; cost of capital; increased
operating costs; and costs of replacement power.
Page 26 of 27 WC contract-costplus-lumpsum.doc
7/8/13
ARTICLE 21 - CONSENT DECREE REQUIREMENT
21.1 The District has entered into a Consent Decree to settle claims alleged
in the matter titled United States et al. v. The Metropolitan St. Louis
Sewer District, No. 4:07-CV-1120 (E.D. Mo.) The Consultant is hereby
directed to read the Consent Decree which can be found on the District’s
website at www.stlmsd.com.
21.2 If Consultant’s failure to comply with this or any portion of this
Contract results in the District incurring costs related to its
compliance with the above mentioned Consent Decree then Consultant
hereby agrees to reimburse the District for all related costs associated
with said failure of Consultant.
ARTICLE 22 - DOCUMENT RETENTION
22.1 Consultant hereby agrees to retain copies of any reports, plans,
permits, and documents submitted to the District, as well as any
underlying research and data used to develop said submittals, for a
period of five (5) years after the above referenced consent decree is
terminated unless otherwise notified by the District.
22.2 At any time during this information-retention period identified above,
upon request by the District, Consultant shall provide copies of any
research and data underlying any of the reports, plans, permits, and
documents submitted to the District pursuant to this section within a
reasonable timeframe.
Page 27 of 27 WC contract-costplus-lumpsum.doc
7/8/13
IN WITNESS WHEREOF, the duly authorized parties hereto have set their hands and seals as of the day and year first above written.
THE METROPOLITAN ST. LOUIS SEWER DISTRICT
By
Seal Executive Director
Brian Hoelscher
ATTEST:
Acting Secretary-Treasurer
Susan M. Meyers
Approved as to Form
Office of General Counsel:
By__________________________
Susan M. Myers
NAME OF COMPANY
By
Seal
Printed Name
Its
ATTEST:
_____________________________
Secretary
I certify that this expenditure is within the appropriation to
which it is to be charged, and that there is an unencumbered balance in the
appropriation sufficient to pay this obligation or so much of it as may be
payable during the current fiscal year.
Director of Finance
Janice M. Zimmerman
Date