Exhibit 10.3
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
This AGREEMENT is made by and Siouxland Ethanol, LLC, hereinafter called OWNER,
and ANTIOCH International, Inc., hereinafter called ENGINEER, for professional
services not presently specified under any other agreement between OWNER and
ENGINEER. ENGINEER agrees to provide OWNER with requested professional services
more specifically described as follows:
ENGINEERING DESIGN SERVICES FOR A SPUR TRACK SERVING THE ETHANOL PLANT AT
XXXXXXX, NE.
The following Attachments are hereby made a part of the AGREEMENT:
X Standard Terms and Conditions
X Exhibit A: ENGINEER'S Services
X Exhibit B: OWNER'S Responsibilities
X Exhibit C: Payments to ENGINEER for Services and Reimbursable Expenses
X Appendix 1: Hourly Billing Rates and Reimbursable Expenses
By signing this AGREEMENT, OWNER acknowledges that it has read and fully
understands this AGREEMENT and all attachments thereto. OWNER further agrees to
pay ENGINEER for services described herein upon receipt of invoice.
IN WITNESS WHEREOF, the parties hereto have made and executed this AGREEMENT.
OWNER ENGINEER
SIOUXLAND ETHANL, LLC ANTIOCH INTERNATIONAL, INC.
BY: /s/ Xxx Xxxxx BY: /s/ Xxxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Authorized Representative Authorized Representative
TITLE: President TITLE: President
EFFECTIVE DATE: 11-5-04 DATE: November 2, 2004
ADDRESS: ADDRESS:
X.X. Xxx 000 2540 South 221st Circle
Xxxxx, NE 68030 Xxxxxxx, XX 00000
Telephone: 000-000-0000 Telephone: 000-000-0000
OWNER's Contact: Xxx Xxxxxx ENGINEER'S Contact: Xxxxxxx X. Xxxxx
Job No.: 98-112
PLEASE SIGN AND RETURN ONE ORIGINAL TO ENGINEER
EXHIBIT A - ENGINEER'S SERVICES
Section 1 of the Standard Terms and Conditions is amended and supplemented to
include the following agreement of the parties. ENGINEER shall provide Basic and
Additional Services as set forth below.
PART 1 - BASIC SERVICES
STUDY AND REPORT PHASE
ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER'S requirements for the
Project and available data.
2. Advise OWNER as to the necessity of OWNER'S providing data or services
which are not part of ENGINEER'S Basic Services, and assist OWNER in
obtaining such data and services.
3. Identify, consult with, and analyze requirements of governmental
authorities having jurisdiction to approve the portions of the Project
designed or specified by ENGINEER.
4. Identify and evaluate up to three alternate solutions available to OWNER
and, after consultation with OWNER, recommend to OWNER those solutions with
in ENGINEER'S judgment meet OWNER'S requirements for the Project.
5. Prepare a report (the "Report") which will, as appropriate, contain
schematic layouts, sketches and conceptual design criteria with appropriate
exhibits to indicate the agreed-to requirements, considerations involved,
and those alternate solutions available to OWNER which ENGINEER recommends.
This Report will be accompanied by ENGINEER'S opinion of Total Project
Costs for each solution which is so recommended for the Project with each
component separately itemized, including the following, which will be
separately itemized: opinion of probable Construction Cost, allowances for
contingencies and for the estimated total costs of design, professional,
and related services provided by ENGINEER and, on the basis of information
furnished by OWNER, allowances for other items and services included within
the definition of Total Project Costs.
6. Perform or provide the following additional Study and Report tasks or
deliverables:
- Prepare a conceptual track plan constructible in stages to
accommodate the initial 50 MMG plant design as well as the future
track for plan expansion to 100 MMG.
- Service by the main line railroad is planned once a week.
- The initial track construction concept (50 MMG) will be
configured to handle 35 ethanol tank cars plus 35 DDG xxxxxx cars
per service interval.
- At 100 MMG production, 100% of ethanol & DDGS products
transported by rail will generate 70 tank cars & 70 xxxxxx cars
each week.
- Track configuration must provide for traffic ingress/egress from
both east and west from the plan site.
- Current mainline traffic is 2 trains per day.
- Coordinate track design with the mainline railroads and Xxxxx
Engineering LLC.
7. Furnish two review copies of the Report to OWNER within 14 days of
authorization to proceed with Study and Report Phase.
8. Revise the Report in response to OWNER'S and other parties' comments, as
appropriate, and furnish two final copies of the revised Report to the
OWNER within 7 days after completion of reviewing it with OWNER.
