CONTRACT
FOR ENGINEERING SERVICES AND RELATED WORK
Route 250 Bypass Interchange at McIntire Road
THIS AGREEMENT is made as of the 22nd day of March, 2006, by and between the City of Charlottesville, Virginia, a municipal corporation, (hereinafter, “Owner”), and Rummel, Klepper & Kahl, LLP (hereinafter, “Engineer”) a corporation organized and existing under the laws of the state of Virginia, whose official headquarters is located at 801 E. Main Street, Suite 1000, Richmond, Virginia 23219.
WHEREAS, as indicated in the Request for Proposals issued by the Owner in April 11, 2005 (hereinafter, the “RFP”), the Owner intends to use professional engineering and inspection services for the design and construction of the Route 250 Bypass Interchange at McIntire Road (hereinafter, “Project”); and
WHEREAS, the Owner desires to engage a qualified and experienced engineer to perform engineering services and related work in connection with such Project, and the Owner has determined, on the basis of the information provided by the Engineer within its proposal submitted in response to the RFP that the Engineer is qualified, experienced and responsible; and
WHEREAS, the Owner’s engagement of the Engineer is based upon the Engineer’s representations to the Owner that it is (i) an organization of professionals experienced in the type of services the Owner is engaging the Engineer to perform; (ii) is authorized and licensed to do business within the Commonwealth of Virginia and the City of Charlottesville, Virginia, where the Project is located; (iii) is qualified, willing and able to perform professional services for the Project; and (iv) has the expertise and ability to provide professional services which will meet the Owner’s objectives and requirements, and which will comply with the requirements of all governmental, public and quasi-public authorities and agencies having or asserting jurisdiction over the Project; and
WHEREAS, the Owner and Engineer each acknowledges that it has reviewed and familiarized itself with this Contract, including the documents incorporated herein by reference, and agrees to be bound by the terms and conditions contained herein;
NOW, THEREFORE, the Owner and the Engineer, for and in consideration of the mutual premises and agreements herein set forth, do hereby agree as follows:
SECTION ONE: CONTACT PERSONS AND NOTICES
A. The Owner’s designated representative to receive all communications, claims and correspondence regarding this Contract is Angela G. Tucker, Development Services Manager. All communications, claims and correspondence shall be sent to the Owner’s representative. The Owner’s representative shall also receive and examine documents submitted by the Engineer, interpret and define Owner's policies and render decisions and authorization in writing promptly to prevent unreasonable delay in progress of the Engineer's Services. Contact information for the Owner’s representative is as follows:
B. The Engineer’s designated representative to receive all communications, claims and correspondence regarding this Contract is Owen L. Peery, P.E.. All communications, claims and correspondence shall be sent to the Engineer’s representative. Contact information for the Engineer’s representative is as follows:
C. Written notices required by this Contract shall be considered duly given if the original is: (i) hand delivered; (ii) delivered by facsimile; or (iii) sent by U.S. Mail, postage prepaid. All notices shall be given to the person(s) and address(es) set forth above. Notices hand delivered or delivered by facsimile shall be deemed given as of the next business day following the date of delivery. Notices given by U.S. Mail shall be deemed given as of the second business day following the date of posting. Notices sent by Federal Express, United Postal Service, or other similar services shall be considered hand deliveries.
SECTION TWO: TIME FOR PERFORMANCE
A. The Engineer shall commence provision of the Services which are the subject of this Contract on or before the date specified within Exhibit B to this contract. The Project Completion Date is specified in Exhibit B to this contract. This is a phased contract and a schedule of submission dates, submittals, and reviews for subsequent phases will be determined with each subsequent phase of work.
B. The schedule for the Engineer’s Services may be extended by the Owner should the delay or extension be required and is the result of no fault or negligence of the Engineer.
SECTION THREE: SCOPE OF SERVICES
A. The Engineer shall provide professional engineering services related to the design and construction of each project as outlined in individual Task Orders.
B. The Services to be provided by the Engineer shall include, unless agreed otherwise by the parties by an amendment or supplementation of this Contract, those identified and described within Exhibit A to this Contract, which is incorporated by reference, as if set forth herein verbatim.
