HomeMy WebLinkAbout02112019 City Council Laydown - PND Contract
PROFESSIONAL SERVICES AGREEMENT
ENGINEERING SERVICES AGREEMENT
FOR THE 2017 SEWARD STORM SURGE DAMAGE REPAIRS Page 1 of 13
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PROFESSIONAL SERVICES AGREEMENT
ENGINEERING SERVICES AGREEMENT
FOR THE 2017 SEWARD STORM SURGE DAMAGE REPAIRS
This Agreement, between the CITY OF SEWARD, an Alaska home rule
municipal corporation (“City”), and PND ENGINEERS, INC. (“Engineer”), is effective
February 12, 2019 for the provision of professional engineering services.
Notice shall be given to the Designated Representative of the contracting parties
as follows:
Jeff Bridges, Interim City Manager
City of Seward, Alaska
P. O. Box 167
Seward, Alaska 99664
Doug Kenley, PE.
PND Engineers, Inc
1506 W. 36th Avenue
Anchorage, Alaska 99503
1. SCOPE OF WORK
1.1 PURPOSE OF AGREEMENT. The City seeks to retain engineering
services related to the following project:
Professional Engineering Services for design, permitting, construction bid
proposal, and project management for the 2017 Seward Storm Surge
Damage Repairs Project, as more particularly described in the City of
Seward RFP dated January 10, 2019, attached Exhibit 1.
The services provided by the Engineer will consist of planning, providing specifications,
permitting, and preparing contract documents to bid the construction repairs, including
design cost estimating, and project management as described in the above -mentioned
RFP and Engineer's responsive bid.
2. GENERAL PROVISIONS
2.1 DEFINITIONS. The following terms shall have the meanings as defined
below.
2.1.1 “Agreement” means this Agreement, including all amendments,
modifications, and supplements hereto and any appendices, exhibits, or schedules to
same, and refers to this Agreement as it may be in effect at the time such reference
becomes operative. Together the documents form an agreement which represents the
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entire and integrated agreement between the parties hereto, and supersedes prior
negotiations or agreements, either written or oral. This Agreement is entered into solely
for the purpose of the Project.
2.1.2 “Contract Documents” means and consists of (i) this Agreement
signed by City and Engineer; (ii) Alaska Department of Labor and Workforce
Development Pamphlet 600, which is incorporated herein as though fully set forth
herein; (iii) all exhibits and schedules to this Agreement; and (iv) all change orders for
changes in the Work issued after the execution of this Agreement.
2.1.3 “City’s Representative” means Mr. Doug Schoessler, Public Works
Director; or the City Manager; or the City Manager’s designee.
2.1.4 “Work” means all labor, materials, equipment, and services
provided by Engineer to fulfill Engineer’s obligations.
3. ENGINEER’S RESPONSIBILTIES
3.1 ENGINEERING SERVICES. Engineer shall be responsible for procuring
engineering, planning, consulting, and design (collectively “Engineering”) of the Work
described in the Task Orders and Contract Documents. Engineer shall exercise
reasonable skill and judgment in the performance of the Work.
3.1.1 Engineer shall be responsible for taking and verifying field
dimensions, providing tests, ordering materials, and all other actions as required to
perform this Agreement.
3.1.2 Engineer shall submit for City’s written approval Drawings and
Specifications based on the Contract Documents insuring proposed work meets with the
FEMA guidelines for cost reimbursement. Drawings and Specifications shall set forth in
detail the requirements for construction of the Work, and shall be based upon codes,
laws, or regulations enacted at the time of their preparation.
3.2 SAFETY, LEGAL COMPLIANCE, AND RECORDKEEPING. Engineer
shall take necessary precautions for the safety of its employees on the Project.
Engineer shall not, however, be responsible for the elimination or abatement of safety
hazards created or otherwise resulting from the work of City or its agents.
3.2.1 Engineer shall give adequate notices to authorities pertaining to its
Work, and shall secure and pay for all permits, fees, assessments, inspections, and
taxes necessary to complete the Work. Engineer shall comply with all laws and
ordinances legally enacted at the date of execution of the Agreement which govern
proper performance of the Work.