ENGINEER'S services under the Study and Report Phase will be considered complete
on the date when the final copies of the revised Report have been delivered to
OWNER.
PRELIMINARY DESIGN PHASE - GRADING WORK
After acceptance by OWNER of the Report, selection by OWNER of a recommended
solution and indication of any specific modifications or changes in the scope,
extent, character, or design requirements of the Project desired by OWNER, and
upon written authorization from OWNER, ENGINEER shall:
1. On the basis of the above acceptance, selection, and authorization, prepare
Preliminary Design Phase documents consisting of design criteria,
preliminary drawings, and written descriptions of the Project.
2. OWNER to provide necessary field surveys, bench marks, topographic and
utility mapping for design purposes. Utility mapping will be based upon
topographic surveys and information obtained from utility owners. OWNER
shall accomplish field and topographic surveys, and prepare a topographic
map of surface features and ground contours in the project area.
3. Advise OWNER of additional reports, data, information, or services of the
types described in Exhibit B are necessary and assist OWNER in obtaining
such reports, data, information, or services.
4. Based on the information contained in the Preliminary Design Phase
documents, submit an opinion of probable Construction Cost known to
ENGINEER.
5. Perform or provide the following Preliminary Design Phase tasks or
deliverables: ENGINEER shall refine the conceptual track work plans, and
prepare plans in sufficient detail to accomplish the grading work,
generally described as follows:
GRADING WORK:
- Subgrade geometry & stationing based on the project coordinate
system.
- Match line between railroad subgrade and plant subgrade.
- Top of rail profile.
- Grading contour plan.
- Grading sections at 100' intervals.
- Special ditching elevations.
- Locations of service roads.
- Typical grading cross sections
- Subgrade staking report.
- Culvert plans showing length, flowline elevations & end
treatments.
- Yard track drainage inlets and piping plan.
- Erosion control plan
- Subballast plan.
6. Deliverables: drawing and notes indicating the general character of work to
be performed; preliminary cost estimate and identification of unresolved
final design features. ENGINEER shall not be responsible for those portions
of the Work performed by others.
7. Furnish two sets of Preliminary Design Phase documents to, and review them
with, OWNER or OWNER'S Consultant within 30 days after authorization to
proceed with the Preliminary Design Phase. OWNER'S Consultant to prepare
the Grading Work bidding documents and construction specifications.
8. Revise Preliminary Design Phase documents in response to OWNER'S and other
parties' comments, as appropriate, and furnish two final copies of the
revised Report to the OWNER within 7 days after completion of reviewing it
with OWNER.
ENGINEER'S services under the Preliminary Design Phase will be considered
complete on the date when revised copies of the Preliminary Design Phase
documents have been delivered by OWNER.
FINAL DESIGN PHASE
After acceptance by OWNER of the Preliminary Design Phase documents and revised
opinion of probable Construction Cost as determined in the Preliminary Design
Phase, but subject to any OWNER-directed modifications or changes in the scope,
extent, character, or design requirements of or for the Project, and upon
written authorization from OWNER, ENGINEER shall:
1. On the basis of the above acceptance, direction, and authorization, prepare
final Drawings and Specifications indicating the scope, extent, and
character of the Work to be performed and furnished by Contractor.
2. Provide technical criteria, written descriptions, and design data for
OWNER'S use in filing applications for permits from or approvals of
governmental authorities having jurisdiction to review or approve the final
design of the Project and assist OWNER in consultations with appropriate
authorities.
3. Advise OWNER of any adjustments to the opinion of probable Construction
Cost and any adjustments to Total Project Costs known to ENGINEER.
4. Perform or provide the following Final Design Phase tasks or deliverables:
- Track geometry & stationing based on the project coordinate
system for the initial 50 MMG & the future 100 MMG track layouts.
- Railroad mile posts & 14' clearance points for mainline turnouts.
- Location & size of existing & new turnouts, derails & bumping
posts.
- Show present & proposed buildings including unloading doors,
ramps and loadouts from information provided by OWNER.
- Horizontal & vertical clearances.
- Loadout sequence.
- Location of overhead & buried utilities with dimension to top of
rail.
- Location of fencing & gates.
- Location, length & type of grading crossings.
- Traffic control & signing plan for grade crossings.
- Traffic control & signing plan for grade crossings.
- Typical track cross section and walkway details
- Construction sequencing plan.
- Track construction notes & details.
- Track construction specifications.
- Final Design plan check with OWNER at project site, if requested.
