Ordinance No. 12,708ORDINANCE NO. 12,708
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH MIDTOWN
ENGINEERING, LLC, FOR THE TEXAS AVENUE STREETSCAPE - PHASE II AND
TOWN CENTER PROJECT; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN IN AN AMOUNT NOT TO EXCEED TWO HUNDRED SIXTEEN
THOUSAND NINE HUNDRED FORTY AND NO /100 DOLLARS ($216,940.00);
MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with
Midtown Engineering, LLC, for the Texas Avenue Streetscape - Phase II and Town Center Project. A
copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and
purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Midtown
Engineering, LLC, in an amount not to exceed TWO HUNDRED SIXTEEN THOUSAND NINE
HUNDRED FORTY AND NO /100 DOLLARS ($216,940.00) for professional services in accordance
with the agreement authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent
(25 %).
Section 4: This ordinance shall take effect immediately
City Council of the City of Baytown. 1'
INTRODUCED, READ and PASSED by the affirmati
Baytown this the 170' day of November, 2014. J
ATT ST:
LETICIA BRYSCH, City lerk co ° °'• �tp
s °
APPROVED AS TO FORM:
4—AC—IORAMIREZ, SR., City t rney -
and after its passage by the
of the City Council of the City of
R:1KareniFi1eslCity CouncillOrdinances\2014' October 9TimleyHomAgreement4RightTumLanelmprovements .doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT eliactive as of the _ day of November, 2014 (`affective Date ").
Between
City of Baytown ( "OWNER")
and
MIDTOWN ENGINEERS, LLC ( "ENGINEER ")
ENGINEER shall perform professional services necessary for the Texas Avenue Streetscape, Phase 2, and Town
Square Project, which shall include design, bidding and construction phase services for the following:
Texas Avenue Streetscape. Phase 2:
Limits: Texas Avenue between the existing streetscape paving at Gaillard and Ashbel, including the
intersection of Ashbel.
Scope: Includes lighting fixtures, benches, trash receptacles, typical sections, pavers, colors of pavers,
electrical requirements and landscapinglinigation.
Includes the replacement of the existing storm sewer system, water lines and sanitary sewer lines.
Town Square:
Limits: the entire block bounded by W. Texas Ave., Gaillard, Pearce and Ashbel.
Scope: Includes a fountain, two pre- fabricated buildings, electrical, lighting, provisions for a seasonal ice
rink, landscaping and irrigation and replacement of the concrete curb & gutter.
based on the previously constructed streetscape project on Texas Ave, between Jones and Gaillard, including but not
limited to and on design criteria from the Texas Department of Transportation for the OWNER. ( "Project ").
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of 11
TABLE OF CONTENTS Paee
ARTICLE1- SERVICES OF ENGINEER ......................................................................................... ............................... 3
1.01 Scope .................................................................................................................................. ............................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES .................................................................................. ............................... 3
2.01 General ................................................................................................................................ ............................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ................................................................................................................................ ............................... 3
3.02 Suspension .......................................................................................................................... ............................... 3
ARTICLE4 - PAYMENTS TO ENGINEER ....................................................................................... ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................. ............................... 3
ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost ........................................................................... ............................... 4
5.02 Designing to Construction Cost Limit ............................................................................... ............................... 4
5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS .................................................................................. ............................... 4
6.01 Standards of Performance .................................................................................................. ............................... 4
6.02 Authorized Project Representatives ................................................................................... ............................... 5
6.03 Design without Construction Phase Services ..................................................................... ............................... 6
6.04 Use of Documents .............................................................................................................. ............................... 6
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law .................................................................................................................. ............................... 6
6.08 Successors, Assigns, and Beneficiaries .............................................................................. ............................... 6
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................................................. ............................... 7
6.11 Allocation of Risks ............................................................................................................. ............................... 7
6.12 Notices ................................................................................................................................ ............................... 7
6.13 Survival ............................................................................................................................... ............................... 7
6.14 Severability ......................................................................................................................... ............................... 7
6.15 Waiver ................................................................................................................................. ..............................7
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE7 - DEFINIT IONS ............................................................................................................... ............................... 8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................................................. ............................... 9
8.01 Exhibits Included ................................................................................................................ ............................... 9
8.02 Total Agreement ............................................................................................................... ............................... 10
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 11
ARTICLE 1- SERVICES OF ENGINEER
1.01 Scope
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.
