Ordinance No. 12,733ORDINANCE NO. 12,733
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT
WITH SIRRUS ENGINEERS, INC. FOR ENGINEERING SERVICES ASSOCIATED
WITH THE JOHN MARTIN ROAD IMPROVEMENTS NORTH OF IH -10 PROJECT;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT
TO EXCEED TWO HUNDRED FIFTEEN THOUSAND FIFTY -ONE AND NO /100
DOLLARS ($215,051.00); MAKING OTHER PROVISIONS RELATED THERETO;
AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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
Sinus Engineers, Inc., for engineering services associated with the John Martin Road Improvements
North of IH -10 Project. A copy of the agreement is attached hereto, marked Exhibit "A," and made a part
hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Sirrus
Engineers, Inc., in an amount not to exceed TWO HUNDRED FIFTEEN THOUSAND FIFTY -ONE
AND NO /100 DOLLARS ($215,051.00) for engineering services in accordance with the agreement
authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent
(25 %).
Section 4: This ordinance shall take effect immediately
City Council of the City of Baytown. 14
INTRODUCED, READ and PASSED by the affirmati
Baytown this the 11 h day of December, 2014.
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Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the day of December, 2014 ( "Effective Date ").
Between
City of Baytown ( "OWNER")
and
Sirrus Engineers, Inc. ( "CONSULTANT")
OWNER intends to contract to provide professional engineering services related to the design, bid and construction
phase services associated with the John Martin Road Improvements North of Ill 10 ( "Project "). The Project shall
includes not onlyimprovemetns north of IH 10 but also the intersection of John Martin Road at I1-1-10. The scope
shall include, but not be limited to the %%idening John Martin Road, from two (2) lanes to four (4) lanes with
additional center turn lanes under the III -10 underpass and improvements to the signal system.
OWNER and CONSULTANT 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 I of 13
TABLE OF CONTENTS rm
ARTICLE 1 - SERVICES OF CONSULTANT .................................................................................. ............................... 3
1.0 1 Scope ........................»........................................................................................................ ............................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES .................................................................................. ............................... 3
2.01 General ............................................................................................................................. ............................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVI CES ....................................................................... ............................... 3
3.01 General....... ......................................................................................................................... ............................... 3
3.03 Suspension .......................................................................................................................... ............................... 3
ARTICLE 4 - PAYMENTS TO CONSULTANT ................................................................................ ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT ....... ............................... 3
4.03 Other Provisions Concerning Payments ............................................................................ ............................... 3
ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost .......................................................................... ............................... 4
5.03 Designing to Construction Cost Limit ............................................................................... ............................... 4
5.03 Opinions of Total Project Costs .................................................................................... ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS .................................................................................. ............................... 4
6.01 Standards of Performance .................................................................................................. ............................... 4
6.02 Authorized Project Representatives .................................................................................. ............................... 5
6.03 Design without Construction Phase Services ..................................................................... ............................... 6
6.04 Use of Documents .............................................................................................................. ............................... 6
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law .................................................................................................................. ............................... 7
6.08 Successors, Assigns. and Beneficiaries .............................................................................. ............................... 7
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condit ion ................................................................................. ............................... 7
6.11 Allocation of Risks ............................................................................................................. ............................... 8
6.13 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
8.03 Total Agreement ............................................................................................................... ............................... 13
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 13
ARTICLE 1 - SERVICES OF CONSULTANT
1.01 Scope
A. CONSULTANT 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, CONSULTANT 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) CONSULTANT's services and
compensation under this Agreement have been agreed to for
the design of the Project together with other services specified
in Exhibit A. CONSULTANT'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 CONSULTANT's services are delayed
or suspended in whole or in part by OWNER.
CONSULTANT may be entitled to equitable adjustment of
rates and amounts of compensation provided for elsewhere in
this Agreement to reflect, reasonable costs incurred by
CONSULTANT in connection with, among other things, such
delay or 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 CONSULTANT, its officers, agents, or employees. If
CONSULTANT causes or contributes to the delay or
suspension, CONSULTANT shall have no right to seek
additional compensation.
ARTICLE 4 - PAYMENTS TO CONSULTANT
4.01 Methods of Payment for Services and
Reimbursable Expenses of CONSULTANT
A. For Basic Seri ices. OWNER shall pay
CONSULTANT for Basic Services performed or furnished
under Exhibit A, Part I, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
CONSULTANT for Additional Services performed or
furnished under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reiurhrrrvable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.13, OWNER shall pay CONSULTANT for Reimbursable
Expenses incurred by CONSULTANT and CONSULTANT'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 CONSULTANT incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
CONSULTANT shall not make a claim against OWNER for
any such expenses.
4.02 Other Provisions Concerning Payments
A. Preparalior of Lnvoices. Invoices will be prepared
in accordance with OWNER's standard processing practices
and will be submitted to OWNER monthly via mail or email
by CONSULTANT, unless otherwise agreed.
CONSULTANT shall supply detailed back -up information
along with each invoice in order for the OWNER to
effectively evaluate the fees and charges. The amount billed
in each invoice will be calculated as set forth in Exhibit C.
Invoices shall be received by the OWNER not later than sixty
(60) days from the date the CONSULTANT and/or its
subconsultants perform the services or incur the expense.
Failure by CONSULTANT to comply with the requirements
herein in a timely manner with this requirement shall result in
the CONSULTANT'S invoice being denied.