3.2.2 To the extent that Engineer retains or contracts with any mechanic
or laborer during the Work, Engineer will comply with the Alaska Prevai ling Wage Act,
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AS 36.05.005 et seq., and will pay any mechanic or laborer, including apprentices and
trainees, the full amount of wages required under the Act. In the event that Engineer
enters into contracts with Subcontractors for the provision of work by mechanics or
laborers, Engineer will require the Subcontractor to pay its mechanics and laborers
according to the terms of the Act.
3.2.3 Engineer shall maintain insurance policies as described in Article 9.
3.2.4 Engineer shall keep such full and detailed accounts as may be
necessary for proper financial management under this Agreement. City shall be
afforded access to all Engineer’s records, books, correspondence, instructions,
drawings, schedules, receipts, vouchers, memoranda, and similar data relating to
Change Order work performed on the basis of actual cost. Engineer shall preserve all
such records for a period of three years following final payment.
4. CITY’S RESPONSIBILITIES
4.1 INFORMATION. City shall provide information in a timely manner
regarding requirements for each Task Order. Engineer shall be entitled to rely on the
completeness and accuracy of information provided by City. City shall provide all
necessary information describing the physical characteristics of the site, including
surveys, site evaluations, legal descriptions, existing conditions, subsurface and
environmental studies, reports, and investigations.
4.2 RESPONSIBILITIES DURING THE WORK
4.2.1 City shall review and approve further development of the drawings
and specifications as set forth in Article 3.
4.2.2 City shall review the Schedule of Work and timely respond to City’s
obligations.
4.2.3 If City becomes aware of any error, omission, or failure to meet the
requirements of the Contract Documents, or any fault or defect in the Work, City shall
give prompt notice to Engineer.
4.2.4 City shall have no contractual obligations to any Sub contractors or
suppliers.
4.2.5 Where the Engineer’s work involves a project for construction, City
shall provide insurance for the project as provided in Article 9.
4.3 CITY’S DESIGNATED REPRESENTATIVE. City’s Designated
Representative shall be fully acquainted with the Project, shall furnish information and
services required of City pursuant to Paragraph 4.1 so as not to delay Engineer’s Work,
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and shall have authority to bind City in all matters requiring City’s approval,
authorization, or written notice.
5. SUBCONTRACTORS TO ENGINEER
5.1 SUBCONTRACTORS. Work not performed by Engineer with its own
resources shall be performed by Subcontractors.
5.1.1 Engineer shall not retain any Subcontractor to whom City has a
reasonable and timely objection, provided that City agrees to increase the Contract
Price for any additional costs incurred by Engineer as a result of such objection.
5.1.2 Engineer shall be wholly responsible for the management of its
Subcontractors in the performance of their work.
6. CONTRACT TIME
6.1 COMMENCEMENT. The Work shall commence upon the date of receipt
of a written Notice to Proceed by the Engineer.
6.2 CONTRACT TERM. The term of this Agreement shall be until completed
or otherwise legally terminated.
6.3 Time is of the essence in this Agreement.
6.3.1 If Engineer is delayed at any time in the progress of the Work by
changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries,
unavoidable casualties, or other causes beyond Engineer's control, the Contract Time
will be extended by Change Order to the extent that: (1) the delay will prevent Engineer
from achieving Substantial Completion within the Contract Time, and (2) the
performance of the Work is not delayed by any other cause for which Engineer is not
entitled to an extension in the Contract Time under the Contract Documents.
Adjustments to the Contract Time will be permitted for a delay only to the extent such
delay (1) is not caused, or could not have been anticipated, by Engineer, (2) could not
be limited or avoided by Engineer's timely notice to City of the delay, and (3) is of a
duration not less than one day.
6.3.2 Final inspection and acceptance by City’s Representative will not
be made until all Work under this Agreement is completed. If unforeseeable causes
beyond Engineer’s control, and without Engineer’s fault or negligence, delay progress of
the Work, then Task Order Price and/or date of Task Order Completion shall be modified
by Change Order as appropriate in accordance with the provisions of Article 8.
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7. COMPENSATION OF ENGINEER
7.1 CONTRACT SUM; PAYMENT. For and in consideration of Engineer's
performance of the Work, Engineer will receive: payment by unit price and actual
quantities of work and materials provided in accordance with the bid prices in the
attached Exhibit 2 (task estimate) and a Total Cost not to exceed $234,440, and any
authorized adjustments for additional work not anticipated by this contract. City’s
payment obligation will be subject to:
7.1.1 A reduction by any amount owed by Engineer to City at the time
payment of the Contract Sum is due; or
7.1.2 Additions and/or deletions by Change Order.
7.2 ENGINEER’S INVOICES. Engineer will submit a single final invoice within
thirty (30) days of the completion of Work.