C. (Deleted).
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and compensation
under this Agreement have been agreed to for the services
required herein for the design, bidding and construction of the
Project. ENGINEER's obligation to render services
hereunder will be for whatever period necessary for the final
completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Deleted)
B. (Modified) If ENGINEER's services are suspended
by OWNER, ENGINEER may be entitled to equitable
adjustment of rates and amounts of compensation provided for
elsewhere in this Agreement to reflect, reasonable costs
incurred by ENGINEER in connection with such suspension
and reactivation and the fact that the time for performance
under this Agreement has been revised, unless such delay or
suspension is caused in whole or in part by the ENGINEER,
its officers, agents, or employees. If ENGINEER causes or
contributes to the delay or suspension, ENGINEER shall have
no right to seek additional compensation.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.013, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and its Consultants as set
forth in Exhibit C. However, all expenses associated with
meals and lodging must be approved in writing by OWNER
prior to ENGINEER incurring any expense associated
therewith, otherwise, the parties hereto agree and understand
that OWNER shall not be liable and ENGINEER shall not
make a claim against OWNER for any such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. invoices will be prepared
in accordance with OWNEWs standard processing practices
and will be submitted to OWNER monthly by ENGINEER,
unless otherwise agreed. ENGINEER shall supply detailed
back -up information along with each invoice in order for the
OWNER to effectively evaluate the fees and charges. The
amount billed in each invoice will be calculated as set forth in
Exhibit C. Invoices shall be received by the OWNER not
later than sixty (60) calendar days from the date the
ENGINEER and/or its Consultants perform the services or
incur the expense. Failure by ENGINEER to comply with the
requirements herein in a timely manner with this requirement
shall result in the ENGINEER'S invoice being denied.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 calendar days after the receipt of the
invoice and the necessary backup information. If OWNER
fails to make any payment due ENGINEER for services and
expenses within 30 calendar days after receipt of
ENGINEER's invoice and the required backup documentation
therefor, the amounts due from ENGINEER will accrue
interest at the rate set forth in Section 2251.025 of the Texas
Government Code (or the maximum rate of interest permitted
by law, if less) after the 30th calendar day. ENGINEER may
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 13
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. However, it is expressly understood and
agreed that ENGINEER will not charge any interest or penalty
as set forth herein on any portion of an invoice that is disputed
and/or withheld in accordance with paragraph 4.02 and that
ENGINEER will not suspend services under the agreement on
account of a disputed invoice or on account of monies
withheld. All payments will be credited first to principal and
then to interest.
C. 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.
D. Payments Upon Termination.
1. In the event of any termination under section
6.06, 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; provided all instruments of service have been
tendered to the OWNER.
2. (Deleted)
E. (Modified) 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.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
G. (Added) Indebtedness. If ENGINEER, at any time
during the term of this agreement, incurs a debt, as the word
is defined in section 2 -662 of the Code of Ordinances of the
City of Baytown, it shall immediately notify the OWNER's
Director of Finance in writing. If the OWNER's Director of
Finance becomes aware that the ENGINEER has incurred a
debt, the OWNEWs Director of Finance shall immediately
notify the ENGINEER in writing. If the ENGINEER does
not pay the debt within 30 calendar days of either such
notification, the OWNER's Director of Finance may deduct
funds in an amount equal to the debt from any payments
owed to the ENGINEER under this Agreement, and the
ENGINEER waives any recourse therefor.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. 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. However,
since ENGINEER has no control over the cost of labor,
materials, equipment, or services furnished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, 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 as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. (Deleted)
5.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) 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 of the applicable disciplines, including, but
not limited to, architects and professional engineers, practicing
under similar circumstances at the same time and in the same
locality.
B. (Modified) All professionals performing services
under this Agreement shall be responsible for the technical
accuracy of their services and documents resulting therefrom,
and OWNER shall not be responsible for discovering
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 13
deficiencies therein. ENGINEER shall correct such
deficiencies without additional compensation except to the
extent such action is directly attributable to deficiencies in
OWNER - furnished information upon which ENGINEER is
authorized to rely as provided in Section 6.01.E.
C. ENGINEER shall perform or furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. Such professionals shall be
appropriately licensed and/or registered to practice in the State
of Texas. ENGINEER shall serve as OWNER's prime
professional for the Project. ENGINEER may employ such
ENGINEEWs Consultants as ENGINEER deems necessary to
assist in the performance or furnishing of the services.
ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER-mandated
standards. This Agreement is based on these requirements as
of its Effective Date. 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.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and
other information famished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and
ENGINEER shall reach agreement on the terms of any such
requested notice or certification, and OWNER shall authorize
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested.
H. (Modified) ENGINEER shall not be required to sign
arty documents, no matter by whom requested, that would
result in ENGINEER's having to certify, guarantee or warrant
the existence of conditions whose existence ENGINEER
cannot ascertain; provided, that ENGINEER has exercised
due diligence and was not otherwise required to certify,
guarantee or warrant the existence of such conditions.
I. During the Construction Phase, ENGINEER shall
not supervise, direct, or have control over Contractor's work,
nor shall ENGINEER have authority over or responsibility for
the means, methods, techniques, sequences, or procedures of
construction selected by Contractor, for safety precautions and
programs incident to the Contractor's work in progress, nor
for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work.
J. (Modified) ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to famish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. (Modified) 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 and
its Consultants for which it is legally liable) 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.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Fomi of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
party.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 13
6.03 Design without Construction Phase Services
(Deleted).