B. (Modified) Payment of brvoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due CONSULTANT for services and expenses
within 30 days after receipt of CONSULTANT's invoice and
the required backup documentation therefor, the amounts due
CONSULTANT will accrue interest at the rate set forth in
Standard Form ofAgreement
Between Owner and Engineer for Professional Services
Page 3 of 13
Section 2251.025 of the Texas Government Code (or the
maximum rate of interest permitted by law, if less) after the
30th day. CONSULTANT may after giving seven days'
written notice to OWNER suspend services under this
Agreement until CONSULTANT has been paid in full all
amounts due far services, expenses, and other related charges.
However, it is expressly understood and agreed that
CONSULTANT 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
CONSULTANT 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, CONSULTANT 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 CONSULTANT's Costs.
Records of CONSULTANT's costs pertinent to
CONSULTANT'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
CONSULTANT'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 CONSULTANT's estimated total
compensation.
G. (Added) Indebtedness. If CONSULTANT, at any
time during the term of this agreement, incurs a debt, as the
word is defined in section 2 -663 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 CONSULTANT
has incurred a debt, the OWNER's Director of Finance shall
immediately notify the CONSULTANT in writing. If the
CONSULTANT 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 CONSULTANT under this
Agreement, and the CONSULTANT waives any recourse
therefor.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. CONSULTANT's opinions of probable
Construction Cost provided for herein are to be made on the
basis of CONSULTANT's experience and qualifications and
represent CONSULTANT's best judgment as an experienced
and qualified professional generally familiar with the industry.
However, since CONSULTANT 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,
CONSULTANT cannot and does not guarantee that
proposals, bids, or actual Construction Cost will not vary from
opinions of probable Construction Cost prepared by
CONSULTANT. 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 perforated or furnished by
CONSULTANT under this Agreement will be the care and
skill ordinarily used by members of CONSULTANT's
profession practicing under similar circumstances at the same
time and in the same locality.
B. (Modified) CONSULTANT shall be responsible for
the technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. CONSULTANT shall
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 13
correct such deficiencies without additional compensation
except to the extent such action is directly attributable to
deficiencies in OWNER - furnished information upon which
CONSULTANT is authorized to rely as provided in Section
6.01.E.
C. CONSULTANT shall perform or furnish
professional engineering and related services in all phases of
the Project to which this Agreement applies. CONSULTANT
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. CONSULTANT
may employ such CONSULTANT's Consultants as
CONSULTANT deems necessary to assist in the performance
or furnishing of the services. CONSULTANT shall not be
required to employ any professional unacceptable to
CONSULTANT.
D. CONSULTANT 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
CONSULTANT's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
CONSULTANT may rely upon, the accuracy and
completeness of all requirements, programs, instructions,
reports, data, and other information furnished by OWNER to
CONSULTANT pursuant to this Agreement, unless expressly
stated or communicated otherwise by OWNER.
CONSULTANT may use such requirements, reports, data,
and information in performing or furnishing services under
Otis 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
CONSULTANT.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify CONSULTANT of any
variations from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that CONSULTANT will be requested to provide to OWNER
or third parties in connection with the Project. OWNER and
CONSULTANT shall reach agreement on the terms of any
such requested notice or certification, and OWNER shall
authorize such Additional Services as are necessary to enable
CONSULTANT to provide the notices or certifications
requested.
IL(Modified) CONSULTANT shall not be required to
sign any documents, no matter by whom requested, that would
result in CONSULTANT's having to certify, guarantee or
warrant the existence of conditions whose existence
CONSULTANT cannot ascertain; provided, that
CONSULTANT has exercised due diligence and was not
otherwise required to certify, guarantee or warrant the
existence of such conditions.
1. During the Construction Phase, CONSULTANT
shall not supervise, direct, or have control over Contractor's
work, nor shall CONSULTANT 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) CONSULTANT 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
CONSULTANT from liability for any such failure about
which CONSULTANT knew or should have known existed in
the exercise of CONSULTANT's services under this
Agreement.
K. (Modified) CONSULTANT 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 CONSULTANT'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 CONSULTANT.
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.
6.62 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, CONSULTANT and OWNER shall designate
specific individuals to act as CONSULTANT's and
OWNER's representatives with respect to the services to be
performed or furnished by CONSULTANT and
responsibilities of OWNER under this Agreement. Such
individuals shall have authority to transmit instructions,
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5of13
receive information, and render decisions relative to the
Project on behalf of each respective party.
6.03 Design without Construction Phase Services
(Deleted)
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
CONSULTANT grants to the OWNER an ownership interest
in the Instruments of Service. The CONSULTANT shall
obtain similar interests from the CONSULTANT's
consultants consistent with this Agreement. Within seven
days of any termination or expiration of this Agreement, the
CONSULTANT 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
CONSULTANT 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
CONSULTANT's name and all references to the
CONSULTANT, 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 CONSULTANT, 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 CONSULTANT are limited to the
printed copies that are delivered to CONSULTANT 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 CONSULTANT are only for convenience of
CONSULTANT. 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
CONSULTANT to OWNER are only for convenience of
OWNER. Any conclusion or information obtained or derived
from such electronic tiles 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 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.
CONSULTANT shall not be responsible to maintain
documents stored in electronic media format afler acceptance
by OWNER.
E. When transferring documents in electronic media
format, CONSULTANT 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 CONSULTANT 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
CONSULTANT 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.
I-I. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
CONSULTANT to further compensation at rates to be agreed
upon by OWNER and CONSULTANT.