C. The Engineer will use its best efforts to complete the Services required by this Contract in accordance with the Contract schedule; however, the Engineer will not be penalized for delays beyond the Engineer’s control (e.g., Owner’s special requirements not built into the schedule, unanticipated testing or review periods; adverse weather, unanticipated survey requirements or completion times, etc.).
D. Attached and incorporated by reference as Exhibit B to this Contract is the Engineer’s Proposal for Engineering Services and includes personnel rosters which list by name, job category and responsibility the Engineer’s primary employees who will work on the Project. The Engineer shall promptly inform the Owner in writing of any proposed replacements, the reasons therefor, and the name(s) and qualification(s) of proposed replacement(s). The Owner shall have the right to reject any proposed replacement.
F. The Engineer has not been retained or compensated to provide design and construction review services relating to any contractor’s safety precautions or to the means, methods, techniques, sequences, or procedures required for any contractor to perform work (but not relating to the final or completed structure). Omitted services include, without limitation: shoring, scaffolding, underpinning, temporary retainment of excavations, erection methods, and temporary bracing.
G. Under this Contract, it shall be the responsibility and obligation of the Engineer to provide Services, plans and documents of professional quality, technical accuracy, and timely completion. The Engineer shall have the obligation to provide coordination of all designs, drawings, specifications, reports and other services that are the responsibility of the Engineer under this Contract. Approval by the Owner of any drawings, designs, specifications, reports and incidental engineering services, work or materials furnished under this Contract shall not in any way relieve the Engineer of responsibility for the technical accuracy of the Engineer’s work. The Engineer shall render Services in accordance with generally accepted professional practices, as indicated by the intended use of the Project.
H. The Owner’s obligations hereunder have been agreed to in anticipation of the orderly and continuous progress of work on the Project, and the Engineer’s obligations hereunder will extend for a period that may reasonably be required for the design, award of contracts and construction with respect to the specified locations. If the Owner has requested significant modifications or changes in the extent of the Project, the time of performance of the Engineer’s services and compensation therefor shall be adjusted appropriately and reasonably.
I. The Engineer understands and acknowledges that the Owner has a budget for construction of the Project, and the Owner agrees that it will inform the Engineer of its budgeted Total Project Construction Cost. The Professional agrees to design the Project so that the actual Total Project Construction Cost does not exceed the budgeted Total Project Construction Cost identified by the Owner. The Engineer shall provide the Owner with its estimate of the actual Total Project Construction Cost, at the same time it furnishes the Owner with the final construction plans.
J. Where this Contract requires the Engineer to provide any cost estimate(s), it is acknowledged and understood that, since the Engineer has no control over the cost of labor and materials or over competitive bidding market conditions, the estimates of construction cost provided by the Engineer are made on the basis of experience and qualifications. The Engineer does not guarantee the accuracy of such estimates as compared to Contractor’s bids of a Project’s construction costs, or actual cost to the Owner. The Owner acknowledges and understands that any cost estimate(s) provided by the Engineer constitute only the opinion of the Engineer.
SECTION FOUR: ENGINEER’S COMPENSATION
The OWNER agrees to compensate the ENGINEER for services performed in accordance with one of the following methods as hereinafter set forth. The method of payment and the amount for specified Scope of Work services are set forth in Exhibit B, attached hereto, or for additional work shall be detailed in a Task Order, which shall be prepared by the ENGINEER and submitted to the OWNER for review and approval. For additional work, the receipt of an approved Task Order will constitute the ENGINEER’s Notice-to-Proceed. The ENGINEER is not to undertake any additional work prior to the receipt of an approved Task Order executed and approved by the OWNER.
A. Methods of Payment: One or more of the following methods of payment shall be used and the method for each phase of the work shall be stated in the appropriate Task Order:
1. Per Diem:
Under this method of payment, the ENGINEER’s compensation will be equal to the hours expended on a Project times the rates established in a Task Order, which shall be inclusive of all overhead and profit; plus payment for direct nonsalary expenses. The rates shall be in accordance with the ENGINEER'S rate schedule, attached hereto as Exhibit B, which may be revised by the ENGINEER no more than once in any calendar year.