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the Instruments of Service. The ENGINEER shall obtain
similar interests from the ENGINEEWs consultants consistent
with this Agreement. Within seven days of any termination or
expiration of this Agreement, the ENGINEER shall be
required to tender to OWNER all Instruments of Service;
provided OWNER has paid all monies, excluding any
disputed amount, due and owing to ENGINEER in
accordance with this Agreement. With such ownership
interest, it is expressly understood by the parties hereto that
the OWNER may use the Instruments of Service for any
purposes which the OWNER sees fit, including, but not
limited to, subsequent construction, reconstruction, alteration,
and/or repairs of the Project. As a condition to the OWNER's
use of the Instruments of Service, the OWNER hereby
expressly agrees to remove the ENGINEER's name and all
references to the ENGINEER, and its consultants from the
Documents. The OWNER hereby releases any and all claims
which the OWNER could make arising out of or in connection
with any reuse of the documents by the OWNER. This
release of claims for the matters covered in this Paragraph
6.04.A shall be for the benefit of the ENGINEER, its officers,
and employees and sub - consultants, as well as their successors
and assigns.
B. (Modified) Copies of OWNER- furnished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. 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 appropriate
professional. 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.
D. Because data stored in electronic media format can
deteriorate or be modified 'inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 calendar days, after which the receiving
party shall be deemed to have accepted the data thus
transferred. The party delivering the electronic files will
correct any errors detected within the 60-day acceptance
period. ENGINEER shall not be responsible to maintain
documents stored in electronic media format after acceptance
by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long -term
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
systems, or computer hardware differing from those used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the reuse
of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
ENGINEER to further compensation at rates to be agreed
upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that ENGINEER,
at OWNER's sole expense, provide additional insurance
coverage, increased limits, or revised deductibles that are
more protective than those specified in Exhibit G. If so
requested by OWNER, with the concurrence of ENGINEER.,
and if commercially available, ENGINEER shall obtain and
shall require ENGINEER's Consultants to obtain such
additional insurance coverage, different limits, or revised
deductibles for such periods of time as requested by OWNER,
and Exhibit G will be supplemented to incorporate these
requirements.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 13
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
For cause,
a. (Modified) By either party upon 30
calendar days written notice in the event of failure by
the other party to perform in accordance with the
terms hereof through no fault of the terminating
party; or
b. By ENGINEER upon seven calendar days
written notice if ENGINEER is being requested by
OWNER to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven calendar days of receipt of such
notice, to correct its failure to perform and proceeds
diligently to cure such failure within no more than 30
calendar days of receipt thereof, provided, however,
that if and to the extent such substantial failure
cannot be reasonably cured within such 30 calendar
day period, and if such party has diligently attempted
to cure the same and thereafter continues diligently
to cure the same then the cure period provided for
herein shall extend up to, but in no case more than 60
calendar days after the date of receipt of the notice.
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
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.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by OWNER
or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents,
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to ENGINEER that to the best
2. For convenience by OWNER effective upon the of its knowledge a Hazardous Environmental Condition does
receipt of notice by ENGINEER. not exist.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in which the Project is located. Venue for all purposes
shall be in Harris County, Texas.
6.08 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 paragraph 6.08.B the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 13
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER (i) retains appropriate
specialist consultant(s) or contractors) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
E. 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.
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGINEER's terminating this Agreement for cause on 30
calendar days' notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
B. (Added) Notwithstanding anything to the contrary
contained in this Agreement, the OWNER and ENGINEER
hereby agree that no claim or dispute between the OWNER
and ENGINEER arising out of or relating to this Agreement
shall be decided by any arbitration proceeding including,
without limitation, any proceeding under the Federal
Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable
State arbitration statute, including, but not limited to, the
Texas General Arbitration Act, provided that in the event
that the OWNER is subjected to an arbitration proceeding
notwithstanding this provision, ENGINEER consents to be
joined in the arbitration proceeding if ENGINEER'S
presence is required or requested by the OWNER for
complete relief to be recorded in the arbitration proceeding.
6.12 Notices
A. (Modified) 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 service. Additionally, notices may be
given via facsimile or by electronic mail if such notice is also
given personally, or by registered or certified mail or by a
commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A. 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.
6.15 Waiver
A. 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.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. 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. Additional Services - -The services to be
performed for or furnished to OWNER by ENGINEER in
accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement - -This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," including those Exhibits listed in Article 8
hereof.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 13
4. Application for Payment —The form acceptable
to ENGINEER which is to be used by Contractor in
requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
supporting documentation as is required by the Contract
Documents.
5. Asbestos —Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
fibers into the air above current action levels established
by the United States Occupational Safety and Health
Administration.
6. Basic Services- -The services to be performed
for or furnished to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7. Bid —The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
8. 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.
9. Change Order —A document recommended by
ENGINEER, which is signed by Contractor and OWNER
to authorize an addition, deletion or revision in the Work,
or an adjustment in the Contract Price or the Contract
Times, issued on or after the Effective Date of the
Construction Agreement.