6.05 Insurance
A. CONSULTANT 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
CONSULTANT, 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 13
of CONSULTANT, and if commercially available,
CONSULTANT shall obtain and shall require its 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
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon 30 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 CONSULTANT upon seven days'
written notice if CONSULTANT is being requested
by OWNER to furnish or perform services contrary
to CONSULTANT'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 days of receipt of such notice, to
correct its failure to perform and proceeds diligently
to cure such failure within no more than 30 days of
receipt thereof; provided, however, that if and to the
extent such substantial failure cannot be reasonably
cured within such 30 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 days after the date of
receipt of the notice.
2. For convenience by OWNER effective upon the
receipt of notice by CONSULTANT.
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.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and CONSULTANT each is hereby bound
and the partners, successors, executors, administrators and
legal representatives of OWNER and CONSULTANT (and to
the extent permitted by paragraph 6.08.13 the assigns of
OWNER and CONSULTANT) are hereby bound to the other
party to this Agreement and to the partners, successors,
executors, administrators and legal representatives (and said
assigns) of such other party, in respect of all covenants,
agreements and obligations of this Agreement.
B. Neither OWNER nor CONSULTANT 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:
I. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by OWNER
or CONSULTANT 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 CONSULTANT 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 CONSULTANT that to the
best of its knowledge a Hazardous Environmental Condition
does not exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to CONSULTANT 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, CONSULTANT shall
have the obligation to notify OWNER on or before the next
business day of the same.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 13
D. It is acknowledged by both parties that
CONSULTANT's scope of services does not include any
services related to a Hazardous Environmental Condition. In
the event CONSULTANT or any other party encounters a
Hazardous Environmental Condition, CONSULTANT may,
at its option and without liability for consequential or any
other damages, suspend performance of services on the
portion of die Project affected thereby until OWNER: (i)
retains appropriate specialist consultant(s) or contractor(s) to
identify and, as appropriate, abate, remediate, or remove the
Hazardous Environmental Condition; and (ii) wan -ants that the
Site is in full compliance with applicable Laws and
Regulations.
E. OWNER acknowledges that CONSULTANT is
performing professional services for OWNER and drat
CONSULTANT 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 CONSULTANT's activities under
this Agreement.
F. If CONSULTANT's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
CONSULTANTS terminating this Agreement for cause on 30
days' notice.
6.11 Allocation or Risks
A. (Modified) Indemnification. See Exhibit K.
B. (Added) Notwithstanding anything to the contrary
contained in this Agreement, the OWNER and
CONSULTANT hereby agree that no claim or dispute
between the OWNER and CONSULTANT 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,
CONSULTANT consents to be joined in the arbitration
proceeding if CONSULTANT'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 die 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 CONSULTANT,
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:
I. Addenda —Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or change
the Bidding Documents.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 13
2. Additional Services —The services to be performed
for or furnished to OWNER by CONSULTANT in
accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement —This "Standard Form of Agreement
between OWNER and CONSULTANT for Professional
Services," including those Exhibits listed in Article 8 hereof.
4. Application for Payment —The form acceptable to
CONSULTANT which is to be used by Contractor in
requesting progress or final payments for the completion of its
Work and which is to be accompanied by such supporting
documentation as is required by the Contract Documents.
5. Asbestos —Any material that contains more than one
percent asbestos and is friable or is releasing asbestos fibers
into the air above current action levels established by the
United States Occupational Safety and Health Administration.
6. Basic SenIces —The services to be performed for or
furnished to OWNER by CONSULTANT 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 Doctnntents —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
CONSULTANT, 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 alter the Effcctive 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
CONSULTANT. Construction Cost does not include costs of
services of CONSULTANT 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 Docuntetrts— 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 CONSULTANT'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 Thnes —The numbers of 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 CONSULTANT'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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 13
the Contract Documents, or has been damaged prior to
CONSULTANT'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 CONSULTANT to OWNER pursuant
to this Agreement.
20. Drinvings —That part of the Contract Documents
prepared or approved by CONSULTANT which graphically
shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings are not Drawings as
so defined.
21. Effective Date of the Construction Agreement —The
date indicated in the Construction Agreement on which it
becomes effective, but if no such date is indicated, it means
the date on which the Construction Agreement is signed and
delivered by the last of the two parties to sign and deliver.
22. Effective Date of the Agreement —The date indicated
in this Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
23. CONSULTANT's Consultants— individuals or entities
having a contract with CONSULTANT to furnish services
with respect to this Project as CONSULTANT's independent
professional associates, consultants, subcontractors, or
vendors. The term CONSULTANT includes
CONSULTANT's Consultants.
24. Field Oder —A written order issued by
CONSULTANT 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 fumished by
Contractor with respect to the Project.
27. Hirardotms 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. Hieardous lVaste —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. Lcncs and Regulations; Lens or Regidatimis —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 CONSULTANT, upon completion
of the Work, has shown changes due to Addenda or Change
Orders and other information which CONSULTANT
considers significant based on record documents furnished by
Contractor to CONSULTANT and which were annotated by
Contractor to show changes made during construction.
34. Reimbursable Erpenses —The expenses incurred
directly by CONSULTANT in connection with the
performing or furnishing of Basic and Additional Services for
the Project for which OWNER shall pay CONSULTANT as
indicated in Exhibit C.
35. Resident Project Representative —The authorized
representative of CONSULTANT, if any, assigned to assist
CONSULTANT at the Site during the Construction Phase.