2. Lump Sum:
For work that can be defined and delineated in advance, payment to the ENGINEER will be made on the basis of a lump sum. The agreed lump sum shall represent full payment for all payroll, overhead, profit, and other direct nonsalary expenses as hereinafter described. The lump sum will neither increase nor decrease unless there should be a change in the scope, complexity, or duration of the work. In that event, the lump sum would be subject to renegotiation.
This fee includes salaries of personnel assigned to provide Services in connection with the Project, overhead, profit and anticipated direct costs of the Project.
B. Once per calendar month the Engineer shall submit an invoice to the Owner requesting payment for Services rendered during the preceding calendar month. The amount of each monthly payment requested shall be based upon the percentage of Services completed as of the date of the invoice. The Engineer’s invoice shall describe with reasonable particularity each service rendered, the date thereof, the time expended, and the person(s) rendering such service. The Engineer’s 's invoice shall be accompanied by receipts, invoices or other documentation, as the Owner may require, establishing the amount of the expenses for which reimbursement or payment is sought. Each invoice shall bear the signature of the Engineer, which signature shall constitute the Engineer’s representation to the Owner that the services indicated in the invoice have reached the level stated, have been properly and timely performed as required herein, that the expenses included in the invoice have been reasonably incurred in accordance with the Contract, and that the amount requested is currently due and owing, there being no reason known to the Engineer that payment of any portion thereof should be withheld. Submission of the Engineer’s invoice for final payment shall further constitute the Engineer’s representation to the Owner that, upon receipt by the Owner of the amount invoiced, all obligations of the Engineer to others, including its consultants, incurred in connection with the Project, will be paid in full. In the event that any invoice contains a defect or impropriety that would prevent payment by the required payment date, the Owner shall notify the Engineering Professional in writing of such defect or impropriety. In the event that the Owner becomes credibly informed that any representations of the Engineer as set forth in the paragraph preceding above, are wholly or partially inaccurate, the Owner may withhold payment of sums then or in the future otherwise due to the Engineer until the inaccuracy, and the cause thereof, is corrected to the Owner’s satisfaction.
C. Payment of the Engineer’s invoice shall be due and owing within thirty (30) days after the Engineer’s submission of the monthly invoice; however, when a project is funded by a federal or state grant the Owner may hold the invoice for a reasonable period of time beyond 30 days while awaiting the receipt of the grant funds. Nothing set forth in this paragraph is intended by the parties to create any contingency contract, nor shall it be construed as such.. Interest shall accrue at the rate of one percent (1%) per month, on any amounts that remain unpaid for thirty (30) days following the date a payment is due. No interest shall accrue when payment is delayed due to a dispute between the Owner and the Engineer as to the accuracy or completeness of any request for payment received. This exception to the accrual of interest shall apply only to that portion of a delayed payment that is actually the subject of the dispute and shall apply only for the duration of such disagreement. Subject to the foregoing, if the Owner fails to make monthly payments due the Engineer, the Engineer may, after giving fourteen (14) calendar days’ advance written notice to the Owner, suspend Services under this Contract.
D. Time charged to the Project by the Engineer shall include the time that the applicable employees are engaged in actual engineering or other Services required by this Contract for the Project, whether such services are performed at the Engineer’s office(s), at the site of the Project, or travel status in connection with the Project. Charges will not be made to the Project during periods of sickness, vacation or at any other times when personnel and employees are not engaged in the provision of Services for a Project. Only such personnel and employees as are necessary and required to accomplish the Services in keeping with the prescribed Contract schedule shall be assigned by the Engineer to the Project.
E. If the Project is delayed or if the Engineer’s services for a Project, once commenced, are delayed or suspended for more than six (6) months for reasons beyond the Engineer’s control, the Engineer may, after giving fourteen (14) days’ advance written notice to the Owner, terminate this Contract, and the Owner shall compensate the Engineer for Services rendered prior to the date of termination.