10. Construction Agreement —The written
instrument which is evidence of the agreement, contained
in the Contract Documents, between OWNER and
Contractor covering the Work
11. Construction Contract- -The entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12. 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.
13. (Modified) Contract Documents— Documents
that establish the rights and obligations of the parties
engaged in construction and include the Construction
Agreement between OWNER and Contractor and all
documents referenced therein, 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, insurance documents 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
professional'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.
14. Contract Price- -The moneys payable by
OWNER to Contractor for completion of the Work in
accordance with the Contract Documents and as stated in
the Construction Agreement.
15. Contract Times- -The numbers of calendar days
or the dates stated in the Construction Agreement to:
(i) achieve Final Completion, and (ii) complete the Work
so that it is ready for final payment as evidenced by
ENGINEER's written recommendation of final payment.
16. Contractor- -An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period —The time after Final
Completion during which Contractor must correct, at no
cost to OWNER, any Defective Work, normally one year
after the date of Final Completion or such longer period
of time as may be prescribed by Laws or Regulations or
by the terms of any applicable special guarantee or
specific provision of the Contract Documents.
18. Defective —An adjective which, when modifying
the word Work, refers to Work that is unsatisfactory,
faulty, or deficient, in that it does not conform to the
Contract Documents, or does not meet the requirements
of any inspection, reference standard, test, or approval
referred to in the Contract Documents, or has been
damaged prior to ENGINEER's recommendation of final
payment.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 13
19. 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.
20. 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.
21. Effective Date of the Construction Agreement -
The date indicated in the Construction Agreement on
which it becomes effective, but if no such date is
indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
22. Effective Date of the Agreement -The date
indicated in this Agreement on 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.
23. Consultants - Individuals or entities having a
contract with ENGINEER to furnish services with respect
to this Project as ENGINEEWs independent professional
associates, Consultants, subcontractors, or vendors. The
term ENGINEER includes its Consultants.
24. Field Order -A written order issued by
ENGINEER which directs minor changes in the Work
but which does not involve a change in the Contract Price
or the Contract Times.
25. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and
procedures that govern the Work to be performed or
furnished by Contractor with respect to the Project.
27. 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
28. 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.
29. 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.
30. PCB's - Polychlorinated biphenyls.
31. Petroleum - Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refuse, gasoline,
kerosene, and oil mixed with other non Hazardous Waste
and crude oils.
32. Radioactive Materials -- Source, special nuclear,
or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
from time to time.
33. Record Drawings -The Drawings as issued for
construction on which the ENGINEER, upon completion
of the Work, has shown changes due to Addenda or
Change Orders and other information which ENGINEER
considers significant based on record documents
furnished by Contractor to ENGINEER and which were
annotated by Contractor to show changes made during
construction.
34. Reimbursable Expenses -The expenses incurred
directly by ENGINEER in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OWNER shall pay
ENGINEER as indicated in Exhibit C.
35. Resident Project Representative -The
authorized representative of ENGINEER, if any, assigned
to assist ENGINEER at the Site during the Construction
Phase. The Resident Project Representative will be
ENGINEER's agent or employee and under
ENGINEER's supervision. As used herein, the term
Resident Project Representative includes any assistants of
Resident Project Representative agreed to by OWNER.
The duties and responsibilities of the Resident Project
Representative are as set forth in Exhibit D.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 13
36. Samples— Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.
37. Shop Drawings —All drawings, diagrams,
illustrations, schedules, and other data or information which
are specifically prepared or assembled by or for Contractor
and submitted by Contractor to ENGINEER to illustrate some
portion of the Work.
38. 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.
39. 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.
40. Substantial Completion —The time at which the Work
(or a specified part thereof) has progressed to the point where,
in the opinion of ENGINEER, the Work (or a specified part
thereof) is sufficiently complete, in accordance with the
Contract Documents, so that the Work (or a specified part
thereof) can be utilized for the purposes for which it is
intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work
refer to Substantial Completion thereof.
41. Supplementary Conditions —That part of the Contract
Documents which amends or supplements the General
Conditions.
42. (Modified) Total Project Costs —The sum of the
Construction Cost, allowances for contingencies, the total
costs of services of ENGINEER or other design professionals
and Consultants, cost of land, rights -of -way, compensation for
damages to properties, OWNER's costs for legal, accounting,
insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project, and
the cost of other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement.
43. 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.
44. Work Change Directive —A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing or
unforeseen subsurface or physical conditions under which the
Work is to be performed or to emergencies. A Work Change
Directive will not change the Contract Price or the Contract
Times but is evidence that the parties expect that the change
directed or documented by a Work Change Directive will be
incorporated in a subsequently issued Change Order following
negotiations by the parties as to its effect, if any, on the
Contract Price or Contract Times.