5. Final Design Phase documents: drawings, notes and specifications indicating
the specific character of work to be performed; final opinion of cost; and
estimated construction quantities in sufficient detail to construct the
planned facility. Final plans shall meet the requirements of the mainline
and other entities, if any, having jurisdiction over the planned facility.
ENGINEER shall not be responsible for those portions of the Work performed
by others.
6. Furnish two sets of Final Design Phase documents to and review them with
OWNER within 30 days after authorization to proceed with the Final Design
Phase.
7. Revise the Report in response to OWNER'S and other parties' comments, as
appropriate, and furnish two final copies of the revised Report to the
OWNER within 7 days after completion of reviewing it with OWNER.
In the event that the Work designed or specified by ENGINEER is to be performed
or furnished under more than one prime contract, or if ENGINEER's services are
to be separately sequenced with the work of one or more prime Contractors (such
as in the case of fast-tracking), OWNER and ENGINEER shall, prior to
commencement of the Final Design Phase, develop a schedule for performance of
ENGINEER'S services during the Final Design, Bidding or Negotiating,
Construction, and Post-Construction Phases in order to sequence and coordinate
properly such services as are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or become as
amendment to Exhibit A whether or not the work under such contracts is to
proceed concurrently. The number of prime contracts for Work designed or
specified by ENGINEER upon which the ENGINEER'S compensation has been
established under this agreement is one.
ENGINEER'S services under the Final Design Phase will be considered complete on
the date when the Final Design Phase documents have been delivered to OWNER.
END
EXHIBIT B - OWNER'S RESPONSIBILITIES
Section 2 of the Standard Terms and Conditions is amended and supplemented to
include the following agreement of the parties.
In addition to other responsibilities of OWNER as set forth in this Agreement,
OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's
requirements for the Project, including design objectives and constraints,
space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all
design and construction standards which OWNER will require to be included
in the Drawings and Specifications; and furnish copies of OWNER's standard
forms, conditions, and related documents for ENGINEER to include in the
Bidding Documents, when applicable.
B. Furnish to ENGINEER any other available information pertinent to the
Project including reports and data relative to previous designs, or
investigation at or adjacent to the Site.
C. Following ENGINEER's assessment of initially-available Project information
and data and upon ENGINEER's request, furnish or otherwise make available
such additional Project related information and data as is reasonably
required to enable ENGINEER to complete its Basic and Additional Services.
Such additional information or data would generally include the following:
1. Property descriptions.
2. Zoning, deed, and other land use restrictions
3. Property, boundary, easement, right-of-way, and other special surveys
or data, including establishing relevant reference points.
4. Explorations and tests of subsurface conditions at or contiguous to
the Site, drawings of physical conditions in or relating to existing
surface or subsurface structures at or contiguous to the Site, or
hydrographic surveys, with appropriate professional interpretation
thereof.
5. Environmental assessments, audits, investigations and impact
statements, and other relevant environmental or cultural studies as to
the Project, the Site, and adjacent areas.
6. Data or consultations as required for the Project but not otherwise
identified in the Agreement or the Exhibits thereto.
D. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise
becomes aware of a Hazardous Environmental Condition or of any other
development that affects the scope or time of performance of ENGINEER's
services, or any defect or nonconformance in ENGINEER's services or in the
work of any Contractor.
E. Authorize ENGINEER to provide Additional Services as set forth in Part 2 of
Exhibit A of the Agreement as required.
F. Arrange for safe access to and make all provisions for ENGINEER to enter
upon public and private property as required for ENGINEER to perform
services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings,
Specifications, proposals, and other documents presented by ENGINEER
(including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such
examination) and render in writing timely decisions pertaining thereto.
H. Provide reviews, approvals, and permits from all governmental authorities
having jurisdiction to approve all phases of the Project designed or
specified by ENGINEER and such reviews, approvals, and consents from others
as may be necessary for completion of each phase of the Project.
I. Provide, as required for the Project:
1. Accounting, bond and financial advisory, independent cost estimating,
and insurance counseling services.
2. Legal services with regard to issues pertaining to the Project as
OWNER requires, Contractor raises, or ENGINEER reasonably requests.
3. Such auditing services as OWNER requires to ascertain how or for what
purpose Contractor has used the moneys paid.
4. Placement and payment for advertisement for Bids in appropriate
publications.
J. Advise ENGINEER of the identify and scope of services of any independent
consultants employed by OWNER to perform or furnish services in regard to
the Project, including, but not limited to, cost estimating, project peer
review, value engineering, and constructability review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be
provided by others for OWNER so that ENGINEER may make the necessary
calculations to develop and periodically adjust ENGINEER's opinion of Total
Project Costs.