F. If construction plans are completed in accordance with criteria and decisions made by the Owner and any other governmental authorities whose approval(s) may be required, and then said construction plans are substantially changed or revised for a reason other than the fault of the Engineer in preparing such plans, then the Engineer shall be entitled to compensation for rendering the services necessary to complete the changes. Compensation for such services shall be negotiated and agreed to by and between the Engineer and the Owner prior to the commencement of such services by the Engineer.
G. The Owner will compensate the Engineer for any Extra Work (engineering services resulting from significant changes in the general scope of a Project or its design, including, without limitation: changes in size, complexity, schedules, character of construction, revisions to previously accepted studies, reports, design documents or contract documents, preparation of documents for separate bids, etc.), when Extra Work is required due to causes beyond the Engineer’s control and when such Extra Work is requested or authorized by the Owner. Compensation for Extra Work shall be negotiated and agreed to by and between the Engineer and the Owner prior to the commencement of any such Extra Work by the Engineer.
H. The Owner and Engineer may, by mutual agreement set forth in writing, arrange for any Additional Services contemplated by this Contract, and negotiate any additional Fee(s) therefor, subject to the limitations set forth in this Contract with respect to increasing a fixed-price contract by more than ten percent (10%)(per Charlottesville City Code, section 22-17, this requires advance approval of the city manager).
SECTION FIVE: SUBCONTRACTS AND ASSIGNMENT
A. This Contract may not be assigned by the Engineer without the prior, express written consent of the Owner.
B. If any of the Services are proposed by the Engineer to be furnished by an individual or entity outside the Engineer’s organization, then the Engineer shall notify the Owner of such proposal, and the Engineer shall give the Owner an opportunity to review proposal(s) and contract(s) between the Engineer and the outside individual or entity, outlining the services to be performed and the charges for the services. The Owner shall not be required to accept the performance of Services from any individual or entity other than the Engineer unless the Owner has expressly agreed, in advance, after having an opportunity to review the proposed arrangements. Under no circumstances shall the Owner be required to accept performance of any Services under any contract or other agreement which does not impose upon the contracting individual or entity the same terms and conditions as this Contract (including, without limitation, the specified Fee and time for performance).
SECTION SIX: RECORD KEEPING
A. The Engineer shall maintain books, records, documents and other materials directly pertinent to the Services provided under this Contract in accordance with generally accepted accounting and engineering principles and practices. Records required to be maintained under this paragraph shall be kept and maintained so as to be available during the Engineer’s performance of any Services under this Contract, and for a period of three (3) years after the Project Completion Date or earlier termination date of this Contract, or for any longer period of time as may be required by applicable law or standard engineering practice.
B. All records relating in any manner whatsoever to the Project, or any designated portion thereof, which are in the possession of the Engineer’s or the Engineering’s consultants, shall be made available to the Owner for inspection and copying upon written request of the Owner. Additionally, said records shall be made available, upon request by the Owner, to any local, state, federal or other regulatory authorities and any such authority may review, inspect and copy such records. Said records include, but are not limited to, all plans, specifications, submittals, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the Project, its design, and its construction. Said records expressly include those documents reflecting the time expended by the Engineering Professional and its personnel in performing the obligations of this Contract and the records of expenses incurred by the Engineer in its performance under the Contract.