45. Written Amendment —A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non - architectural or non- technical
rather than strictly construction - related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEEWs Services," consisting of
six (6) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to Engineer for Services and
Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E, "Notice of Acceptability of Work,"
consisting of two (2) pages.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
1. Exhibit L "Allocation of Risks," is not used.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 I of 13
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 13
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGMEER and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 13
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER CITYOFBAYTOWN
Signature:
Printed Name: Robert D. Leiner
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02A):
Name: Jose A. Pastrana, P.E.
Title: Director of Engineering
Phone Number: (281) 420 -6546
Facsimile Number: (281) 420 -6586
E -Mail Address: jose.pastrana@baytown.org
ENGINEER: MIDTOWN ENG , LLC
Signature:
s
Printed Name: Terry aniel. P.E.
Title: Principal
Date Signed: O 29l
Address for giving notices:
5225 Katy Freeway, Suite 400
Houston, Texas 77007
Designated Representative (paragraph 6.02.A):
Name: Terry L. McDaniel, P.E
Title: Principal
Phone Number: (713) 862 -8848
Facsimile Number: (713) 862 -8840
E -Mail Address: tmcdanicl @midtowncngineers.cwm
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 13 of 13
This is EXHIBIT A, consisting of 3 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER ZM
ENCINEER's Services y
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART l --BASIC SERVICES (Modified)
A1.01 Preliminary Design Phase (Deleted in its entirety)
A 1.02 Final Design Phase
A. 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 of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER; provide
technical criteria, written descriptions, and design data as needed for ENGINEER on behalf of the
OWNER to obtain permits or approvals from (i) utilities, pipeline, railroad companies and all other
entities that may impact the Project and (ii) all governmental authorities having jurisdiction to approve
all phases of the PROJECT designed or specified by ENGINEER; and assist OWNER in consultations,
if any, with appropriate authorities.
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements fortheProject.
5. (Modified) Attend meetings with OWNER and OWNER'S designated boards, commission and/or
governing body to receive input into OWNER'S requirements for the Project and evaluate potential
solutions available to OWNER
6. (Modified) Perform the following additional design phase tasks or deliverables:
a. Provide geotechnical investigation to determine pavement type and depth and include
recommendations for utility trenching, backfilling and dewatering;
b. Prepare Plans, Specifications and Construction Cost estimates ("PS &E ") in accordance with
OWNER'S criteria. PS &E shall include roadway, sidewalks, utilities, lighting, streetscape
amenities, landscape and irrigation and underground electrical facilities for lighting and special
events. Specifications will be prepared, where appropriate, in conformance with the 16- division
format of the Construction Specifications Institute or other format agreed to in writing by OWNER
and ENGINEER;
Page 1 of 6 Pages
(Exhibit A -- ENGINEER's Services)
c. Submit PS &E to Texas Department of Licensing and Regulation as appropriate and obtain its
approval; and
d. Provide renderings of the Project, as requested by OWNER.
Furnish three (3) review copies of the Draft PS &E to OWNER at 50% completion by January 12,
2015, and review it with OWNER, which shall include, but not be limited to:
a. base file drawings
b. 50% planting plan
c. 50% irrigation drawings consisting of mainline, sleeve, controller and meter location
d. 50% site furnishing plan
e. 50% landscaping specifications and estimate in TxDOT format.
8. Furnish three (3) review copies of the PS&E and the Bidding Documents to OWNER and Bidding
Documents at 90% completion by February 6, 2015, and review it with OWNER, its legal counsel and
other advisors as appropriate and assist in the preparation of other related documents, which shall
include, but not be limited to,
EL 90% planting plan and details on Mylar
b. 90% irrigation drawings consisting of mainline, sleeve, controller and meter location on Mylar
c. 90% site furnishing plan on Mylar
d. 90% landscaping specifications and estimate in TxDOT format
9. Furnish three (3) review copies of the PS&E and the Bidding Documents to OWNER and Bidding
Documents at 100% completion by February 27, 2015, and review it with OWNER, its legal counsel
and other advisors as appropriate and assist in the preparation of other related documents, which shall
include, but not be limited to,
a. 100% planting plan and details on Mylar
b. 100% irrigation drawings consisting of mainline, sleeve, controller and meter location on Mylar
e. 100% site furnishing plan on Mylar
d. 100% landscaping specifications and estimate in TxDOT format
10. Revise the PS &E and Bidding Documents in response to OWNER's and other parties' comments, as
appropriate, and furnish three (3) final copies of the revised PS &E and the Bidding Documents along
with fifteen (15) CD's containing the same in pdf format or other format approved by OWNER for
bidding to the OWNER within ten (10) calendar days after completion of reviewing it with OWNER.
B. (Modified) ENGINEER's services under the Design Phase will be considered complete on the date when
the final copies of the revised PS &E has been delivered to and accepted by OWNER
A1.03 Bidding or Negoliating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction
Cost as determined in the Design Development Phase, and upon written authorization by OWNER to proceed,
ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work.
2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents and respond to all
RFI's..
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is
required by the Bidding Documents.
