Ordinance No. 12,709ORDINANCE NO. 12,709
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY-
HORN AND ASSOCIATES, INC., FOR THE SAN JACINTO BOULEVARD
EXTENSION PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN
IN AN AMOUNT NOT TO EXCEED FOUR HUNDRED EIGHTEEN THOUSAND
FIVE HUNDRED AND NO /100 DOLLARS ($418,500.00); 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
Kimley -Horn and Associates, Inc., for the San Jacinto Boulevard Extension 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 Kimley-
Horn and Associates, Inc., in an amount not to exceed FOUR HUNDRED EIGHTEEN THOUSAND
FIVE HUNDRED AND NO /100 DOLLARS ($418,500.00) 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 N01100 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
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the
Baytown this the 17`h day of November, 2014.
A ST:
LETICIA BRYSCH, City rk '• ��,
0. •
s
APPROVED AS TO FORM: 1n2:a
ACIO RAMIREZ, SR., City tt ey
and after its passage by the
of the City Council of the City of
H. DONCARLOS, Mayor
R:IKaredTiles',City Counci[ %Ordinances\2014Wovember 17\KimleyHornAgreement4SanJacintoBlvdExtensionProject .doc
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STANDARD FORM OF AGREEMENT NOV I ! 2114
BETWEEN OWNER AND ENGINEER City of Baytown
FOR Engineering Dept
PROFESSIONAL SERVICES
t-
THIS AGREEMENT effective as ofthe(Us day of November,2014("Effective Date").
Between
City of Baytown ("OWNER")
and
Kimley-Horn and Associates, Inc. ("ENGINEER")
OWNER intends to contract with ENGINEER for professional engineering services to provide limited preliminary
roadway design and existing property and proposed right-of-way (ROW) information in preparation for property
acquisition necessary for the construction of San Jacinto Boulevard (the "Project"). The Project extends from
Interstate Highway 10 Eastbound Frontage Road to West Cedar Bayou-Lynchburg Road at Bush Road, between
John Martin Road and Garth Road. The preliminary roadway design will be based on the preferred conceptual
alignment selected as part of the San Jacinto Blvd. Alignment Study completed in August 2014. The preliminary
design will be based on local design criteria and does not anticipate Federal or State funding being utilized as a
potential funding source.
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 12
V
TABLE OF CONTENTS
Page
ARTICLE 1 - 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
ARTICLE 4 - 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 ..................................................................... ...............................
5
6.04 Use of Documents .............................................................................................................. ...............................
5
6.05 Insurance ............................................................................................................................. ...............................
6
6.06 Termination ........................................................................................................................ ...............................
6
6.07 Controlling Law .................................................................................................................. ...............................
7
6.08 Successors, Assigns, and Beneficiaries .............................................................................. ...............................
7
6.09 Dispute Resolution ............................................................................................................. ...............................
7
6.10 Hazardous Environmental Condition ................................................................................. ...............................
7
6.11 Allocation of Risks ............................................................................................................. ............................... 8
6.12 Notices ................................................................................................................................ ............................... 8
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Severability ......................................................................................................................... ...............................
8
6.15 Waiver ................................................................................................................................ ............................... 8
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE7 - DEFINITIONS ............................................................................................................... ...............................
8
7.01 Defined Terms ................................................................................................................... ...............................
8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ...............................
11
8.01 Exhibits Included .............................................................................................................. ...............................
11
8.02 Total Agreement ............................................................................................................... ...............................
11
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
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. (modified) Upon issuance of a notice to proceed by
the OWNER, 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
specified in Exhibit A. 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 ENGMER'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
4.01.13, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
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 OWNER's 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 calendar (60) days from the date the
ENGINEER and/or its subconsultants 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 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
after giving seven calendar days' written notice to OWNER
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
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. 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 OWNER's Director of Finance shall immediately
notify the ENGINEER in writing. If the ENGINEER does
not pay the debt within 30 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, surveyors 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 OWNER shall not be
responsible for discovering 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
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. ENGINEER shall serve as
OWNER's prime professional for the Project. Such
professionals shall be appropriately licensed and/or registered
to practice in the State of Texas. ENGINEER may employ
such ENGINEER's 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 furnished 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 terns 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
any 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 furnish 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 Form 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
ply.
6.03 Design without Construction Phase Services
(Deleted)
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
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 ENGINEER's 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.
6.06 Termination
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
A. (Modified) The obligations hereunder may be
terminated:
1. 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
ENGMER'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.
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 6.08.13 the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. (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
ENGMER'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
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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
specialist consultant(s) or contractor(s) 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.
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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
5. Ashestos —Any material that contains more than one
percent asbestos and is fhable 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 ENGINEER's written interpretations and
clarifications issued on or after the Effective Date of the
Construction Agreement. Approved Shop Drawings and the
reports and drawings of subsurface and physical conditions
are not Contract Documents.
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.
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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
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. ENGINEER's Consultants or Consultants—
Individuals or entities having a contract with ENGINEER to
furnish services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER includes
ENGINEER's Consultants.
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.
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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
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 - engineering 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, "ENGINEER's Services," consisting of
nine (9) 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," is
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.
I. Exhibit 1, "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit & "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER 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 11 of 12
• •
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN ENGINEER: KIMLEY-HORN AND ASSOCIATES,
INC.