SECTION SEVEN: INSURANCE REQUIRED
A. The Engineer, at its sole expense, shall purchase and maintain, from a company or companies licensed or authorized to do business in the Commonwealth of Virginia, the following types of insurance protecting from claims and damages which may arise out of or result from the performance or non-performance of services under this Contract by the Engineer or by anyone directly or indirectly employed by the Engineer, and by anyone for whose acts the Engineer may be liable: (a) professional liability insurance, including contractual liability, with coverage in an amount not less than $1,000,000 per claim, (b) commercial general liability insurance (including premises/operations, product/completed operations, contractual liability, independent contractors, broad-form property damage, underground explosion and collapse hazard, and personal/advertising injury) with a limit of not less than $1,000,000 per occurrence/$2,000,000 per year, and naming the Owner and Owner’s officers, employees and agents as additional insureds; and (c) workers’ compensation coverage as may be required pursuant to the provisions of Chapter 8 (§65.2-800 et seq.) of Title 65.2 of the Code of Virginia, 1950, as amended. (together, (a), (b) and (c) set forth the “Required Insurance” for this Contract). The Engineer shall maintain the Required Insurance in effect throughout the Term of this Contract and for a period of three (3) years following the Completion Date, or any earlier date on which the Contract is terminated. Upon receipt of any notice, verbal or written, that the Required Insurance is subject to cancellation, the Engineer shall immediately (within one business day) notify the Owner. The Engineer’s failure to comply with any of the requirements of this Section shall constitute a material breach of this Contract, entitling the Owner to terminate the Contract. The Engineer shall not allow any subcontractor to perform any engineering services in connection with the Project unless the subcontractor has obtained, and continues to maintain for the duration of such work or services, the same Required Insurance described in this paragraph.
B. Simultaneously upon execution of this Contract, or immediately prior to the Commencement Date, whichever first occurs, the Engineer shall provide the Owner with one or more certificate(s) of insurance confirming the Required Insurance, signed by a person authorized by the insurance company to bind it to the representations contained therein. These certificates shall be provided to the Owner by the Engineer upon execution of this Contract, then again (without demand by the Owner) on or before the expiration date of any policy, and upon each anniversary of the Commencement Date of this Contract. Also, a certificate of insurance shall be provided to the Owner by the Engineer at other times throughout the Term of this Contract, within ten (10) days of any request therefor by the Owner. Upon demand by the Owner, the Engineer shall furnish the Owner with copies of the Engineer’s insurance polices.
C. The Required Insurance shall be maintained throughout the period of the Engineer’s performance of any Services pursuant to this Contract, and for an additional period of five (5) years following the conclusion of the Engineer’s Services or the Project Completion Date, whichever first occurs. If, during the five year period, the cost of such policy or policies increases by more than fifty percent (50%) over the cost of said policy for the year in which the project is completed, then the Engineer may be entitled to reduce or cancel such insurance, by first giving written notice to the Owner 45 days in advance.
SECTION EIGHT: INDEMNIFICATION
The Engineer shall assume, and shall indemnify and hold the Owner harmless from and against any and all liability, loss, claim, suit, damage, charge or expense, including without limitation reasonable attorney fees and other legal expenses, which the Owner may suffer, sustain, incur or in any way be subjected to, on account of death of or injury to any person (including, without limitation, the Owner’s officers, agents, employees, licensees and invitees) and for damage to, loss of, and destruction of any property whatsoever, which arises out of, results from, is in any way connected with, or which occurs as a consequence of, any negligent act, negligent omission or willful misconduct of the Engineer and any of the Engineer’s subcontractors, employees or other persons for whose acts or omissions the Engineer may be held legally liable, in the performance of the Engineer’s obligations under this Contract.
SECTION NINE: OWNERSHIP OF DOCUMENTS
A. Master documents (original drawings, estimates, specifications, field notes and data) will be considered instruments of service provided by the Engineer. Such master documents shall be and remain the property of the Engineer. Other documents shall be provided to the Owner, as contemplated within the scope of Services described within Exhibit A.
B. No documents prepared by Engineer pursuant to this Contract are intended or represented to be suitable for reuse by the Owner, or any other person(s), on extensions of a Project, or on other projects unrelated to the one for which the documents were prepared unless approved in writing by the Engineer. Any reuse, without written verification or adaptation by the Engineer for specific purposes intended, will be at the Owner’s sole risk and without liability or legal exposure to the Engineer. Owner will indemnify and hold the Engineer harmless from and against all claims, damages, losses and expenses, including reasonable attorney’s fees, arising out of any unauthorized reuse.
SECTION TEN: OWNER’S RESPONSIBILITIES
The Owner’s responsibilities under this Contract shall be as follows:
A. The Owner will provide to the Engineer any criteria, and design and construction standards of which Owner is aware, and full information as to the Owner's requirements for the Project.