The Resident Project Representative will be
CONSULTANT's agent or employee and under
CONSULTANT'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 Pro ject
Representative are as set forth in Exhibit D.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 13
36. Samples—Physical examples of materials, equipment,
or workmanship that are representative of some portion of the
Work and which establish the standards by which such portion
of the Work will be judged.
37. Shop Droirings —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 CONSULTANT to illustrate
some portion of the Work.
38. Site —Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which the
Work is to be performed, rights -of -way and easements for
access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
39. Specifications —That part of the Contract Documents
consisting of written technical descriptions of materials,
equipment, systems, standards, and workmanship as applied to
the Work and certain administrative details applicable thereto.
40. Substantial Completion —The time at which the Work
(or a specified part thereof) has progressed to the point where,
in the opinion of CONSULTANT, the Work (or a specified
part thereof) is sufficiently complete, in accordance with the
Contract Documents, so that the Work (or a specified part
thereol) 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. Supplementar3, 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 CONSULTANT 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. Mbrk —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 CONSULTANT, 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, i f any, on the Contract Price or Contract Times.
45. Written Antendntetu —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, "CONSULTANT's Services," consisting
of nine (9) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to CONSULTANT 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 not
used.
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 I, "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I I of 13
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 13
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
CONSULTANT 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 some Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the E1Tectivc Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN
Signature:
Printed Name: Robert D. Leiner
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02.A):
Name: Jose A. Pastrana, P.E.
Title: Director of Engineering
Phone Number: (281) 420 -7154
Facsimile Number: (281) 420 -6586
E -Mail Address: jose.pastrana(iirbaytown.org
CONSULTANT: RRJUS; EN ERS, INC.
Signature:
Printed Name:
Title:
Date Signed: If
Address for giving notices:
3100 Timmons Lane, Suite 500
Houston, TX 77027
Designated Representative (paragraph 6.02.A):
Name: Sujeeth Draksharam, P.G.
Title: Project Manager
Phone Number. (713) 334 -7300
Facsimile Number. (713) 334 -7303
E -Mail Address: sbdfirsirrusengineers.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 13 of 13
This is EXHIBIT A, consisting of 9 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT
CONSULTANT's Services
Article I of the Agreement is amended and supplemented to include the following agreement of the parties.
CONSULTANT shall provide Basic and Additional Services as set forth below.
PART 1 — BASIC SERVICES (Modified)
A 1.01 Prelhninar), Design Plrase
A. CONSULTANT shall:
I. 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 CONSULTANT's Basic Services, and assist OWNER in obtaining
such data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by CONSULTANT.
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's
requirements for the Project,
S. (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:
a. Coordination with TxDOT and Harris County;
b. Coordination of utilities, including, but not limited to:
(1) Identifying all existing utilities within the existing and proposed rights -of -way;
(2) Provide list of existing utilities and contact information;
(3) Meet with utility companies and provide information and schematics as necessary; and
(4) Determine any costs that will be required to relocate existing facilities;
c. Engagement of a registered professional land surveyor for existing right -of -way identification and
topographic survey.
d. Engagement of a subconsultant to prepare a geotechnical report for the Project, which will require
field exploration, laboratory testing and geotechnical design recommendations for the design of the
Page I of 9 Pages
(EXHIBIT A - Scope of Work)
proposed concrete pavement and other design features necessary for the development of the roadway
and appurtenances for the Project.
e. Engagement of a subconsultant to perform a wetlands determination and delineation;
f. Engagement of a subconsultant to prepare a drainage report with TxDOT Coordination;
g. Preparation of the following exhibits attachments for the Report:
(1) Aerial Exhibit, including exhibits showing the project limits and surrounding features identifying
notable features of interest, including drainage channels, Ooodplains, contours, pipelines,
roadways, future roadway alignments shown on the OWNER'S (or other municipality's) Major
Thoroughfare Plan, latest available aerial photographs, and developments;
(2) Schematic Layout of Roadway, which shall include a plan view layout with sufficient detail to
insure that the final design can be constructed without any major issues. Also, the location of the
proposed roadside ditches will be shown. The schematic layout shall be at a scale of 1" r 40' on
1 I "xlT' sheets. The schematic shall have Cover sheet with Vicinity Map with project limit,
pavement marking concept, proposed typical sections (drawn at 1 " -20' horizontal and 1" 2'
vertical scale on I I "x 17" sheets) and location of soil borings.
(3) Cost Estimates, including preliminary construction cost estimate for the final recommendation
provided in this Preliminary Design Phase;
(4) Utility Tables,
(a) CONSULTANT shall coordinate with utility companies that have existing facilities in or
adjacent to the Project limits;
(b) CONSULTANT shall perform the following:
i. Level B SUE, including identifying all existing utilities within the existing and
proposed rights -of -way and including a list of existing utilities with owner and
contact information.
ii. Meet with the utility companies and provide information and schematics as
necessary.
iii. Identify major utilities that will potentially require relocation.
iv. Identify any utilities that are within dedicated easements that will be within the
proposed right -of -way. These are utilities that will most likely require Harris
County to pay for their relocation.
(c) CONSULTANT shall provide a table with the each utility identified along with the
contact information.
(d) CONSULTANT shall provide a table of the existing utilities and shall include ID number
for the potential conflicts, stations at the left right -of -way, the centerline, and right right -
of -way, the owner of the utility, contact name, address, phone number, and email address,
any notes such as it may be in possible conflict.
(5) Existing ROW Maps provided by the OWNER
(6) ROW Acquisition Table along with the proposed ROW maps.