Signature: Signature:
Printed Name: Robert D.Lei er ���� ''‘1,4r Printed Name: _ 6, FIZ4t7 / -( c5 (- P.E.
,loYT(3l ro,). of ,
Title: City Manager S ao°'t. so Title: .SENI P V r
I eWLe(DE44"
Date Signed: g ie /� / Signed: !Date f• 1 Z' 4-
Address for giving notices: ft AN,
kith��®F�� Address for giving notices:
P.O.Box 424 12012 Wickchester Lane,Suite 500
Baytown,Texas 77522 Houston,TX,77079
Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A):
Name:Jose A.Pastrana,P.E. Name: Constance C.Curtis,P.E
Title:Director of Engineering Title: A 5,50«-A T E
Phone Number: (281)420-7154 Phone Number:(281)920-6578
Facsimile Number: (281)420-6586 Facsimile Number:(972) . .3 C — 3$ 70
E-Mail Address: jose.pastrana@baytown.org E-Mail Address: ComNrE..C-u r=r1Le1-110EN.GQit-�
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
I
This is EXHIBIT A, consisting of 9 pages, referred to in and
part of the Agreement between 114 and ENGINEER
for Professional Services dated �� .
Initial:
OWNER
ENGINEER G'?7
ENGINEER's Services
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 1 --BASIC SERVICES(Modified)
A1.005 Surveying/Environmental Services
A. ENGINEER shall
1. Engage a consultant, namely a registered professional land surveyor licensed in the State of Texas, to
conduct a survey of the following:
> approximately 200 linear feet south of Eastbound Interstate Highway 10 to 550 linear feet
south of existing West Cedar Bayou-Lynchburg Road along Bush Road(approximately 8,800
linear feet). The survey will include property and right-of-way lines within 200 linear feet of
the proposed San Jacinto Boulevard centerline;
> The platted ROW along San Jacinto Boulevard from IH-10 to Lone Star Avenue (including
intersection corner clips at Lone Star Avenue);
> The property lines in the area near the future extension of Hunt Road, from the proposed San
Jacinto Boulevard centerline to the platted ROW of the existing Hunt Road near the Academy
development.(approximately 3,000 linear feet);
> The property lines in the area near the future extension of Santavy Street, from the proposed
San Jacinto Boulevard centerline to a point approximately 500 linear feet east along the north
property line of the Occidental Chemical Corporation property;
> The existing Archer Road ROW, from the proposed San Jacinto Boulevard centerline to a
point approximately 400 linear feet east and 400 linear feet west of the proposed San Jacinto
Boulevard centerline;
> The existing Connally Road ROW, from the proposed San Jacinto Boulevard centerline to a
point approximately 400 linear feet east and 400 linear feet west of the proposed San Jacinto
Boulevard centerline; and
> The existing West Cedar Bayou-Lynchburg Road ROW, from the proposed San Jacinto
Boulevard centerline to a point approximately 400 linear feet east and 400 linear feet west of
the proposed San Jacinto Boulevard centerline,
which surveying services shall include but not be limited to,the following:
a. Data Collection and Property Research
(1) Gather existing property information necessary to provide formal narrative and graphical
descriptions of the proposed ROW(and potentially adjacent easements);
(2) Collect property owner and record information;
(3) Gather existing right-of-way and easement information. Identify easements available
through typical research methodologies (i.e. plats, court house filings, etc.).
Undocumented easements may not be identified
(4) Arrange, and make reasonable efforts to solicit, access to the private properties to perform
the field services specified within this scope.
(5) Use an OWNER-approved Right-of-Entry form limited to field survey services only;and
(6) Provide to the OWNER the names and addresses of the affected property owners;
b. Design Survey
(1) Collect all survey information based on the U.S. Survey Feet and Surface Coordinates
Page 1 of 9 Pages
(EXHIBIT A-Scope of Work)
S
This is EXHIBIT A, consisting of 9 pages, referred to in and
part of the Agreement between qW and ENGINEER
for Professional Services dated I 1114 1.
Initial:
OWNER
ENGINEER 6e7
ENGINEER's Services
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 1 --BASIC SERVICES(Modified)
A1.005 Surveying/Environmental Services
A. ENGINEER shall
1. Engage a consultant, namely a registered professional land surveyor licensed in the State of Texas, to
conduct a survey of the following:
> approximately 200 linear feet south of Eastbound Interstate Highway 10 to 550 linear feet
south of existing West Cedar Bayou-Lynchburg Road along Bush Road(approximately 8,800
linear feet). The survey will include property and right-of-way lines within 200 linear feet of
the proposed San Jacinto Boulevard centerline;
> The platted ROW along San Jacinto Boulevard from IH-10 to Lone Star Avenue (including
intersection corner clips at Lone Star Avenue);
> The property lines in the area near the future extension of Hunt Road, from the proposed San
Jacinto Boulevard centerline to the platted ROW of the existing Hunt Road near the Academy
development. (approximately 3,000 linear feet);
> The property lines in the area near the future extension of Santavy Street, from the proposed
San Jacinto Boulevard centerline to a point approximately 500 linear feet east along the north
property line of the Occidental Chemical Corporation property;
> The existing Archer Road ROW, from the proposed San Jacinto Boulevard centerline to a
point approximately 400 linear feet east and 400 linear feet west of the proposed San Jacinto
Boulevard centerline;
> The existing Connally Road ROW, from the proposed San Jacinto Boulevard centerline to a
point approximately 400 linear feet east and 400 linear feet west of the proposed San Jacinto
Boulevard centerline;and
> The existing West Cedar Bayou-Lynchburg Road ROW, from the proposed San Jacinto
Boulevard centerline to a point approximately 400 linear feet east and 400 linear feet west of
the proposed San Jacinto Boulevard centerline,
which surveying services shall include but not be limited to,the following:
a. Data Collection and Property Research
(1) Gather existing property information necessary to provide formal narrative and graphical
descriptions of the proposed ROW(and potentially adjacent easements);
(2) Collect property owner and record information;
(3) Gather existing right-of-way and easement information. Identify easements available
through typical research methodologies (i.e. plats, court house filings, etc.).