Page 2 of 6 Pages
(Exhibit A -- ENGINEER's Services)
4. (Modified) Conduct the Mandatory Pre -Bid Conference, prepare Bid tabulation sheets, assemble
contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the
Work, and prepare a letter of recommendation for award.
5. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, ENGINEER shall:
1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to
Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in
dealings with Contractor to the extent provided in this Agreement and said General Conditions except
as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01, if any.
3. Pre - Construction Conference. Prepare pre - construction conference agendas. Conduct a Pre -
Construction Conference prior to commencement of Work at the Site. Furnish three (3) full -size set of
drawings labeled issued for construction at the Pre- Construction Conference. Prepare and distribute
meeting notes.
4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work
which in ENGINEER's judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests, and as ENGINEER and /or OWNER deems
necessary, in order to observe as an experienced and qualified design professional the progress and
quality of the Work. Such visits and observations by ENGINEER, and the Resident Project
Representative, if any, are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of Contractor's work in progress
beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the
Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar
methods of general observation of the Work based on ENGINEER's exercise of professional
judgment as assisted by the Resident Project Representative, if any. Based on information
obtained during such visits and such observations, ENGINEER will determine if Contractor's work
is proceeding in accordance with the Contract Documents, and ENGINEER shall keep OWNER
informed of the progress of the Work.
b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in
addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
Page 3 of 6 Pages
(Exhibit A — ENGINEER's Services)
professional, to provide for OWNER a greater degree of confidence that the completed Work will
substantially conform to the Contract Documents and that the integrity of the design concept of the
completed Project as a functioning whole as indicated in the Contract Documents has been
implemented and preserved by Contractor. ENGINEER shall not during such visits or as a result
of such observations of Contractor's work in progress, supervise, direct, or have control over
Contractor's work, nor shall ENGINEER have authority over or responsibility for the means,
methods, techniques, sequences, or procedures of construction selected by Contractor, for safety
precautions and programs incident to Contractor's work, or for any failure of Contractor to comply
with Laws and Regulations applicable to Contractor's furnishing and performing the Work.
Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes
responsibility for any Contractor's failure to furnish and perform its work in accordance with the
Contract Documents.
G. Perform or provide the following additional Final Design Phase tasks or deliverables:
a. Retain the services of an Electrical Consultant to attend the Pre - Construction Conference, if
requested by OWNER; to respond to all RFIs, shop drawings and submittal review related to
electrical and instrumentation work; to perform interim inspection(s) to observe as an experienced
and qualified electrical professional the progress and quality of the Work; to provide a detailed
punch list of items in need of correction; and to conduct a final inspection to determine compliance
with the Construction Documents.
7. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially conforms to the Contract Documents or
that it will prejudice the integrity of the design concept of the completed Project as a functioning whole
as indicated in the Contract Documents,
8. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the
Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications
and interpretations will be consistent with the intent of and reasonably inferable from the Contract
Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements
of the Contract Documents.
9. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
10. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop
Drawings and Samples and other data which Contractor is required to submit, but only for conformance
with the information given in the Contract Documents and compatibility with the design concept of the
completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and
approvals or other action will not extend to means, methods, techniques, sequences or procedures of
construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to
meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER.
11. Substitutes and `or- equal." Evaluate and determine the acceptability of substitute or "or- equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
12. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with the
Contract Documents and will not constitute an independent evaluation that the content or procedures of
Page 4 of G Pages
(Bithibit A — ENGINE-ER's Services)
such inspections, tests, or approvals comply with the requirements of -the Contract Documents.
ENGINEER shall be entitled to rely on the results of such tests.
13. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to
OWNER or Contractor.
14. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid within five calendar days
of receiving a payment request. Such recommendations of payment will be in writing and will
constitute ENGINEER's representation to OWNER, based on such observations and review, that,
to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed
to the point indicated, the quality of such work is substantially in accordance with the Contract
Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract Documents
and to any other qualifications stated in the recommendation), and the conditions precedent to
Contractor's being entitled to such payment appear to have been fulfilled in so far as it is
ENGINEER's responsibility to observe Contractor's work. In the case of unit price work,
ENGINEER's recommendations of payment will include final determinations of quantities and
classifications of Contractor's work (subject to any subsequent adjustments allowed by the
Contract Documents). The responsibilities of ENGINEER contained in paragraph A1.04.A.5.a are
expressly subject to the limitations set forth in paragraph A1.04.A.5.b and other express or general
limitations in this Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented that
observations made by ENGINEER to check the quality or quantity of Contractor's work as it is
performed and furnished have been exhaustive, extended to every aspect of Contractor's work in
progress, or involved detailed inspections of the Work beyond the responsibilities specifically
assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's
review of Contractor's work for the purposes of recommending payments nor ENGINEER's
recommendation of any payment including final payment will impose on ENGINEER
responsibility to supervise, direct, or control Contractor's work in progress or for the means,
methods, techniques, sequences, or procedures of construction or safety precautions or programs
incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's
furnishing and performing the Work. It will also not impose responsibility on ENGINEER to
make any examination to ascertain how or for what purposes Contractor has used the moneys paid
on account of the Contract Price, or to determine that title to any portion of the work in progress,
materials, or equipment has passed to OWNER free and clear of any liens, claims, security
interests, or encumbrances, or that there may not be other matters at issue between OWNER and
Contractor that might affect the amount that should be paid.