(7) Geotechnical Investigation, which will be a standalone report consisting of field exploration,
laboratory testing and geotechnical design recommendations for the design of the proposed
concrete pavement and other design features necessary for the development of the roadway and
appurtenances for the Project. CONSULTANT shall receive the approval of the report from
HCFCD for any facilities that are to be maintained by HCFCD. The report shall be submitted to
the OWNER'S Project Manager as soon as the report is complete.
Page 2 of 9 Pages
(EXHIBIT A - Scope of Work)
(8) Environmental Site Assessment, Wetland Assessment, Delineation, and Concurrence, Threatened
and Endangered Species, Cultural Resources and Concurrence, which will include a preliminary
assessment of the wetland and a letter ofdetermination.
(9) Drainage Report (I-ICFCD), which shall be a standalone letter drainage report in accordance with
the current 14CFCD, TXDOT and I-IC Guidelines, and to assure that the Project will have no
adverse impact to surrounding water surface elevations for up to and including the 100 -year
storm event. Appropriate mitigation measures shall be identified and mitigation can be
coordinated or accommodated with the ongoing HCPID project. The letter report shall be
submitted to the OWNER'S Project Manager as soon as report is complete.
(10) Variances, if applicable
(a) Should any variances be required, a letter request shall be submitted to OWNER
(b) The variance shall include the variance sought along with the reasons the variance is
necessary. The requested should include support documentation from other design
guidelines and any risk (pros and cons) associated with the request.
(I I )Tratiic Signals.
(a) Revisions to the traffic signals are anticipated and it's understood that TxDOT shall require
the signal to be in conformance with current standards.
(b) Temporary signals and final signals in conformance to the ultimate roadway improvements
shall be required.
7. (Modified) Prepare a preliminary engineering letter report at 50°. o design (the "Report") which for each
design alternative will, as appropriate, contain schematic layouts, sketches, schedule of events, and
conceptual design criteria with appropriate exhibits to indicate the agreed -to requirements,
considerations involved, and those alternate solutions available to OWNER which CONSULTANT
recommends. This Report will be accompanied by CONSULTANT's opinion of Total Project Costs for
each solution which is so recommended for the Project with each component separately itemized,
including the following, which will be separately itemized: opinion of probable Construction Cost,
allowances for contingencies and for the estimated total costs of design, professional, and related
services provided by CONSULTANT and, on the basis of information furnished by OWNER,
allowances for other items and services included within the definition of Total Project Costs.
8. Furnish two (2) review copies of the Report and a copy of the Report in electronic format to OWNER
within fifty (5) days of authorization to begin services and review it with OWNER.
9. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Report and a copy of the revised Report in electronic formal to the
OWNER within ten (10) days after completion of reviewing it with OWNER.
B. (Modified) CONSULTANT's services under the Preliminary Design Phase will be considered complete on
the date when the final copies of the revised Report have been delivered to and accepted by OWNER.
A 1.02 Design Phase
A. Upon written authorization from OWNER, CONSULTANT shall:
I. (Added) Attend meetings with OWNER to receive input into OWNER'S requirements for the Project
and to discuss and finalize design criteria and acquire pertinent information regarding the Project.
Page 3 of 9 Pages
(EXHIBIT A - Scope of Work)
2. (Modified) Prepare final Drawings indicating the scope, extent, and character of the Work to be performed
and furnished by Contractor. Specifications will be prepared, where appropriate, in conformance with the
16- division format of the Construction Specifications Institute or other format agreed to in writing by
OWNER and CONSULTANT.
3. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for
permits from or approvals of governmental authorities having jurisdiction to review or approve the final
design of the Project and assist OWNER in consultations with appropriate authorities.
4. Provide OWNER an opinion of probable Construction Cost and Total Project Costs and advise OWNER
of any adjustments thereto known to CONSULTANT.
5. Make appropriate recommendations to the OWNER to adjust the Project size, quality or budget if at any
time the Engineer's estimate of the probable Construction Cost or Total Project Costs exceed the
OWNER'S budget
6. Perform or provide the following additional Design Phase tasks or deliverables:
a. Prepare permit / construction documents as directed by OWNER, which documents shall assure
compliance with all jurisdictional agencies having authority over the project site and include
coordination of utilities, roadway design along with cross sections, profiles, drainage system and
appurtenances.
b. Submit required construction documents prepared by CONSULTANT to the OWNER and all
appropriate regulatory authorizes to secure necessary construction permits and monitor and respond to
agency comments as required to facilitate permit issuance.
7. Furnish three (3) review copies of the 90% submittal, including Bidding Documents along with a
revised opinion of probable Construction Cost to OWNER within twenty (20) calendar days of
authorization to begin final design services and review it with OWNER.
8. Within seventy (30) calendar days of authorization to begin final design services, f imish three (3) review
copies of the I00° /a Bidding Documents for review and approval by OWNER, its legal counsel, and
other advisors, as appropriate, review it with OWNER, and assist OWNER in the preparation of other
related documents.
9. Revise the 100% Bidding Documents in response to OWNER's and other parties' comments, as
appropriate, and submit three (3) final copies of the Bidding Documents and a revised opinion of
probable Construction Cost to OWNER along with 15 CD's of the same within ten (10) calendar days
alter receiving OWNER'S REVIEW comments for the 100% Bidding Documents.
10. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation,
including plans and specifications, were originally prepared to reflect these items, as reasonably requested
by OWNER, so long as this/thesc rcquest(s) istare made prior to the preparation of the Final bid
documents.