Undocumented easements may not be identified
(4) Arrange, and make reasonable efforts to solicit, access to the private properties to perform
the field services specified within this scope.
(5) Use an OWNER-approved Right-of-Entry form limited to field survey services only;and
(6) Provide to the OWNER the names and addresses of the affected property owners;
b. Design Survey
(1) Collect all survey information based on the U.S. Survey Feet and Surface Coordinates
Page 1 of 9 Pages
(EXHIBIT A-Scope of Work)
(2) Perform a limited field survey to identify and locate the following field data along the
proposed San Jacinto Blvd. alignment:
(a) Property comer monumentation
(b) Fences
(c) Existing pavement edge and back of curbs (where applicable)
(d) Buildings and permanent structures within 200 feet of the proposed corridor
(e) 180' wide cross sections (90' either side of the proposed roadway centerline) at 200
foot intervals and at major breaks, including break lines and adequate detail to
develop a surface representative of the existing topography along the proposed San
Jacinto Blvd. alignment.
(3) Establish horizontal and vertical control points
(a) Establish a vertical control benchmark circuit as needed throughout the project.
OWNER to provide established permanent monument information for the area.
(b) Set up to four permanent control monuments approximately every 2,000 feet alternating
on both sides of the proposed San Jacinto Boulevard centerline with an assigned
elevation.
(c) Tie Horizontal and Vertical to the OWNER's control benchmarks, which datum will be
NAD 83 and NAVD 87, respectively.
(d) Before setting the control points, submit sketched and specifications to the OWNER
for approval.
(e) Prepare digital planimetric base mapping in 2D AutoCAD showing the features
located in the field, an ASCII coordinate file of the points located in the field, and a
hard copy of the coordinates and feature descriptions.
(f) Prepare Digital Terrain Model and 1 -foot contours in a 3D AutoCAD format
(including contours and breaklines) showing the features located in the field, an ASCII
coordinate file of the points located in the field, and a hard copy of the coordinates and
feature descriptions.
2. Coordinate with surveyor consultant, including providing the following services:
a. Perform up to two (2) site visits to review topographic information provided by ENGINEER'S
consultant surveyor for general compliance with the scope of services and observed field
conditions
b. Review Digital Terrain Model and 1 -foot contours provided by surveyor for general compliance
with the scope of services and observed field conditions
C. Review electronic base files provided by surveyor in preparation for preliminary roadway design
3. Provide the following Environmental services to provide a qualitative assessment (i) to evaluate the
potential presence of U.S. Army Corps of Engineers' (Corps) criteria for jurisdictional open waters,
streams, and wetlands that may be subject to Corps and the Environmental Protection Agency Section
404/401 permit requirements along the proposed alignment. (ii) to make observations to
address the June 2007 Post - Rapanos joint, EPA and Corps, guidance on Jurisdiction, which
observations will be made under the applicable guidance at the time of the observations, including, but
not limited to, the following services:
a. Field Reconnaissance and Site Visit Letter Report
(1) Review of readily available aerial photography and published data for the project,
including historical aerials, USGS topographic maps and USDA soils maps;
(2) Perform field reconnaissance of the proposed alignment to determine the approximate
extent of potentially jurisdictional wetlands and other waters of the U.S. {if present) that
maybe subject to Section 404/401.
(a) The locations of ground level photographs and representative aquatic features will be
collected with a mapping grade GPS unit.
(b) The GPS data will be used for mapping the general locations of the features.
(c) ENGINEER anticipates the need to flag and survey the jurisdictional areas if they are
within the proposed roadway alignment.
(3) If positive indicators for all three wetland indictors (hydrology, hydric vegetation, and
Page 2 of 9 Pages
(EXHIBIT A - Scope of Work)
confirmed hydric soils conditions) are observed, recommend that the areas be delineated
in accordance with Corps' approved methodology (commonly referred to as using the
'1987 Manual'), as modified by the appropriate Regional Supplement to the Corps of
Engineers Wetland Delineation Manual, which delineation can be performed as additional
services by ENGINEER upon written request of OWNER after additional engineering fee
has been agreed upon.
(4) Prepare and issue to OWNER a letter report to describe ENGINEER'S findings and to
provide an initial permit strategy, if needed, relating to 404 permitting.