L. If OWNER designates a construction manager or an individual or entity other
than, or in addition to, ENGINEER to represent OWNER at the Site, define
and set forth as an attachment to this Exhibit B the duties,
responsibilities, and limitations of authority of such other party and the
relation thereof to the duties, responsibilities, and authority of
ENGINEER.
M. If more than one prime contract is to be awarded for the Work designed or
specified by ENGINEER, designate a person or entity to have authority and
responsibility for coordinating the activities among the various prime
Contractors, and define and set forth the duties, responsibilities, and
limitations or authority of such individual or entity and the relation
thereof to the duties, responsibilities, and authority of ENGINEER as an
attachment to this Exhibit B that is to be mutually agreed upon and made a
part of this Agreement before such services begin.
N. Attend the pre-bid conference, bid opening, pre-construction conferences,
construction progress and other job related meetings, and Substantial
Completion and final payment inspections.
O. Provide the services of an independent testing laboratory to perform all
inspections, tests, and approvals of Samples, materials, and equipment
required by the Contract Documents, or to evaluate the performance of
materials, equipment, and facilities of OWNER, prior to their incorporation
into the Work with appropriate professional interpretation thereof.
P. Provide inspection or monitoring services by an individual or entity other
than ENGINEER (and disclose the identity of such individual or entity to
ENGINEER) as OWNER determines necessary to verify:
1. That Contractor is complying with any Laws and Regulations applicable
to Contractor's performing and furnishing the Work.
2. That Contractor is taking all necessary precautions for safety of
persons or property and complying with any special provisions of the
Contract Documents applicable to safety.
Q. Provide ENGINEER with the findings and reports generated by the entities
providing services pursuant to paragraphs O and P.
R. Provide ENGINEER with soils borings and geotechnical engineering data.
S. Schedule and conduct public meetings and hearings.
END
EXHIBIT C - PAYMENT TO ENGINEER FOR SERVICES AND REIMBURSABLE EXPENSES
Article 4 of the Standard Terms and Conditions is amended and supplemented to
include the following agreement of the parties.
ARTICLE 4 - PAYMENTS TO THE ENGINEER
For Basic and Additional Services Having an Undetermined Scope - Standard Hourly
Rates Method of Payment
OWNER shall pay ENGINEER for Basic and Additional Services set forth in Exhibit
A having an undetermined scope as follows:
1. The total compensation for services under this paragraph is estimate to be $
5,000.00 based on the following assumed distribution of compensation:
a. Study & Report Phase (assume 50 hrs.) $5,000.00
2. ENGINEER may alter the distribution of compensation between the individual
phases noted herein to be consistent with services actually rendered, but shall
not exceed the total compensation amount unless approved in writing by the
OWNER.
3. The total compensation for ENGINEER'S services, included in the breakdown by
phases as noted in paragraph 1, incorporates all labor, overhead profit,
Reimbursable Expenses, and ENGINEER'S Consultant's charges.
4. For services of ENGINEER'S employees engaged directly on the Project pursuant
to Exhibit A, an amount equal to the cumulative hours charged to the Project by
each class of ENGINEER'S employees times the Standard Hourly Rates for each
applicable class, plus Reimbursable Expenses. Standard Hourly Rates are attached
to this Exhibit C and include salaries and wages paid to personnel in each
billing class plus the cost of customary and statutory benefits, general and
administrative overhead, non-project operating costs, and operating margin or
profit.
6. Reimbursable Expenses are attached to this Exhibit C and include the
Project-related internal expenses actually incurred or allocated by the
ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the
Project.
7. ENGINEER'S estimate of the amounts that will become payable are only
estimates for planning purposes, are not binding on the parties, and are not the
minimum or maximum amounts payable to the ENGINEER under the Agreement. When
estimate compensation amounts have been stated herein and it subsequently
becomes apparent to ENGINEER that an estimated compensation amount will be
exceeded, ENGINEER shall give OWNER written notice thereof. Promptly thereafter
OWNER and ENGINEER shall review the matter of services remaining to be performed
and compensation for such services. OWNER shall either agree to such
compensation exceeding said estimated amount or OWNER and ENGINEER shall agree
to
a reduction in remaining services to be rendered by ENGINEER, so that total
compensation for services will not exceed the estimated amount when services are
completed. If ENGINEER exceeds the estimated amount before OWNER and ENGINEER
had agreed to an increase in compensation, or a reduction in services, the
ENGINEER shall be paid for all services rendered hereunder.