7.3 REVIEW OF ENGINEER’S INVOICES. City's Representative will, with in
fifteen (15) days after receipt of any Engineer's invoice, approve payment for such
amount as City's Representative determines is properly due, and notify Engineer in
writing of the reasons for any withholding of payment in whole or in part.
7.4 PAYMENT BY ENGINEER
7.4.1 Engineer will promptly pay each person who supplies labor or
materials to Engineer upon receipt of payment from City, out of the amount paid to
Engineer.
7.4.2 City will have no responsibility for the payment of money to a
person or entity who supplies labor or materials to Engineer.
7.4.3 A payment, or partial or entire use or occupancy of the Work by
City, will not constitute acceptance of any Work not in accordance with the requirements
of the Contract Documents.
7.4.4 If City is entitled to reimbursement or payment from Engineer under
the Contract Documents, Engineer will make the payment promptly upon demand by
City. Notwithstanding anything in the Contract Documents to the contrary, if Engineer
fails promptly to make any payment due City, or City incurs costs and expenses to cure
any default of Engineer or to correct defective Work, City will have an absolute right to
offset the amount against the Contract Sum and may, in City's sole discretion, either
(1) deduct an amount equal to the amount which is due City from any payment then or
thereafter due Engineer from City, or (2) issue a written notice to Engineer reducing the
Contract Sum by an amount equal to the amount which is due City.
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7.5 FINAL COMPLETION AND FINAL PAYMENT. Upon receipt of a final
Application for Payment, City's Representative will determine whether the final work is
acceptable to City. City may withhold from the final payment to Engineer any amount
that City determines is necessary to render the Work acceptable to City under the
Contract Documents.
8. CHANGES IN THE WORK
8.1 CHANGE ORDERS. Changes in the Work which are within the general
scope of this Agreement will be accomplished by Change Order, signed by both City
and Engineer and stating the change and any adjustment in Task Order Price, Task
Order Completion Date, and/or date of Substantial Completion.
8.2 UNILATERAL CHANGE ORDER. In the event City and Engineer cannot
agree as to the amount of adjustment in Task Order Price, City shall issue a written
order adjusting the Task Order Price determin ed by the reasonable expense and/or
savings in the performance of the Work resulting from the Change. If such a change
results in a net increase in Task Order Price, City shall make a reasonable adjustment in
Engineer’s overhead and profit. In the case of a net decrease in Task Order Price, City
shall not make a reduction in overhead and profit. In the event of a disagreement
between City and Engineer as to the amount of adjustment in Task Order Price,
Engineer shall nonetheless continue to prosecute the Work.
8.3 CHANGED CONDITIONS. If in the performance of the Work Engineer
finds latent, concealed, or subsurface physical conditions which differ from the
conditions Engineer reasonably anticipated, or if physical conditions are materially
different from those normally encountered and generally recognized as inherent in the
kind of work provided for in this Agreement, Engineer shall immediately notify City in
writing of such changed condition.
8.3.1 No adjustment in Task Order Price and/or Task Order Completion
Date shall be claimed by Engineer due to changed conditions unless Engineer shall
have timely notified City of the condition and made written request for such adjustment
within three (3) days after such condition was encountered.
8.3.2 Adjustments to the Task Order Price and/or Task Order Completion
Date, if any, resulting from changed conditions shall be set forth in a Change Order
pursuant to this Article. No such adjustments shall be made for any changes performed
by Engineer that have not been ordered by City in writing. Engineer expressly agrees
that this requirement cannot be waived.
8.4 NOTICE REQUIREMENT. For any request for an adjustment of Task
Order Price, Task Order Completion Date, and/or date of Substantial Completion,
Engineer shall give City written notice of the request within twenty-one (21) days after
the occurrence giving rise to the request or twenty-one (21) days after Engineer first
recognized the condition giving rise to the claim, whichever is later.
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8.5 EMERGENCIES. In any emergency affecting the safety of persons and/or
property, Engineer shall act, at its discretion, to prevent threatened damage, injury, or
loss. If such an emergency is anticipated to result in a request for an increase in Task
Order Price, Task Order Completion Date, and/or date of Substantial Completion, notice
shall be given to City before proceeding with the Work.