(a) The report will contain a narrative description and sketches of wetlands, streams,
open water, and areas of concern, if observed during the site visit.
(b) Mapping will be of the appropriate size and scale to facilitate planning relative to
Corps' jurisdiction along the alignment.
(c) Mapping will be performed in ArcGIS but is easily converted to CAD when
necessary.
(d) The report will discuss potential permitting scenarios based on field observations and
review of the proposed alignment.
(e) Details for specific types of permitting will be provided, along with potential
alignment adjustment considerations based on limited field observations.
(5) Make limited observations relative to the quality of the observed aquatic features to
facilitate a brief discussion on mitigation requirements.
(6) If based upon potential impacts to areas thought to be under Corps' jurisdiction,
recommend as appropriate, more detailed studies to support ENGINEER'S findings and
facilitate coordination with the Corps, which studies can be performed as additional
services by ENGINEER upon written request of OWNER after additional engineering fee
has been agreed upon.
4. Furnish three (3) copies of the survey and environmental report plus one (1) electronic copy of each to
OWNER within one hundred twenty-six (126) calendar days of authorization to begin services and
review it with OWNER.
A1.01 Preliminary 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 OWNER, Union Pacific Railroad, the
U.S. Army Corps of Engineers, utility companies (phone, gas, electricity and cable), the Texas
Department of Transportation, and all other governmental authorities having jurisdiction to issue
permit or to approve the portions of the Project designed or specified by ENGINEER, including, but
not limited to, mitigating measures identified in the environmental assessment (if any).
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 for the Project.
5. (Modified) Attend meetings with OWNER to receive input into OWNER'S requirements for the
Project and evaluation of potential solutions available to OWNER and to discuss and finalize design
criteria and acquire pertinent information regarding the Project.
6. (Modified) Perform or provide the following additional Preliminary Design Phase tasks or deliverables:
Page 3 of 9 Pages
(EXHIBIT A - Scope of Work)
(a) Project Management
(1) Develop project communication plan
➢ Develop project contact list
➢ Conduct progress meetings to monitor the development of the project and to coordinate
design issues.
➢ Prepare and e-mail weekly progress reports to the OWNER.
(2) Develop project production plan
➢ Document design criteria chart (coordinate with OWNER'S staff at the project kick -off
meeting)
• Design speed
• Pavement design parameters Horizontal alignment design criteria Vertical alignment
design criteria
• Typical section requirements (lane, median, sidewalk, and parkway widths, etc.)
• Intersection design criteria
• Driveway design guidelines (commercial and residential)
➢ Develop role and assignment definitions (coordinate with OWNER'S staff at the project
kick- off meeting)
➢ Develop project schedule and interim milestones (coordinate with OWNER'S staff at the
project kick -off meeting)
(3) Project Administration
➢ Prepare project correspondence and invoicing documents
(b) Data Collection
(1) Roadway
➢ OWNER design criteria
➢ OWNER standard details
➢ Other applicable OWNER'S ordinances
➢ Construction contract document standards
➢ OWNER infrastructure and master thoroughfare plan (MTP) requirements
➢ Proposed/existing development plats and traffic impact analysis reports for properties
adjacent to the project
➢ Future San Jacinto Boulevard right -of -way information and typical section
➢ Barrier free ramp standard details
(2) Drainage
• OWNER'S drainage manual
Storm drainage master plan (if available)
• Existing storm drainage facilities 1 record drawings
• Existing hydraulic models for Goose Creek (if available)
(3) Utilities
➢ Existing water line locations /record drawings
Water master plan requirements
➢ Existing sanitary sewer line locations /record drawings
➢ Sanitary sewer master plan requirements
➢ OWNER'S utility relocation requirements (if applicable)
(4) Streetscape
• OWNER standards regarding medians, crosswalks, plantings, irrigation, street
lighting, etc.
(c) Project site visits
(d) Roadway
(1) Prepare preliminary roadway alignment
➢ Prepare typical sections
o Existing and Proposed
➢ Prepare preliminary plan and profile (roll plot format, 1 "=40' scale). Items to be
included:
o Plan
Control data
Existing / proposed right -of -way
Page 4 of 9 Pages
(EXHIBIT A - Scope of Work)
• Limited existing topography
• Limited existing pavement
• Existing driveway locations
• Existing storm drain locations
• Existing water line locations
• Existing sanitary sewer line locations
• Existing franchise utility locations (relying upon information provided
by franchise utilities)
• Proposed centerline alignment and horizontal curve data
Proposed face of curb
• Proposed medians
• Proposed transition pavement tie -ins to existing pavement
• Proposed storm sewer and culvert alignments only (no inlet or pipe sizing)
• (Proposed commercial and residential driveways will be included in the
final design)
_s Profile
• Existing Ground Profile and Proposed Vertical Alignment
• Superelevation Data (if required)
(e) Drainage
(1) Compile the hydrological and hydraulic data
(2) Develop the project drainage area map
➢ Determine conveyance paths, channel slopes, time of concentration, and runoff
coefficients to calculate design -year flows
➢ Subdivide the overall drainage areas into sub -areas and calculate the discharge at each
inlet.
➢ Analyze inlet capacities and adjust inlet locations and sub -areas as needed to meet
OWNER design criteria.