8. Standard Hourly Rates and Reimbursable Expense schedules will be adjusted
annually to reflect equitable changes in compensation payable to ENGINEER.
For Basic Services Having a Determined Scope - Lump Sum Method of Payment
OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A, Part 1
except for Study and Report Phase and services of ENGINEER'S Resident Project
Representative and Post-Construction Phase services, if any, as follows:
1. Lump Sum fee representing 3.00% of the estimated track construction cost
to be determined in Phase 1 - Study & Report, based on the following
assumed distribution of compensation:
a. Study and Report Phase See Hourly Payment
b. Preliminary Design Phase- Grading Design To Be Determined
c. Final Design Phase- Track Design To Be Determined
d. Additional Services Not Included
e. Bidding and Negotiating Phase Not Included
f. Construction Phase Not Included
2. ENGINEER may alter the distribution of compensation between individual
phases noted herein to be consistent with services actually rendered, but
shall not exceed the total Lump Sum amount unless approved in writing by
the OWNER.
3. The Lump Sum includes compensation for ENGINEER's services and services of
ENGINEER's Consultants, if any. Appropriate amounts have been incorporated
in the Lump Sum to account for labor, overhead, profit, and Reimbursable
Expenses. ENGINEER assumes full responsibility for, and shall pay, all
contributions and taxes payable under federal and state social security
acts, unemployment compensation laws, and income tax laws applicable to
ENGINEER and its employees.
4. The portion of the Lump Sum amount billed for ENGINEER' services will be
based upon ENGINEER's estimate of the proportion of the total services
actually completed during the billing period to the Lump Sum.
5. The Lump Sum is conditioned on Contract Times to complete the Work not
exceeding six months. Should the Contract Times to complete the Work be
extended beyond this period, the total compensation to ENGINEER shall be
appropriately adjusted.
END
STANDARD TERMS AND CONDITIONS
1. SERVICES OF ENGINEER
A. ENGINEER shall provide the Basic and Additional Services set forth herein
and in Exhibit A.
B. Upon this Agreement becoming effective, ENGINEER is authorized to begin
Basic Services as set forth in Exhibit A.
2. OWNER'S RESPONSIBILITIES
OWNER shall have the responsibilities set forth herein and in Exhibit B.
3. TIMES FOR RENDERING SERVICES
A. If in this Agreement 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 periods of time or dates are changed through no fault
of ENGINEER, the rates and amounts of compensation provided for herein
shall be subject to equitable adjustment. If OWNER has requested changes in
the scope, extent, or character of the Project, the time of performance of
ENGINEER's services shall be adjusted equitably.
B. Suspension. If OWNER fails to give prompt written authorization to proceed
with any phase of services after completion of the immediately preceding
phase, or if ENGINEER's services are delayed through no fault of ENGINEER,
ENGINEER may, after giving seven days written notice to OWNER, suspend
services under this Agreement.
4. PAYMENTS TO ENGINEER
A. Preparation and Payment of Invoices. Invoices will be prepared in
accordance with ENGINEER's standard invoicing practices. Invoices are due
and payable upon receipt. If OWNER fails to make any payment due ENGINEER
for services and expenses within 30 days after receipt of ENGINEER's
invoice therefore, the amounts due ENGINEER will be increased at the rate
of 1.0% per month (or the maximum rate of interest permitted by law, if
less) for said thirtieth day. In addition, ENGINEER may, after giving seven
days written notice to OWNER, suspend services under this Agreement until
ENGINEER has been paid in full all amounts due for services, expenses, and
other related charges. Payments will be credited first to interest and then
to principal.
B. Disputed Invoices. In the event of a disputed or contested invoice, only
that portion so contested may be withheld from payment, and the undisputed
portion will be paid.
C. Payments Upon Termination. In the event of any termination under Section 6
- General Conditions, ENGINEER will be entitled to invoice OWNER and will
be paid in accordance with Exhibit C for all services performed or
furnished and all Reimbursable Expenses incurred through the effective date
of termination.
D. Records of ENGINEER's Costs. Records of ENGINEER's costs pertinent to
ENGINEER's compensation under this Agreement shall be kept in accordance
with generally accepted accounting practices. To the extent necessary to
verify ENGINEER's charges and upon OWNER's timely request, copies of such
records will be made available to OWNER at cost.