9. INDEMNITY, INSURANCE, AND WAIVER OF SUBROGATION
9.1 INDEMNITY. Engineer shall indemnify, defend, and hold harmless the
City from and against any claim of, or liab ility for, negligent acts, errors, and omissions
of Engineer under this Agreement. Engineer is not required to indemnify, defend, or
hold harmless the City for a claim of, or liability for, the independent negligent acts,
errors, and omissions of the City. If there is a claim of, or liability for, a joint negligent
act, error, or omission of Engineer and the City, the indemnification, defense, and hold
harmless obligation of this provision shall be apportioned on a comparative fault basis.
In this provision, "Engineer" and "City" include the employees, agents, and contractors
who are directly responsible, respectively, to each. In this provision, "independent
negligent acts, errors, and omissions" means negligence other than in the City's
selection, administration, monitoring, or controlling of Engineer, or in approving or
accepting Engineer's work.
9.2 ENGINEER’S INSURANCE
9.2.1 Engineer will provide evidence of insurance with a carrier or
carriers satisfactory to City covering injury to persons and/or property suffered by City or
a third party as a result of operations by Engineer which arise both out of and during the
course of this Agreement. This coverage will also provide protection against injuries to
all employees of Engineer engaged in Work under this Agreement. The delivery to City
of a written thirty (30) day notice is required before cancellation of any coverage or
reduction in any limits of liability.
9.2.2 Engineer will maintain in force at all times during the performance
of Work under this Agreement the following policies of insurance. Failure to maintain
insurance may, at the option of City, be deemed Defective Work and remedied in
accordance with the Contract Documents. Where specific limits and coverage are
shown, it is understood that they will be the minimum acceptable. The requirements of
this Paragraph will not limit the Engineer's responsibility to indemnify under
Paragraph 9.1.
A. Comprehensive or Commercial General Liability Insurance:
Engineer will provide and maintain either Comprehensive or Commercial General
Liability Insurance to cover all operations by or on behalf of Engineer, and provide
insurance for bodily injury and property damage liability including coverage for:
premises and operations, products and completed operations, and personal injury
liability. The minimum limits of liability will be:
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(1) If Engineer carries a Comprehensive General Liability policy,
the limits of liability will not be less than a Combined Single
Limit for bodily injury, property damage and Personal Injury
Liability of $1,000,000 each occurrence/$1,000,000
aggregate.
(2) If Engineer carries a Commercial General Liability policy, the
limits of liability will not be less than $1,000,000 each
occurrence (Combined Single Limit for bodily injury and
property damage), $1,000,000 for Personal Injury Liability,
$1,000,000 aggregate for Products-Completed Operations,
and $1,000,000 general aggregate.
B. Professional Liability Insurance: Engineer will provide and
maintain professional liability insurance for claims arising from negligent performance of
professional services under this Agreement and shall be written for not less than
$1,000,000 per claim/$1,000,000 aggregate, with such insurance maintained for a
minimum of three years after the date of Task Order Completion.
C. Workers’ Compensation Insurance: Engineer will provide
and maintain, for all employees of Engineer engaged in work under this Agreement,
Workers' Compensation insurance as required by AS 23.30.045, to include Employer's
Liability Protection in the amount of $1,000,000 per person/ $1,000,000 per occurrence.
D. Automobile Liability Insurance: Engineer will provide and
maintain for all owned, hired, and non-owned vehicles coverage in limits not less than
the following: $1,000,000 each occurrence (Combined Single Limit for bodily injury and
property damage).
9.2.3 Certificates of Insurance acceptable to City will be filed with City.
Certificates for all coverage will be provided before commencement of the Work. Each
Certificate of Insurance will contain the following statement: "This is to certify that the
policies described herein comply with all aspects of the insurance requirements of
(Contract Name and Project Number)." Acceptance by City of a deficient Certificate of
Insurance does not constitute a waiver of any requirement of insurance in the Contract
Documents.
A. Engineer’s insurance will be endorsed to provide that the
insurers and underwriters on all policies waive their right of subrogation against City.
Except for workers’ compensation coverage described at 9.2.2, City will be named
additional insured on all policies.