(3) Analyze drainage improvements to accommodate the new roadway.
(4) Evaluate the need for any offsite drainage improvements and report to the OWNER (the need
for offsite improvements is not anticipated). The design of any offsite drainage improvements
will be considered as Additional Services. Additional Services will be performed only upon
written authorization of OWNER after additional engineering fee has been agreed upon.
(5) Identify the need for additional drainage easements to accommodate the proposed drainage
improvements.
(f) Compile and prepare a preliminary opinion of probable construction cost for the entire project
using recent average unit bid prices which are representative of similar types of construction in the
local area
(g) Preliminary design submittal
7. (Modified) Prepare a preliminary design submittal, which will contain preliminary roadway alignment
(plan and profile), preliminary drainage area map, and the preliminary opinion of probable construction
cost for the alternative which is so recommended for the Project per the approved Preliminary
Alignment Report with each component separately itemized, including the following, which will be
separately itemized: opinion of probable construction cost, allowances for contingencies, and for the
estimated total project costs.
8. Furnish three (3) review copies of the draft preliminary design submittal plus one (1) electronic copy to
OWNER within one hundred eighty-two (182) calendar days of authorization to begin services and
review the preliminary design submittal with OWNER.
9. Furnish three (3) final copies of the preliminary design submittal plus one electronic copy to OWNER
within ten (10) calendar days after reviewing the draft of such submittal with OWNER.
B. (Modified) ENGINEER's services under the Preliminary Design Phase will be considered complete on the
date when the final copies of the preliminary design submittal has been delivered to and accepted by
OWNER.
Page 5 of 9 Pages
(EXHIBIT A - Scope of Work)
A1.015 Right -of -way (ROKq Services
A. Upon written authorization from OWNER, ENGINEER shall:
Engage a consultant, namely a registered professional land surveyor licensed to do business in the State of
Texas,
a. To provide a ROW Strip Map, which will be provided on standard size plan sheet (22 "04 ") at a
scale not smaller than 1" = 30', will be sealed, dated, and signed by a Registered Professional Land,
and will include the following:
(1) Standard OWNER title page including location map
(2) Summary sheet listing all parcels to be acquired, property owners, gross area of property, square
footage and type of easements, net area of property after acquisition, a column for volume and
page of filing, and current volume and page
(3) Comers of all parcels tied to the centerline
(4) Location of all existing property pins, including station and offset to the centerline
(5) Location of all proposed property pins, including station and offset to the centerline
(6) Parcel number
(7) Area required
(8) Area remaining
(9) Current owner
(10)Any existing platted easements or easements filed by separate instrument including easements
provided by utility companies; and
b. To prepare a final drawing in digital format of the right -of -way strip map information, an ASCII
coordinate file of the points located in the field, and a hard copy of the coordinates and feature
descriptions
2. Engage a consultant to perform services related to ROW/Easement Instruments of Conveyance, including,
but not limited to the following:
a. Prepare right -of -way instruments (narrative and graphic exhibits of right -of -way takes)
(1) Up to twelve (12) parcels
(2) Parcel instruments will be invoiced on a per each basis
b. Prepare easement instruments (narrative and graphic exhibits of easements required for drainage,
OWNER'S utilities, temporary construction, encroachment, etc.)
(1) Up to twenty (20) parcels
(2) Parcel instruments will be invoiced on a per each basis as necessary
(3) Parcels will be assessed on an individual basis to determine the appropriate instrument required
for construction activities (Temporary Construction Easement, Right of Entry, etc.)
c. Provide individual parcel exhibits in draft format to the ENGINEER and OWNER for review
d. Upon written notification by OWNER of acceptance of the right -of -way strip map, exhibits and
instruments, and as directed by OWNER, set all comers and points of curvature for the proposed
right -of -way and submit final sealed plans and exhibits, including location of the control points and
their NAD -83 reference. This Scope of Services is based upon there only being one notice to proceed
from the OWNER to perform all the field work required to set all the new property corners at one
time
e. Any changes or modifications to the right -of -way or easement documents because of design changes
requested by OWNER will be considered Additional Services. Additional Services shall be
performed only upon written authorization of OWNER after additional engineering fee has been
agreed upon.
3. Coordinate with surveyor consultant regarding the ROW strip map and ROW/Easements Instruments of
Conveyance, including providing the following services:
a. Provide the surveyor consultant with a CAD file of the proposed San Jacinto Pkwy ROW. Using that
file the surveyor will prepare a right -of -way strip map.
b. Upon acceptance of the draft conveyance document(s) by the OWNER, prepare 8 '/z " x 11" property
exhibits illustrating proposed improvements with the aerial photography in the background
Page 6 of 9 Pages
(EXHIBIT A - Scope of Work)
4. Coordinate with ROW agent consultant ( "ROW Agent'), including providing the following services:
a. Respond to ROW Agent consultant or property owner questions, or property owner requests
regarding adjustments to the proposed street design
b. Prepare for and attend coordination meetings between ROW Agent consultant and OWNER'S staff.