5. OPINIONS OF COST
ENGINEER's opinions of probable Construction Cost provided for herein are to be
made on the basis of ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified professional generally
familiar with the industry. ENGINEER cannot and does not guarantee that
proposals, bids, or actual Construction Cost will not vary from opinions of
probable Construction Cost prepared by ENGINEER. If OWNER wishes greater
assurance as to probable Construction Cost, OWNER shall employ an independent
cost estimator in provided in Exhibit B.
6. GENERAL CONSIDERATIONS
STANDARDS OF PERFORMANCE
A. The standard of care for all professional engineering and related services
performed or furnished by ENGINEER under this Agreement will be the care
and skill ordinarily used by members of ENGINEER's profession practicing
under similar circumstances at the same time and in the same locality.
ENGINEER makes no warranties, express or implied, under this Agreement or
otherwise, in connection with ENGINEER's services.
B. ENGINEER and OWNER shall comply with applicable Laws or Regulations and
OWNER-mandated standards. Changes to these requirements after the Effective
Date of this Agreement may be the basis for modifications to OWNER's
responsibilities or to ENGINEER's scope of services, times of performance,
or compensation.
C. OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy
and completeness of all requirements, programs, instructions, reports,
data, and other information furnished by OWNER to ENGINEER pursuant to this
Agreement. ENGINEER may use such requirements, reports, data, and
information in performing or furnishing services under this Agreement.
D. ENGINEER shall not be responsible for the acts or omissions of any
Contractor(s), subcontractor or supplier, or of any of the Contractor's
agents or employees or any other persons (except ENGINEER's own employees)
at the Site or otherwise furnishing or performing any of the Contractor's
work; or for any decision made on interpretations or clarifications of the
Contract Documents given by OWNER without consultation and advice of
ENGINEER.
E. ENGINEER shall keep confidential all information, drawings, specifications
or data furnished by OWNER or prepared by ENGINEER specifically in
connection with this Agreement.
F. ENGINEER shall comply with applicable Federal, State and local laws,
ordinances, regulations, rules and orders relating to the environment and
occupational health and safety. ENGINEER shall not be responsible for
safety and health of any persons on the Project except ENGINEER's own
employees.
USE OF DOCUMENTS
A. All Documents are instruments of service in respect to this Project, and
ENGINEER shall retain an ownership and property interest therein (including
the right of reuse at the discretion of the ENGINEER) whether or not the
Project is completed.
B. Copies of Documents that may be relied upon by OWNER are limited to the
printed copies (also known as hard copies) that are signed or sealed by the
ENGINEER. Files in electronic
media format of text, data, graphics, or of other types that are furnished
by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or
information obtained or derived from such electronic files will be at the
user's sole risk. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
C. OWNER may make and retain copies of Documents for information and reference
in connection with use on the Project by OWNER. 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 such reuse or
modification without written verification or adaptation by ENGINEER, as
appropriate for the specific purpose intended, will be at OWNER's sole risk
and without liability or legal exposure to ENGINEER or to ENGINEER's
Consultants. OWNER shall indemnify and hold harmless ENGINEER and
ENGINEER's Consultants from all claims, damages, losses and expenses,
including attorneys' fees arising out of or resulting therefrom.
INSURANCE
A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G,
"Insurance".
B. OWNER shall procure and maintain insurance as set forth in Exhibit G,
"Insurance". OWNER shall cause ENGINEER and ENGINEER's Consultants to be
listed as additional insureds on any general liability or property
insurance policies carried by OWNER which are applicable to the Project.
C. OWNER and ENGINEER shall each deliver to the other certificates of
insurance evidencing the coverages indicated in Exhibit G. Such
certificates shall be furnished prior to commencement of ENGINEER's
services and at renewals thereafter during the life of the Agreement.
TERMINATION
A. The obligation to provide further services under this Agreement shall be
terminated:
1. For cause,
a. By either party upon 30 days written notice in the event of
substantial failure by the other party to perform in accordance
with the terms hereof through no fault of the terminating party.
b. By ENGINEER, upon seven days written notice if ENGINEER believes
that ENGINEER is being requested by OWNER to furnish or perform
services contrary to ENGINEER's responsibilities as a licensed
professional or, upon seven days written notice if the ENGINEER's
services for the Project are delayed or suspended for more than
90 days for reasons beyond ENGINEER's control. ENGINEER shall
have no liability to OWNER on account of such termination.
2. For convenience,
a. By OWNER effective upon the receipt of notice by ENGINEER.
CONTROLLING LAW
This Agreement is to be governed by the law of the state of Nebraska.