9.3 CITY’S INSURANCE
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9.3.1 City shall be responsible for obtaining and maintaining its own
liability insurance. Except as set forth below, insurance for claims arising out of the
performance of this Agreement may be purchased and maintained at City’s discretion.
9.3.2 In the event that Engineer’s Work involves projects for
construction undertaken by City, City shall obtain and maintain Builder’s Risk insurance
in a form acceptable to Engineer upon the entire project for the full cost of replacement
at the time of any loss. The insurance shall include as named insureds City, Engineer,
and any Architect/Engineers or Contractors. The insurance shall insure against loss
from the perils of fire and extended coverage, and shall include “all risk” insurance for
physical loss or damage, including without duplication of coverage: theft, vandalism,
malicious mischief, transit, collapse, falsework, temporary buildings, debris removal,
flood, earthquake, testing, and damages resulting from defective design, workmanship,
or material. City shall increase limits of coverage, if necessary, to reflect estimated
replacement cost. City shall be responsible for co-insurance penalties or deductibles.
9.4 WAIVER OF SUBROGATION
9.4.1 Engineer and City waive all rights against each other, and any of
their respective employees, agents, consultants, and Subcontractors, for damages
caused by risks covered by insurance provided in Paragraph 9.2 to the extent they are
covered by that insurance, except such rights as they may have to the proceeds of such
insurance held by Engineer or City as trustees. Engineer shall require similar waivers
from any and all Contractors, and shall require each of them to include simil ar waivers
in their subcontracts and consulting agreements.
9.4.2 If the policies of insurance referred to in this Paragraph require an
endorsement to provide for continued coverage where there is a waiver of subrogation,
the holder of such policies will cause them to be so endorsed.
9.5 SURVIVAL. Engineer's insurance and indemnity obligations hereunder
will survive termination of this Agreement.
10. SUSPENSION OR TERMINATION OF AGREEMENT
10.1 SUSPENSION FOR CITY’S CONVENIENCE. City may order Engineer in
writing to suspend, delay, or interrupt all or part of the Work for such period of time as
may be determined to be appropriate for the convenience of City. Adjustments caused
by suspension, delay, or interruption shall be made in Task Order Price and/or Task
Order Completion Date. No adjustment shall be made if Engineer is responsible for the
suspension, delay, or interruption of the Work, or if another provision of this Agreement
is applied to create an adjustment.
10.2 TERMINATION FOR CITY’S CONVENIENCE. City may, at its sole and
absolute discretion, terminate this Agreement for its own convenience. If City so elects,
City shall be liable to Engineer for the reasonable value of work performed by Engineer
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prior to termination of the Agreement, including reasonable profit a nd overhead, less
prior payments made. Engineer shall not be entitled to prospective profits on
unperformed work, or consequential damages.
10.3 TERMINATION BY CITY FOR CAUSE.
10.3.1 Upon seven (7) days' written notice to Engineer, City may terminate
this Agreement for any of the following reasons:
1. Engineer persistently utilizes improper materials and/or
inadequately skilled workers;
2. Engineer does not make proper payment to any laborers, materials
suppliers, or Subcontractors;
3. Engineer persistently fails to abide by the orders, regulations, rules,
ordinances, or laws of governmental authorities having jurisdiction;
4. Engineer files a petition under the Bankruptcy Code; or
5. Engineer otherwise materially breaches this Agreement.
10.3.2 In the event that City exercises its rights under Paragraph 10.3, City
may, without prejudice to any other right or remedy against Engineer, take over and
complete the performance of this Subcontract, or any part of it, at the expense of
Engineer, or without taking over the work, may furnish the necessary materials and/or
employ the workmen necessary to remedy the situation at the expense of Engineer.
10.3.3 If City takes over work pursuant to Subparagraph 10.3.2, it is
specifically agreed that City may take possession of the premises and of all materials,
tools, and equipment of Engineer at the site or for which Engineer has been paid for the
purpose of completing the work of this Agreement. Engineer shall be liable to City for all
costs, losses, damages, and extra expense, including overhead, incurred by City
incident to such completion.
10.3.4 If City wrongfully exercises its rights under Paragraph 10.3, City
shall be liable to Engineer solely for the costs owing to Engineer following a te rmination
of this Agreement for City’s convenience.