5. Engage a consultant to perform services related to ROW Agent Services, including, but not limited to, the
following:
a. Provide acquisition planning and administration services, including the following
(1) Upon written authorization from OWNER, the project will be released for ROW/Easement
acquisition. A ROW acquisition kick -off meeting will be held with the OWNER,
ENGINEER and ROW Agent to review fee simple acquisition service requirements and/or
Right of Entry procedures for the Project. This step includes OWNER'S initiating the
acquisition process by sending each property owner a formal notification of the project and
the OWNER'S intentions for property acquisition
(2) ENGINEER shall provide the ROW Agent with OWNER- approved ROW/Easement
instruments (provided by the Engineer) and/or Right -of -Entry agreements (provided by
OWNER) for its use.
(3) ENGINEER shall provide the ROW Agent 8 '/z x 11" property exhibits illustrating
proposed improvements with the aerial photography in the background)
b. Perform pre - appraisal contact of affected property owners. (The surveyor's property owner
information will be provided by the ENGINEER to the Agent for its use)
c. Provide limited title services and appraisals.
(1) Title services, title commitments, policies, closing and escrow services will be provided by a
title company selected by OWNER and are not included as part of this contract. Title
expenses will be paid directly by OWNER.
(2) Appraisal services will be provided by an appraisal company selected by OWNER and are
not included as part of this contract. Appraisal expenses will be paid directly by OWNER.
(3) The ROW Agent will review the title documents and appraisals for its use during acquisition
services
d. Provide acquisition negotiations and coordination services, including, but not limited to, the
following:
(1) Subsequent to OWNER'S notification of the Project and its need for acquiring property to
provide the public improvement, the ROW Agent will visit each property owner in person
(within reasonable travel limits). The ROW Agent may or may not be accompanied by an
OWNER'S representative depending on the circumstances
(2) Following the initial property owner visits, the ROW Agent will meet with OWNER to
discuss the appraisals and the specific circumstances associated with the property and its
owner to determine an initial offer amount and strategy for acquisition.
(3) The ROW Agent will prepare and send to each property owner an initial offer letter based
upon the appraisal and OWNER- approved initial offer. Continued contact and negotiations
will take place in an attempt to acquire the necessary property of interest.
(4) At OWNER'S sole discretion, an amount of compensation may be tendered to the property
owner for settlement. The ROW Agent will not offer compensation beyond the OWNER -
authorized limits identified in Paragraph A1.015.A.5.d.(2)
(5) In the event an offer is acceptable to the property owner, the ROW Agent will obtain the
signatures of the property owner(s) of the subject parcel /easement on a Right -of -Entry
agreement or an instrument conveying the property/easement to OWNER. Any
compensation being paid to a property owner by OWNER shall be delivered or sent to the
property owner by the ROW Agent. OWNER will be responsible for recording the
necessary legal documents.
(6) In the event that the property acquisition negotiations do not reach a point of mutual
agreement, the ROW Agent will coordinate with OWNER in an effort to prepare and issue a
Final Offer Letter to the property owner. There could be one of two likely outcomes:
• If the property owner agrees to the Final Offer Letter, the ROW Agent will proceed in
accordance with Paragraph A1.015.A.5.d..5.
Page 7 of 9 Pages
(EXHIBIT A - Scope of Work)
• If the property owner does not respond to the Final Offer Letter by the deadline, the file
for the subject parcel will be turned over to OWNER for its use in potential
condemnation (eminent domain) proceedings. Any ENGINEER or ROW Agent
services in support of any condemnation proceedings can be provided as an Additional
Service performed only upon written authorization of OWNER after additional fees
have been agreed upon
e. Relocation Assistance Services for Residential, Business, Personal Property, Mini Storage Units
and Outdoor Advertising Signs (ENGINEER anticipates two (2) residential and one (1) business
relocation)
(1) ROW Agent will provide Relocation Assistance Advisory Services for those identified as
being displaced on this project in accordance with the OWNER'S Relocation Program and
Section 21.046 of the Texas Property Code, as amended.
(2) ROW Agent will provide Relocation Advisory Services include the following:
(a) Notify all Displacees and potential Displacees of eligibility for relocation assistance.
(b) At the time of initial contact, provide Displacees with OWNER'S Relocation Assistance
Brochure, if available.
(c) Provide on -going relocation assistance and advisory services to Displacees affected by
the acquisition of right -of -way. On -going advisory services includes monitoring the
move of which the frequency and manner must match the complexity of the relocation.
(d) Compute and submit the request for relocation housing/rental supplement to OWNER
on OWNER- approved forms.
(e) Provide 90 -day notice to vacate simultaneous with the delivery of relocation benefits
package. The 90 -day notice may not be delivered prior to a personal interview with the
Displacee to determine the type, needs and eligibilities.
(fl Provide 30 -day notice once property has been acquired by OWNER. Note that the
Displacee must be given a total of 90 -days' notice.
(g) Immediately notify OWNER if the Displacee does not move after 30 -day notice
expires.
(h) Perform a decent, safe, and sanitary inspection of the replacement housing in
accordance with OWNER'S policy
(3) For Non - residential Moves, Negotiated Self -Moves
(a) If the moving plan for a Negotiated Self -Move exceeds $20,000, prepare a move plan
with appropriate photos and sketches along with inventory of personal property that is
identified to be moved and submit same to OWNER for approval. This is required for
pre - approval by OWNER.