SUCCESSORS, ASSIGNS, AND BENEFICIARIES
A. OWNER and ENGINEER each is hereby bound and the partners, successors,
executors, administrators and legal representatives of OWNER and ENGINEER
(and to the extent
permitted by the following paragraph the assigns of OWNER and ENGINEER) are
hereby bound to the other party to this Agreement and to the partners,
successors, executors, administrators and legal representatives (and said
assigns) of such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under
or interest (including, but not without limitation, moneys that are due or
may become due) in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or transfer is
mandated or restricted by law. Unless specifically stated to the contrary
in any written consent to an assignment, no assignment will release or
discharge the assignor from any duty or responsibility under this
Agreement.
HAZARDOUS ENVIRONMENTAL CONDITION
A. OWNER represents to ENGINEER that to the best of its knowledge a Hazardous
Environmental Condition does not exist. It is acknowledged by both parties
that ENGINEER's scope of services does not include any services related to
a Hazardous Environmental Condition. If a Hazardous Environmental Condition
is encountered or alleged, ENGINEER shall have the obligation to notify
OWNER and, to the extent of applicable Laws and Regulations, appropriate
governmental officials.
B. OWNER acknowledges that ENGINEER is performing professional services for
OWNER and that ENGINEER is not and shall not be required to become an
"arranger", "operator," "generator", or "transporter" of hazardous
substances, as defined in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1990 (CERCLA), which are or may be
encountered at or near the Site in connection with ENGINEER's activities
under this Agreement.
ALLOCATION OF RISK
Indemnification:
A. To the fullest extent permitted by law, ENGINEER and OWNER shall indemnify
and hold harmless each other, their officers, directors, partners, and
employees from and against any and all costs, losses, and damages
(including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals, and all court or
arbitration or other dispute resolution costs) caused solely by the their
negligent acts or omissions or those of their officers, directors,
partners, employees, and consultants with respect to this Agreement.
B. To the fullest extent permitted by law, ENGINEER's total liability to OWNER
and anyone claiming by, through, or under OWNER for any cost, loss or
damages caused in part by the negligence of ENGINEER and in part by the
negligence of OWNER or any other negligent entity or individual, shall not
exceed the percentage share that ENGINEER's negligence bears to the total
negligence of OWNER, ENGINEER, and all other negligent entities and
individuals.
C. In addition, OWNER shall indemnify and hold harmless ENGINEER and its
officers, directors, partners, employees, and ENGINEER's Consultants from
and against all costs, losses, and damages caused by, arising out of or
resulting from a Hazardous Environmental Condition.
ENGINEER'S Liability Limited to Amount of ENGINEER's Compensation: To the
fullest extent permitted by law, and notwithstanding any other provision of this
Agreement, the total
liability, in the aggregate, of ENGINEER and ENGINEER's officers, directors,
partners, employees, agents, and ENGINEER's Consultants, and any of them, to
OWNER and anyone claiming by, through, or under OWNER for any and all claims,
losses, costs, or damages whatsoever arising out of, resulting from or in any
way related to the Project or the Agreement from any cause or causes, including
but not limited to the negligence, professional errors or omissions, strict
liability or breach of contract, or warranty express of implied of ENGINEER or
ENGINEER's officers, directors, partners, employees, agents, or ENGINEER's
Consultants, or any of them, shall not exceed the total compensation received by
ENGINEER under this Agreement.
NOTICES
Any notice required under this Agreement will be in writing, addressed to the
appropriate party at its address on the signature page and given personally, or
by registered or certified mail postage prepaid, or by a commercial courier
services. All notices shall be effective upon the date of receipt.
SURVIVAL
All express representations, indemnifications, or limitations of liability
included in this Agreement will survive its completion or termination for any
reason.
SEVERABILITY
Any provision or part of the Agreement held to be void or unenforceable under
any Laws or Regulations shall be deemed stricken, and all remaining provisions
shall continue to be valid and binding upon OWNER and ENGINEER, who agree that
the Agreement shall be reformed to replace such stricken provision or part
thereof with a valid and enforceable provision that comes as close as possible
to expressing the intention of the stricken provision.
WAIVER
Non-enforcement of any provision by either party shall not constitute a waiver
of that provision, nor shall it affect the enforceability of that provision or
of the remainder of this Agreement.
7. DEFINITIONS
DEFINED TERMS
Wherever used in this Agreement (including the Exhibits hereto) and printed with
initial or all capital letters, the terms listed below have the meanings
indicated, which are applicable to both the singular and plural thereof:
1. Addenda - Written or graphic instruments issued prior to the opening of
Bids which clarify, correct, or change the Bidding Documents.