10.4 CITY’S RIGHT TO CARRY OUT THE WORK. If Engineer persistently fails
to perform any of its obligations under this Agreement, City may, after seven (7) days’
written notice, during which period Engineer fails to complete such obligation, undertake
to perform such obligations without terminating this Agreement. The Task Order Price
shall be reduced by the cost of City performing such obligations. In the event City
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exercises its rights under this Paragraph, upon request of Engineer, City shall provide a
detailed accounting of the cost incurred by City.
11. OWNERSHIP OF DOCUMENTS
Upon final payment or termination of this Agreement, Engineer and City own the
property rights, except for copyrights, of all document s, drawings, specifications,
electronic data, and information prepared, provided, or procured by Engineer or its
Subcontractors and distributed to City for this Project ("Design-Build Documents") and
shall have the right to use, reproduce , and make derivative works of the Design-Build
Documents to complete the work and for subsequent renovation and remodeling of the
work.
12. CLAIMS AND DISPUTES
12.1 CLAIMS. Except as otherwise provided in this Agreement, any claim or
dispute concerning questions of fact which may arise under this Agreement will be
presented to City in writing by Engineer.
12.1.1 In presenting a claim, Engineer will clearly and specifically state:
(1) the Agreement provision under which the claim is made; (2) the item of Work on
which the claim is based; and (3) the specific relief requested, including any additional
time Engineer believes it is entitled to.
12.1.2 In presenting a claim, Engineer must provide a specific and
detailed description of the basis for the claim, including the date of the event allege dly
underlying the claim, all actions taken by Engineer in response to that event, and all
actions taken by other parties in relation to that event. If Engineer seeks an adjustment
in Task Order Price as a part of the claim, it must provide a detailed cos t accounting,
with copies of all receipts, invoices, or payment records in support of that accounting.
12.1.3 In presenting a claim requesting adjustment of Task Order Price
due to delay of Work, Engineer must provide a detailed schedule explaining the delay.
In the event that the claim purports a delay of work caused by City, Engineer must
provide a detailed schedule analysis explaining the nature of any disruption in Work that
serves as basis for the claim, why City is responsible for any disruption and ensui ng
delay, and that the alleged delay was not concurrent with some other delay in the Work.
12.1.4 If the amount of additional time to which Engineer is entitled
cannot be readily ascertained at the time the claim is submitted, such calculations will
be submitted as soon as they are discernible. In any case, the detailed claim, including
all necessary supporting data, will be submitted to City’s Representative no later than
thirty (30) days after completing the item of Work on which the claim is based.
12.2 DISPUTE RESOLUTION. If a dispute arises out of or relates to this
Agreement or its breach, the parties shall endeavor to settle the dispute first through
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direct discussions. If the dispute cannot be settled through direct discussions, any
actions arising under this Agreement shall be instituted at the Superior Court for the
State of Alaska at Anchorage. This Agreement shall be governed by and construed in
accordance with the laws of the State of Alaska. No claim, dispute, or controversy shall
interfere with the progress and performance of Work required under this Agreement,
and Engineer shall proceed as directed by City in all instances with its Work.
13. MISCELLANEOUS PROVISIONS
13.1 INTEGRATION. The Contract Documents represent the entire and
integrated Agreement between the parties, and supersede prior negotiations,
representations, or agreements, either written or oral. The Contract Documents may be
amended or modified only by the procedure set forth herein.
13.2 INTERPRETATION. The rule of construction that terms of an agreement
are construed against the party that drafted the agreement shall not apply to this
Agreement.
13.3 INDEPENDENT ENGINEER. Engineer acts as an independent contractor
to City and is not an agent, partner, or in a joint venture with the City in the performance
of this Agreement. Engineer shall exercise exclusive control for the means, methods,
techniques, and procedures in performance of the Work.
13.4 ASSIGNMENT. Neither City nor Engineer shall assign their interest in this
Agreement without the written consent of the other except as to the assignment of
proceeds.
13.5 SEVERABILITY. The partial or complete invalidity of any one or more
provisions of this Agreement shall not affect the validity or continuing force and effect of
any other provision.
13.6 COUNTERPARTS. This Agreement may be simultaneously executed in
several counterparts, each of which will be an original and all of which will constitute but
one and the same instrument.
13.7 TITLES. The titles given to the Articles and Paragraphs of this Agreement
are for ease of reference only, and shall not be relied upon or cited for any other
purpose.