(b) If the moving plan for a Negotiated Self -Move is less than $20,000, prepare an
abbreviated move plan for the business owner or tenant. This includes photos, written
inventory list, type of move requested, and project move date. This is required for
pre - approval by OWNER.
(c) For all Negotiated Self- Moves, the ROW Agent is responsible for requesting moving
estimates, at OWNER'S expense, from moving companies. Moving estimates must
be obtained by the Agent and not the Displacee. Moving estimates must be prepared
in writing and in the name of OWNER.
(4) Coordinate and monitor moves with displaced homeowners, business owners, tenants, and
with moving companies in accordance with the OWNER'S procedures.
(5) Maintain relocation contact logs journaling all attempted and completed contacts with all
Displacees.
(6) Attend closings on replacement property if requested by any party involved, and assure
supplemental payment is properly distributed.
(7) Prepare all relocation payment claim submissions for all Displacees in accordance with the
OWNER'S guidelines.
(8) Deliver relocation payments in accordance with OWNER'S guidelines.
➢ Provide an executed Certification of Eligibility for all Displacees.
Page 8 of 9 Pages
(EXHIBIT A - Scope of Work)
A1.02 Final Design Phase
Not included.
A1.03 Bidding or Negotiating Phase
Not included.
A1.04 Construction Phase
Not included.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER' Authorization in Advance
A Title Research or other related services
a Property Appraisals
C Engineer or ROW Agent condemnation support services
D. Any changes or modifications to the OWNER - approved right -of -way or easement documents
because of design changes requested by OWNER
E Geotechnical investigation including pavement design
F. Any roadway design beyond the limited scope identified above
G. Construction plans of any proposed improvements
H Utility design
L Sizing and hydraulic grade line analysis of proposed storm drainage improvements
J Traffic signal design
K Traffic control plans
L Streetscape design
M FEMA coordination in preparation for a Letter of Map Revision
N. Floodplain modeling
O Furnishing additional ROW or Easement documents in excess of the number of the same identified
above
P. Assist OWNER as an expert witness in litigation in connection with the project or in hearings before
approving and regulatory agencies
Q Redesign to reflect project scope changes requested by OWNER, required to address changed
conditions or change in direction previously approved by OWNER, mandated by changing
governmental laws, or necessitated by OWNER'S acceptance of substitutions proposed by the
contractor
R Formal delineation of wetlands areas in accordance with Corps' approved methodology (commonly
referred to as using the '1987 Manual')
S If aquatic features are found and it is ENGINEER'S opinion that they are likely to be considered under
the jurisdiction of the Corps, and impacts are proposed based on the current alignment, then permitting
will be likely. Unless proposed impacts are minimal (generally, less than 1/10- acre), permitting will, at a
minimum, involve submitting a formal preliminary jurisdictional determination report to the Corps,
along with the appropriate permitting documentation and a plan to mitigate for any unavoidable impacts
to jurisdictional areas. These additional services may include additional detailed wetland and stream
delineation, detailed alternatives analysis, regulatory agency jurisdictional concurrence, Section 404/401
permitting, regulatory and resource agency correspondence and/or meetings, wetland/stream mitigation
strategies and designs, mitigation monitoring, tree inventories, cultural resource coordination and
protected species surveys.
A2.02 Required Additional Services
Not Included
Page 9 of 9 Pages
(EXHIBIT A - Scope of Work)
• •
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between W ER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER A'
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. Nothing contained in this Exhibit or in this
Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in
which the existing data and documentation will be provided shall be at the sole discretion of the OWNER.
C. (Modified) Following ENGINEER'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.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (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 and private
property as required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER(including obtaining advice of an attorney,insurance counselor,and other advisors
or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions
pertaining thereto.
Page 1 of 2 Pages
(Exhibit B—OWNER's Responsibilities)
H. (Deleted).
I. (Deleted).
I 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 d ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and supplemented for all of the services performed during the
to include the following agreement of the parties: applicable month.
ARTICLE 4—PAYMENTS.TO THE ENGINEER C4.02 For Basic Services Having An Undetermined
Scope — Direct Labor Costs Times a Factor
C4.01 For Basic Services Having A Determined Method of Payment
Scope-Cost not to Exceed Method of Payment
A. (Not Used).
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows: C4.03 For Additional Services
1. (Modified) A cost not to exceed A. OWNER shall pay ENGINEER for Additional
amount of $368.500,00. based upon the rate Services as follows:
schedule,which is attached as Appendix I of Exhibit
C and incorporated herein for all intents. and 1. General. For services of ENGINEER's
purposes'. This amount includes those employees engaged.directly on the Project pursuant
ENGINEER'S Consultant's charges and will be to paragraph A2.01 or A2.02 of Exhibit A of the
distributed at the completion of each of the phase in Agreement, except for services as a consultant or
the following amount: witness under paragraph A2.01.A.13, an amount
based upon the actual hours worked and the rate
a. Surveying/Environmental Services...$96,400 schedule,which is attached as Appendix 1 of Exhibit
C and incorporated herein for all intents and
b. Preliminary Design Phase.. $79,200 purposes plus Reimbursable Expenses. Additional
Services shall not be performed without the prior
c. Right-of-way(ROW)Services $192,900 written consent of the OWNER.