15. Contractor's Completion Documents.
a. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted
and required by the Contract Documents, certificates of inspection, tests and approvals, Shop
Drawings, Samples and other data approved as provided under paragraph A1.04.A.10, and the
annotated record documents which are to be assembled by Contractor in accordance with the
Contract Documents to obtain final payment. The extent of such ENGINEER's review will be
limited as provided in paragraph Al .04.A.10.
Page 5 of 6 Pages
(Exhibit A -- ENGINEER's Services)
b. ENGINEER shall transmit these documents to OWNER within ten (10) calendar days of receipt of
documents from Contractor.
c. (Added) Preparing and furnishing to OWNER Record Drawings on reproducible mylar and in
adobe .pdf format showing appropriate record information based on Project annotated record
documents received from Contractor.
16. Inspection. Promptly after notice from Contractor that Contractor considers the entire Work ready for
its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the
Work is finally complete. ENGINEER shall prepare a punch -lists as necessary for the Work to achieve
final completion.
17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that
to the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S
due diligence, the Work is acceptable and is in compliance with the Contract Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to the
Contractor.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform
or furnish the Work in accordance with the Contract Documents.
A1.05 Post - Construction Phase (Deleted in its entirety)
PART 2 -- ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNEWs Authorization in Advance (Deleted)
A2.02 Required Additional Services (Deleted)
Page 6 of 6 Pages
(Exhibit A -- ENGI14EER's Set-vices)
This is EXIIIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER_ ZT
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties
B2.01 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. However, nothing herein shall require the Ctiy to
tender such information in any particular format.
C. (Modified) Following ENGINM's assessment of initially - available Project information and data and upon
ENGINEER's written request, furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services, if any.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
G. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public 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.
Page 1 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
H. (Deleted).
I. (Deleted),
J' Advise ENGINEER of the identity 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. Deleted
L. Deleted
M. Deleted
N. Deleted
Page 2 of 2 Pages
(Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 — PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having A Determined
Scope Cost not to Exceed Method of
Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of $140.02 0 based upon the rate
schedule, which is attached as Appendix l of
Exhibit C and incorporated herein for all intents
and purposes. This amount does not include
those Engineer's Consultant's charges as
provided below in this Article 4, Subparagraph
C4.05.
Design Phase ................. .....................$96,460.00
Bid Phase ........................ ......................$5,840.00
Construction Phase ........ .....................$37,720.00
2. (Modified) ENGINEER may with the
written consent of OWNER alter the distribution
of compensation between individual phases
noted herein to be consistent with services
actually rendered, but shall not exceed the total
cost not to exceed amount unless approved in
writing by the OWNER.
3. The cost not to exceed includes
compensation for .ENGINEER's services and
services of ENGINEER's Consultants, if any.
Appropriate amounts have been incorporated in
the cost not to exceed to account for labor,
overhead, profit, and Reimbursable Expenses.
4, Deleted.
Initial:
OWNER
ENGINEER
5. The portion of the amount billed for
ENGINEER's services will be based upon total
services actually completed during the billing
period.
C4.02 For Basic Services Having An Undetermined
Scope — Direct Labor Costs 77mes a Factor
Method of Payment
A. (Not Used).
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for
Additional Services as follows:
1. General. For services of ENGINEER's
employees engaged directly on the Project
pursuant to paragraph A2.01 or A2.02 of Exhibit
A of the Agreement, except for services as a
consultant or witness under paragraph
A2.01 A.13, an amount based upon the actual
hours worked and the rate schedule, which is
attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes,
plus Reimbursable Expenses and ENGINEER's
Consultant's charges, if any. No Additional
Services shall be preformed without the prior
written consent of the Owner.
2. (Not Used).
C4.04 For Reimbursable Expenses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
OWNER of any expense that exceeds $1,000 for
which the ENGINEER seeks reimbursement.
Reimbursable Expenses shall not exceed the
following, whether incurred by the ENGINEER or
ENGINEER's consultant(s):
Design Phase .................. ......................$1,240.00
BidPhase ........................ ......................$5,250.00
Construction Phase ............................... $1,600.00
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project - related items
in addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to ENGINEER for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
ENGINEER based upon the rate schedule for
reimbursable expenses, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of 1.1.