B. In the event that the Work designed or specified by CONSULTANT is to be performed or furnished under
more than one prime contract, or if CONSULTANT's services are to be separately sequenced with the work of
one or more prime Contractors (such as in the case of fast - tracking), OWNER and CONSULTANT shall, prior
to commencement of the Design Phase, develop a schedule for performance of CONSULTANT's services
during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to
sequence and coordinate properly such services as are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or
not the work under such contracts is to proceed concurrently.
Page 4 of 9 Pages
(EXHIBIT A - Scope of Work)
C. The number of prime contracts far Work designed or specified by CONSULTANT upon which the
CONSULTANT's compensation has been established under this Agreement is one (1).
D. (Modified) CONSULTANT's services under the Design Phase will be considered complete on the date when
the submittals required by paragraph A 1.02A.9 have been delivered to and accepted by OWNER.
A 1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction
Cost as determined in the Design Phase, and upon written authorization by OWNER to proceed,
CONSULTANT shall:
I. Assist OWNER in advertising for and obtaining bids for the Work.
2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables:
a Meintan a plan holders list.
b. Issue bid documents to prospective bidders and up to three plan rooms as requested by OWNER
c. Perform and provide bid evaluation and a bid tabulation.
d. Recommend award to the OWNER.
e. Attend the Council meeting for award of the contract for the Project if requested by OWNER.
f. Provide three copies of conformed contract documents to the OWNER for its use in executing
the construction contract.
g. Provide a CD with the conformed contract documents after the Project has been awarded.
5. (Modified) Attend the Mandatory Prc -Rid Conference, any site visit for prospective bidders, and if
requested by OWNER the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist
OWNER in both evaluating Bids or proposals and awarding contracts for the Work.
6. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A1.04 Consrrncdon Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, CONSULTANT shall:
1. General Administration of Consinicrion Coniracr. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of CONSULTANT as assigned in said General Conditions shall not be
modified, except as CONSULTANT may otherwise agree in writing. All of OWNER's instructions
to Contractor will be issued through CONSULTANT, who shall have authority to act on behalf of
OWNER in dealings with Contractor to the extent provided in this Agreement and said General
Conditions except as otherwise provided in writing.
Page 5 01`9 Pages
(EXHIBIT A - Scope of Work)
2. (Modified) Selecting Independent Testing Lahoratorr. Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01, if any.
3. Conferences. Participate in a Pre-Construction Conference prior to commencement of Work at the
Site or other location chosen by OWNER and attend construction meetings requested by the
OWNER.
4. Bccvelines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating
the Work which in CONSULTANT's judgment are necessary to enable Contractor to proceed,
including providing construction staking based upon the construction plans.
5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests, and as CONSULTANT and/or OWNER
deems necessary, in order to observe as an experienced and qualified design professional the
progress and quality of the Work. Such visits and observations by CONSULTANT, and the
Resident Project Representative, if any, are not intended to be exhaustive or to extend to every
aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in
progress beyond the responsibilities specifically assigned to CONSULTANT in this Agreement
and the Contract Documents, but rather are to be limited to spot checking, selective sampling,
and similar methods of general observation of the Work based on CONSULTANT's exercise of
professional judgment as assisted by the Resident Project Representative, if any. Based on
information obtained during such visits and such observations, CONSULTANT will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and
CONSULTANT shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of CONSULTANT's visits to, and representation by the Resident
Project Representative, if any, at the Site, will be to enable CONSULTANT to better carry out
the duties and responsibilities assigned to and undertaken by CONSULTANT during the
Construction Phase, and, in addition, by the exercise of CONSULTANT's efforts as an
experienced and qualified design professional, to provide for OWNER a greater degree of
confidence that the completed Work will substantially conform to the Contract Documents and
that the integrity of the design concept of the completed Project as a functioning whole as
indicated in the Contract Documents has been implemented and preserved by Contractor.
CONSULTANT shall not, during such visits or as a result of such observations of Contractor's
work in progress, supervise, direct, or have control over Contractor's work, nor shall
CONSULTANT have authority over or responsibility for the means, methods, techniques,
sequences, or procedures of construction selected by Contractor, for safety precautions and
programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and performing the Work. Accordingly,
CONSULTANT neither guarantees the performance of any Contractor nor assumes
responsibility for any Contractor's failure to furnish and perform its work in accordance with the
Contract Documents.
6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, CONSULTANT believes that
such work will not produce a completed Project that substantially conforms to the Contract
Documents or that it will prejudice the integrity of the design concept of the completed Project as a
functioning whole as indicated in the Contract Documents.
7. Clarifications and Irlerpretallons; Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from the
Page 6 of 9 Pages
(EXHIBIT A - Scope of Work)
Contract Documents. CONSULTANT may issue Field Orders authorizing minor variations from lire
requirements of the Contract Documents.
8. Change Orclers and {York Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Strop Drcnvings and Samples. Review and approve or take other appropriate action in respect to Shop
Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the design
concept of the completed Project as a functioning whole as indicated in the Contract Documents.
Such reviews and approvals or other action will not extend to means, methods, techniques, sequences
or procedures of construction or to safety precautions and programs incident thereto.
CONSULTANT has an obligation to meet any Contractor's submittal schedule that has earlier been
acceptable to CONSULTANT.
10. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or- equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
II. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or die Contract Documents. CONSULTANT's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. CONSULTANT shall be entitled to rely on the results of such tests.
12. (Modified) Disagreenrenis between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not show
partiality to OWNER or Contractor.