C4.04 For Reimbursable Expenses
2. (Deleted).
A. (Modified) When not included in compensation
3. The cost not to exceed includes for Basic Services under paragraph C4.01, OWNER
compensation for ENGINEER's services and shall pay ENGINEER for Reimbursable Expenses as the
services of ENGINEER's Consultants. Appropriate rate set forth in Appendix 2 of this Exhibit C. Before the
amounts have been incorporated in the cost not to OWNER shall be liable for any reimbursable expenses,
exceed to account for labor,overhead,and profit. the ENGINEER must obtain prior written approval of the
OWNER of any expense that exceeds $I,000 for which
4. Deleted. the ENGINEER seeks reimbursement. Reimbursable
Expenses shall not exceed$25,000, whether incurred by
5. The portion of the amount billed for the ENGINEER or ENGINEER's consultant(s).
ENGINEER's services will be based upon total
services actually completed during the billing B. (Modified) Reimbursable Expenses include the
period, which shall be a calendar month. Invoices following categories: mileage, parking tolls, long
shall be tendered no more often than once a month distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project-related items in
Page 1 of 2 Pages
(Exhibit C-Basic Services With Determined Scope--Cost not to exceed Method)
� I
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, plus all invoiced external Reimbursable
Expenses allocable to the Project, the latter multiplied by
a Factor of 1.10. Travel, meals, mileage, rental cars,
and like expenses are not subject to the 1.10 Factor.
D. Deleted.
E. (Added) The OWNER must approve all travel
expenses before the same are incurred. If such approval
is not obtained, the OWNER shall not be liable for such
travel expenses.
C4.05 ForENGRNEER's Consultant's Charges
A. Deleted.
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and wages
paid to ENGINEER's employees but does not include
payroll related costs or benefits.
B. (Deleted).
4.07 Factors
(Deleted)
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
identified in paragraphs C4.01 and C4.03, 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, plus Reimbursable
Expenses and ENGINEER's Consultant's charges, if
any.
Page 2 of 2 Pages
(Exhibit C - All Other Services /Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C — HOURLY RATES
Hourly Rates:
All services are to be billed on an hourly basis based on time and materials and based upon the following rates:
POSITION
Senior Engineer I/Senior Professional I
$225--$255
Senior Engineer II/Senior Professional II
$195--$235
Engineer/Professional
$150--$200
CAD Technician
$125--$140
Designer
$105--$160
Analyst
$130--$160
Support Staff/Technician
$60--$110
Page 1 of 1 Pages
(Appendix 1 of Exhibit C — Hourly Rates)
APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS
External Reproduction and Deliveries: Cost plus 10%
Internal expenses: Cost
Mileage: IRS Rate
Travel: Cost
Page 1 of 1 Pages
(Appendix 2 of Exhibit C — Reimbursement of Costs)
• •
This is EXHIBIT E, consisting of 2 pages, referred to in and
part of the Agreement between O N nd ENGINEER
for Professional Services dated 1
Initial:
OWNER
ENGINEER G-zI
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To: OWNER
And To: CONTRACTOR
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
By:
Title:
Dated: ,
Page 1 of 2 Pages
(Exhibit E-Notice of Acceptability of Work)
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been
employed by OWNER to perform or furnish during construction of the Project (including observation of the
CONTRACTOR'S work) under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR'S performance under the Construction
Contract nor an assumption of responsibility for any failure of the Contractor to furnish and perform the work
thereunder in accordance with the Contract documents, unless ENGINEER knew or should have known of such
failure and failed to notify the Owner of such failure and take appropriate action so that the same were corrected
and brought into compliance with the Contract Documents.
Page 2 of 2 Pages
(Exhibit E —Notice of Acceptability of Work)
•
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between 0 N R and ENGINEER
for Professional Services dated (d 1
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 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 ENGINEER, 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 form 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
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.
Page 1 of 2 Pages
(Exhibit G-Insurance)
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. OWNER, 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 OWNER, certified copies of all insurance policies and/or certificates of
insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of
insurance coverage shall be provided to OWNER's representative prior to execution of this agreement.
g. Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance coverage
shall be furnished to OWNER'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 OWN R and ENGINEER for
Professional Services dated
Initial:_Aoki_
OWNER
ENGINEER 6:7'CST
Indemnification
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS,
AND EMPLOYEES (HEREAFTER REFERRED TO AS "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 TO THE EXTENT
ARISING OUT OF OR IN CONNECTION WITH AN ACT OF
NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
ENGINEER OR THE ENGINEER'S AGENT, ENGINEER UNDER
CONTRACT, OR ANOTHER ENTITY OVER WHICH THE
ENGINEER EXERCISES CONTROL (COLLECTIVELY
ENGINEER'S PARTIES). IT IS THE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH ENGINEER AND OWNER,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT
OWNER FROM THE CONSEQUENCES OF ENGINEER'S
PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE
NEGLIGENCE AS WELL AS THE ENGINEER'S PARTIES'
INTENTIONAL TORTS, INTELLECTUAL PROPERTY
INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS
ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. 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
ANY PERSON OTHER THAN THE ENGINEER'S PARTIES. 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 HEREINABOVE SHALL
SURVIVE THE TERMINATION AND /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 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.