D. (Deleted).
E. (Deleted)
C4.05 For ENGINEER's Consultant's Charges
Whenever compensation to ENGINEER herein is
stated to include charges of ENGINEER's
Consultants, those charges shall be a cost not to
exceed the following amounts specified for each
phase of service:
Design Phase .......................... .....................$45,150.00
Landscape Architect
.............$25,000.00
Geotechnical .........................$
3,900.00
Electrical Design ...............$
16,250.00
BidPhase ........................ ..............................$
4,760.00
Landscape Architect
...............$2,000.00
Electrical Design ...................$2,760.00
Construction Phase ................. .....................$18,920.00
Landscape Architect .............$11,000.00
Electrical Design ..................$ 7,920.00
C4.06 Direct Labor Costs
A. (Deleted).
B. (Deleted).
4.07 Factors
A. (Not used).
B. (Not used).
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for services which are identified in
paragraphs C4.01, C4.03, and C4.05 will be based on
the rate schedule for the cumulative hours charged to
the Project during the billing period by all of
ENGINEER's employees and consultant(s), plus
Reimbursable Expenses.
Page 2 of 2 Pages
(Exhibit C - All Other Scrvices/Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C
RATE SCHEDULE
19A'MGOWY_ ,
HOU LY RATE
QA/ QC Principal
$
180.00
Project Manager
$
180.00
Project Engineer
$
125.00
CADD O er. Technician
$
90.00
Clerical
$
50.00
Page 1 of 1 Pages
(Appendix 1 of Exhibit C — Hourly Rates)
APPENDIX 2 OF EXHIBIT C
REIMBURSEMENT OF COSTS
Reproduction and Deliveries: Cost plus 10%
Mileage: IRS Rate
Page l of I Pages
(Appendix 2 of Exhibit C — Reimbursement of Costs)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
06.05 Insurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and effect insurance against claims for injuries to or death of persons or damages to property which may arise
out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether
such operations and/or performance be by the ENGMEER, its agents, representatives, volunteers, employees or
subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them
may be liable.
The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER
shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish
separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all
of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts required
in this contract:
Commercial General Liability (CGL)
General Aggregate: $2,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $1,000,000
a. Coverage shall be broad from CGL.
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $1,000,000
Waiver of Subrogation required
Page 1 of 2 Pages
(Exhibit G - Insurance)
Errors & Omissions (E&O)
Limit: $2,000,000
a. For all engineers, and/or design companies.
b. Claims -made form is acceptable.
c. Coverage will be in force for three (3) years after project is completed.
Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has
been given to the OWNER via certified mail, return receipt requested.
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of B+ :VII or better.
b. Waiver of subrogation required.
c. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
d. Liability policies will be on occurrence form. E & O can be on claims -made form.
e. The City of Baytown, its officers, agents and employees are to be added as Additional Insured to the commercial
general liability and business automobile policies.
f. Upon request of and without cost to the City of Baytown, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to the City of Baytown's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to the City of Baytown's representative prior to
execution of this agreement.
g. Upon request of and without cost to the City of Baytown, loss runs (claims listing) of any and /or all insurance
coverage shall be furnished to the City of Baytown's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND THE OWNER, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO
AS THE "OWNER ") FROM AND AGAINST ANY AND ALL
CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS
AND LIABILITY OF EVERY KIND, INCLUDING ALL
EXPENSES OF LITIGATION, COURT COSTS, AND
ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY
PERSON, FOR DAMAGE TO ANY PROPERTY, OR FOR ANY
BREACH OF CONTRACT, ARISING OUT OF, OR IN
CONNECTION WITH THE WORK DONE BY ENGINEER
UNDER THIS CONTRACT CAUSED BY THE SOLE OR JOINT
NEGLIGENCE OF ENGINEER. IT IS THE EXPRESSED
INTENTION OF THE PARTIES HERETO, BOTH ENGINEER
AND THE OWNER, THAT THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO
INDEMNIFY AND PROTECT THE OWNER FROM THE
CONSEQUENCES OF ENGINEER'S OWN NEGLIGENCE,
WHETHER THAT NEGLIGENCE IS THE SOLE OR A
CONCURRING CAUSE OF THE RESULTING INJURY, DEATH
OR DAMAGE. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT
IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF
THE OWNER. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE OWNER FROM
WHICH THE OWNER IS INDEMNIFIED, ENGINEER FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
OWNER. THE INDEMNITY PROVIDED FOR IN THIS EXHIBIT
K SHALL SURVIVE THE TERMINATION OR EXPIRATION OF
THIS AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the
OWNER hereby expressly revokes any consent to litigation that it may have granted
Page 1 of 2 Pages
(Exhibit K - Indemnification)
by the terms of this Contract or any other contract or agreement, any charter, or
applicable state law. Nothing herein shall be construed so as to limit or waive
OWNER'S sovereign immunity. ENGINEER assumes full responsibility for its
work performed hereunder and hereby releases, relinquishes and discharges
OWNER, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character for any injury to or death of any person and /or
any loss of or damage to any property that is caused by or alleged to be caused by,
arising out of, or in connection with ENGINEER's work to be performed
hereunder. This release shall apply with respect to ENGINEER's work regardless
of whether said claims, demands, and causes of action are covered in whole or in
part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and /or expiration of this Agreement.
Page 2 of 2 Pages
(Exhibit K - Indemnification)