B. The Owner will furnish to the Engineer, for the Project, existing drainage, survey, record drawings, maps, soil data and layout data in Owner’s possession or control.
C. The Owner will provide and obtain legal, accounting, and insurance counseling services as may be necessary for the Project, legal review of Construction Contract Documents, and such auditing services as the Owner may require to account for expenditures of sums paid to the Engineer and others.
D. The Owner will obtain bids or proposals from contractors for work relating to the Project, subject to the Engineer’s Services to be provided during the Bidding and Construction Phase of the Project, and the Owner shall bear all costs relating thereto.
E. The Owner will give prompt notice to the Engineer whenever the Owner observes or otherwise becomes aware of any defect in the Project or other event which may substantially affect the Engineer's performance of services under this Contract.
F. The Owner will examine all submittals and documents presented by the Engineer for the Owner’s review within a reasonable time so as not to delay the Services of the Engineer.
G. The Owner will compensate the Engineer for Services rendered in accordance with the terms and conditions of this Contract; however, the payment and performance obligations of the Owner, beyond the initial fiscal year of this Contract, are expressly conditioned upon the availability and appropriation by the Owner of public funds therefor in each subsequent fiscal year. When public funds are not appropriated or are otherwise unavailable to support continuation of performance by the Owner in a subsequent fiscal period, this Contract and the Owner’s obligations hereunder shall automatically expire, without liability or penalty to the Owner. Within a reasonable time following the Owner’s adoption of a fiscal year budget, the Owner shall provide the Engineer with written notice of any non-appropriation or unavailability of funds affecting this Contract.
SECTION ELEVEN: TERMINATION OF CONTRACT BY OWNER
A. This Contract may be terminated by the Owner at any time upon thirty (30) days’ advance written notice to the Engineer. Upon the request of the Engineer, the Engineer shall be given an opportunity to consult with the Owner during the required notice period. In the event of such a termination, the Owner shall pay the Engineer for all services rendered prior to the termination, plus any reasonable expenses incurred and unpaid which would otherwise be payable hereunder. In such event, the Engineer shall promptly submit to the Owner its invoice for final payment.
B. The Owner may terminate this Contract upon giving ten (10) days’ advance written notice to the Engineer, in the event the Engineer substantially fails to perform any material obligation(s) set forth herein. In that event, and upon being properly invoiced, the Owner shall pay the Engineer for services rendered prior to the termination, with respect to Services about which the parties have no dispute.
C. In the event of a termination by Owner the parties will establish a timetable, and other terms and conditions, to complete the Engineer’s performance of Services with respect to any ongoing construction activities and to conclude any other outstanding business between the Owner and the Engineer.
D. Upon receipt of a termination notice, the Engineer shall promptly discontinue Services (unless the notice directs otherwise) and the Engineer shall deliver or otherwise reasonably make available to the Owner copies of all data, drawings, specifications, reports, estimates, summaries and such other documents, information and materials as may have been accumulated by the Engineer in the performance of Services under this Contract, whether such items have been completed or are works-in-progress.
SECTION TWELVE: TERMINATION OF CONTRACT BY ENGINEER
This Contract may be terminated by the Engineer, for the Owner’s substantial failure to perform its obligations under this Contract, upon fourteen (14) days’ advance written notice provided by the Engineer to the Owner. The Engineer’s notice shall set forth in detail the manner in which the Engineer contends that the Owner has failed to perform any obligation(s) under this Contract. In the event that the Owner cures the specified non-performance within the notice period, the termination shall not take effect.
SECTION THIRTEEN: MISCELLANEOUS
A. NO DISCRIMINATION BY ENGINEER
The Engineer shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability or any other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the Engineer. The Engineer shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. The Engineer, in all solicitations or advertisements for employees placed by or on behalf of the Engineer, shall state that such Engineer is an equal opportunity employer. Notices, advertisements, and solicitations placed in accordance with federal law, rule, or regulation shall be deemed sufficient for the purpose of meeting the requirement of this section. The Engineer shall include the provisions of the foregoing paragraph in every subcontract or purchase order of over $10,000 so that the provisions will be binding upon each subcontractor or vendor.