13. CONSULTANT will prepare schedule updates and activity reports that will be submitted with
monthly invoices.
14. Applicatians far Paj�ment. Based on CONSULTANT's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that CONSULTANT recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute CONSULTANT's
representation to OWNER, based on such observations and review, that, to the best of
CONSULTANT's knowledge, information and belief, Contractor's work has progressed to the
point indicated, the quality of such work is substantially in accordance with the Contract
Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract
Documents and to any other qualifications stated in the recommendation), and the conditions
precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as
it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price
work, CONSULTANT's recommendations of payment will include final determinations of
quantities and classifications of Contractor's work (subject to any subsequent adjustments
allowed by the Contract Documents). The responsibilities of CONSULTANT contained in
paragraph A 1.04.A.5.a are expressly subject to the limitations set forth in paragraph A 1.04.A.5.b
and other express or general limitations in this Agreement and elsewhere.
Page 7 of 9 Pages
(EXHIBIT A - Scope of Work)
b. By recommending any payment, CONSULTANT shall not thereby be deemed to have
represented that observations made by CONSULTANT to check the quality or quantity of
Contractor's work as it is performed and furnished have been exhaustive, extended to every
aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the
responsibilities specifically assigned to CONSULTANT in this Agreement and the Contract
Documents. Neither CONSULTANT's review of Contractor's work for the purposes of
recommending payments nor CONSULTANT's recommendation of any payment including final
payment will impose on CONSULTANT responsibility to supervise, direct, or control
Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of
construction or safety precautions or programs incident thereto, or Contractor's compliance with
Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will
also not impose responsibility on CONSULTANT to make any examination to ascertain how or
for what purposes Contractor has used the moneys paid on account of the Contract Price, or to
determine that title to any portion of the work in progress, materials, or equipment has passed to
OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there
may not be other matters at issue between OWNER and Contractor that might affect the amount
that should be paid.
15. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this
information as provided by Contractor, and deliver three (3) copies of the same to OWNER.
b. (Modified) Receive and review "as- built, documents, bonds, certificates, or other evidence of
insurance not previously submitted and required by the Contract Documents, certificates of
inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under
paragraph A 1.04.A.9, and the annotated record documents which are to be assembled by Contractor
in accordance with the Contract Documents to obtain final payment. The extent of such
CONSULTANT's review will be limited as provided in paragraph A1.04.A.9.
c. CONSULTANT shall transmit these documents to OWNER within thirty days of receipt of
documents from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a format approved
by the OWNER and on mylar showing appropriate record information based on Project annotated
record documents received from Contractor.
16. Final Completiorr. Promptly alter notice from Contractor that Contractor considers the entire Work ready
for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if die
Work is finally complete. CONSULTANT shall prepare punch -lists as necessary for the Work to achieve
final completion.
17. (Modified) Final Notice of Acceptabilin, of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to
the best of CONSULTANT's knowledge, information and belief and upon the exercise of
CONSULTANT'S due diligence, the Work is acceptable and is in compliance with the Contract
Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.03.C,
Construction Phase services may be rendered at different times in respect to the separate contracts.
Page 8 of 9 Pages
(EXHIBIT A - Scope of Work)
C. Limitation of Respo►rsibilities. CONSULTANT shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. CONSULTANT shall not be responsible for failure of any Contractor to perform
or furnish the Work in accordance with the Contract Documents.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Semites Requiring OWNER 's Antliori_ation in Advance
Not included
A2.02 Reg►►ired 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
pan of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT_
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 CONSULTANT 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 fumish copies of OWNER's standard forms,
conditions, and related documents for CONSULTANT to include in the Bidding Documents, when applicable.
B. Furnish to CONSULTANT 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 CONSULTANT's assessment of initially - available Project information and data and
upon CONSULTANT's written request, furnish or otherwise make available such additional available Project related
information and data as is reasonably required to enable CONSULTANT to complete its Basic and Additional Services.
I. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize CONSULTANT to provide Additional Services as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public and private
property as required for CONSULTANT to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by CONSULTANT (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 I of 2 Pages
(Exhibit B -- OWNER's Responsibilities)
1-I. (Deleted).
I. (Deleted).
J. Advise CONSULTANT 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 oft Pages
(Exhibit B OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Payments to CONSULTANT for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and supplemented
to include the following agreement of the parties:
ARTICLE 4 — PAYMENTS TO THE CONSULTANT
Initial:
OWNER
CONSULTANT
shall be tendered no more often than once a month
for all of the services performed during the
applicable month.
C4.02 For Basic Services Hcn ing An Undeterntined
C4.01 For Basic Services Having A Determined Scope — Direct Labor Costs Tines a Factor
Scope Cost not to Exceed Method of Pgmtent Method of Patwient
A. OWNER shall pay CONSULTANT for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed amount of
$164,988, based upon the rate schedule, which is
attached as Appendix I of Exhibit C and
incorporated herein for all intents and purposes.
This amount does not include those
CONSULTANT'S Consultant's charges as provided
below in this Article 4, Subparagraph C4.05, and
will be distributed at the completion of each of the
phase in the following amount:
a. Preliminary Design Phase ..............$4,580.00
b. Design Phase ......... ....................$150,476.00
c. Bid Phase ................. ......................$1,260.00
d. Construction Phase .. ......................$8,672.00
2. (Deleted).