2. Agreement - This "Standard Form of Agreement between OWNER and ENGINEER for
Professional Services," including Exhibits.
3. Bid - The offer or proposal of the bidder submitted on the prescribed form
setting forth the prices for the Work to be performed.
4. Bidding Documents - The advertisement or invitation to Bid, instructions to
bidders, the Bid form and attachments, the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
5. Construction Cost - The cost to OWNER of those portions of the entire
Project designed or specified by ENGINEER. Construction Cost does not
include costs of services of ENGINEER or other design professionals and
consultants, cost of land, rights-of-way, or compensation for damages to
properties, or OWNER's costs for legal, accounting, insurance counseling or
auditing services, or interest and financing charges incurred in connection
with the Project, or the cost of other services to be provided by others to
OWNER pursuant to Exhibit B of this Agreement. Construction Cost is one of
the items comprising Total Project Costs.
6. Contract Documents - Documents that establish the rights and obligations of
the parties engaged in construction and include the Construction Agreement
between OWNER and Contractor, Addenda (which pertain to the Contract
Documents), Contractor's Bid (including documentation accompanying the Bid
and any post-Bid documentation submitted prior to the notice of award) when
attached as an exhibit to the Construction Agreement, the notice to
proceed, the bonds, appropriate certifications, the General Conditions, the
Supplementary Conditions, the Specifications and the Drawings as the same
are more specifically identified in the Construction Agreement, together
with all Written Amendments, Change Orders, Work Change Directives, Field
Orders, and ENGINEER's written interpretations and clarifications issued on
or after the Effective Date of the Construction Agreement. Approved Shop
Drawings and the reports and drawings of subsurface and physical conditions
are not Contract Documents.
7. Documents - Data, reports, Drawings, Specifications, Record Drawings, and
other deliverables, whether in printed or electronic media format, provided
or furnished in appropriate phases by ENGINEER to OWNER pursuant to this
Agreement.
8. Drawings - That part of the Contract Documents prepared or approved by
ENGINEER which graphically shows the scope, extent, and character of the
Work to be performed by Contractor. Shop Drawings are not Drawings as so
defined.
9. Effective Date of the Agreement - The date indicated in this Agreement upon
which it becomes effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by the last of the two
parties to sign and deliver.
10. ENGINEER's Consultants - Individuals or entities having a contract with
ENGINEER to furnish services with respect to this Project as ENGINEER's
independent professional associates, consultants, subcontractors, or
vendors. The term ENGINEER includes ENGINEER's Consultants.
11. Hazardous Environmental Condition - The presence at the Site of Asbestos,
PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such
quantities or circumstances that may present a substantial danger to
persons or property exposed thereto in connection with the Work.
12. Hazardous Waste - The term Hazardous Waste shall have the meaning provided
in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as
amended from time to time.
13. Laws and Regulations; Laws or Regulations - Any and all applicable laws,
rules, regulations, ordinances, codes, standards, and orders of any and all
governmental bodies, agencies, authorities, and courts having jurisdiction.
14. Site - Lands or areas indicated in the Contract Documents as being
furnished by OWNER upon which the Work is to be performed, rights-of-way
and easements for access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
15. Specifications - That part of the Contract Documents consisting of written
technical descriptions of materials, equipment, systems, standards, and
workmanship as applied to the Work and certain administrative details
applicable thereto.
16. Work - The entire completed construction or the various separately
identifiable parts thereof required to be provided under the Contract
Documents with respect to this Project. Work includes and is the result of
performing or furnishing labor, services, and documentation necessary to
produce such construction and furnishing, installing, and incorporating all
materials and all equipment into such construction, all as required by the
Contract Documents.
END
APPENDIX 1
STANDARD HOURLY RATES
FOR YEAR 2004
Principal/Project Manager $90.00/hr.
Professional Engineer $77.00/hr.
Design Engineer $67.00/hr.
Engineering Technician $50.00/hr.
CAD Technician $42.00/hr.
Clerical $38.00/hr.
REIMBURSABLE EXPENSES
CAD Workstation & Plotter $ 3.00/hr
Printing Actual Cost
Commercial Services Actual Cost
Vehicle - Rental Actual Cost
Vehicle - Company $0.36/mile
Rental Equipment Actual Cost
Travel & Per Diem Actual Cost
Laboratory Testing Actual Cost + 10%
Sub Consultants Actual Cost + 10%
Cellular Telephone Calls Actual Cost
Long Distance Telephone Calls Actual Cost