B. MODIFICATION OF CONTRACT
1. This Contract may be supplemented, modified, or amended by the mutual agreement of the parties hereto, set forth in writing. No supplement, modification or amendment shall be enforceable unless set forth within a writing signed by both the Owner and the Engineer.
2. Notwithstanding the foregoing, no fixed price contract may be increased by more than ten percent (10%) of the amount of the Contract without the advance approval of the Owner’s City Manager, and under no circumstances may the amount of this contract be increased, without adequate consideration, for any purpose (including, but not limited to, relief of the Engineer from the consequences of an error in a bid or offer submitted by it to the Owner).
C. DRUG-FREE WORKPLACE
During the performance of this contract the Engineer agrees as follows: (i) to provide a drug-free workplace for its employees; (ii) to post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the Engineer’s workplace and specifying the actions that will be taken against employees for violations of such prohibition; and (iii) state in all solicitations or advertisements for employees placed by or on behalf of the Engineer that the Engineer maintains a drug-free workplace. For the purposes of this paragraph, “drug-free workplace” means a site for the performance of work done in connection with the contract awarded to the Engineer in accordance with this procurement transaction, where the Engineer’s employees are prohibited from engaging in the unlawful manufacture, sale distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of services in connection with the contract.
D. GOVERNING LAW
This Contract shall in all aspects be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all litigation concerning this Contract shall be commenced and prosecuted within the local, state or federal court(s) presiding over the geographic area in which the Project is located.
E. FORCE MAJEURE
Neither party shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the other.
F. NO WAIVER OF RIGHTS
No failure on the part of the Owner to enforce any of the terms or conditions set forth in this Contract shall be construed as or deemed to be a waiver of the right to enforce such terms or conditions. No waiver by the Owner of any default or failure to perform by the Engineer shall be construed as or deemed to be a waiver of any other and/or subsequent default or failure to perform. The acceptance or payment of any rentals, fees and/or charges by the Owner, and/or the performance of all or any part of this Contract by the Owner, for or during any period(s) following a default or failure to perform by the Engineer, shall not be construed as or deemed to be a waiver by the Owner of any rights hereunder.
G. SEVERABILITY
In the event that any term, provision or condition of this Contract, or the application thereof to any person or circumstances, shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Contract, and the application of any term, provision or condition contained herein to any person or circumstances other than those to which it has been held invalid or unenforceable, shall not be affected thereby.
H. HEADINGS
Section, article and paragraph headings contained within this Contract have been inserted only as a matter of convenience and for reference, and they in no way define, limit, or describe the scope or intent of any term, condition or provision of this Contract.
I. BINDING EFFECT
The terms, provisions and conditions of this Contract shall bind and inure to the benefit of the respective parties hereto and to their representatives, successors, and (where permitted by this Contract) their assigns.
J. CONFLICTING DOCUMENTS
In the event of a conflict between the provisions of this Contract document and the contents of any exhibit, addendum or attachment that is attached and/or incorporated herein by reference, the provisions of this Contract document shall govern the agreement between the parties.
K. ENTIRE AGREEMENT
This Contract represents the entire agreement between the parties, and there are no other agreements or understandings between the parties, either verbal or written, which have not been incorporated herein.
IN WITNESS WHEREOF, the parties do hereby set forth their signatures, representing that the individuals who affix their signatures hereto have been duly authorized to bind each party to the terms and conditions of the foregoing Agreement:
| OWNER: | ENGINEER: |
By: ________________________________ Print Name: _________________________ Title: Chief Financial Officer Funds Are Available: __________________________________
Contract Approved As to Form __________________________________
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By:____________________________ Print Name: _____________________ Title: __________________________
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Attachments:
Exhibit A: RFP dated April 11, 2005
Exhibit B: RK&K Proposal for Engineering Services dated March 15, 2006