3. The cost not to exceed includes
compensation for CONSULTANT's services and
services of CONSULTANT's Consultants (with the
exception of those outlined in paragraph C4.05), if
any. Appropriate amounts have been incorporated
in the cost not to exceed to account for labor,
overhead, and profit.
4. Deleted.
5. The portion of the amount billed for
CONSULTANT's services will be based upon total
services actually completed during the billing
period, which shall be a calendar month. Invoices
A. (Not Used).
C4.03 For Additional Services
A. OWNER shall pay CONSULTANT for
Additional Services as follows:
1. General. For services of CONSULTANT's
employees engaged directly on the Project pursuant
to paragraph A2.01 or A2.02 of Exhibit A of the
Agreement, except for services as a consultant or
witness under paragraph A2.01.A.13, an amount
based upon the actual hours worked plus
Reimbursable Expenses. Additional Services shall
not be performed without the prior written consent
of the OWNER.
C4.04 For Reimbursable Erpeitses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay CONSULTANT for
Reimbursable Expenses as the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
shall be liable for any reimbursable expenses, the
CONSULTANT must obtain prior written approval
of the OWNER of any expense that exceeds $1,000
for which the CONSULTANT seeks
reimbursement. Total Reimbursable Expenses
shall not exceed $1,000.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Page I oft Pages
(Exhibit C - Basic Services With Determined Scope Cost Not to Exceed Method)
Bidding Documents, and similar Project - related items in
addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to CONSULTANT for
Reimbursable Expenses will be the Project- related
internal expenses actually incurred or allocated by
CONSULTANT, 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 For CONSULTRNT's• Carsidlant's Charges
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the
amounts billed by ENGINEER's Consultants to
ENGINEER times a Factor of (,LO). The consultant
charges shall not exceed the following amounts specified
for each of the following services, unless approved in
writing by the OWNER. The charges include the factor,
and shall not exceed the following without prior written
consent of the OWNER.
Surveying ........................ ...................... $4,400.00
Geotechnica I ..........
............................... $2,200.00
Environmental
................ ......................$1,650.00
Drainage ................
............................... $5,000.00
Traffic Signal .................
.....................$36,813.70
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 Provisiotrs Concerning Paynrent
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 Direct Labor Costs 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 - RATE SCHEDULE
Hourly Rates for Consultant Staff:
All services are to be billed on an hourly basis based on time and materials and based upon the following rates:
POSITION
Senior Project Manager
HOURLY
RATE
S 186.00
Senior En gineer
$ 168.00
Senior Project Engineer
$ 150.00
EIT 11
S 120.00
CADD Tech 11
$ 90.00
Admin [I
$ 78.00
Page 1 of I Pages
(Appendix 1 of Exhibit C Reimbursement of Costs)
APPENDIX 2 OF EXHIBIT C _ REIMBURSEMENT OF COSTS
External Reproduction and Deliveries: Cost plus 10 00
Internal expenses: Cost
Mileage: IRS Rate
Travel: Cost
Page I of I Pages
(Appendix 2 of Exhibit C Reimbursement of Costs)
This is EXHIBIT E, consisting of ? pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF TIIE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
CONSULTANT:
To:
And To:
OWNER
CONTRACTOR
Initial:
OWNER
CONSULTANT
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 oft 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 CONSULTANT.
3. Said Notice is given as to the best of CONSULTANT'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 CONSULTANT has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR's work) under CONSULTANT's Agreement with OWNER and applies to facts that are
within CONSULTANT's knowledge or could or should have been ascertained by CONSULTANT as a result of
carrying out the responsibilities specifically assigned to CONSULTANT under CONSULTANT's agreement
with OWNER.
S. (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 CONSULTANT knew or should have known of
such failure and failed to notify the Owner of such failure and lake 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? pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 14vurance
Throughout the term of this Agreement, the CONSULTANT 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 CONSULTANT's operations and/or performance of the work under this Agreement,
whether such operations and/or performance be by the CONSULTANT, 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 CONSULTANT'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 CONSULTANT's insurance and shall not contribute to it. Further,
the CONSULTANT 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 at least as broad as ISO CG 00 01 04 13
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 $500,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $1,000,000
a. For all engineers, and/or design companies.
Page I of Pages
(Exhibit G - Insurance)
b. Claims -made form is acceptable.
c. Coverage will be in florce for three (3) years after project is completed.
Upon execution of this contract, CONSULTANT shall rile 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 CONSULTANT 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. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E & O can be on claims -made form.
d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general
liability and business automobile policies.
e. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certiricates 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.
f. 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 C - Insurance)
This is EXHIBIT K. consisting of? pages, referred to in and part of
the Agreement between OWNER and CONSULTANT for
Professional Services dated
Initial:
OWNER _
CONSULTANT
Indemnification
CONSULTANT 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 CONSULTANT OR THE CONSULTANT'S AGENT,
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY
OVER WHICH THE CONSULTANT EXERCISES CONTROL
(COLLECTIVELY CONSULTANT'S PARTIES). IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
CONSULTANT AND OWNER, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY
CONSULTANT TO INDEMNIFY AND PROTECT OWNER FROM
THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN
WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS
WELL AS THE CONSULTANT'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 CONSULTANT'S PARTIES. IN THE EVENT THAT ANY
ACTION OR PROCEEDING IS BROUGHT AGAINST THE
OWNER FROM WHICH THE OWNER IS INDEMNIFIED,
CONSULTANT 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.
CONSULTANT 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
CONSULTANT's work to be performed hereunder. This release shall apply with
respect to CONSULTANT'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 A reement.