CONTRACT NO. An Agreement Between THE METROPOLITAN ST. LOUIS SEWER DISTRICT And. for Professional Services Related to:

Transcription

1 CONTRACT NO. An Agreement Between THE METROPOLITAN ST. LOUIS SEWER DISTRICT And Exhibit MSD 94J 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 Page 1 of 27

2 The Metropolitan St. Louis Sewer District 2350 Market Street St. Louis, Missouri 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 2 of 27

3 1.1 COST: Includes Direct Labor Expense, plus a percentage of Direct Labor Expense for total Indirect Costs, plus Other Direct Costs at actual outof-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, 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 3 of 27

4 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 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 4 of 27

5 professional liability, travel expenses, readiness to serve, Subconsultant and Subcontractor costs, and a reasonable amount for profit 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 5 of 27

6 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 6 of 27

7 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 , relative to such taxes. B. Missouri State Statutes, Section 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 7 of 27

8 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 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 8 of 27

9 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 9 of 27

10 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 10 of 27

11 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 11 of 27

12 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 to ). 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 12 of 27

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 13 of 27

14 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 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 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 14 of 27

15 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 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 15 of 27

16 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 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 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 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 16 of 27

17 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 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 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 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 17 of 27

18 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 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 18 of 27

19 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 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 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 19 of 27

20 discrimination in recruiting, employment, promotion, training, layoff, compensation, or discharge 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 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 20 of 27

21 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 This Agreement is to be governed by the laws of the State of Missouri 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 21 of 27

22 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 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 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 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 22 of 27

23 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 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 The MWBE Involvement Reports and SUBCONSULTANT Involvement Reports must be submitted with all invoices 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 Final payment will be made within thirty (30) days of satisfactory completion of the services and submission of the final invoice. Page 23 of 27

24 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 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 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 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 24 of 27

25 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 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 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 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 25 of 27

26 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 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 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 26 of 27

27 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 Seal ATTEST: By Executive Director Brian Hoelscher Acting Secretary-Treasurer Susan M. Meyers Approved as to Form Office of General Counsel: By Susan M. Myers Seal ATTEST: Secretary NAME OF COMPANY By Its Printed Name 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 Page 27 of 27